PLCCS 2016 Judgments

2016 P L C (C.S.) 454

[Federal Service Tribunal]

Before Sheikh Ahmad Farooq, Chairman and Syed Nasir Ali Shah, Member

MUHAMMAD SOHAIL BUTT

Versus

CHIEF (MGT CUSTOMS) REVENUE DIVISION FEDERAL BOARD OF REVENUE, ISLAMABAD and another

Appeal No.213(L)CS of 2015, decided on 6th October, 2015.

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

----R. 3---Government Servants (Efficiency and Discipline) Rules, 1973, R.6-A---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Allegations of inefficiency, misconduct and corruption---Minor penalty, enhancement of---Withdrawal of representation---Effect---Minor penalty of "withholding of four increments" (without cumulative effect) was imposed upon the appellant by the Authorized Officer but "Authority"/"Appellate Authority" modified the said minor penalty to major penalty of "removal form service"---Validity---Departmental appeal filed by the appellant was to be heard and decided by the "Appellate Authority" and not by the "Authority"---Respondent (official) was not sure whether he was acting as "Authority" or "Appellate Authority"---Respondent (official) had arrogated to himself both positions as "Authority" and "Appellate Authority"---Power of revision was available to the "Authority" and not to the "Appellate Authority"---Power conferred under S.6-A of Government Servants (Efficiency and Discipline) Rules, 1973 was revisional and not appellate and same had to be exercised suo motu---Respondent (official) had acted as "Appellate Authority" and not as "Authority"---Revisional power was not available to the respondents (official), he had exercised revisional power in his appellate jurisdiction and not suo motu---Section 6-A of Civil Servants (Appeal) Rules, 1977 empowered the Appellate Authority to confirm, set aside or modify the previous order---Authority was required to specify the reasons while enhancing the penalty---Authority merely mentioned in the show cause notice that the penalty imposed by the Authorized Officer was inadequate and did not commensurate with the gravity of the charges established against the appellant---Such was a vague and skimpy statement---No reasons for enhancement of penalty had been given---Authority was not justified in imposing impugned major penalty upon the appellant---Allegation of posting financial loss to the government exchequer could not be foisted upon the appellant---Withdrawal of departmental representation would not have the effect of forfeiting vested right of appellant to assail the imposition of penalty before the Service Tribunal---Inquiry report on the basis of which minor penalty was imposed on the appellant was found to be unfounded and misconceived---No justification existed for imposition of minor penalty upon the appellant---Impugned orders were set aside and appellant was directed to be reinstated into service with all the consequential back benefits---Appeal was accepted in circumstances.

G.M. Pakistan Railways and others v. Muhammad Rafique 2013 SCMR 372 and Secretary, Government of the Punjab (C&W) and others v. Ikramullah and 5 others 2013 SCMR 572 rel.

(b) Estoppel---

---No estoppel could operate against law.

Appellant in person along with Asif Nazir Awan for Appellant.

Muhammad Nawaz Waseer for Respondents.

Date of hearing: 1st October, 2015.

2016 P L C (C.S.) 389

[Gilgit-Baltistan Chief Court]

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

MUMTAZ ALAM and 3 others

Versus

PROVINCIAL GOVERNMENT, GILGIT-BALTISTAN through Chief Secretary and 5 others

Writ Petition No.16 of 2012, decided on 11th August, 2015.

Civil service---

----Appointment against the posts of teacher (BS-14)---Discrimination---Distribution/allocation of posts---Scope---Contention of petitioners was that respondents belonging to another area and Union Council were not entitled to be appointed against the posts advertised---Validity---Petitioners were four in number while respondents were two persons---Question was that in case of acceptance of present writ petition who among the four petitioners would be selected for appointment against the posts occupied by the respondents---Petitioners had not been arrayed correctly in the present writ petition---Posts advertised were of BPS-14 and distribution/allocation of such posts on the basis of areas of Union Council was wrong and against the basic principle of merit---Government, in the present case had not observed such allocation or distribution policy---Government was directed by the Chief Court to avoid such trend in the future---Petitioners were bound to establish that they were entitled to be appointed in preference of respondents or as a result of any discrimination---Nothing was on record that petitioners were entitled to be appointed against the posts in preference to respondents nor petitioners had showed any discrimination on the part of department with regard to appointment against the posts advertised---Writ petition was dismissed in circumstances.

Haji Mirza Ali for Petitioners.

Assistant Advocate General for Respondents Nos.1 to 4.

Johar Ali for Respondents Nos.5 and 6.

Basharat Ali, Legal Advisor for Education Department.

Hazrat Khan representative of Education Department in Person.

2016 P L C (C.S.) 416

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

HUSSAIN

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 4 others

Writ Petition No.119 of 2015, decided on13th October, 2015.

Civil service---

----Payment of arrears of salaries---Scope---Petitioner-employee had not applied to the authorities for payment of his arrears of salaries---Nothing was on record that petitioner-employee had been denied payment of his arrears of salaries by the department on any ground---Petitioner-employee was bound to move the Service Tribunal for smooth payment of his monthly salary---Writ jurisdiction could not be invoked for payment of salaries---Writ petition was not competent---Petitioner-employee would be free to move the relevant forum for redressal of his grievance of payment of arrears of salary as well as regular payment of monthly salaries---Writ petition was dismissed in limine.

Johar Ali for Petitioner.

2016 P L C (C.S.) 524

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

FAZILA SHAHEEN

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 5 others

Writ Petition No.96 of 2012, decided on 25th March, 2015.

Civil service---

----Death of employee while in service---Family package---Appointment in government job of any member of family of deceased---Scope---Petitioner was widow of deceased government employee who was Lab. Assistant---Husband of petitioner died while in service---Petitioner was entitled to avail the benefits of family package---Government had undertaken to appoint any member of the family of deceased government employee on permanent basis---Prayer of petitioner that she be appointed as Lab. Assistant could not be accepted as some special educational qualification/standard was required---Petitioner should fulfill such standards or otherwise she could not be declared entitled to the suit post simply became she was widow of a deceased government employee---Government was directed to appoint the petitioner against any post that she was eligible to---Writ petition was accepted accordingly.

Khurshid-ul-Hassan for Petitioner.

Assistant Advocate General for Respondents Nos.1 to 4.

Kamal Hussain for Respondents Nos.5 and 6.

Basharat Ali, Legal Advisor for Education Department.

Date of hearing: 25th March, 2015.

2016 P L C (C.S.) 656

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

ATTAULLAH

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 7 others

Writ Petition No.109 of 2014, decided on 20th October, 2015.

(a) Civil service---

----Work charge appointment---Scope---Service of work charge appointee would be terminated as and when the contractor completed the project---Parties had agreed to adhere to terms and conditions of service---Terms and conditions of work charge service, were applicable to the case of petitioner-employee---No such terms and conditions of service of the petitioner-employee had been violated by the department---Nothing was on record with regard to discontinuance of salaries of petitioner-employee---Writ petition was not maintainable in its present form which was dismissed in circumstances---Petitioner-employee would be at liberty to move any forum for the remedies sought through present writ petition if relevant law allowed so.

(b) Civil service---

----'Work charge appointment'---Scope---Service of work charge appointee would be terminated as and when the contractor completed the project.

(c) Words and phrases---

----'Work charge appointment'---Meaning.

Basharat Hussain and Tanveer Akhtar for Petitioner.

Assistant Advocate General for Respondents.

Date of hearing: 20th October, 2015.

2016 P L C (C.S.) 674

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Mohammad, JJ

MEHMOOD GHAZNAVI

Versus

KIU through Vice-Chancellor and 2 others

Writ Petition No.112 of 2013, decided on 26th March, 2015.

Civil service---

----Upgradation of post---Scope---Petitioner-employee was appointed as Stenographer in BPS-15---Post of Stenographer was upgraded from BPS-15 to BPS-16---Prior to said upgradation petitioner-employee was transferred from Stenographer (BS-15) to Administrative Officer (BS-16)---Plea of petitioner-employee was that he had worked as Stenographer and in that capacity he was entitled to be promoted to the post of Private Secretary (BS-17)---Validity---Promotion of petitioner-employee as Private Secretary from the post of Stenographer was possible only when he did not accept his promotion to the post of Administrative Officer (BS-16)---No discrimination had been pointed out with the petitioner-employee with regard to promotion against the suit post---Petitioner-employee had not pointed out promotion of any person depriving him from his due right of promotion if any---Writ petition was dismissed in circumstance---Chief Court observed that present order would not operate as estoppel for promotion of petitioner-employee if he was otherwise eligible for the same.

Munir Ahmed and Burhan Wali for Petitioner.

Mir Akhlaq Hussain Legal Advisor to KIU.

Date of hearing: 26th March, 2015.

2016 P L C (C.S.) 712

[Gilgit-Baltistan Chief Court]

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

TAHIRA BATOOL

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 3 others

Writ Petition No.33 of 2014, decided on 7th April, 2015.

Civil service---

----Advertisement for the posts of Range Forest Officer---Petitioner having degree in M.Sc. Wildlife Management---Academic qualification of petitioner was a qualification with regard to the field of subject post---Other provinces of Pakistan had recognized M.Sc. Wildlife Management as a required academic qualification for competing for the suit post---Forest Department had a sub-department of wildlife---Petitioner was holding not only basic required qualification for contesting the suit post but same was a relevant and necessary academic qualification also---Department was directed by the Chief Court to amend the recruitment rules with regard to recruitment to the suit post by including M.Sc. or B.Sc. Wildlife Management as required educational qualification---Petitioner had joined the written test for the suit post---Joining the said test of petitioner be treated as correct---Writ petition was allowed in circumstances.

Amjad Hussain for Petitioner.

Assistant Advocate General for Respondents Nos.1 to 3 assisted by Tanveer Akhtar Legal Advisor Forest Department G.B. Gilgit.

Jibran Haider, SDFO for Respondent No.3.

Meher Muhammad, Incharge FPSC Regional Office Gilgit, for Respondent No.4.

Date of hearing: 7th April, 2015.

2016 P L C (C.S.) 855

[Gilgit-Baltistan Chief Court]

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

Mst. GUL HASEENA

Versus

PROVINCIAL GOVERNMENT, G.B. through Chief Secretary and 3 others

Writ Petition No.82 of 2014, decided on 11th August, 2015.

(a) Civil service---

----Death of government employee during service---Departmental assistance package---Payment of---Scope---No material was on record that any amount was outstanding against the department as a part of any assistance package---Nothing was on record that any assistance package for legal heirs of deceased government employee was available at the time when deceased employee died---Legal representatives of the deceased government employee were not deprived of any right accrued to them in the year of death of civil servant---Writ petition was dismissed in circumstances.

(b) Civil service---

----Death of government employee during service---Appointment of any of the legal heirs of deceased in government employment---Scope---Petitioner was neither any legal heir of the deceased government employee who could be appointed in government service nor present writ petition was on behalf of any legal heir of the deceased government employee---Nothing was on record that any assistance package for legal heirs of deceased government employee was available at the time when deceased employee died---Legal representatives of the deceased government employee were not deprived of any right accrued to them at the relevant time---Writ petition was dismissed in circumstances.

Naseem Akhtar, Faiz-ul-Wahid and Shehzad Iqbal for Petitioner.

Assistant Advocate General for Respondents.

Date of hearing: 11th August, 2015.

2016 P L C (C.S.) 972

[Gilgit-Baltistan Chief Court]

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

ASHIA AKHTAR through Attorney

Versus

PROVINCIAL GOVERNMENT G.B. through Chief Secretary and 4 others

Writ Petition No.10 of 2012, decided on 11th August, 2015.

Civil service---

----Advertisement for appointment of Elementary School Teachers---Discrimination---Petitioner was bound to establish that she had qualified the test and interview entitling her to be appointed against the post---Nothing was on record with regard to entitlement of petitioner for her appointment against the said post---Petitioner had failed to establish that authorities displayed any discrimination by appointing any person who had secured a position worse than her---Writ petition was dismissed in circumstances. A & B

Haji Mirza Ali for Petitioner.

Asstt. A.G. for Respondents Nos.1 to 4.

Johar Ali for Respondent No.5.

Hazrat Khan, Rep. of Education Department.

2016 P L C (C.S.) 979

[Gilgit-Baltistan Chief Court]

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

SABIR ALI

Versus

PROVINCIAL GOVERNMENT OF G.B. through Chief Secretary and 3 others

Writ Petition No.109 of 2015, decided on 6th October, 2015.

Civil service---

----Absence from duty by the employee---Discontinuation of salary---Department directed District Accounts Officer for discontinuation of salary of petitioner-employee due to his absence from duty---Validity---Order for discontinuation of salary had not been challenged anywhere so far---Petitioner-employee might have challenged the same through writ petition filed by him prior to the present writ petition---No different circumstances had arisen giving any fresh cause of action for present writ petition---Department had right to take disciplinary action against the petitioner-employee if he remained absent from his duty---Impugned order was simple disciplinary action against the petitioner-employee and nothing new had been pointed out giving a new cause of action in the present petition---Petitioner-employee had not filed any application before the department explaining his position---Writ petition was dismissed in limine. A

Amjad Hussain for Petitioner.

Asstt. A.G. for Respondents.

2016 P L C (C.S.) 1087

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, J

Mst. NOSHEEN FATIMA

Versus

PROVINCIAL GOVERNMENT G.B. through Chief Secretary and 4 others

Writ Petition No.102 of 2011, decided on 12th August, 2015.

Civil service---

----Advertisement for appointment of teachers (BS-07)---Discrimination---Respondent had been appointed against a leave vacancy post soon after the subject test instead of appointing petitioner who had secured better position as compared to respondent---Department had malafidely regularized or adjusted services of respondent against a regular post---Department had not only violated merit but had also displayed discrimination---Department was directed by the Chief Court to pass similar order as had been passed in the name of respondent---Petitioner would be senior to the respondent and would remain so---If any financial loss was caused to State Treasury due to order of reckoning of services of respondent and petitioner then person responsible for so doing should be located and State Treasury be compensated by receiving the said amounts from salary or pension or commutation of said persons---Writ petition was allowed accordingly.

Amjad Hussain for Petitioner.

Asstt. A.G. for Respondents Nos.1 to 4.

Munir Ahmed for Respondent No.5.

Hazrat Khan, rep. of Education Department present in person.

Date of hearing: 12th August, 2015.

2016 P L C (C.S.) 1168

[Gilgit-Baltistan Chief Court]

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

MOHAMMAD ALI YOUGVI

Versus

DEPUTY COMMISSIONER/CHAIRMAN HOUSE ALLOTMENT COMMITTEE, SKARDU and another

Writ Petition No.54 of 2013, decided on 6th October, 2015.

Civil service---

----Allotment of official accommodation---Petitioner-employee being Deputy Commissioner at place "X" was allotted a government accommodation who thereafter was promoted and posted at place "Y" as Secretary Excise and Taxation and said accommodation was allotted to the respondent---Post of petitioner-employee was not transferable with Deputy Commissioner at place "X"---Government accommodation which petitioner-employee was occupying before his promotion was not designated house for Deputy Commissioner and same could be allotted to any officer of BPS-17 and above at place "X"--- Allotment of official accommodation in favour of respondent was not wrong ---Nothing was available on record that petitioner-employee could retain possession of official accommodation at place "X" indefinitely even after his promotion and transfer at place "Y"---Petitioner-employee had no justification to continue the retention of government accommodation at place "X" after his promotion and posting in the present post at place "Y"---Writ petition was based on mala fide which was not competent and was dismissed.

Manzoor Ahmed for Petitioner.

Assistant A.G. for Respondents.

2016 P L C (C.S.) 1175

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

MUHAMMAD HUSSAIN and 5 others

Versus

Haji MOHAMMAD ALI

C.Rev. No.14 of 2014, decided on 24th August 2015.

Civil service---

----Disciplinary proceedings---Initiation of---Scope---Appellate Court observed that application for issuance of copy of order dated 07-09-2013 was filed on 14-10-2013 i.e. after one month and seven days of the said order---Reader of court had malafidely mentioned the date of 07-09-2013 as a date of presentation of petition for copy of order dated 07-09-2013 to bring the appeal within time---Appellate Court had not initiated any disciplinary proceedings against the Reader of court---Avoiding of appellate court to take disciplinary action against the Reader of court was an irregularity in the proceedings of said court as well as of the Trial Court---Appellate Court had not afforded chance of cross-examination to the parties while recording statement of Reader---Impugned order was bad in the eye of law which was set aside---Case was remanded to the Appellate Court to pass order afresh after recording statement of Reader of court if not already recorded---Appellate Court was directed to take disciplinary action against the Reader.

Mir Nisar Hussain for Petitioners.

2016 P L C (C.S.) 26

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi and Sardar Abdul Hameed Khan, JJ

MUHAMMAD ASIF QURESHI

Versus

EHTESAB BUREAU through Chairman

Civil Appeal No.5 of 2004, decided on 2nd April, 2015.

Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001)---

----Ss. 10 & 11---Azad Jammu and Kashmir Official Misdemeanor Act, 1948, S.4---Azad Jammu and Kashmir Prevention of Corruption Act, 1950, S.5(2)---Setting aside of appointment order---Powers of Ehtesab Court---Scope---Appellant being qualified and hailing from the concerned constituency, was appointed against post of Junior Clerk by Competent Authority---Appellant who was confirmed against said post, had continuously been performing his duties against said post honestly---Neither any complaint was made from any quarter, nor his appointment order was challenged before any forum, which had attained finality under law---Later on, after about 7 months of appointment of appellant, complainant filed application before Ehtesab Bureau to the effect that he was appointed at the said post---After investigation of the matter, a reference was submitted before Ehtesab Court against appellant---Ehtesab Court through impugned judgment, though exonerated appellant from all the charges against him, but set aside his appointment order being unlawful---Validity---Under provisions of Ss.10 & 11 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, Ehtesab Court was empowered to convict and punish, a holder of a public office who had committed offence of corruption and corrupt practices, but court was not empowered to set aside "appointment order" of holder of public office---Appellant, in the present case, was competently appointed and confirmed on the post of clerk in B-7 and his appointment order had attained finality---Appellant was also exonerated from all charges of cheating etc.---Impugned order passed by the Ehtesab Court to the extent of setting aside appointment order of the appellant was coram-non judice---Ehtesab Court being not empowered to set aside appointment order of the appellant, quashing of impugned judgment to that extent, was demand of law and justice---Impugned order to the extent of abrogating appointment order of appellant, was quashed being without lawful authority, in circumstances.

Muhammad Yaqoob Khan Mughal for Appellant.

Raja Ansar Tahir, Deputy Chief Prosecutor for Respondent.

2016 P L C (C.S.) 95

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

Khawaja AHMAD SAEED

Versus

SECRETARY LOCAL GOVERNMENT BOARD and 5 others

Writ Petition No.241 of 2014, decided on 24th February, 2015.

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

----S. 44---Writ petition---Civil service---Laches, principle of---Plea of petitioner was that respondent had been appointed as junior clerk (BPS-7) due to mala fide of Chairman Selection Committee who was his father---Validity---Appointment of respondent in presence of his father as Chairman Selection Committee could not be declared fair and transparent---Writ petition filed after a period of one year should not be dismissed on account of laches in the circumstances of the case---Appointment order of respondent was declared to have been made without lawful Authority---Post in question was declared vacant and Authority was directed to re-advertise the same---Appointment on the post in question should be made in a transparent manner---Selection Committee was supposed to perform its functions in a transparent and fair manner in accordance with Rules---Writ petition was accepted in circumstances.

Muhammad Ramzan v. Fazal Wahid and 5 others 2004 YLR 1050 ref.

Nadeem Ahmad and another v. Azad Government of the State Jammu and Kashmir through its Chief Secretary Muzaffarabad and 6 others 2010 PLC (C.S.) 336 and 1995 MLD 1350 distinguished.

Pakistan Post Officer v. Settlement Commissioner and others 1987 SCMR 1119; Jawad Mir Mohammadi and others v. Haroon Mirza and others PLD 2007 SC 472; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Azad Government of the State of Jammu and Kashmir v. Haji Sumandar Khan and others 1995 SCR 259; Faisal Shafique v. Vice-Chancellor AJ&K University and 5 others 1999 MLD 175 and Umar Hayyat v. Azad Government of the State of the Azad Jammu and Kashmir and others 1999 PLC (C.S.) 93 rel.

Kh. Tariq Samad for Petitioner.

Abdul Rasheed Abbasi for Private Respondents.

Sardar Abdul Sami Khan for Official Respondents.

2016 P L C (C.S.) 287

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

ANSAR ALI and others

Versus

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

Writ Petitions Nos.1426 of 2011 and 690 of 2012, decided on 17th June, 2014.

(a) Azad Jammu and Kashmir Revenue Department, Patwari, Qanoongo, Naib Tehsildar Service Rules , 1991---

----Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Constitutional petition---Appointment---Violation of promotion quotas against the post of Naib Tehsildar (BS-14) reserved for ministerial staff of Revenue, Rehabilitation and Stamps Department and for children of the officers and employees of Revenue Department, who were in service, retired or died during service---Prime Minister's directions were overlooked for the appointment of the petitioners---Review petitions against the orders of Prime Minister were rejected---Contention of the petitioners was that the authorities were not enforcing the right of promotion of the petitioners against their respective quotas despite passing of orders by the Prime Minister in this regard---Validity---Authorities had not controverted the claim for enforcement of 12% quota reserved for Revenue, Rehabilitation and Stamps Department and said quota had time and again been violated, therefore, the matter was ordered to be placed before the appropriate selection authority for consideration for promotion against the post of Naib Tehsildar as per rules---Claim of the petitioner for enforcement of 6.50% quota reserved for children of officers and employees of Revenue Department, who were in service, retired or died during service was contrary to statutory law; Secretary Board of Revenue had reported that against 6.50% quota 04 posts were requisitioned to the Public Service Commission, however, 02 were withdrawn from purview of the Public Service Commission and against the said 02 posts departmental appointments were made and remaining 02 posts were filled through Board of Revenue---Said quota had already been overflowed and no post was available for appointment against 6.50% quota, therefore, no relief could be extended to the petitioner---Illegal order of the Chief Executive could not be enforced through constitutional jurisdiction---In case of inconsistency between notification and statutory rules, the rules shall prevail---Constitutional petition filed for enforcement of 12% quota reserved for ministerial staff of Revenue, Rehabilitation and Stamps Department was accepted and the constitutional petition filed for enforcement of 6.50% reserved for children of the officers and employees of Revenue Department was dismissed in circumstances.

Major Muhammad Aftab Ahmed v. Azad Jammu and Kashmir Government 1992 SCR 3071; Muhammad Ejaz Khan and 12 others v. Mushtaq Ahmed Khan and 10 others 2010 SCR 201; Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others 2010 PLC (C.S) 924 rel.

(b) Interpretation of statutes---

----Policy or notification could not override statutory rules framed by Government under the statute---In case of inconsistency between notification and statutory rules, the rules shall prevail.

Muhammad Ejaz Khan and 12 others v. Mushtaq Ahmed Khan and 10 others 2010 SCR 201; Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others 2010 PLC (C.S) 924 rel.

Mushtaq Ahmed Janjua for Petitioner (in Writ Petition No.690 of 2012).

Kh. Muhammad Naseem for Petitioner (in Writ Petition No.1426 of 2011).

Ch. Shoukat Aziz, Addl. A.-G. for Respondents (in both the Writ Petitions).

Nemo for pro-forma Respondents Nos.7 to 11 (in Writ Petition No.1426 of 2011).

2016 P L C (C.S.) 392

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi and Sardar Abdul Hameed Khan, JJ

MUHAMMAD AZEEM MUJADADI and others

Versus

AZAD JAMMU AND KASHMIR SHARIAT COURT (COMPETENT AUTHORITY) through Registrar and others

Writ Petitions Nos.2273, 2285 and 2320 of 2014, decided on 4th February, 2015.

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

----S. 44---Civil Procedure Code (V of 1908), O.XXIII, R. 1 & O. II, R.2---Writ petition---Filing of second writ petition when previous such petition was pending on the same subject---Procedure---Civil service---Advertisement for the post of Tehsil Qazi---Ad hoc service, termination of--- Scope--- Acquiescence, principle of--- Applicability---Ad-hoc appointment could be terminated before completion of the period in case of returned candidates of Public Service Commission---Competent authority could terminate ad-hoc service without serving any notice at any time---Petitioners having accepted conditions of ad-hoc appointment, could not turn around from the conditions due to principle of acquiescence---Ad-hoc appointment did not create any right for regular service and appointee could be terminated at any time---First writ petition of the petitioners on the same facts and similar grounds was pending for adjudication---Petitioners should include the whole claim in their writ petition---Petitioners could withdraw first writ petition in case of formal defect or due to other sufficient grounds in the first writ petition subject to filing of fresh one---Petitioners, after appearing before the Public Service Commission, were placed at waiting merit list---All the grounds raised by the petitioners in subsequent writ petition were available to them at the time of filing of previous writ petition---Petitioners having relinquished various grounds in the earlier writ petition, subsequent writ petitions were barred---Withdrawal of earlier writ petition at belated stage could not cure the defect of subsequent writ petition which was filed without permission of Court---Petitioners were not entitled to discretionary relief who had suppressed facts and had not invoked writ jurisdiction with clean hands---High Court refused to allow withdrawal of previous writ petition at belated stage---Petitioners had committed misrepresentation and falsehood and they were not entitled for equitable relief of writ jurisdiction---Writ petitions were dismissed, in circumstances.

Azad Government v. Haji Mir Muhammad Naseer and 10 others 2000 SCR 109 and Ehsan-ur-Rehman and 10 others v. Arshad Ali Khan and 5 others 2012 PLC (C.S.) 795 ref.

Munawar Ahmed v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and 4 others 2013 SCR 280; Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141; Kashmir Mining and Development Works v. Azad Government and 5 others 1997 CLC 1771 and Ali Muhammad and others v. Admission Committee, University of Engineering and Technology, Peshawar and others PLD 1982 Pesh. 106 rel.

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

----S. 44---Civil Procedure Code (V of 1908), O.XXIII, R.1---Writ petition, withdrawal of---Scope---Writ petition could be withdrawn in case of formal defect or due to other sufficient grounds.

(c) Civil service---

----Ad hoc appointment---Scope---Competent authority could terminate ad-hoc service without serving any notice at any time.

Raja Muhammad Hanif Khan, Raja Sajjad Ahmed Khan and Bashir Ahmed Mughal for Petitioners.

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

Nemo for Respondent No.4 (in Writ Petition No.2320 of 2014).

Ch. Muhammad Mushtaq for Respondent No.5 (in Writ Petition No.2320 of 2014).

Raja Gul Majeed Khan for Interveners.

2016 P L C (C.S.) 510

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

TASNEEM GUL

Versus

AZAD JAMMU AND KASHMIR through Chief Secretary and 3 others

Writ Petition No.29 of 2004, decided on 22nd June, 2015.

(a) Pay Revision Scheme, 1983---

----Para. 7---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---Employee Headmistress of school---Advance increments, withdrawal of---Scope---Employee was granted three advance increments on the basis of passing M. Ed. Examination---Ombudsman had declared in some proceedings that three advance increments could not be awarded to M. Ed. degree holders---Validity---Petitioner-employee acquired higher qualification of M.Ed. after her appointment against the post of Headmistress (BS-17)---Basic qualification for initial recruitment of the post in question was M.A./M.Sc. (2nd Division) with B.Ed. (2nd Division)---Petitioner-employee was entitled for advance increments as M.Ed. qualification was higher to B.Ed.---No illegality was committed by the Government while granting advance increments to the petitioner-employee---Order for grant of advance increments had also been acted upon which was a valid order---Certain rights had been created in favour of petitioner-employee---Such order for grant of advance increments could not be rescinded to the detriment of those rights---Authorities could not be permitted to withdraw, rescind or abrogate order for grant of advance increments to the petitioner-employee---Petition for writ of prohibition was maintainable---Person who was not party to any lis or proceedings, such like decision could not be binding on such person---Authorities could not be allowed to withdraw valid order of advance increments issued in favour of employee on the basis of decision of Ombudsman in which she was not party---Department was restrained by High Court to withdraw, rescind, cancel or modify advance increments granted to the petitioner-employee---Writ petition was declined to the extent of setting aside the decision of Ombudsman as same was not binding on the petitioner-employee---Writ petition was disposed of accordingly.

Dr. Umar Ali v. N.W.F. Province and 2 others 1948 PLC (CS) 1569 ref.

Mahmooda Begum v. District Magistrate, Sialkot and 2 others PLD 1991 Lah. 230; Raja Shehryar v. Pakistan Council of Scientific and Industrial Research, through Chairman 2013 PLC (C.S.) 1125; Mst. Amina Begum v. Chairman, Karachi Development Authority and 5 others 1993 CLC 1307 and Ziarat Gul v. Qadar Gul and 7 others PLD 1989 Pesh. 14 rel.

(b) Administration of justice---

----Person not party to lis or proceedings, decision of Ombudsman could not be binding on such person.

Sardar Karam Dad Khan for Petitioner.

Abdul Waheed Khan Durrani for Respondents.

2016 P L C (C.S.) 659

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD BASHIR and 6 others

Versus

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

Writ Petition No.2667 of 2014, decided on 2nd February, 2015

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

----S. 44---Writ petition---Maintainability---Civil service---Charge sheet and show cause notice, issuance of---Scope---Writ petition was not maintainable against the issuance of charge sheet and show cause notice---Writ petition was dismissed in limine, however petitioners would be at liberty to place their defence before the proper forum as per law.

Dilshad Kausar v. Azad Jammu and Kashmir Government (Prime Minister) through Chief Secretary and 2 others 2005 PLC (CS) 1048 and Ghulam Mehmood Qureshi v. Federation of Pakistan 2003 PLC (CS) 645 ref.

Dilshad Kausar v. Azad Jammu and Kashmir Government (Prime Minister) through Chief Secretary and 2 others 2005 PLC (CS) 1048; Ghulam Mehmood Qureshi v. Federation of Pakistan 2003 PLC (CS) 645; Muhammad Fayyaz v. Province of Punjab 1994 PLC (C.S.) 697; Muhammad Javed v. Executive District Officer (Education) Sialkot and 2 others PLJ 2002 Lah. 1393 and Shaheen Asad v. Azfar Yaseen and 4 others 2001 PLC (C.S.) 93 rel.

Ms. Rahat Farooq for Petitioners.

Nemo for Respondent No.1.

Kh. Ansar Ahmed for Respondents Nos.2 to 6.

2016 P L C (C.S.) 698

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

NOREEN SARWAR

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 4 others

Writ Petition No.89 of 2013, decided on 22nd June, 2015.

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

----R. 13(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Maintainability---Civil service---Waiting list---Scope---Waiting list would become invalid and ineffective after 180 days of the selection---Hand out was issued by the Public Service Commission in 2010 whereas present writ petition had been filed on 18-07-2013---Impugned waiting list was nowhere in field at the time of filing of present writ petition---Writ petition was incompetent at the relevant time which was dismissed in circumstances.

Azad Government and 2 others v. Muhammad Qadir Javed and another 2014 PLC (C.S.) 1334 rel.

Barrister Adnan Nawaz Khan for Petitioner.

A.A.G. for Respondents.

2016 P L C (C.S.) 837

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi and Azhar Saleem Babar, JJ

Mst. SHABANA KOUSAR

Versus

DIRECTOR PUBLIC INSTRUCTIONS SCHOOLS (SECONDARY), AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 7 others

Writ Petition No.335 of 2010, decided on 26th June, 2015.

Civil service---

----Temporary appointment without advertising the post---Contention of petitioner was that she was appointed on the basis of qualifying test and interview and appointment order of private respondent was nullity in the eye of law---Validity---Post of petitioner was neither advertised nor any merit list was prepared---Appointment of petitioner was temporary---Order of appointment of private respondent was obtained through practicing fraud and committing forgery---Private respondent had been receiving salary on the basis of forged order---Authorities were directed to recover the amount received by the private respondent within a specified period and pay the same to the petitioner and advertise the post within specified period and fill the same on the basis of merit and recommendation of respective Selection Committee---Temporary post of petitioner should not be abrogated till selection process was not completed---Petitioner could also apply for the post in question as per rules and in case of having become over aged she would be granted relaxation of upper age as per rules---Any order or judgment obtained through fraud could be recalled by the court of law even suo motu---Judgment obtained by private respondent by practicing fraud was recalled---Authorities were directed to register F.I.R. against private respondent for preparing and maneuvering forged order---Writ petition was accepted in circumstances.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782 rel.

Raja Muhammad Arif Rathore for Petitioner.

Nemo for Respondents Nos.1 to 7.

Ch. Muhammad Riaz for Respondent No.8.

2016 P L C (C.S.) 1130

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD JAVEID and others

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and others

Writ Petitions Nos.730 of 2011, 1424 and 1818 of 2012, decided on 3rd February, 2016.

(a) Civil service---

----Advertisement for appointment of Information Officer (BPS-17)---Test and interview had been taken by the Public Service Commission after advertisement of post in question---Withdrawal of advertisement---No justification existed to recall requisition of post at the belated stage---Impugned action to withdraw the post in question was bad in law---Petitioner was at serial No.2 of the merit list and right had accrued in her favour---Petitioner could not be deprived of her fundamental right with regard to entry into service---Impugned withdrawal notification was quashed and Public Service Commission was directed by High Court to issue recommendations in favour of petitioner and authorities were directed to appoint her against the post within two months---Writ petition was allowed in circumstances.

Muhammad Imtiaz Khan v. Azad Jammu and Kashmir Govt. through Chief Secretary and 3 others 1999 PLC (C.S.) 1007 and Nasreen Akhtar and 3 others v. Sameena Bilqees and 3 others 2006 SCR 312 rel.

(b) Civil service---

----Ad hoc appointment through initial recruitment---Prayer for regular promotion against allocated quota of promotion---Scope---Employee-petitioner had failed to challenge advertisement through which disputed post was published for initial recruitment---Selection process of Public Service Commission had not been challenged---Employee-petitioner was not entitled for the relief claimed in circumstances---Writ petition was dismissed in circumstances.

(c) Civil service---

----Advertisement for appointment of Information Officer (BPS-17)---Quota for initial appointment---Distribution of---Procedure---Only five post with regard to quota of initial recruitment were available---Department could not distribute the said posts amongst all units of Azad Jammu and Kashmir as there were ten districts besides two more units of refugees settled in Pakistan---When number of posts were less than administrative units then posts should be advertised on the basis of open merits---Writ petition was dismissed in circumstances.

Azad Government and 2 others v. Muhammad Naseer Chaudhry and 2 others 2010 SCR 186 rel.

(d) Civil service---

----When numbers of posts were less than administrative units then posts should be advertised on the basis of open merits.

Sardar Muhammad Habib Zia for Petitioner (in Writ Petition No.730/2011).

Sajid Hussain Abbasi for Respondents Nos.1 to 3 (in Writ Petition No.730/2011).

Nemo for Respondent No.4 (in Writ Petition No.730/2011).

Asghar Ali Malik for Petitioner (in Writ Petition No.1424/2012).

Ch. Shoukat Aziz, Addl. A.G. for official Respondents Nos.1 to 5 (in Writ Petition No.1424/2012).

Sardar Muhammad Habib Zia for Respondents Nos.6 and 7 (in Writ Petition No.1424/2012).

Ch. Muhammad Manzoor for Petitioner (in Writ Petition No.1818/2012).

Ch. Shoukat Aziz, Addl. A.G. for official Respondents Nos.1 to 5 (in Writ Petition No.1818/2012).

2016 P L C (C.S.) 48

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

FEDERATION OF PAKISTAN and another

Versus

SAEED AHMED KHAN and others

Intra-Court Appeal No.156 of 2015, decided on 13th April, 2015.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 3---General Clauses Act (X of 1897), S.24-A---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Chairman Oil and Gas Regulatory Authority----Forced leave---Federal Government, jurisdiction of---Federal Government issued a notification sending Chairman OGRA, on forced leave---Single Judge of High Court, in exercise of constitutional jurisdiction, set aside the notification, declaring same to be without lawful authority---Validity---If Federal Government wished to send the Chairman on forced leave or suspend the incumbent, the same procedure was to be adopted i.e. application to such effect had to be moved to Federal Public Service Commission and only on its recommendation Federal Government could exercise the power---Order of suspension of forced leave was interim in nature, therefore, there was no requirement for any inquiry to be held in such behalf---Federal Public Service Commission while recommending suspension or declining the same had to give reasons for its opinion as provided in S.24-A of General Clauses Act, 1897---Oil and Gas Regulatory Authority was an independent body and was a regulator, therefore, sanctity of its independence had to be kept in view---No provision existed for appointing any person on acting or current-charge basis except as provided in S.3(13) of Oil and Gas Regulatory Authority Ordinance, 2002---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Bhup Narayan Jha v. State of Bihar and others (1985 ILLJ 49 Patna); Prof. Ram Avtar Yadav v. Union of India and another (W.P.(C) No.2075/2010; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 and Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan through the Secretary and others PLD 2007 SC 578 ref.

Afnan Karim Kundi, Additional Attorney-General and Jehangir Khan Jadoon Standing Counsel for Appellants.

Babar Sattar and M. Nazir Malik, Director (Law) M/o P&NR for Respondents.

2016 P L C (C.S.) 239

[Islamabad High Court]

Before Athar Minallah and Shaukat Aziz Siddiqui, JJ

FEDERATION OF PAKISTAN

Versus

RASHID AHMED and others

I.C.A. No.267 of 2015, heard on 2nd September, 2015.

(a) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----Ss. 6 & 7---Law Reforms Ordinance (XII of 1972), S. 3---Chairman Pakistan Electronic Media Regulatory Authority, appointment of---Intra court appeal---Misconduct---Political influence---Non-compliance of procedure---Respondent was Chairman Pakistan Electronic Media Regulatory Authority and vide notification dated 17-04-2014, he was dismissed from the post---Single Judge of High Court, in exercise of Constitutional Jurisdiction set aside the notification in question---Validity---No selection process was undertaken for appointment as prescribed in law rather a note was initiated by an officer subordinate to respondent and summary was prepared and sent by respondent to competent authority---Respondent proposed three names including his own---In reply to show cause notice, the respondent stated that the then Minister in-charge had directed him to include his name in proposed panel---Such appointment was not made through adopting a demonstrably open and transparent selection and settled law was violated---Respondent committed under misconduct S.7 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, to continue to hold post of Chairman, as his appointment was illegal and void having been made in violation of law and principles---Respondent as Secretary Ministry of Information and Broadcasting was responsible to ensure that law enunciated by Supreme Court and its orders were strictly implemented and enforced was just and proper for competent authority to proceed with appointment of Chairman Pakistan Electronic Media Regulatory Authority pursuant to the directions of Supreme Court---Division Bench of High Court, set aside judgment passed by Single Judge of High Court---Intra court appeal was allowed under circumstances.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132; C.P. No.105 of 2012 and The University of Dacca through Vice Chancellor and another v. Zakir Ahmed PLD 1965 SC 90 rel.

(b) Natural justice, principles of---

----Applicability---Scope---Principles of Natural Justice are flexible and not rigid---Determination of application of such principles depends on the circumstances of each case and various factors may be taken into consideration for such purpose, such as the nature of inquiry; the subject matter being dealt with; whether anything unfair can be inferred if the opportunity is not afforded; whether there is no apprehension of injustice etc.---Depending on the facts and circumstances of each case, it would be sufficient if 'elementary and essential principles of fairness' have been fulfilled---In a given situation it may be sufficient if the person affected has been made aware of the nature of allegations, has been afforded a fair and reasonable opportunity to defend allegations and to controvert any statement made against him or her---Not mandatory in every case to examine witnesses in presence of person against whom allegations have been made or to afford him or her an opportunity for cross-examination---If a person who has been afforded a fair opportunity which satisfies requirements of elementary and essential principles of fairness, does not appear or fails to avail opportunity, or is otherwise defiant, then he or she may not be able to raise a grievance relating to violation of the principles of natural justice, as they would have no application in the given circumstances---In exceptional cases application of the doctrine of 'Audi Alteram Partum' may even be excluded.

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

Afnan Karim Kundi, A.A.G. for Appellant.

Idrees Ashraf for Respondents.

Date of hearing: 2nd September, 2015.

2016 P L C (C.S.) 381

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

MUHAMMAD NAFEES

Versus

FEDERATION OF PAKISTAN through Secretary M/o Interior and others

Writ Petitions Nos.1648 and 2454 of 2015, heard on 3rd September, 2015.

Civil service---

----Recruitment in Islamabad Police---Allocation of provincial/regional quotas for recruitment to civil posts under the Federal Government---Discrimination---Contention of petitioners was that Islamabad Capital Territory was a separate territory but no quota had been reserved for the persons/citizens of the same or having domicile of said territory whereas huge quota for all other provinces had been reserved including separate quota for minorities and women---Validity---No separate quota had been fixed for citizens of Islamabad Capital Territory whereas all four provinces including Azad Jammu and Kashmir had been awarded particular quotas---Prevalent policy or method for recruitment in Islamabad Capital Territory was discriminatory and offensive to the fundamental rights and unprecedented as well---Residents of Islamabad Capital Territory with domicile of Capital area were required to compete with the candidates of Punjab which was population wise largest province of the country---Even residents of Azad Jammu and Kashmir and FATA had been granted specific quota in Islamabad Capital Territory but locals had been deprived from the same---If employment in Islamabad Capital Territory was not appointment in the service of Pakistan then how local residents of a specific area could be ignored and denied constitutional rights---Office memorandum for allocation of provincial/regional quotas for recruitment to civil posts under the Federal Government was discriminatory and against the principles of equality, transparency, fairness and good governance---Impugned office memorandum was set aside to the extent of quota of Federal area of Islamabad included in Punjab---Candidates from Islamabad Capital Territory would be required to compete with the candidates of province of Punjab---High Court directed that separate quota for the residents of Islamabad Capital Territory be reserved which should not be less than 20% of the total posts---Residents of Islamabad Capital Territory would include the persons who were either born or had domicile and were living within the said Territory for the last 10 years continuously---No person having domicile of any other territory of the country be appointed against the quota reserved for residents of Islamabad Capital Territory---Secretary Establishment Division of the Government was directed to issue fresh office memorandum as per law---Constitutional petition was accepted in circumstances.

1998 MLD 1832 ref.

Raheel Khan Niazi for Petitioner.

Haseeb Muhammad Ch. Standing Counsel and Abdul Rauf Inspector Legal for Respondents.

Date of hearing: 3rd September, 2015.

2016 P L C (C.S.) 445

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, C.J.

SHAKEEL AHMED KIYANI

Versus

OGDCL and others

Writ Petitions Nos.171 and 1376 of 2011, decided on 22nd December, 2015.

Oil and Gas Development Corporation Service Rules, 1994---

----R. 64(1)---Constitution of Pakistan, Art.199---Constitutional petition---Laches, principle of---Scope---Locus poenitentiae, principle of---Applicability---Encashing of Leave policy---Petitioner was Accounts Assistant in Oil and Gas Development Corporation prior to its conversion into a limited company---Authorities demanded recovery of amount received by petitioner as encashing of 569 days LAP accumulated during period served with previous department by invoking statutory service rules---Validity---Petitioner was not only officer of the company who had been singularly subjected to revised leave policy, instead the same had general application but he did not put document to show that remaining officers had voiced their grievances which showed that only petitioner had objection upon some parts of policy---Policy in question was not challenged by him for considerable time it was not plausible that he was not aware of the same till issuance of recovery notice, therefore element of laches was evident---Revised policy was passed under competent authority of law and was accessible to all employees of the company---Policy directive of general application could not be issued without giving audience to all persons dealt thereunder because the same remained open to challenge by any employee but even petitioner had not raised any objection upon the same within the corporate hierarchy---Benefit which had been issued in derogation of lawful authority could not be presumed to create valid right in favour of recipient and in such cases principle of locus poenitentiae did not apply---High Court declined to interfere in recovery notice issued by authorities as the same was passed on correct premises---Petition was dismissed in circumstances.

Gadoon Textile Mills' case 1997 SCMR 641; Mrs. Farkhanda Talat v. FOP and others 2007 SCMR 886; Secretary M/o Finance GOP v. Muhammad Hussain Shah 2005 SCMR 675; Muhammad Aslam v. Senior VP HBL 2003 PLC (C.S.) 388; Anound Power Generation Ltd. v. Federation of Pakistan and others PLD 2001 SC 340; Muhammad Rashid v. FOP and others 2000 SCMR 1297; Federation of Pakistan and others v. Shaukat Ali Mian PLD 1999 SC 1026; The Engineer in Chief Branch M/o Defense v. Jalal-Ud-Din PLD 1992 SC 207; Pakistan International Air Lines Corporation v. Inayat Rasool 2003 PLC (C.S.) 333; Muhammad Shakir and others v. Administrator District Council, Rajanpur 2002 PLC (C.S.) 302; Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232; Abdul Hafeez Abbassi and others v. MD PIAC 2002 SCMR 1034; Chairman WAPDA v. Zulfiqar Ali 2002 PLC (C.S.) 128; Chairman Hazara (Hill Tract) Improvement Trust v. Mst. Qaisra Elahi and others 2005 SCMR 678; PIAC v. Shahzad Farooq Malik and others 2004 PLC (C.S.) 82; Province of Punjab v. Zulfiqar Ali 2005 PLC (C.S.) 1165; Collector, Customs and Central Excise Peshawar v. Abdul Waheed 2004 PLC (C.S.) 301; Director. Social Welfare NWFP Peshawar v. Saullah Khan 1996 SCMR 1350; Oil and Gas Development Company v. Nazar Hussain and others 2010 PLC (C.S.) 621; Anwar Hussain v. ADBP etc. 1992 SCMR 1112 and Dr. Muhammad Amin v. President ZTBL and others 2010 SCMR 1458 ref.

Abdul Rehman Siddiqui and Miss Naeeli Khan for Petitioner.

Mushtaq Hussain Bhatti and Barrister Bilal Akbar Tarrar for Respondents.

Date of hearing: 28th October, 2015.

2016 P L C (C.S.) 491

[Islamabad High Court]

Before Athar Minallah, J

IRFAN AHMED and others

Versus

FEDERATION OF PAKISTAN and others

W.P.No.13 of 2015, decided on 21st December, 2015.

Pakistan Science Foundation Act (III of 1973)---

----S. 16---Special allowance for employees---Withdrawal---Jurisdiction of Board of Trustees---Federal Government, decision of---Petitioners were employees of Pakistan Science Foundation and their grievance was that Federal Government could not direct the Foundation to withdraw special allowance, which was awarded by Board of Trustees in the light of earlier decision of Federal Government---Validity---Letter issued by Federal Government was not binding on the Foundation or Board of Trustees and the same could be treated as an information or opinion to be considered by the latter for taking a decision or reviewing its earlier decision---Board of Trustees had yet to consider letter in question and to take decision independently as mandated under S.16 of Pakistan Science Foundation Act, 1973---Board had to determine whether special allowance granted by Federal Government related to corresponding class of employees of Federal Government in the context of granting the same allowance in case of employees of Foundation under S.16(2) of Pakistan Science Foundation Act, 1973---Board of Trustees could reconsider its decision taken in earlier meeting and was vested with power and jurisdiction to decide all matters under S.16 of Pakistan Science Foundation Act, 1973, independently having regard to all relevant considerations and pursuant to the purpose and object of statute---High Court observed that while considering letter issued by Federal Government, Board of Trustees would not be dictated by its contents but would treat it as an opinion or information and after considering the same would take a decision independently in a manner that was in consonance with legislative intent as envisaged under S.16 of Pakistan Science Foundation Act, 1973---Constitutional petition was allowed accordingly.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and M.A. Rahman v. Federation of Pakistan and others 1988 SCMR 691 ref.

Hafiz Arfat Ahmed Chaudhry and Kashifa Niaz Awan for Petitioner.

Abdul Ghanni Channa for Respondent No.2

Malik Zahoor Awan, Standing Counsel.

Date of hearing: 11th December, 2015.

2016 P L C (C.S.) 549

[Islamabad High Court]

Before Athar Minallah, J

MUHAMMAD ADNAN MOIN

Versus

FEDERATION OF PAKISTAN and others

W.Ps. Nos.920 of 2015, 4254 and 4485 of 2014, decided on 18th December, 2015.

National Telecommunication Corporation Service Regulations, 2008---

----Regln. 5.3, Chap. V---Government Servants (Efficiency and Discipline) Rues, 1973, Rr.5 & 6---Inquiry, dispensation of---Discretion of authorized officer---Principles---Petitioners were employees of Telecommunication Corporation, who were proceeded departmentally for raising derogatory remarks in SMS (Short Message Service) and were dismissed from service without conducting a formal inquiry---Validity---Authorized officer was vested with discretion to either opt for procedure prescribed in R.5 or to resort the one in R.6 of Government Servants (Efficiency and Discipline) Rules, 1973---Exercise of such discretion was subject to forming opinion in the light of facts of the case or in the interest of justice---After the authorized officer decided that it was not necessary to have an inquiry conducted through inquiry committee, then by an order in writing he or she was to inform the employee against whom action was proposed to be taken regarding the grounds and proposed action---Employee was given a reasonable opportunity of showing cause against such action---Fact finding committee could not have formed a conclusive opinion regarding guilt of petitioners, as there was no document on record which would show what text message had been sent---Nothing was available on record to show that even if such message was generated, and the SIM was registered in the name of another person, then whether in the first place same could be termed as 'derogatory' or not---Proceedings against petitioners were not in accordance with Government Servants (Efficiency and Discipline) Rules, 1973---High Court set aside the order passed by authorities and petitioners were reinstated in service with all back benefits---Petition was allowed in circumstances.

M.A. Rahman v. Federation of Pakistan and others 1988 SCMR 691; Salman Faruqui v. Javed Burki, Authorized Officer, Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and another 2007 SCMR 693; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 SCMR 802 and Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 ref.

Ashraf Ali Awan for Petitioner.

Muhammad Akram Shaheen and Hasnain Ibrahim Kazmi for Respondents.

Date of hearing: 7th December, 2015.

2016 P L C (C.S.) 621

[Islamabad High Court]

Before Athar Minallah and Shaukat Aziz Siddiqui, JJ

The PRIME MINISTER and others

Versus

Maj. Retd. MOHAMMAD HABIB KHAN

I.C.A. No.875-W of 2012, decided on 1st February, 2016.

Civil service---

----Proforma promotion---Preconditions---Appellant was aggrieved of order passed by single Judge of High Court declaring respondent to be entitled to proforma promotion with all back benefits---Validity---Conditions required to be fulfilled for being eligible to be considered by appointing authority in respect of benefits of proforma promotion were; (i) person must be a civil servant; (ii) he/she was entitled to promotion from a particular date and; (iii) was wrongfully prevented from rendering service to Federation in a higher post for no fault of his/ her---Only if the appointing authority was satisfied that such three conditions were met then a direction could be issued for extending benefits of pay and allowances through proforma promotion---Single Judge of High Court could not make a declaration regarding entitlement of respondent regarding proforma promotion, as the respondent had approached High Court by invoking Constitutional jurisdiction for implementing judgment passed by Federal Service Tribunal, which did not include any determination or direction regarding grant or entitlement of proforma promotion--- Direction for extending benefits through proforma promotion was within the exclusive domain of appointing authority who had to be satisfied that the conditions were fulfilled for passing an order or direction---Division Bench of High Court set aside the order passed by Single Judge of High Court---Intra-court appeal was allowed in circumstances.

Muhammad Umar Malik and others v. Federal Service Tribunal and others PLD 1987 SC 172; Abid Hussain Sherazi v. Secretary, M/O Industries and Production, GOP, Islamabad 2005 SCMR 1742; Muhammad Yousaf v. The Chairman, Railway Board/Secretary, M/O Railways, Islamabad and others 1991 SCMR 1559 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.

Raja Khalid Mehmood Khan, DAG for Appellants.

Sahibzada Ahmed Raza Kasori and Syed Pervaiz Zahoor Gillani for Respondent.

Date of hearing: 3rd December, 2015.

2016 P L C (C.S.) 642

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

HAMAYUN SAFDAR KHAN and others

Versus

PLANNING AND DEVELOPMENT DIVISION and others

W.P.No.845 of 2013, decided on 16th February, 2016.

Civil service---

----Contract employees---Withholding of salaries---Grievance of petitioners was that authorities withheld their salaries on the pretext that Planning Commission of Pakistan had not released the same---Validity---Petitioners kept on performing their duties after extension of their contracts which were extended by a state owned Corporation---If the Corporation had not consulted Government, petitioners should not suffer---Federal Government could proceed against persons at the helm of affairs of the corporation and concerned Ministry for alleged violation of directions of Prime Minister---Government was to issue funds from Public Sector Development Project and it was withholding the same without lawful justification---Petitioners were full time workers and they were entitled to withdraw their salaries and consequential benefits---Withholding of such benefits amounted to violation of fundamental rights of petitioners---High Court directed the authorities to release funds for payment of salaries to petitioners---Constitutional petition was allowed accordingly.

PLD 1975 SC 383; PLD 1994 SC 693; 1996 CLC 472; 1998 SCMR 1249; 1998 SCMR 2268; 2002 SCMR 71; 2005 PLC 886; 2010 PLC 1109; 2010 SCMR 253; 2011 PLC 26; 2011 SCMR 1; 2011 PLC 234 and 2012 PLC 130 ref.

Malik Qamar Afzal and Syeda Sumaira Naqvi for Petitioners Nos.1 to 6.

Riffat Saghir Kureshi for Petitioners Nos.7 to 27.

Aamer Irshad, Chief Food and Security, Planning and Development Division.

Nadeem Arshad, S.O. Finance Division.

M. Riaz, Director (Legal) and Dr. Shafiq-ur-Rehman, D.S. M/o National Food Security and Research/Respondent No.3.

M. Javed Iqbal Amer, J.S., Cabinet Division.

Date of hearing: 4th December, 2015.

2016 P L C (C.S.) 831

[Islamabad High Court]

Before Mian Gul Hassan Aurangzeb, J

TAHIR TAJ ABBASI

Versus

FOP, through Secretary M/o Housing and Works and others

C.R. No.15 of 2016, decided on 2nd February, 2016.

(a) Accommodation Allocation Rules, 2002---

----Rr. 15 (2), 3, 6 & 2 (g) & (p)---Suit for declaration---Application for rejection of plaint---Government house in possession of plaintiff previously allotted to his father before retirement from service---Plaintiff seeking allotment of such house---Scope---Contention of authorities was that accommodation in question in favour of plaintiff's father had been cancelled and his status was that of "un-authorized occupant"---Plaint was rejected by the courts below---Validity---Plaintiff was appointed on contingency basis who could not call himself a Federal government servant during his period of six months' service---Plaintiff was not eligible for government accommodation during the six months' period after his father's retirement---Benefit of R.15(2) of Accommodation Allocation Rules, 2002 could be extended only to serving spouse or children living with Federal government servant who might be allotted the same accommodation if eligible otherwise---Plaintiff had become a trespasser after the expiry of a period of six months from the date of retirement of his father---Plaintiff could not hold on to the government accommodation that had been allotted to his father---Plaintiff should apply for government accommodation and wait for queue/general waiting list---Both the courts below had exercised jurisdiction correctly while rejecting the plaint---No jurisdictional error or material irregularity had been pointed out in the impugned orders passed by the courts below---Revision was dismissed in circumstances.

Adnan Qureshi v. Capital Development Authority 2015 PLC (C.S.) 1030 rel.

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

----O. VII, R. 11---Rejection of plaint---Factors to be considered---Court could look into the averments contained in the plaint as well as its supporting documents for the purpose of deciding application for rejection of plaint---Pleadings of other side and documents brought on record along with the written statement could also be looked into while deciding such application.

S.M. Sham Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338; Muhammad Saleem Ullah v. Addl. District Judge, Gujranwala PLD 2005 SC 511; Muhammad Ashraf v. Mst. Kokab Benazir Fatima 2008 CLC 1398; Mst. Mazhar Khanam v. Sheikh Saleem Ali 2004 CLC 799; Mst. Bano alias Gul Bano v. Begum Dilshad Alam 2011 CLC 88 and Muhammad Sharif v. Aziz Bibi 2011 CLC 1319 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court had limited revisional jurisdiction unless and until the judgments of the courts below were outcome of mis-reading or non-reading of evidence---High Court could not interfere with the judgments of courts below when same were in accordance with law.

Sardar Rafiq R. Sanjrani for Petitioner.

Khawaja Imtiaz Ahmad, Standing Counsel.

2016 P L C (C.S.) 896

[Islamabad High Court]

Before Athar Minallah, J

MUHAMMAD MUNEER MALIK and others

Versus

ALLAMA IQBAL OPEN UNIVERSITY and others

W.P. No.1670 of 2015, decided on 18th March, 2016.

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

----Ss. 24 & 31---Constitution of Pakistan, Arts.4, 9, 18, 25 & 27---Advertisement for appointment of Deputy Director Institute of Educational Technology (BPS-19)---Requisite qualification and experience being Master's Degree at least 2nd Class having experience of at least 12 years as Programme Manager/Controller of Programmes/ Producer in Radio/Television or equivalent post in the audio-visual centers of Education Department or other relevant organization---Candidates were required to secure at least 50% marks in the written examination---Change in prescribed experience after advertisement---Scope---Employee of University having served for seventeen years on the post of 'Designer' applied for the said post---Eligibility/Scrutiny Committee declared the employee as ineligible but Appellate Authority directed to afford an opportunity of hearing to the employee and Eligibility/Scrutiny Committee considered the experience achieved by her while working as Designer equal to that of 'Producer'---Employee got less than 50% marks in the written test and she was not called for an interview, however Selection Board relaxed the approved criteria and employee was called for interview and she was appointed for the post so advertised---Contention of petitioners was that eligibility criteria could not have been subsequently altered or modified---Validity---Experience having been prescribed could not be altered or changed unless amended through the prescribed procedure---Majority members of Eligibility/Scrutiny Committee had not declared the post of 'Designer in the University as equivalent to the post of Programme Manager, Controller of Programmes or Producer but had equated the experience of employee while working as a 'Designer' with that of a producer---Determination by the majority of the members in the case of declaring the employee as eligible was illegal and without lawful authority---Public authorities while making appointments had to ensure transparency for all the candidates---Object of inviting applications from the candidates through advertisements was to make certain that all the eligible interested candidates might have an opportunity to compete for appointment through fair and transparent selection process---Persons eligible had a right to be given fair consideration through a transparent process---Advertisement of criterion and qualification determining the eligibility of candidates was a pre-condition---Criterion, qualifications and conditions of eligibility expressly mentioned in the advertisement could not be altered after the last date fixed for submission of applications or during the selection process---Deviation from the advertised criterion or qualifications had rendered the selection process non-transparent---Such deviation would tantamount to make appointments without inviting applications through advertisement---Appointments made in violation of principles of transparency and fairness would be illegal and not sustainable in law---Criterion/conditions with regard to experience mentioned in the advertisement had been deviated from by the Eligibility/Selection Committee in the present case---Post of 'Designer in the University was not equivalent to the post of Programme Manager, Controller of Programmes or Producer nor was the experience achieved by producing programmes for TV or Radio relevant for being eligible---Decision of Eligibility/Scrutiny Committee to the extent of declaring the employee as an eligible candidate for advertised post was in violation of conditions prescribed as well as principle of transparency---Said decision was without lawful authority and void ab-initio---Impugned decision of Eligibility/Scrutiny Committee to the extent of employee and all subsequent orders/steps pursuant thereto were declared illegal, without lawful authority or jurisdiction---Appointment letter of employee was set aside---University might proceed with the process with regard to advertised post for selecting the most capable person from amongst the eligible candidates on the basis of merit---Constitutional petition was allowed in circumstances.

Mehmoona Noureen v. Chancellor, Fatima Jinnah Women University, Rawalpindi 2011 CLC 230; Muhammad Sadiq and others v. University of Sindh and others PLD 1996 SC 182; Sanchit Bansal and another v. Joint Admission Board (JAB) and others 2012 SCMR 1841 and Dr. Mir Azam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 ref.

Government of NWFP through Secretary NWFP Forest Department Peshawar and others v. Muhammad Tufail Khan 2004 PLC (CS) 892; Abdul Jabbar Memon and others (Human Right Case No.104(i) to (iv) 1996 SCMR 1349; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Mushtaq Ahmed Moral and others v. The Honourable Lahore High Court, Lahore 1997 SCMR 1043; Obaid Ullah and another v. Habib Ullah and others PLD 1997 SC 835; Abdur Rashid v. Riazuddin and others 1995 SCMR 999; Maulana Atta ur Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Rehmat Ullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Akram and others v. Member, Board of Revenue and another 2007 SCMR 289; Punjab Workers Welfare Board, Government of Punjab and Human Resources Department, Lahore v. Meher Din 2007 SCMR 13; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 and Muhammad Sabir Khan v. Rahim Bakhsh and 16 others PLD 2002 SC 303 rel.

(b) Constitution of Pakistan---

----Art. 199---Academic matters of educational institutions---Judicial review---Scope---Opinion of competent authority in the academic matters was not amenable to judicial review.

(c) Civil service---

----Appointment---Fairness, transparency, access and keeping the process for appointment free from bias and arbitrary decision were the essential factors for ensuring merit based appointments.

(d) Administration of justice---

----When basic order was without lawful authority then any superstructure built on it would have to fall automatically.

Muhammad Shoaib Shaheen, ASC for Petitioners.

Hafiz S.A. Rehman, ASC for Respondent No.1.

Sh. Ahsan Uddin, ASC for Respondent No.4.

Date of hearing: 16th February, 2016.

2016 P L C (C.S.) 936

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

SAFDAR MAHMOOD and 2 others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and 7 others

W.P.No.3132 of 2013, decided on 10th November, 2015.

Civil Servants Act (LXXI of 1973)---

----S. 2(2)---Contract employees---Regularization of service---Decision by Cabinet Committee---Petitioners were recruited in BPS-16 who assailed regularization of service of respondents on the ground that respondents were contract employees and competent authority to appoint them was Federal Public Service Commission---Validity Respondents were working on contract basis and their contract period was extended further which was not challenged at any time by petitioners---Regularization of contract employees, who were appointed on contract basis for a certain period was not supposed to put to tests by Federal Public Service Commission--- Decision was passed by Cabinet Sub-Committee for regularization of service of contract/daily wages employees in ministries/divisions/attached departments/ autonomous bodies/organizations etc.---Recommendations of Cabinet Sub-Committee were binding upon all ministries/divisions/attached departments/autonomous bodies/organizations etc. as a policy decision of government, therefore, final order with regard to regularization of service had to be issued by concerned authority inside department in view of S.2(2) of Civil Servants Act, 1973, which was derived basically from Estacode the service structure including almost all types of services in Pakistan---High Court declined to interfere in order passed by the authorities---Petition was dismissed in circumstances. A, B & C

Dossani Travels (Pvt.) Ltd. and others v. M/s Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Muhammad Iqbal Rafi and 2 others v. The Province of Punjab, Lahore and others 1986 SCMR 680; Arshad Mehmood and others v. Government of Punjab through Secretary, Transport, Civil Secretariat, Lahore and others PLD 2005 SC 193 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

PLD 2010 SC 841 rel.

S.A. Mahmood Khan Sadozai for Petitioners.

Barrister Gohar Ali Khan, Barrister Munawwar Iqbal, Raja Khalid Mahmood Khan, Standing Counsel with A.D. Bheakhro, SO, Establishment Division for Respondents.

Date of hearing: 13th October, 2015.

2016 P L C (C.S.) 1091

[Islamabad]

Before Aamer Farooq, J

MASUD HUMAYUN

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others

F.A.O. No.73 of 2015, decided on 21st April, 2016.

(a) Federal Public Service Commission Conduct of Business Rules, 1963---

----R. 14---Federal Public Service Commission Rules for Competitive Examination (CSS), 2013, R.23---Federal Public Service Commission Rules for Competitive Examination (CSS), 2014, R.17---Office memorandum No.1/29/87/-T.V. dated 19-03-1991---Competitive examination---First choice of candidate being Police Service of Pakistan but he could not be awarded his choice due to 4th position in the merit list---One nominee of Police Service of Pakistan declined to accept the offer and appellant made representation for allocation of the seat to him but same was refused---Validity---Vacancy which had been created in the present case was not with regard to the original advertisement rather was a carried over vacancy due to repeated deferments obtained by the nominee of the same---Rule 17 of Federal Public Service Commission Rules for Competitive Examination (CSS), 2014, did not show any distinction with regard to original or carried over vacancy rather it had provided the process for reallocation in case of repeaters or non-joinders---Vacancies were to be filled in line with the office memorandum No.1/29/87/-T.V dated 19-03-1991---Federal Public Service Commission could not point out any rule or regulation by virtue of which allocation on the vacancy created could not be made---Impugned orders were set aside and representation filed by the candidate was allowed---Appeal was allowed in circumstances.

Province Sindh and others v. Ghulam Hassan Bughio 2014 SCMR 643; Shamsuddin Qazi v. Federation of Pakistan through Secretary Establishment Division, Islamabad and 2 others 2006 PLC (C.S.) 170; Mohammad Ijaz Ahmed Chaudhry v. Mumtaz Ahmed Tarar and others 2016 SCMR 1; Haji Fazal Elahi and Sons through Muhammad Tariq v. Bank of Punjab and another 2004 CLD 162 and Messrs Chawla International v. Habib Bank Limited and others 2003 CLD 956 rel.

(b) Administration of justice---

----Whatever was not specifically prohibited was permissible.

Muhammad Shoaib Shaheen for Appellant.

Syed Hussain Ibrahim Kazmi, Deputy Attorney-General and Ramiz Ahmed Director FPSC for Respondents.

Date of hearing: 27th January, 2016.

2016 P L C (C.S.) 1305

[Islamabad]

Before Athar Minallah, J

NASEEM IQBAL

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.1660 of 2015, decided on 7th June, 2016.

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

----Ss. 6 & 7---"Appointment" and "re-appointment"---Distinction---Respondent was appointed Commissioner of Securities and Exchange Commission of Pakistan by Federal Government---Petitioner assailed reappointment of respondent on the plea that he could not be "reappointed" after completing two terms---Validity---Expression `reappointment' was specifically used in the context of filling vacancy arising between initial and further term---After completion of two terms 'reappointment' was barred and it was in such context that reference was made to respective cumulative periods of five or six years, as the case could have been---If the Commissioner was either not reappointed upon expiry of initial term, or the cumulative period pursuant to reappointment for a second term had ended, then in both the eventualities the vacancy was to be filled by appointment of a qualified person---No bar or a clog existed under S.7(2) of Securities and Exchange Commission of Pakistan Act, 1997, on appointment of a person as a Commissioner who had already completed two terms---High Court declined to interfere in the appointment of respondent made by Federal Government---Constitutional petition was dismissed in circumstances.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 distinguished.

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

(b) Interpretation of statutes---

----Redundancy, principle of--- Scope--- Redundancy cannot be attributed to legislature nor Court can read into a statute something not provided therein.

Mrs. Asma Jahangir for Petitioner.

Dr. Tariq Hassan and Syed Buland Sohail, Afnan Karim Kundi, Addl. Attorney General, Shahzad Ali Rana and Muzaffar Ali Mirza and Ibrar Saeed, Law Officer SECP for Respondents.

2016 P L C (C.S.) 1318

[Islamabad High Court]

Before Athar Minallah, J

OIL AND GAS DEVELOPMENT CO. LTD.

Versus

The SACKED EMPLOYEES REVIEW BOARD and others

W.Ps. Nos.3268, 4141 of 2015 and 798, 800 of 2016, decided on 30th June, 2016.

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

----Ss. 12 & 13(8)---Constitution of Pakistan, Art.199---Judicial Review---Scope---Sacked employees of Oil and Gas Development Company---Sacked Employees Review Board---Ouster of jurisdiction---Contention of employer company was that orders passed by the Review Board were without jurisdiction---Validity---Orders and decisions of Review Board had been declared by the legislature to be 'final'---Such orders could not be called in question in any court, authority or tribunal---Section 13(8) of Sacked Employees (Re-instatement) Act, 2010 did not exclude the jurisdiction of a court when orders of Review Board were without jurisdiction, coram non judice or tainted with mala fide---Provisions of S.13(8) of Sacked Employees (Re-instatement) Act, 2010 had made the decision of Review Board 'final' on facts but not the law---Section 13(8) of Sacked Employees (Re-instatement) Act, 2010 should be enforced and construed in favour of sacked employee when the grievance had been raised by the employer against the order or decision of Review Board---Impugned orders had become 'final' on facts---Factual aspects were not open to judicial review---Petitioner company could not point out that impugned orders were without jurisdiction or tainted with mala fide---Constitutional petition was dismissed in circumstances.

Agriculture Workers' Union Balochistan v. The Registrar of Trade Unions, Balochistan Quetta, and another 1997 SCMR 66; Lahore Development Authority through D.G. Lahore and another v. Abdul Shafique and others PLD 2000 SC 207; Syed Match Company Ltd. v. Authority under Payment of Wages Act 2003 SCMR 1493; M/s Ashraf Sugar Mills Ltd. through General Manager v. Manzoor Ahmed 2006 SCMR 1751; M/s Bolan Mining Enterprises v. Board of Trustees, EOBI and others 2010 SCMR 1573 and Karachi Chambers of Commerce and Industry, Karachi v. Sindh Labour Court No.V, Karachi and others 2011 SCMR 1709 rel.

(b) Jurisdiction---

----Ouster of jurisdiction---Scope---Principles and law regarding construing statutory provision couched in language ousting jurisdiction of the courts listed.

Principles and law regarding construing statutory provision couched in language ousting the jurisdiction of the Courts may be summarized as follows;-

(i) The legislature is competent to oust or exclude the jurisdiction of courts.

(ii) There is a presumption against the ouster of jurisdiction. Any law or statutory provision which denies access to the courts is to be construed very strictly and narrowly.

(iii) Ouster or exclusion of jurisdiction must be expressly and clearly implied and not readily inferred. The language used by the legislature ought to show express and unequivocal manifestation of the legislative intent to exclude the jurisdiction of the courts.

(iv) If the language is so clear and unmistakable that leaves no room for doubt as to the intention of the legislature ousting jurisdiction in all circumstances then that will be given effect to even in cases of mala fides and without jurisdiction would not be open to judicial review and the courts would not be concerned with the consequences.

(v) Ordinarily, unless the intention of the legislature is so clear that no other meanings can be given to the language used, the jurisdiction of the courts will not be ousted in three categories of decisions/orders i.e. (a) without jurisdiction, (b) coram non judice and (c) tainted with mala fide.

(vi) Ordinarily, when the legislature declares an order or decision to be final, it has reference to such orders/decisions which is within the powers of the authority making it, the authority should have constituted in accordance with the statute, the person proceeded against should be subject to jurisdiction, the order passed or action taken should be such as could have been made under a statute and if these conditions are fulfilled then an omission or irregularity committed in following the statutory procedure will not be a sufficient ground to avoid giving effect to the exclusion of jurisdiction.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Zafar-ul-Ahsan v. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan PLD 1960 SC 113; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Collector of South Arcot v. Mask and Company (1) 67 I A 222; Muhammad Ismail and others v. The State PLD 1969 SC 241; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; The State v. Zia ur Rehman and others PLD 1973 SC 49; Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3; Evacuee Trust Property Board and others v. Ahmed and others 2004 SCMR 440; Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; PLD 2006 SC 1422; Halsbury's Laws of England, Fourth Edition; Anisminic, Ltd. v. The Foreign Compensation Commission and another [1969] 1 All E.R. 2008 and Re Gilmore's Application [1957] 1 All E.R. 796 rel.

(c) Interpretation of statutes---

----Provisions of statute ousting jurisdiction of Courts---Construction---Principles enumerated.

Nasim Sikandar and Barrister Qadir Bakhsh, ASC, for Petitioners.

Ms. Mobeen Khan for Respondent No.2 (in the instant petition).

Ch. Muhammad Asad Raan for Respondent No.2 (in W.P. No.798 of 2016).

Rana Liaqat Hayat for Respondent No.2 (in W.P. No.800 of 2016).

Malik Zahoor Awan, Standing Counsel.

2016 P L C (C.S.) 1

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

DAWOOD SIGHAR and 5 others

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh and others

C.P. No.D-1637 of 2013, decided on 28th April, 2015.

(a) Civil Service Regulations, 1960---

----Art. 486---Constitution of Pakistan, Arts.199 & 208---Constitutional petition---Civil service---Retired employees of High Court (Sindh)---Plea for accumulation of judicial allowance in pension calculation---Independence of judiciary---Chief Justice, powers of---Scope---Chief Justice of High Court had power to sanction pension provided same was covered by the rules and certified by the Audit Officer to be admissible---Supreme Court and Federal Shariat Court with the approval of the President and High Court with the approval of the Governor concerned might make rules providing for appointment by the Court of officers and servants of the Court and for their terms and conditions of employment---Object in making special dispensation for officers and servants of the Court was to ensure the independence of Superior Courts---High Court to remain independent and free from interference in its affairs by the executive authorities---Payment of judicial allowance could not be treated as an ad hoc relief or any benefit of contingent or reliant nature but same was one of the components of the emoluments which was being paid during active service---Special pay of all types and nature was part of emoluments including other emoluments which might be specially classed as pay---Overseas pay, technical pay, special pay and personal pay were also integral part of pay except the pay other than special pay or pay granted in view of personal qualification which had been sanctioned for a post held by an employee substantively or in an officiating capacity or to which he was entitled by reason of his position in a cadre---Judicial allowance was allowed to the employees across the board---Judicial allowance was neither extended to a person specific nor sanctioned for a post held by an employee substantively or in an officiating capacity or to which he was entitled by reason of his position in a cadre---Judicial allowance was part of emoluments/pay/salary and reckonable being one of the components for pension calculation---Chief Justice of High Court had all the powers of government in the administrative department with regard to officers and servants of the High Court---Judicial allowance had been treated as emolument for the purpose of pension with regard to judicial officers and such benefit had also been extended to the staff and officers of the High Court (Sindh)---Judicial allowance was reckonable for the calculation of pension as part of emoluments---Petitioners and other retired employees placed in similar position were entitled for accumulation of judicial allowance in pension calculation---Government was directed to re-calculate pension within specified period after giving effect of judicial allowance and start the future payment accordingly and arrears be also paid---Constitutional petition was accepted in circumstances.

PLD 1994 SC 105; 1997 SCMR 141; PLD 1993 SC 375 and 1991 MLD 2546 rel.

(b) Civil Service Regulations, 1960---

----Art. 486---"Emoluments"---Meaning---"Emoluments" meant the emoluments which the officer was receiving immediately before his retirement.

(c) Civil Service Regulations, 1960---

----Art. 487--- "Average Emoluments"--- Meaning--- "Average Emoluments" meant the average calculated upon the last three years of service.

(d) Judgment---

----Judgment "in rem"---Meaning.

Wharton's Law Lexicon (Fifteenth Edition); Satrucharla v. Vijayarama Raju v. Nirmaka Jaya Raju (2006) 1 SCC 212; Black's Law Dictionary, 7th Edn., p. 847; Black's Law Dictionary (Sixth Edition); Eureka Building and Loan Ass'n v. Shulz, 139 Kan. 435, 32 P.2d 477, 480; Federal Land Bank of Omaha v. Jefferson 229 Iowa 1054, 295 N.W. 855, 857; Hameed Akhtar Niazi v. Secretary Establishment Division Pakistan 1996 SCMR 1185 and Federation of Pakistan v. Qamar Hussain Bhatti PLD 2004 SC 77 rel.

Rasheed A. Razvi, Farhatullah, Haider Imam Rizvi and Abbas Rizvi for Petitioners.

Sarwar Khan, Addl. A.-G. Sindh for Respondents.

Muhammad Arshad, Section Officer, Finance Department, Government of Sindh, Karachi.

Date of hearing: 27th October, 2014.

2016 P L C (C.S.) 59

[Sindh High Court]

Before Muhammad Ali Mazhar and Mrs. Ashraf Jahan, JJ

ABDUL HADI

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others

C.P. No.D-4507 of 2013, decided on 31st August. 2015.

National Accountability Bureau Employees Terms and Conditions of Service (TCS) Rules, 2002---

----Rr. 2.02 & 3.33---National Accountability Ordinance (XVIII of 1999), S.28(f)---Constitution of Pakistan, Art.199---Constitutional petition---Contractual appointment---Petitioner served with National Accountability Bureau on contract basis and his grievance was that his service was not regularized---Validity---Regularization in service could not be claimed as vested right as petitioner had not only accepted terms of conditions of his engagement initially but also accepted extension of his contract on the same terms however, at the verge of its expiry, approached the High Court---Nothing was placed on record to show any discriminatory treatment except two orders of different High Courts in which facts of the cases were distinguishable---Petitioner also did not place on record anything to demonstrate that contractual services of two employees referred to, by him had been regularized---Petitioner voluntarily appeared in test for the post of Deputy Director BS-18 and obtained only 37 out of 100 marks but still he demanded that he should be regularized in service on the strength of his contractual engagement regardless of his failure in test for regular employment in National Accountability Bureau, such was a mistaken perception---Petition was dismissed in circumstances.

Pakistan Telecommunication Company Ltd. and another v. Muhammad Zahid and others 2010 SCMR 253 and Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others 2011 PLC (C.S) 367 ref.

Malik Naeem Iqbal for Petitioner.

Syed Amjad Ali Shah, D.P.G. NAB.

Arif Karim, Senior Prosecutor NAB.

Akram Javed, Senior Prosecutor NAB.

Asim Mansoor, D.A.G.

Date of hearing: 13th May, 2015.

2016 P L C (C.S.) 92

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

ALI AHMED LUND

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and 3 others

Suit No.519 and C.M.As. Nos.4203, 5329, 5330 of 2014, decided on 29th May, 2014.

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

----R. 12-A---Correction of date of birth in service record---Scope---Contention of plaintiff was that his date of birth was 2-4-1956 instead of 2-4-1954---Validity---Plaintiff passed Central Superior Service examination in the year 1983 and became civil servant in the said year and he had been since then maintaining his date of birth as 2-4-1954---Employee could not rectify his date of birth after insertion of R.12-A in Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---After 30 years of service it had revealed to the plaintiff that his actual date of birth was 2-4-1956---Once date of birth in the record at the time of joining service was mentioned the same should be final and no alteration was permissible--- Insertion of R.12-A in Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 was logical and statutory in nature---Suit being not maintainable was dismissed in circumstances---Plaintiff had reached to the age of superannuation and any salary, perks, privileges or any benefits availed subsequent to the age of superannuation should be returned forthwith.

Ahmed Khan Dehpal v. Government of Balochistan 2013 SCMR 759 rel.

Afzal Ali holding brief for Yawar Farooqui for Plaintiff.

Ms. Ghazanffar Tabbasum State Counsel.

Safdar Ali for Applicant/Intervener.

Date of hearing: 29th May, 2014.

2016 P L C (C.S.) 115

[Sindh High Court]

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

Dr. SUMERA TABASSUM

Versus

SECRETARY OF FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD and 3 others

Constitutional Petition No.D-3090 of 2010, decided on 22nd January, 2015.

(a) Constitution of Pakistan---

----Art. 199---Federal Public Service Commission Ordinance (XLV of 1977), S.7---Constitutional petition---Civil service---Competitive examination---Advertisement for the post of lecturer---Post vacated due to non-joining of selected candidate---Waiting list---Scope---Discrimination--- Locus standi--- Public Service Commission/ Government should re-advertise/advertise the post which had remained vacant by non-joining of selected candidates or in case of subsequent requisition in the ordinary course of time---Practice of keeping a 'waiting list' in a 'competitive examination system' was nothing but an attempt to introduce a contradictory concept---Waiting list' was maintained in a qualifying examination' while in acompetitive examination' all vacancies were filled up in one go---When selection was made out of one 'competitive examination', it could not be bifurcated into two or more---Selection had to be one when 'competitive examination' was one and in no event it could be said that any number of selections could be made of the same competitive examination'---Petitioner had alleged discrimination on account of the appointment of "X" in place of "Y" but he was not made party in the constitutional petition---Discriminatory treatment could not be gone through appropriately in circumstances---Petitioner's name was never placed on the alleged 'waiting list' rather she was informed that her name could not be recommended for appointment---Petitioner had failed to establish any vested right in her favour---Petitioner was a low merit candidate and was not recommended by the Public Service Commission for the advertised post---No vested right of the petitioner had been infringed---Public Service Commission had never conveyed the petitioner that she was the next candidate in the 'merit list'/'waiting list' for alternate nomination and/or she would be recommended if principal nominee did not join the post---Until and unless department did cancel the offer of appointment issued to the principal nominee and thereafter a request was made to the Public Service Commission for 'alternate nomination' till then the offer of appointment of recommendee candidate would remain in field---Petitioner did not have any right or otherwise claim her recommendation against the subject post---Department had cancelled the offer of appointment of principal nominee and thereafter had requested foralternate nomination' but the same was not acceded to by the Public Service Commission due to expiry of requisite time---Petitioner was barred from invoking the extraordinary jurisdiction of High Court in presence of availability of alternate remedy---Constitutional petition was liable to be dismissed on this ground also---Petitioner was never discriminated by the Public Service Commission and was not entitled to claim an equal treatment under the given facts, she could not be selected and appointed on the post which had fallen vacant as vacant posts including incoming/ requisitioned posts had to be re-advertised/advertised---Constitutional petition was dismissed, in circumstances.

Raffaqat Ali v. Executive District Officer [Health] and others 2011 PLC (C.S.) 1615; Dr. Fawad Anwar v. Government of N.-W.F.P through Secretary, Services and General Administration Department, Peshawar and 3 others PLD 1995 Pesh. 1; Dr. Faiz-ur-Rehman and others v. N.-W.F.P. Public Service Commission, Peshawar 1996 SCMR 589; Ejaz Majeed Bhatti and 5 others v. Punjab Public Service Commission 2011 PLC (C.S.) 1049; Shamsuddin Qazi v. Federation of Pakistan 2006 PLC (C.S.) 170; Shabana Akhtar v. District Coordination Officer Bhakkar and 2 others 2012 PLC (C.S.) 366; Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219; Musa Nazir and others v. N.-W-F-P- Public Service Commission 1993 SCMR 1124=1993 PLC (C.S.) 1188; The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others PLD 1958 SC 437 and Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional petition---Scope---Constitutional petition was only meant for protection of vested right against its infringement and not otherwise.

Petitioner in Person.

Abdul Sadiq Tanoli, Standing Counsel along with Atiq Ahmed, Assistant Director FPSC for Respondent No.1.

M.M. Aqil Awan Amicus Curiae.

Date of hearing: 25th November, 2014.

2016 P L C (C.S) 179

[Sindh]

Before Muhammad Ali Mazhar and Mrs. Ashraf Jahan, JJ

Dr. BASHIR AHMED and others

Versus

PROVINCE OF SINDH through Chief Secretary and others

C.P. No.D-3679 of 2014, decided on 3rd September, 2015.

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

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Contract employee---Regularization of service---Plea of petitioners was that they had acquired the status of permanent employees on promulgation of Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013---Validity---Continuance service of employees---Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 had been promulgated on 25-03-2013 with immediate effect---Employees appointed on ad hoc and contract basis against the post in BS-1 to BS-18 or equivalent basic scale who were otherwise eligible for appointment immediately before the commencement of the Act were to be deemed to have been validly appointed on regular basis---Not only a summary was moved for regularization after promulgation of Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 but committee was also constituted which resolved that contract and ad hoc employees in services were to be deemed to have validly been appointed on regular basis---Vacancies in the present case, were of permanent nature and without sufficient manpower department could not function---Employees should be deemed to have been appointed on regular basis and if department had any reservation with regard to fitness or eligibility of any employee then it might take appropriate action but in accordance with law---Constitutional petition was disposed of accordingly.

Chairman, Pakistan Railways and others v. Arif Hussain and others 2008 PLC (C.S.) 240; Ayaz Ahmed Memon v. Pakistan Railways, Ministry of Railway, Islamabad and another 2011 PLC (C.S.) 281 and Hakim Ali Ujjan and others v. Province of Sindh and others 2012 PLC (C.S.) 127 ref.

Dr. Iqbal Jan and others' case 2014 PLC (C.S.) 1153; Muhammad Akram Solangi and others v. D.C.O. Khairpur and others 2013 PLC (C.S) 121 and Ikram Bari's case 2005 SCMR 100 rel.

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

----Preamble---Scope---Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 was promulgated for regularization of the services of certain categories of employees appointed on ad hoc and contract basis or otherwise (excluding the employees appointed on daily-wages and work-charge basis) in the Province.

(c) Constitution of Pakistan---

----Art. 4---Equal protection of law---Scope---To enjoy the protection of law and to be treated in accordance with law was inalienable right of every citizen---No action detrimental to the life, liberty, body, reputation or property of any person could be taken except in accordance with law.

(d) Constitution of Pakistan---

----Art. 3---Elimination of exploitation---Scope---State was bound to ensure elimination of all forms of exploitation.

(e) Public functionaries---

----Public functionaries were supposed to function in good faith honestly and within the precincts of their power.

M.M. Aqil Awan for Petitioners.

Abdul Jalil Zubedi, A.A.G.

Dr. Ashok, Technical Officer, Representative of Director Animal Breeding.

Abdul Rehman on behalf of Secretary Livestock.

Date of hearing: 27th May, 2015.

2016 P L C (C.S.) 259

[Sindh High Court]

Before Muhammad Ali Mazhar and Muhammad Iqbal Kalhoro, JJ

ZUBAIR

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and 3 others

C.P. No.D-3913 of 2015, decided on 2nd November, 2015.

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

----R. 8-B---Pakistan Agricultural Research Council Ordinance (XXXVIII of 1981), S.16---SRO 19(I)86 dated 16-01-1986---Constitution of Pakistan, Art.199---Civil service---Deputation---Department of Plant Protection---Assigning additional charge of Director General to the employee of Pakistan Research Council (Public Sector Corporation)--- Additional charge--- Scope--- Employee of Pakistan Agricultural Research Council was assigned additional charge of Director General in the Department of Plant Protection---Contention of petitioner was that the post of Director General (BS-20) was required to be filled by promotion or by direct appointment of a person having Master degree in agricultural science---Validity---Post of Advisor, Director and Joint Director in the Department of Plant Protection could be filled in by promotion or by initial appointment---Respondent had been entrusted additional charge of Director General instead of making appointment either by promotion or initial appointment---Respondent had lost the status of civil servant even though he had been given additional charge on the ground that nobody was competent to hold the said post---Unlimited period of acting charge and or additional charge had been deprecated by the superior courts---Petitioner could not be non-suited on the ground that he had challenged the additional charge only which was over---Unjustified term of office could not be continued or shielded---No non-civil servant could be transferred by way of deputation to any cadre---Deputation could only be necessitated if no suitable person was available to a particular post---Temporary transfer/posting of a civil servant or by deputation of any employee of a public sector corporation was permissible in consultation with his appointing authority---Mala fide was on record on the part of department in assigning additional charge to the respondent---No effort had been made to fill the post in question by regular appointment---Impugned order had been passed in violation of law as settled by the Supreme Court, which would amount to contempt of court---Constitutional petition was admitted to regular hearing and was disposed of by High Court in the terms that additional charge of respondent was unlawful; notification for appointment of respondent was declared to have been issued without lawful authority having no legal effect; respondent was restrained from holding the post on deputation with immediate effect and department was directed to make regular appointment to the post of Director General (BS-20) immediately in accordance with law

Safdar Ali Sehito v. Province of Sindh and others 2011 PLC (C.S.) 956 and Contempt proceedings against the Chief Secretary, Government of Sindh and others 2013 SCMR 1752 rel.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Scope---Person invoking the jurisdiction under Art.199 of the Constitution was not required to fulfil the condition of an aggrieved person---Any person could move High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office---Said person was not required to establish his locus standi.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Relief---Court might take judicial notice of the changed situation and mold the relief to do substantial justice between the parties.

(d) Constitution of Pakistan---

----Arts. 189, 190 & 204---Judgment of Supreme Court---Binding effect---Judgment of Supreme Court was binding on each and every organ of the State.

(e) Civil service---

----Deputation---No non-civil servant could be transferred by way of deputation to any cadre.

Kafeel Ahmed Abbassi and Malik Naeem Iqbal for Petitioner.

Salman Talibuddin, Additional Attorney General for Pakistan.

Munir Anwer Baig, Assistant Director, Department of Plant Protection.

Dates of hearing: 10th August, and 5th October, 2015.

2016 P L C (C.S.) 272

[Sindh High Court]

Before Muhammad Ali Mazhar and Muhammad Iqbal Kalhoro, JJ

ZAEEM AZIZ QURESHI

Versus

PKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman and another

C.P.No.D-1595 of 2006, decided on 2nd November, 2015.

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

----Ss. 2, 3, 5 & 8---Petitioner being Manager (Marketing) in the Corporation was charged for financial irregularities---Compulsory retirement--- Enhancement of penalty--- Reasons--- Competent authority---Compulsory retirement order not signed by the competent authority---Effect---Inquiry was conducted against the petitioner-employee and he was compulsory retired on the allegations of financial irregularities---Contention of petitioner-employee was that compulsory retirement order was not passed by the competent authority---Validity---Department was not bound to impose the penalty as recommended by the Inquiry Officer but in case of any deviation or decision to impose any penalty other than recommended, Department was bound to inform the employee in the show cause notice with the reasons of such deviation---Maximum punishment could be inflicted by the authority provided under the law which could not be said to be illegal---Competent authority could pass such order on the report and recommendation of inquiry officer as it might deem proper---Competent authority was not bound to follow the report of inquiry officer---Compulsory retirement order could not be defended on the ground that Chairman/CEO (Competent authority) of the corporation was present in the meeting and there was no need to sign the same by him---Serious allegations were levelled and proved in the inquiry and exact figure of loss had been mentioned in the show cause notice---Inquiry report could not be wiped out or wrecked due to the reason alone that retirement order was not signed by the competent authority---Department should be afforded an opportunity to make another study of the case and pass appropriate order---Impugned order was set aside, however, same would not preclude and impede the authority from passing an appropriate order afresh after consideration of inquiry report---Constitutional petition was disposed of in circumstances.

Pakistan Defence Officers Housing Authority v. Lt.Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Lal Khan v. Punjab Labour Appellate Tribunal 1995 SCMR 1758 ref.

Mehboob Ahmed Soomro v. Federation of Pakistan and others 2010 PLC (C.S) 911 and Ghulam Qasim Khan v. Federation of Pakistan and another 2005 PLC (C.S) 1475 rel.

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

----Preamble---Scope of the Ordinance---Provisions of Removal from Service (Special Powers) Ordinance, 2000 were meant to provide measures inter alia dismissal, removal etc. of certain persons from government and corporation service for speedy disposal of cases and matters connected therewith or ancillary thereto.

Salahuddin Ahmed for Petitioner.

Jawed Asghar Awan for Respondent No.1.

Date of hearing: 21st September, 2015.

2016 P L C (C.S.) 328

[Sindh High Court]

Before Munib Akhtar and Nazar Akbar, JJ

MUHAMMAD RAFI

Versus

FEDERATION OF PAKISTAN through Secretary and 2 others

C.Ps. Nos.D-2807 of 2013 and 3458 of 2013, decided on 13th July, 2015.

Civil service---

----Laches---Appointment letter, cancellation of---Grievance of petitioner was that after issuance of appointment letter to petitioner, the Authority suspended the letter and did not take petitioner on duty---Plea of the Authority was that High Court could not exercise Constitutional Jurisdiction in the matter being hit by laches---Validity---Petition could be dismissed on such basis if looking at the totality of circumstances, Court was satisfied that petitioner had abandoned his claim---Rule that an aggrieved person was normally expected to approach High Court within three months was only a rule of convenience and ninety days period served merely as a referential point which was not to be applied as mandatory rule such as a period of limitation prescribed under law---Petitioner was actually an employee of the Authority that did not have statutory rules of service---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter---Petition was dismissed in circumstances.

Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman PLD 2010 SC 676; Masroor Hussain and others v. Chairman, Pakistan International Airlines and others 2010 PLC (CS) 630; Muhammad Aslam Khan v. Federation of Pakistan and others 2013 SCMR 747; Muhammad Nawaz v. Civil Aviation Authority and others 2011 SCMR 523; Zafar Iqbal v. Pakistan Civil Aviation Authority and another 2011 PLC (CS) 348; Dr. Abdul Karim Channa and others v. Civil Aviation Authority and another SBLR 2011 Sindh 1299; Muhammad Iqbal Chaudhry, etc. v. Civil Aviation Authority, etc. NLR 1994 TD (Service) 362; Syed Mubashar Zawar, etc. v. Civil Aviation Authority, etc. NLR 1996 TD (Service) 274; Anisa Rehman v. PIAC 1994 SCMR 2232; Saleh Muhammad and others v. Federation of Pakistan and others PLJ 2011 Kar. 170; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (CS) 1046; Jawaid Ghafoor v. Pakistan Civil Aviation Authority and another 2010 PLC (CS) 276 and Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 rel.

Farrukh Usman for Petitioner.

Azizullah Burio, DAG

Sanaullah Noor Ghori for contesting Respondent (CAA).

2016 P L C (C.S.) 350

[Sindh High Court]

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

RIAZ GUL and others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power

Government of Pakistan, Islamabad and others

C.P. No.1168 of 2012, decided on 27th May, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Non-statutory service rules---Effect---Respondent was public limited company having no statutory service rules---Constitutional petition would not lie in the matters where the terms and conditions of employee were not governed by statutory rules---Mere selection in written examination and interview test would not by itself vest the candidate with any fundamental right for enforcement as such---Factual controversies could not be decided by invoking constitutional jurisdiction of High Court---Constitutional petition was dismissed in circumstances.

Ehsan-ur-Rehman and 10 others v. Arshad Ali Khan and 5 others (2012 PLC (C.S) 795). In support of his contentions he has further relied upon the case law reported as Asif Mehmood Chugtai Advocate v. Government of Punjab (2000 SCMR 966), Sonu v. Province of Sindh (2012 PLC (C.S) 249), Dr. Mir Alam Jan v. Dr. Muhammad Shehzad (2008 SCMR 960) and Secretary Finance v. Ghulam Safdar (2005 SCMR 534 ref.

Rafiq Ahmed Kalwar for Petitioners.

Usman Tufail Shaikh for Respondent No.2.

M.M. Aqil Awan andAbida Parveen Channar for Respondents Nos.3 to 37.

Asim Mansoor Khan, D.A.-G. along with Mohammad Gulzar Shaikh, D.G. (HR) NTDC for Federation.

Date of hearing: 28th April, 2015.

2016 P L C (C.S.) 360

[Sindh High Court]

Before Nisar Muhammad Shaikh and Syed Saeeduddin Nasir, JJ

KARO and 4 others

Versus

GOVERNMENT OF SINDH through Secretary and 3 others

C.P.No.D-1577 of 2012, decided on 23rd September, 2014.

Civil service---

----Appointment to the post of Constable in Police Department---Petitioners who obtained the same marks like others who were given appointment letters could not be denied their right---Petitioners were also entitled to be given the similar treatment---Authorities were directed to adjust the petitioners against the vacant posts of Constable in the District and in case no such vacancies were available then they should accommodate the petitioners as soon as such posts were available---Constitutional petition was accepted accordingly.

Secretary Finance and others v. Gulam Safdar 2005SCMR 534; 1996 SCMR 1186; 2003 SCMR 1030; 2005 SCMR 499 and 2009 SCMR 339 ref.

Jamil Ahmed Rajpar for Petitioners.

Allah Bachayo Soomro, Addl. A.G. Sindh along with Inspector Bhooromal S.P. Office Mithi on behalf of D.I.G. Mirpurkhas for Respondents.

2016 P L C (C.S.) 403

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

Mir NADIR ALI KHAN TALPUR

Versus

CHIEF SECRETARY TO GOVERNMENT OF SINDH and 2 others

C.P. No.D-3101 and C.M.A. Nos.8730, 9263 of 2015, decided on 4th December, 2015.

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

----R. 9---Sindh Civil Service Tribunals Act (XV of 1973), S.4---Sindh Civil Servants (Appeal) Rules, 1980, R.3---Constitution of Pakistan, Arts.199 & 212---Appointment by transfer, validity of---Appeal to Service Tribunal---Service Tribunal, exclusive jurisdiction of---Terms conditions as to service of civil servant, determination of---Bar under Art.212, Constitution---Applicability---Scope---Petitioner challenged departmental notification regarding his transfer on ground of mala fide, claiming that the same had been issued by the Chief Secretary of the Province without approval of Chief Minister---Validity---Constitutional petition would not lie with regard to the matters pertaining to the terms and conditions of civil servants---Petitioner was a civil servant, who had impugned the notification regarding his transfer and posting, for which remedy was provided in terms of R.3 of Sindh Civil Servants (Appeal) Rules, 1980, read with S.4 of Sindh Civil Service Tribunals Act, 1973---In view of the bar under Art.212 of the Constitution present petition was not maintainable---High Court, however, observed that the ground of limitation, keeping in view of the present petition, might be considered sympathetically by the forum available under the law---Constitutional petition was dismissed in circumstances.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 rel.

Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963 and Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 ref.

Sohail Ahmed Khoso for Petitioner.

Sarfraz Ali Metlo for Respondent No.3.

Noor Hassan Malik, Asstt. A.G.

2016 P L C (C.S.) 411

[Sindh High Court]

Before Munib Akhtar and Nazar Akbar, JJ

BADAR SHAH ORAKZAI

Versus

PAKISTAN CIVIL AVIATION AUTHORITY through Director General, Karachi and another

C.P. No.D-299 of 2014, decided on 12th March, 2015.

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

----Ss. 4 & 13---Constitution of Pakistan, Art.199---Constitutional petition--- Civil service---Sacked employees---Termination of service---Daily wage employees---Successive "gaps" in employment of daily wage employee---Effect---Each of the petitioners was employed from the first period to the second period---Successive "gaps" in the employment were merely a device or ploy used by the Employer/Authority to avoid the labour legislation---Petitioners remained employed with the Authority throughout the period---No "gaps" and "breaks" existed in the period of employment of petitioners---Case of petitioners would fall within the ambit of Sacked Employees (Re-instatement) Act, 2010---Petitioners were declared to be sacked employees and they stood re-instated and regularized---Constitutional petition was accepted and Employer-Authority was directed to issue letter of reinstatement to the petitioners within a specified period and they shall also be entitled for payment of compensation computed mutatis mutandis---Each petitioner would also be entitled to all other benefits to which he might be expressly entitled by or under the Sacked Employees (Reinstatements) Act, 2010, but subject to S.19 of the said Act and shall not be entitled to any double benefit.

Ali Asadullah Bullo for Petitioners.

Sanaullah Noor Ghouri for Respondent No.1.

Azizullah Burio, DAG.

Date of hearing: 2nd March, 2015.

2016 P L C (C.S.) 430

[Sindh High Court]

Before Irfan Saadat Khan, J

M/s MARI GAS COMPANY LIMITED through Managing Director and another

Versus

SHABIR AHMED

Civil Revision No.21 and C.M.A. No.152 of 2014, decided on 12th December, 2014.

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

----S. 42---Suit for declaration---Employee of company---Probationary period---Gratuity, calculation of---Criteria---Eligible service---Scope---Defendant-Company calculated gratuity on the basis of basic salary of the plaintiff-employee on the ground that his service was below 15 years of length---Contention of employee was that he was entitled to be given the gratuity on the basis of gross salary and not on the basic salary as he had served for more than 15 years in the company---Validity---Any period of service with the employer on probation subject to condition that employee was confirmed in employer's service would be included in eligible service---Employee remained in service without any break including the probationary period for a period of more than 15 years---Crucial issue was as to whether the period of probation was to be considered for claim of gratuity or not---Employee was not only a permanent employee but also was a member of the fund of the company---Once an employee had become a member, his period of probation/training would be included towards his eligible service---Eligible service would include at the end of probation if the employee was confirmed---Entire period of service of plaintiff-employee would fall within the definition of term 'eligible service'---Employee's probationary period could be considered as service under the rules of company---Plaintiff-employee had become a member of the Trust which did not impose any embargo or put any discrimination with regard to the permanent employee or otherwise---Probationary period of the plaintiff-employee under the given circumstances could be counted for calculating the gratuity---Plaintiff-employee had been made a member and he was entitled for the benefit of gratuity---Company was bound to pay the due gratuity as per terms and conditions mentioned in the Trust Deed to its employees---Rules of company were subservient to the Trust Deed---If there was controversy between the Trust Deed and the Rules, the Deed had to be given preference over the Rules---Employee was entitled to be paid gratuity which was to be calculated on gross salary basis---Revision was partly accepted, in circumstances.

Abdul Ghafoor v. N.H.A 2002 SCMR 574; Captain Salim Bilal v. PIA 2013 PLC (C.S.) 1212; Dr. Sher Wali Khan v. Dr. M. Masoom Khan 1998 SCMR 969 and Ikram Bari v. N.B.P. 2005 SCMR 100 ref.

(b) Words and phrases---

----"Eligible service"---Meaning---Eligible service would mean a period of continuous service with the employer.

Chaudhry Shahid Hussain Rajput for Applicants.

Raja Basantani for Respondent.

Date of hearing: 8th December, 2014

2016 P L C (C.S.) 468

[Sindh High Court]

Before Sadiq Hussain Bhatti, J

MUHAMMAD BUX KUMBHAR

Versus

HABIB BANK LTD. through President and Chief Executive and 3 others

Civil Revision Application No.68 of 2014, decided on 21st April, 2015.

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

----O. VII R. 11 ----Rejection of plaint---Suit for damages on account of wrong calculation of pensionary benefits of the plaintiff, who had voluntarily retired from the defendant Bank---Plaint was rejected by Trial Court on ground that no cause of action had been disclosed therein and the suit was barred by time---Held, that contention of plaintiff that no scheme or policy for premature retirement existed was wrong as a letter clearly stating the policy existed and even otherwise, if there was no such policy or scheme, then the plaintiff himself had applied for the same and was not an illiterate person---Plaintiff received all final dues without a note of objection and therefore it was clear that he was satisfied with the calculations and he thereafter applied for return of documents of his property which was mortgaged with the defendant Bank and the same were returned to him by the defendant Bank and such fact was duly acknowledged by the plaintiff---After a lapse of three years, the plaintiff filed present suit and claimed miscalculation of benefits and sought damages---Courts below were justified in holding that no cause of action accrued to plaintiff in view of the fact that he received his full and final settlement after his retirement from the defendant Bank---Revision was dismissed, in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings---Concurrent findings could not be disturbed by the High Court in terms of its jurisdiction for revision under S.115, C.P.C. unless misreading or non-reading of evidence was shown, or if the findings were perverse.

Muhammad Din v. Muhammad Abdullah PLD 1994 SC 291 rel.

Applicant in Person.

Zafar Alam for Respondents Nos.1 and 2.

Nemo for Respondents Nos.3 and 4.

Date of hearing: 18th March, 2015.

2016 P L C (C.S.) 477

[Sindh High Court]

Before Muhammad Ali Mazhar and Muhammad Karim Khan Agha, JJ

AHSANULLAH and 11 others

Versus

FEDERATION OF PAKISTAN through Secretary and 4 others

C.P. No.D-1185 of 2013, decided on 22nd December, 2015.

Civil service---

----Termination of contract---Discrimination---Grievance of petitioners was that other similarly placed employees (footballers) were regularized in service while their contracts were terminated---Validity---Petitioners were discriminated against by respondents under Art.25 of the Constitution---No intelligible differentia existed which could distinguish those 98 stipend workers who were regularized and petitioners who were not and were terminated---Such was also applicable to the petitioners vis-a-vis those similarly placed persons on contract who were terminated like petitioners and then rehired again on temporary contracts in a matter of few days in some cases---Authorities had also violated the provisions of the Art.4 of the Constitution---High Court directed the authorities to consider the case of all petitioners for regularization and remanded the case to them---Petition was allowed accordingly.

Ejaz Akbar Kasi v. Ministry of Information and Broadcasting 2011 PLC (CS) 367; Hakim Ali Ujjan v. Province of Sindh 2012 PLC (CS) 127; Pakistan Telecommunications Company Limited v. Muhammed Zahid 2010 SCMR 253; Muhammad Ashfaq v. Government of Pakistan 2008 PLC (CS) 278; Tayyab Farid v. Government of Punjab 2011 PLC (CS) 53; Management of Jawahar Mills Lt v. Regional Director Employees 2001 (II) LLJ 793 Madras High Court, India); Matloob Hussain v. Messrs Philips Electrical Industries 1978 PLC 428; Dr.Ishaque Mohammed Shah v. President NBP 2010 PLC (CS) 748; Federation of Pakistan v. Hashim Shah Qureshi 1987 SCMR 156; Zia ul Haq Anjum v. Chief Administrator Auqaf 2000 PLC (CS) 1079; Chief Engineer A.E.B v. Commissioner for Workmans Compensation Authority 1993 SCMR 2302; Government of Balochistan v. Zahida Kakar 2005 SCMR 1061; Dr.Ikram ul Haq Tariq v. Government of Pakistan 1998 SCMR 1061; Idreesul Hasan Usmani v. Government of Pakistan 1991 SCMR 113; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Government of Balochistan v. Azzizullah Memon PLD 1993 SC 341 and Dr. Mubashir Hasan v. Federation of Pakistan PLD 2010 SC 265 ref.

Malik Naeem Iqbal for Petitioners.

Sh. Liaquat Hussain, Standing Counsel for Respondent No.1.

Moiz Ahmed for Respondents Nos.2 to 5.

Date of hearing: 11th November, 2015.

2016 P L C (C.S.) 518

[Sindh High Court]

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

FARNAZ RIAZ

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others

C.P.No.D-2857 of 2013, decided on 11th May, 2015.

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

----S. 10---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Civil service---Posting and transfer---Terms and conditions of service---Petitioner was civil servant and grievance agitated by her was challenge to her transfer which fall within "terms and conditions of service"---High Court under Art.199 of the Constitution, had no jurisdiction to address the grievance of petitioner as exclusive jurisdiction for the matter would lie with the Service Tribunal---Constitutional petition was dismissed in limine with costs.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Nasir Abbas Sherwani v. Director General, Directorate General of Immigration, Passport Office, Headquarters, Islamabad and another 2007 PLC (C.S) 1079 and Allaudin v. Chief Commissioner and another PLD 1959 (W.P.) Kar. 282 distinguished.

Mushtaq Ahmed and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405 rel.

M.B. Khatian for Petitioner.

Abdul Jalil Zubaidi, A.A.G. for Respondents.

Date of hearing: 16th April, 2015.

2016 P L C (C.S.) 530

[Sindh High Court]

Before Munib Akhtar and Aziz-ur-Rehman, JJ

ABDUL KHALIQUE

Versus

FEDERATION OF PAKISTAN through Secretary, Board of Investment and 4 others

Constitutional Petition No.D-1016 of 2015, decided on 1st October, 2015.

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

----R. 3(2)---Constitution of Pakistan, Arts.25 & 199---Upgradation of post on the basis of other officials of similarly placed in other departments/organizations---Terms and conditions of service---Discrimination---Vested right---Scope---Petitioner being Public Relation Officer (BS-16) in Board of Investment had sought upgradation of post in BS-17---Contention of petitioner-employee was that Public Relation Officers/Information Officers/Protocol Officers were being inducted in Federal/Provincial Government in BS-17 whereas in Board of Investment the Public Relation Officers were inducted through Federal Public Service Commission in BS-16 and said method of induction was discriminatory---Validity---Petitioner-employee had been claiming upgradation from BS-16 to BS-17 on the basis that other officials similarly placed in some other departments/organizations of Federal/Provincial Government were being inducted in BS-17 instead of BS-16 which could not be said to be a terms and conditions of service---One had to establish that the nature of work being performed was essentially the same for seeking relief on the basis of discrimination---Equal protection of law without any distinction had been guaranteed by the Constitution---Equality clause in the Constitution did not prohibit the framing of different laws in different circumstances---Only 'irrational' or 'arbitrary discrimination' would amount to 'legislative despotism' and same would offend Art. 25 of the Constitution---When 'statutory functionary' had acted with mala fide or in a partial, unjust, oppressive and/or 'discriminatory manner' then its' action could be challenged for violation of equality clause of the Constitution but not otherwise---Petitioner-employee had not pinpointed out violation of any specific provision of law/Rules which could be challenged/questioned on the touchstone of Art.25 of the Constitution---Petitioner-employee had failed to establish any 'vested right' violated by the authorities---Posts of Public Relation Officers advertised by the Federal Public Service Commission were in grade 16---Petitioner-employee being aware of such grade had applied for the same---Question of any discrimination did not arise under the facts and circumstances of present case---Petitioner-employee without questioning/challenging the authority of concerned 'Ministry' or 'Division' viz-a-viz the method to be laid down with consultation of Establishment Division was not within its domain could not claim discrimination or upgradation of the post---Petitioner-employee could not claim to be treated equivalent to 'Information Officer' (BS-17) and `Protocol Officer' (BS-17) having different nomenclatures and performing different duties---Case of petitioner-employee did not fall within the ambit of Art. 25 of the Constitution and he was not entitled to be upgraded from BS-16 to BS-17---Petitioner-employee was being fairly treated and he was never discriminated---'Equal pay' for 'equal work' was an 'integral part' of the Constitution but said principle was not applicable in the present case---Constitutional petition was dismissed in circumstances.

Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan PLD 1957 SC (Pak.) 9; I.A. Sherwani's case 1991 SCMR 1041; F.B. Ali's case PLD 1975 SC 506; Abdul Wali Khan's case PLD 1976 SC 57; Aziz Begum's case PLD 1990 SC 899; Shirin Munir and others v. Government of Punjab PLD 1990 SC 295 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

(b) Constitution of Pakistan---

----Art. 25---Equality before law---Scope---Equal protection of law did not envisage that all citizens should be treated in all circumstances as equal rather it would contemplate that person similarly placed were to be treated alike---Equality of persons did not mean that all laws/rules must apply to all the subjects or that all the subjects must have same rights and liabilities---No discrimination could be made on the basis of sex but State might make any special provision of law for the protection of women and children.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Object---Object of constitutional jurisdiction was to enforce and protect a 'vested right' and same was not for establishment of a right---Right to be enforced under Art. 199 of the Constitution must not only be an existing right but for seeking remedy under the said Article the infringement of such vested right must be there.

Petitioner in person.

Shaikh Liaquat Hussain Standing Counsel along with Ms. Nasreen Ali, Director General Bol for Respondents.

Dates of hearing: 10th and 16th September, 2015.

2016 P L C (C.S.) 589

[Sindh High Court]

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

SAEED AHMED SETHAR

Versus

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

C.P. No.D-5337 of 2013, decided on 7th May, 2015.

Civil service---

----Contract employee---Termination of service---Scope---Contract employee had no vested right created in his favour---Post, in the present case, was advertised and petitioner, a contract employee also participated in the process---Selection was made on merit by the Selection Committee---Nothing was on record with regard to lack of qualification of respondent---Petitioner having no locus standi to challenge the appointment of respondent---No fundamental right of petitioner having been infringed to invoke constitutional jurisdiction of High Court, constitutional petition was dismissed in limine.

Mukhtar Ahmed and 37 others v. Government of West Pakistan through the Secretary Food and Agriculture and another PLD 1971 SC 846; Arshad Jamal v. N.W.F.P. Forest Development Corporation and others 2004 SCMR 468 and Human Rights Cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P, and 58118-K of 2010 and SMC No.24 of 2010 PLD 2011 SC 205 distinguished.

Trustees of the Port of Karachi v. Saqib Samadani 2012 SCMR 64; Government of Balochistan, Department of Health through Secretary Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642 and SMC No.15/2010 2013 SCMR 304 rel.

M.B. Khatian for Petitioner.

Kazim Raza Abbasi for Respondent No.3.

Abdul Jalil Zubaidi, A.A.G.

Date of hearing: 3rd April, 2015.

2016 P L C (C.S.) 728

[Sindh High Court]

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

Syed SAQIB JAHANGIR and 19 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power and 7 others

Constitutional Petition No.D-277 of 2013, decided on 14th November, 2014.

(a) Civil service---

----Withdrawal of Special Engineering Allowance---Promotion---Misjoinder and non-joinder of necessary parties---Effect---Petitioners were aggrieved of quota set forth by the authorities for graduate and non-graduate engineers as well as mandatory condition of training and passing of Departmental Promotion Examination by the already registered engineers for induction in the "Upper Technical Staff" graduate-engineers in BPS-17---'Professional engineering work'---Determination and scope---Contentions of the petitioners were that they were entitled for promotion to BS-17 on the analogy of employees of PEPCO and WAPDA; that approval of conversion of 10 posts from Matric quota' of UTS (BS-16) to 'Graduate quota' for the accommodation of qualified UTS as Junior Engineers in the Electric Company was illegal and against the law---Plea of the authorities was that Electric Supply Company being a separate entity, had no statutory rules and the rules adopted by the Electric Supply Company had been borrowed from WAPDA, thus, constitutional petition was not maintainable and petitioners were not entitled to claim the 'Special Graduate Allowance' as neither they were working in BPS-17, nor were the employees of WAPDA---Validity---Electric Supply Company was a separate legal entity having no statutory rules and its affairs were run and managed by its Board of Directors---Where terms and conditions of service of the employees of a statutory body were not regulated by rules/regulations framed under the statute, but only under the rules or instructions issued for its internal use, in such like situation, a writ normally could not be issued---Electric Supply Company, being a separate entity having its own Board of Directors for running of its management and affairs, was not ipso facto bound by the decisions of WAPDA and/or PEPCO until and unless the same were properly approved by the Board of Directors of the company---Petitioners were Company's employees in the capacities of Sub-Station Operators SSO-I, SSO-II and Line Superintendents (LS-I) in BPS-13---Upper Technical Subordinates (UTS) in the Company had been allocated 5% quota for promotion against the post of Assistant Junior Engineers, subject to the condition that the eligible candidates (UTS) must have undergone the mandatory training and passed Departmental Promotion Examination on the basis of seniority-cum-fitness, which was a pre-requisite criteria for UTS to be considered for promotion to the next higher grade as per Promotion Policy of the Company; therefore, wish and desire of petitioners through induction besides misconceived was misleading---Petitioners, who are employees of Electric Supply Company and not of WAPDA, were absolutely not entitled to claim the release of theGraduate Allowance' merely on the basis of WAPDA's letter as well as PEPCO's office order, which were not binding on the Company---Directives/instructions which were only applicable to the employees of PEPCO and/or WAPDA could not be stretched so long to cover the cases of the petitioners, who were employees of the Company and not of PEPCO and/or WAPDA---Merely on the ground that 'c.c.' had been forwarded to Electric Supply Company and others the same could not ipso facto be deemed binding---'Special Engineer Allowance' was only for 'Graduate Engineers' in BPS-17 and above, but as the petitioners were not 'Graduate Engineers' of BPS-17 and above, as such, none of them was entitled to claim the allowance---Constitutional petition was dismissed, in circumstances.

Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182; Maqsood Ali and others v. Government of Sindh through Secretary, Local Government, Public Health Engineering, Rural Development and Katchi Abadies Department and 5 others 2007 YLR 2243; Abdul Rauf and 10 others v. Government of Sindh and others 2003 CLC 1602; Tariq Saeed Saigol v. District Excise and Taxation Officer, Rawalpindi 1982 CLC 2387; Pak American Fertilizer Ltd., Mianwali v. Amir Abdullah Khan and another 1984 CLC 2170; Hyderabad Electric Supply Co. v. Mushtaq Ali Brohi 2010 PSC 1392; Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Secretary B&R Government of West Pakistan v. Fazal Ali Khan PLD 1971 Kar. 625 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---Object and Scope---Object of proceedings initiated under Art.199 of the Constitution was for the enforcement and protection of a vested right and not for the establishment of the rights---Right, might not only be existing one, but for its enforcement under constitutional jurisdiction the infringement thereof is also must.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Nature---Laches---Slackness and laxity of petitioner---Effect---Relief under writ jurisdiction besides being extra-ordinary is discretionary---Persons who demonstrate a style of slackness and laxity, undoubtedly cannot invoke such jurisdiction at his/their sweet will and wish---While considering the grant of relief under constitutional jurisdiction the question of delay and laches has to be given a serious thought and consideration.

Malik Naim Iqbal for Petitioners.

Abdul Sadiq Tanoli, Standing Counsel for Respondents Nos.1, 3 and 4.

Ansari Abdul Lateef for Respondent No.7.

Ghulam Haider Shaikh for Respondent No.8.

Nemo for Respondents Nos.2, 5 and 6.

Date of hearing: 14th October, 2014.

2016 P L C (C.S.) 772

[Sindh High Court]

Before Muhammad Ali Mazhar and Muhammad Karim Khan Agha, JJ

NADEEM SHAIKH

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and another

C.P. No.D-4929 of 2013, heard on 12th November, 2015.

(a) Sindh Service Tribunals Act (XV of 1973)---

----Ss. 4, 2(bb) & 3(b)---Sindh Subordinate Judiciary Service Tribunal (Procedure) Rules, 1993, R.2(g)---Civil service---Deputation--­Repatriation---Senior Clerk in the Court of Special Judge, Anti-Corruption (Provincial)---Charge of misconduct---Refusal of parent department to allow the employee to join the said department---Scope--­Petitioner-employee was repatriated to his parent department but he was not allowed to join the same on the ground that no vacant post was available---Contention of department was that petitioner-employee was transferred on the ground of misconduct and corrupt practices---Sindh Service Tribunal transferred the matter to the Registrar of High Court for placing the appeal of petitioner-employee before the Tribunal constituted for the members of Subordinate Judiciary-Validity- Once repatriation order was passed and conveyed, it should have been acted upon immediately---No inquiry or disciplinary proceedings had been initiated against the petitioner-employee---Repatriation o.-der was passed to implement the judgment of Supreme Court---Allegation of misconduct could be taken into consideration once the petitioner-employee was allowed to join the department---Petitioner-employee could not be shorn of joining his parent department in the anticipation of future misconduct proceedings if any---Petitioner-employee was not member of subordinate judiciary---No appeal of petitioner-employee would lie to the Tribunal meant for the members of subordinate judiciary---Administrative control of petitioner-employee would vest in the Provincial Government---Present was a matter of repatriation in the parent department which had nothing with the terms and conditions of service nor any final order was available to assail the same---Direction of Service Tribunal to fix the matter in the Tribunal constituted for the members of Subordinate Judiciary was coram non judice---Department was directed to allow the petitioner-employee to join his parent depart ment---Competent authority would be at liberty to initiate disciplinary proceedings against the petitioner-employee on the charge of misconduct if any---Department was further directed to release/pay the salary of the employee immediately---Constitutional petition was disposed of in circumstances.

2013 SCMR 1752 ref.

Ali Azhar Khan Baloch v. Province of Sindh and others 2015 SCMR 456 rel.

(b) Constitution of Pakistan---

----Arts. 189 & 190---Judgment of Supreme Court---Binding effect---Judgment of Supreme Court was binding on each and every organ of the State.

Mukhtar Ahmed for Petitioner.

Sibtain Mehmood, Asstt. A.G., Sindh.

Date of hearing: 12th November, 2015.

2016 P L C (C.S.) 787

[Sindh High Court]

Before Muhammad Ali Mazhar and Anwar Hussain, JJ

ABDUL SAMI SOOMRO and others

Versus

PROVINCE OF SINDH through Chief Secretary and others

Constitutional Petitions Nos.D-5251 of 2014, D-6600, D-6630, D-6675, D-6223, D-7034, D-7083 and D-7848 of 2015, decided on 4th March, 2016.

(a) Sindh Boards of Intermediate and Secondary Education Ordinance (VI of 1972) [As amended by Sindh Boards of Intermediate and Secondary Education (Amendment) Act (XXV of 2008)]---

----Ss. 2(g), 12, 14, 15, 17, 18, 28 & Schd.---Sindh Board of Technical Education Ordinance (XVII of 1970), [As amended by Sindh Board of Technical Education (Amendment) Act (XLI of 2015), Ss.10, 16 & 17---Sindh Boards of Education Employees Service Rules, Z013---Constitution of Pakistan, Art.199--- Constitutional petition---Scope--­Appointment of Chairman, Secretary and Controller of Examinations--­Procedure---Person posted on additional charge---Right of promotion---Scope--- Controlling Authority, Secretary to Chief Minister of Sindh, advertised in newspapers for appointments in the Boards of Intermediate and Secondary Education---Petitioners challenged said advertisements on the grounds that during the tenure of Chairman of the Board, appointment of Chairman through advertisement was not lawful, and that the petitioners while working on additional post as an interim/stopgap arrangement were entitled to be promoted permanently to said additional posts, and that the posts of Secretary and Controller of Examinations were to be filled on basis of promotion and seniority­cum-fitness on the recommendations of Appointment Committee---High Court, holding the advertisements having been made according to law, rules and regulations, dismissed the constitutional petitions---Principles.

Under section 2(g) of Sindh Boards of Intermediate and Secondary Education Ordinance, 1972, 'Controlling Authority' meant the Controlling Authority of Boards. Section 12 of the Ordinance, the 'Controlling Authority' was the Government instead of Governor of Sindh. Section 17(2) of the Ordinance provided that the regulations approved by the Board would not take effect until the same were approved by the Government. Section 18 of the Ordinance conferred powers upon the Board to make rules consistent with the Ordinance.

Sindh Boards, of Education Employees Service Rules, 2013 were meant to apply on the permanent and regular employees already in service of the Boards before enforcement of the rules, in relation to their terms of appointment. Definition of 'Appointment Committee' under said rules meant Appointment Committee of the Board as constituted under Sindh Boards of Intermediate and Secondary Education Ordinance, 1972. According to said rules, the appointing authority of the "Chairman was the Controlling Authority, whereas for the appointment of Secretary and Controller of Examination's, the appointing authority was Board of Governors subject to the approval of the Controlling Authority.

Rule-making powers under section 18 of Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 were quite limited, and the same did not include the rules relating to the appointment or induction of any post by direct appointment or through promotion. Nothing was available on record to show that Sindh Boards of Education Employees Service Rules, 2013 had been framed under sections 17 and 18 of Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 and approved by the Government. Even if the said rules had statutory backing or force of law, the same could not override the express provisions of the Act and/or Ordinance, and in case of any conflict, the provision of the parent law would prevail.

Under section 10 of Sindh Board of Technical Education Ordinance, 1970, the Controlling Authority was the 'Chief Minister. Under section 16 of the Ordinance, Chairman was appointed by the Government on such terms and conditions as might be determined by the Government. Under section 17 of the Ordinance, appointment of Secretary and Controller of Examinations would also be made by the Government.

Under both Ordinances, Sindh Boards of Intermediate and Secondary Education Ordinance, 1972 and Sindh Board of Technical Education Ordinance, 1970, powers to appoint Chairman, Secretary and Controller of Examinations were vested in the Controlling Authority and nothing was mentioned in the Ordinances that the posts of Secretary and/or Controller of Examinations would be filled by promotion. Petitioners could not claim vested right against the contractual engagements even against the tenure post, as their case could not be treated at par with the civil servants, where different rules and regulations were applicable. Chairman, Secretary and Controller of Examinations were, therefore, to be appointed by the Controlling Authority through direct induction.

Petitioners, who had been assigned the additional charge could not claim any vested right of promotion to the posts. Holding or acting for additional charge was always meant for stopgap arrangement till such time the regular appointment or induction was made.

Earlier appointments of the petitioners (Chairman, Secretary and Controller of Examinations) had been made by the Controlling Authority without following any screening test or competitive process, therefore, possibility of favouritism, preferential treatment and Sifarish could not be ruled out in their appointments. Nothing was wrong with the Controlling Authority having decided to make the appointments on merits through competitive process across the board, so that the best persons might be chosen to hold the important post of Chairman, Secretary and Controller .of Examinations. Controlling Authority had constituted Search Committee for the selection of competent and qualified persons for the posts. Search Committee, having selected the persons, was to make recommendations for three most suitable candidates for approval of the Controlling Authority.

If the Controlling Authority had made policy decision to maintain transparency in the appointment then such type of policy decision could not be questioned under the writ jurisdiction, particularly when there was no ambiance of any bias, partiality and unfairness, but implementation of the policy matter across the board. No restriction could be imposed on the appointing authority when the policy decision was put into action across the board with equal treatment. Selection process in question had been initiated for all Boards and any person who lived up to the criteria and qualification might apply to the Search Committee for consideration of his application. Enactment of rules and amendment therein was the prerogative of the Government.

Human Rights Case No.14392/2013 and others 2014 SCMR 220; Doctor Alyas Qadeer Tahir's case 2014 SCMR 997 and Executive District Officer (Revenue), District Khushab's case 2012 PLC (C.S.) 917 rel.

Search Committee had not been given the mandate to appoint the Secretary and Controller of Examinations of the Boards. if the Controlling Authority wanted to maintain transparency, transulancy and evenhandedness in discharge of their duty, then that was essential that the Secretary and Controller of Examination would also be appointed on the recommendation of the Search Committee through transparent manner and not directly by the Controlling Authority.

Contract of employment could not be enforced through constitutional petitions, and where the suit for damages was proper remedy, the doctrine of locus poenitentiae was of limited application. Petitioners having accepted the conditions of service, had no locus standi to file the Constitutional petitions seeking writs of prohibition and mandamus to the authorities to refrain from terminating their services and to retain them on their existing posts on regular basis. Petitioners, being aggrieved against their premature termination of engagement, might file suit for damages, but they could not claim the specific performance through the Constitutional petitions.

Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841 rel.

High Court directed the Controlling Authority to make sure that appointments of Chairman, Secretary and Controller of Examinations would be made through the Search Committee's recommendations to maintain transparency and also to consider applications of the petitioners in response to the advertisements strictly on merits if they chose to apply. Constitutional petitions were dismissed in circumstances.

Syed Mahmood Akhtar Naqvi v. Federation of Pakistan (commonly known as Anita Turab case PLD 2013 SC 195 and Government of West Pakistan and Accountant General West Pakistan Lahore v. Nasir M. Khan PLD 1965 SC 106 distinguished.

Muhammad Tariq Malik v. Pakistan through Secretary Establishment Division and others PLD 2014 Isl. 38; Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864; Tariq Azizuddin and others case in re: Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 14309-G of 2009, decided on 28th April, 2010; 2010 SCMR 1301; 2013 SCMR 1205; Abid Iqbal Hafiz and others v. Secretary; Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841; Maj. (Recd.) Shehzad Hussain Khan v. Government of the Punjab and others 2001 PLC (C.S.) 249 and Trustees of the Port of Karachi v. Saqib Samdani 2012 PLC (C.S.) 172 ref.

(b) Constitution of Pakistan--

----Art. 199--- Constitutional jurisdiction--- Scope--- Policy of Government---Jurisdiction of courts---Scope---Courts do not sit in judgment over policy of Government nor interfere or strike down unless the same is proved mala fide or made in colorful exercise of authority or power.

Human Rights Case No.14392/2013 and others 2014 SCMR 220; Doctor Alyas Qadeer Tahir's case 2014 SCMR 997 and Executive District Officer (Revenue), District Khushab's case 2012 PLC (C.S.) 917 rel.

Malik Naeem Iqbal and Muhammad Saleem Khaslcheli for Petitioners (in C.Ps.Nos.D-6723 and 7848 of 2015), Abrar Hasan for Petitioners (in C.Ps.Nos.D-6600, 6630 and 6675 of 2015).

Abdul Salem Memon for Petitioner (in CP. No.D-5251 of 2014).

Anand Kumar for Petitioners (in C.Ps. Nos.D-7034 and 7083 of 2015).

Ali Azhar Tunio for Respondent No.3 (in C.P. No.D-7083 of 2015).

Mukesh Kumar Karara A.A.G and Jam Habibullah State Counsel.

Dates of hearing: 9th, 11th, 16th and 18th February, 2016.

2016 P L C (C.S.) 879

[Sindh High Court]

Before Muhammad Ali Mazhar and Zulfiqar Ahmad Khan, JJ

NAHEED AZHAR----Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others----Respondents

C.P. No.6572 of 2015, decided on 1st April, 2016.

(a) Civil service---

----Deputation---Repatriation of an employee---Acting Chairman, Sindh Revenue Board, ordered for repatriation of petitioner-employee allegedly on her own request---Contention of petitioner-employee was that she never made any request for her repatriation to her parent department---Chief Secretary cancelled/ withdrew the repatriation order but Acting Chairman, Sindh Revenue Board, did not allow the petitioner-employee to join the duty---Validity---Sindh Revenue Board was under the administrative control of Chief Minister's Secretariat through the office of Chief Secretary---Acting Chairman, Sindh Revenue Board, had no power or authority to raise any objection against the order issued by the Chief Secretary cancelling or withdrawing the repatriation order---Impugned order passed by the Acting Chairman, Sindh Revenue Board, was without lawful authority---Neither parent department asked the Government to relieve the petitioner-employee nor it passed any order for her repatriation---Chief Secretary was competent authority to recall the repatriation order of the petitioner-employee---High Court observed that Government should make regular appointment of Chairman, Sindh Revenue Board, through competitive process---Impugned order was rightly cancelled by the Chief Secretary---Acting Chairman, Sindh Revenue Board, was directed by High Court to allow the petitioner-employee to resume her duty immediately---Constitutional petition was disposed of in circumstances.

Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 PLC (C.S.) 1077; Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378 and Lal Khan v. Employee Old Age Benefit Institution and others 2010 PLC (C.S.) 1377 ref.

(b) Civil service---

----Deputationist---No vested right could be claimed by the deputationist for ever or for stipulated period and deputationist could be repatriated to the parent department at any time without assigning any reason.

(c) Civil service---

----Acting/additional charge---Meaning.

Ayaz Shaukat for Petitioner.

Muhammad Haseeb Jamali for Respondent No.2.

Abdul Jabbar Qureshi, AAG for Respondents Nos.1 and 3.

Date of hearing: 3rd February, 2016.

2016 P L C (C.S.) 1035

[Sindh (Hyderabad)]

Before Muhammad Iqbal Kalhoro and Muhammad Iqbal Mehar, JJ

ALLAH BACHAYO and 16 others----Petitioners

Versus

PROVINCE OF SINDH through Secretary Local Government Katchi Abadies and Special Development Department and Public Health Engineering Department Sindh and 8 others----Respondents

C.P. No.D-1204 of 2010, decided on 22nd March, 2016.

Civil service---

----Work charge employees---Regularization of services---Regularization of services of employees on the direction of High Court---Seeking of equal treatment by the other employees of the department---Validity---When High Court had decided a point of law with regard to other similar employees of the department then department ought to have taken into consideration the case of other employees including the petitioners who could not take any proceedings to seek their right---Benefit of decision of High Court ought to have been extended to other employees of the department who were not party to the litigation instead of compelling them to approach the High Court for the same relief---Petitioners were entitled to equal treatment meted out already to the other employees on the direction of High Court---Department was directed to regularize the petitioners within four weeks---Constitutional petition was allowed in circumstances.

2000 SCMR 879 and 2002 SCMR 836 ref.

Tufail Ali Qureshi for Petitioners.

Allah Bachayo Soomro, A.A.G. along with Manohar Kumar, XEN Public Health Engineering, Tando Allahyar and Abdul Nisar Soomro, Assistant Engineer, Public Health Engineering, Tando Allahyar for Respondents.

Date of hearing: 22nd March, 2016.

2016 P L C (C.S.) 1069

[Sindh]

Before Muhammad Ali Mazhar and Zulfiqar Ahmad Khan, JJ

Syed SHARIQ ZAFAR and others

Versus

FEDERATION OF PAKISTAN through Auditor General of Pakistan and others

C.P. No.D-2137 of 2012, decided on 1st April, 2016.

Civil service---

---Contract employee---Regularization of service---Scope---Respondents had spent more than seven years of their precious youth-time in contract employment with the department and had performed their services with satisfaction--- Decision of Cabinet--- Sub-committee for regularization of their services had been rightly implemented---Constitutional petition was dismissed in circumstances.

2015 SCMR 1257 rel.

Ali Asadullah Bullo and Abrar Bukhari for Petitioners.

Abdul Ghaffar, Shaikh Liaqat Hussain Standing Counsel, M. Naveed Rabbani, Audit Officer for Respondents.

Respondent No.68 in person.

Date of hearing: 20th January, 2016.

2016 P L C (C.S.) 1177

[Sindh High Court]

Before Muhammad Ali Mazhar and Anwar Hussain, JJ

IFTIKHAR ULLAH

Versus

GOVERNMENT OF SINDH and another

H.C.A. No.34 of 2005, decided on 9th February, 2016.

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

----S. 9---Limitation Act (IX of 1908), Art.36---Grant of proforma promotion with monetary benefit---Financial benefit, recovery of---Civil court, jurisdiction of---Scope---Observation passed behind the back of a party---Natural justice, principles of---Fair trial---Applicability---Employee was granted proforma promotion and was assigned seniority---Application for grant of benefits accrued due to proforma promotion was filed but same was rejected by the department---Suit for compensation was dismissed on the grounds that only Service Tribunal had jurisdiction in the matter and suit was time barred---Contention of employee was that there was no specific plea of limitation in written statement nor there was specific issue and observation that suit was barred by time was not legal and proper---Validity---Suit was with regard to recovery of financial benefits by way of compensation on the basis of seniority and proforma promotion awarded after the retirement of employee in compliance of judgment of the Supreme Court---Exclusive jurisdiction in the matter would lie under the original civil jurisdiction under S.9, C.P.C---Service Tribunal had no jurisdiction in the present matter---Observations of Single Judge of High Court with regard to jurisdiction was not sustainable in law---Cause of action accrued to the employee on 23-04-1997 and suit was instituted on 30-10-1998 which was within time---Neither there was any specific plea nor specific issue with regard to limitation in the matter and no arguments were advanced with this regard by the employee---Observation with regard to limitation was made behind back of the employee who was not put to notice for its rebuttal so without hearing him---Such observation was against the principles of natural justice and fair trial and was not sustainable in law---Impugned judgment was based on wrong proposition of law and was not sustainable---Judgment and decree were set aside and matter was remanded for decision afresh after hearing arguments of the parties---Appeal was allowed in circumstances.

Orya Maqbool Abbasi v. Federation of Pakistan 2014 SCMR 817; Zafar Iqbal Qureshi v. Muhammad Ali PLD 2002 SC 723 and Muhammad Munir Hassan v. Chancellor NED University of Engineering 2003 PLC (C.S) 490 ref.

Muhammad Afzal v. Muhammad Hayat 1994 SCMR 12; Nazir Ahmed v. Islamic Republic of Pakistan PLD 1991 Lah. 469; India General Navigation and Railway Company Ltd v. Akram PLD 1960 Dacca 321 and Kripa Ram v. Kunwar Bahadur AIR 1932 Allahabad 265 rel.

(b) Sindh Service Tribunals Act (XV of 1973)---

----Ss. 3 & 4---Service Tribunal, jurisdiction of---Scope---Service Tribunal had jurisdiction to adjudicate the grievance of civil servant only with regard to terms and conditions of service.

(c) Administration of justice---

----Law would favour decision of he cases on merits instead of non-suiting the litigants for technical reasons.

(d) Words and phrases---

----"Malfeasance"---Meanings.

(e) Words and phrases---

----"Misfeasance"---Meaning.

(f) Words and phrases---

----"Nonfeasannce"---Meaning.

M.M. Aqil Awan along with Danish Rasheed for Appellant.

Abdul Jabbar Qureshi, A.A.G. for Respondents.

2016 P L C (C.S.) 1219

[Sindh]

Before Mohammad Shafi Siddiqui, J

MUHAMMAD SAFDAR ANJUM and 4 others

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director

Suits Nos.739 and 808 to 812 of 2016 decided on 11th April, 2016.

Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---

----Reglns. 78 & 79---Employees of Pakistan International Airlines Corporation---Audio tapes instigating the employees to observe strike---Dispensing with regular inquiry---Non-providing of material to be used against the employees---Effect---Audio tapes---Prerequisites for admissibility and evidentiary value---Personal hearing of such employee---Requirements---Corporation ordered for dispensing with regular inquiry against the employees but no material/information was communicated to them on the basis of which inquiry was dispensed with---Validity---No material on the basis of which inquiry was dispensed with was communicated to the employees---Show-cause notice was silent as to the nature of material and information claimed to be in the custody and possession of authority---Impugned order to dispense with regular inquiry was devoid of judicious application of mind---Anyone in the authority who had decided to dispense with holding of an inquiry had rendered himself/herself an unfit person to conduct further proceedings of personal hearing---Dispensation order could only be passed once the material was shown and shared with the accused employee whose reply and response should become a basis of such decision---Authority or person giving personal hearing should not rely on personal knowledge and information as in that case the essence of impartiality would be lost---Person who recorded alleged audio tape conversation should be material witness and without he being confronted with the accusation such conversation should not be used as an evidence against him---Competent authority could dispense with inquiry if facts and circumstances of the case so warranted---Such Authority should not sit with prejudice mind that they had already dispensed with the inquiry and had made their mind---Substantial right of inquiry could not be snatched from the employees without hearing them---Impugned show cause notice of hearing was bad in law as it was without reasoning and same did not contain the material to be used against the employees---Competent authority was bound to record reasons in writing for dispensing with holding of inquiry---Audio tape recording could be admitted in evidence if it was produced in evidence by its maker---Prerequisites for admissibility of tape recording as evidence were that accuracy of recording had to be proved; voice recorded to be properly identified and court must consider the genuineness of the tape before it was accepted---No one should decide cases on the basis of personal knowledge as in that case he would become party to the proceedings---Competent authority should sit with judicious mind and impartially listen to the defence and response of the employees---Corporation was directed to provide all the material available which it felt sufficient to dispense with holding of inquiry---Employees should be provided reasonable opportunity which might not in any case exceed one week for filing of reply which should be considered at the time of hearing for passing appropriate orders---Employees would be entitled for all the benefits as they were receiving earlier till they continued to be employees of the Corporation.

Nighat Yasmin v. Pakistan International Airline 2004 SCMR 1820; Ghulam Muhammad Khan v. Prime Minister of Pakistan 1996 SCMR 802; Basharat Ali v. Director Excise and Taxation Lahore 1997 SCMR 1543; Kashif Anwar v. Aga Khan University 2013 YLR 2294 and River Steam Navigation Co. Limited v. A.B.S. Choudhury and others PLD 1958 SC (Pak.) 418 rel.

Muhammad Ali Lakhani for Plaintiffs.

Salman Talibuddin along with Ms. Sara Malkani for Defendant.

2016 P L C (C.S.) 1232

[Sindh High Court]

Before Muhammad Ali Mazhar and Anwar Hussain, JJ

PAKISTAN MEDICAL ASSOCIATION (CENTRE) through General Secretary and others

Versus

CHANCELLOR DOW UNIVERSITY OF HEALTH SCIENCES and others

Constitutional Petitions Nos.D-6945, 7383, 6341, 7064 and 7660 of 2015, decided on 26th April, 2016.

(a) Dow University Health Sciences Act (X of 2004)---

----S. 12(1)---Civil service---Vice-Chancellor, appointment of---Search Committee---Candidate mentioning name of one of the member of Search Committee in his Curriculum Vitae as a "referee"---Effect---Both the advices with regard to same selection process were at variance---Scope---One of the member of Search Committee being absent---Effect---Advice of Chief Minister---Advice of Chief Minister should be in well-defined and express words rather than implied or indeterminate---Both the advices forwarded by the Chief Minister on one and the same selection process were at variance and divergence---If in the Curriculum Vitae of a candidate the name of one of the member of Search Committee was mentioned as "referee" then he should not accept the task or government should not appoint such person as member of Search Committee---Nomination of such person as member in the Search Committee was not a workable choice which had made the process questionable and untrustworthy---When one member was absent Search Committee should have appointed a co-opted member but no such member was appointed---Members of Search Committee had no choice to be in session without assembling their full strength of committee members---High Court directed the Chief Minister to substitute the nomination of member who was absent and place any other competent person in the Search Committee through reconstitution---Search Committee should consider the applications of all the candidates de novo on merits and recommend three most suitable candidates for approval of the Chief Minister for one of the most suitable candidate---Chairman Search Committee should ensure the presence of all the member of the Committee at the time of considering the applications for awarding marks when the interview was being conducted---Members of Search Committee might also consider the appointment of co-opted member---Chief Minister should forward his advice to the Governor/Chancellor after completion of process---Entire process should be completed within 20 days and on issuance of notification additional charge already given would come to an end automatically---Constitutional petition was disposed of in circumstances.

Sher Dil Kamran v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 8 others 2012 PLC (C.S.) 1190; Abdul Saboor v. Vice-Chancellor, Karachi University and another PLD 2011 Kar. 357; Tariq Aziz-ud-Din and others in re, Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to143309-G of 2009 2010 SCMR 1301 and AIR 2015 SC 1875 ref.

Rana Aamer Raza Ashfaq and another v. Dr.Minhaj Ahmad Khan and another and 2012 SCMR 6 and Kalyani Mathivanan v. K.V. Jeyaraj and others AIR 2015 SC 1875 rel.

(b) Dow University Health Sciences Act (X of 2004)---

----Role of University and Vice-Chancellor---Stated.

(c) Discretion---

----Exercise of---Principles.

Discretion is to be exercised according to rational reasons which means that; (a) there be finding of primary facts based on good evidence; and (b) decisions about facts be made for reasons which serve the purposes of statue in an intelligible and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrarily and misuse of power.

(d) Words and phrases---

----"Merit"---Meaning.

Haider Waheed and Shahzeb Khan for Petitioner (in C.P. No.D-7383/2015, 6945/2015) and for Respondent No.3 (in C.P. No.D-6341/2015) and for Respondent No.6 (in C.P.No.D-7064/2015).

Usman Tufail Shaikh for Petitioner (in C.P. No.D-6341/2015 and for Respondent No.2 (in C.P.No.D-6945/2015 and for Respondent No.4 (in C.P. No.D-7383/2015).

Hasin Ahmed for Petitioner (in C.P.No.D-7660 of 2015).

Jamshid Malik for Petitioner (in C.P.No.D-7064 of 2015).

Abdul Salam Memon for Respondent No.3 (in C.P. No.D-6945/2015, for Respondent No.4 (in C.P.No.7660/2015 and for Respondent No.5 (in C.P.No.D-7064/2015).

Dr.Noshad A. Shaikh, Dr.Junaid Ashraf, Dr. Muhammad Masroor, Dr. Rana Qamar Masood and Dr.Muhammad Saeed Quraishy are also present.

Mukesh Kumar Karara A.A.G along with Jam Habibullah State Counsel.

Abdul Jaleel Zubaidi, A.A.G.

Dr. Iqbal Durani, Secretary to Chief Minister Sindh for Universities and Boards.

Hussain Syed, Principal Secretary to the Governor of Sindh.

2016 P L C (C.S.) 67

[Lahore High Court]

Before Zafarullah Khan Khakwani, J

Mst. ZAREENA ASHRAF

Versus

D.C.O. and others

Writ Petition No.334 of 2010, decided on 25th September, 2014.

Civil service---

----Appointment order, withdrawal of---Scope---Petitioner was appointed in Government Elementary School and she accepted the offer and joined the post and worked there about two and half months but said offer+ was withdrawn---Validity---Petitioner being higher in merit was appointed against the seat of Senior Elementary School Educator (Arabic Teacher) in BS-14---Employee joined her service and worked there till the order of appointment was withdrawn---Neither any notice was served to the petitioner nor she was offered one month salary---Petitioner worked there without any complaint and to the entire satisfaction of her superiors---Legal right had accrued in favour of the employee---No inquiry was conducted against the employee---No order of withdrawal of appointment letter of petitioner had been placed on record---Petitioner was not responsible for change of merit list but same was changed due to mistakes committed by the department---Petitioner could not be made to suffer for the fault---Department was responsible for the lapse---Employee was eligible to be appointed against the said post---Employee had not managed or manipulated the appointment letter issued in her favour---When petitioner had joined her duties, the withdrawal of appointment letter without any show cause notice or inquiry would be against the principles of natural justice which could not be appreciated---Employee who worked about three months with the department was not paid salary for the said period---Employee who was appointed against the seat where petitioner was working had already been transferred to another school and said seat was lying vacant---When the seat against which petitioner was appointed fell vacant she could have been adjusted against the said seat without disturbing any person---Impugned order for withdrawal of letter of appointment of employee was set aside---Department was directed to adjust the employee against the post where she was working prior to impugned order---Petitioner would also be entitled for the salary of the period she worked with the department---Constitutional petition was accepted accordingly.

Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451 and Administrator, District Council, Larkana and another v. Ghulab Khan and 5 others 2001 SCMR 1320 rel.

Muhammad Atif Saleem Qureshi for Petitioner.

Malik Mumtaz Akhtar, Addl. A.-G. with Muhammad Aslam D.E.O. (EEM), Rahim Yar Khan for Respondents.

Date of hearing: 25th September, 2014.

2016 P L C (C.S.) 83

[Lahore High Court]

Before Muhammad Qasim Khan, J

ZEBA SHEHNAZ

Versus

SECRETARY HIGHER EDUCATION DEPARTMENT PUNJAB, LAHORE and another

W.P. No.12051 of 2014, decided on 2nd April, 2015.

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

----R. 21-A (4) (5)---Punjab Public Service Commission Regulations, 2000, Regln.69---Constitution of Pakistan, Art.199---Constitutional petition---Appointment against the post of Assistant Professor (Mathematics)---Bar of 190-days provided in R.21-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Scope---Public Service Commission recommended the petitioner for appointment against the post of Assistant Professor (Mathematics) in Higher Education Department---Department issued offer of appointment which was accepted by the petitioner---Petitioner was refused posting on the ground that process of appointment could not be completed within 190 days from the date of issuance of recommendations by the Public Service Commission-- Validity---Appointment was qualified by the only condition that candidate had to submit acceptance to the offer of appointment within fifteen days----Petitioner had accepted the offer of appointment within the requisite time---Agreement between the parties would become final when an offer was made and same was accepted by the other party---Petitioner was recommended by the Public Service Commission for appointment as Assistant Professor in education department---Department had to adjust post of the petitioner if after issuance of offer of appointment letter same was accepted by the candidate---Process of appointment concluded by acceptance of offer of appointment letter by the petitioner (employee) and her posting was altogether a second stage left for the department-- Department issued offer of appointment letter which was accepted by the petitioner and after its acceptance another letter was issued to receive priority-wise option for posting---When offer of appointment was accepted then bar of 190-days provided in R.21-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 would not apply and candidate could be posted anytime and anywhere even after expiry of more than 190-days---Only the process of appointment had to be completed within 190-days which process had been completed in the present case---Posting order could be issued even after 190-days---Authorities were directed to issue formal posting order of the petitioner, however, seniority would be reckoned from the date of acceptance of offer of appointment but petitioner would be eligible for salary from the date when she would join her place of posting to perform her duties as employee was entitled for salary for the work done---Constitutional petition was accepted in circumstances.

Khalid Hussain Khokhar for Petitioner.

Shahid Mobeen, Addl. A.-G. with Saima Raza, Section Officer (Estab) for Respondent.

2016 P L C (C.S.) 87

[Lahore High Court]

Before Faisal Zaman Khan, J

GHULAM ABBAS

Versus

CHIEF SECRETARY and 2 others

Writ Petition No.16783 of 2012, decided on 19th November, 2014.

(a) Jurisdiction---

----Assumption by Court---Court was to look into the question of assumption of jurisdiction and in case jurisdiction could be assumed, only then an order should be passed.

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

(b) Civil service---

-----Seniority---Promotion---Question of eligibility---Scope of Jurisdiction of High Court---Bar of Art.212 of the Constitution---Scope---Petitioner, an employee of the Agriculture Department was aggrieved of not having been considered for promotion by the Departmental Promotion Committee---Validity---Prerequisite to he considered for promotion was the eligibility of the official and once he crossed such barrier and was considered for promotion, only then the question of fitness would arise---Case of petitioner fell within the ambit of determination of eligibility, which for all intents and purposes, was part of terms and conditions of service of a civil servant---Under Art.212 of the Constitution, it was beyond the powers of judicial review of High Court to adjudicate on the question of terms and conditions of service of a civil servant---Constitutional petition being not maintainable was dismissed in circumstances.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; M/s. Kausar A. Ghaffar v. Government of the Punjab and others 2013 PLC (C.S.) 542; Miss Zubaida Khatoon v. M/s. Tehmeena Sajid Sheikh and others 2011 SCMR 265 and Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and others 2007 SCMR 682 rel.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Zafar lqbal v. M.G.O., M.G.O. Branch, GHQ, Rawalpindi and 3 others 1995 SCMR 881 and M/s. Kausar A. Ghaffar v. Government of the Punjab and others 2013 SCMR 99 ref.

(c) Civil service---

----Terms and conditions of service---Bar of jurisdiction of High Court---Consideration for promotion---Seeking consideration for promotion fell within the ambit of terms and conditions of service of a civil servant---In view of the bar contained under Art.212 of the Constitution, High Court had no jurisdiction to entertain or adjudicate in cases pertaining to enforcement of terms and conditions of service of a civil servant---Constitutional petition being not maintainable, was dismissed.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Khalid Mahmood Watoo v. The Government of the Punjab and others 1998 SCMR 2280; Asadullah Rashid v. Haji Muhammad Munir and others 1998 SCMR 2129; Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442 and Khalil-ur-Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750 rel.

Malik Noor Muhammad Awan for Petitioner.

Rana Shamshad Khan, AAG for Respondents.

2016 P L C (C.S.) 151

[Lahore High Court]

Before Ali Baqar Najafi, J

Raja MUHAMMAD MOHSIN SATTI

Versus

GENERAL MANAGER PAKISTAN RAILWAYS HEADQUARTER, LAHORE and 3 others

W.P. No.27409 of 2011, decided on 3rd February, 2015

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Absence from duty---Dismissal from service---Reinstatement by the Service Tribunal---Extension of same relief to the other employees---Scope---Petitioner along with other employees were dismissed from service through consolidated order---Departmental appeal filed by the petitioner was dismissed---One of the employees preferred appeal which was accepted by the Service Tribunal declaring the dismissal order as against the principles of natural justice---Petitioner filed representation to the department to grant him same relief which application was dismissed---Validity---Dismissal of employee on absence from duty would require a subjective approach involving evidence---Petitioner appeared to be habitual absentee from duty---Order of Service Tribunal was with regard to the employee whose date of absence was 2-10-2001 whereas that of petitioner was 30-10-2001---Case of petitioner was on different premises---Service Tribunal had not held that any employee absented himself on any ground might be reinstated in service by treating his absence as authorized absence---Benefit of judgment passed by the Service Tribunal could not be extended to the petitioner as it was the judgment in persona where specific relief had been allowed---Constitutional petition was dismissed in circumstances.

Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others 2009 SCMR 1; Ahmad Din and another v. Government of Khyber Pakhtunkhwa Agricultural, Live Stock and Cooperatives Department Peshawar through Secretary and 3 others 2014 PLC (C.S) 806; Prof. Dr. M. Islam Gouhar v. University of Peshawar through Registrar and 5 others 2014 PLC (C.S) 265; Dr.Iqbal Jan and others v. Province of Sindh and others 2014 PLC (C.S) 1153; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Sadaqat Ali Khan v. Collector Land Acquisition and others PLD 2010 SC 878; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Muhammad Sarwar Khan and others v. Government of Pakistan and others 1998 SCMR 2197 and Marvi Memon v. Federation of Pakistan and others PLD 2011 SC 854 ref.

Ch. Muhammad Ayub for Petitioner.

Suleman Kazmi for Respondents.

2016 P L C (C.S.) 155

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

NADEEM ASGHAR NADEEM and others

Versus

PROVINCE OF THE PUNJAB and others

W.P.No.26696 of 2014, heard on 6th May, 2015.

(a) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Civil rights---Obligations---Nature and ambit of right to fair trial under Art.10A of the Constitution---"Determination of civil rights and obligations of a person through fair trial and due process" was a fundamental right---Civil rights were the rights guaranteed by the Constitution and the legislation---"Obligations" may refer to anything that a person was bound to do or forbear from doing, whether such duty was imposed by law, contract, promise, social relations, courtesy, kindness or morality and anything that an individual was required to do because of a promise, vow, oath, contract, or law; and it referred to a legal or moral duty that an individual could be forced to perform or penalized for neglecting to perform---Right of one person was an obligation of the other, and vice versa and such mutually corresponding and symbiotic relationship between civil rights and obligations, expanded the proportions and broadened the amplitude of Art.10A of the Constitution and placed it as one of the most robust, dynamic and an evergreen Fundamental Right that was not frozen in time or moored to serve only the age old vested rights---Article 10A of the Constitution was a Constitutional right, hence it was open and all embracing and was there to include all kinds of rights and obligations that emerged from the Constitution, legislation, law, contract, promise, social relations, courtesy, kindness or morality---Article 10A of the Constitution could not be put in shackles and in fact went beyond vested rights---Article 10A of the Constitution therefore, dealt with rights and duties, which if violated could result in loss of some personal benefit or advantage or curtail a privilege or liberty or franchise.

Warid Telecom (Pvt.) Ltd. and 4 others v. Pakistan Telecommunication Authority through Chairman 2015 SCMR 338; Suo Motu action regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the judicial process PLD 2012 SC 664; Babar Hussain Shah and another v. Mujeed Ahmed Khan and another 2012 SCMR 1235; Suo Motu Case No.4 of 2010 PLD 2012 SC 553; Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236; The most common legal application of the term civil rights involves the rights guaranteed to U.S. citizens and residents by legislation and by the Constitution, Free Dictionary, .; Black's Law Dictionary, 9th Ed. p.1179 and Mian Fazal Din v. Lahore Improvement Trust, Lahore, and others PLD 1969 SC 223 rel.

(b) Fundamental rights---

----"Civil rights", meaning of---Civil rights were rights guaranteed by the Constitution and Legislation.

The most common legal application of the term civil rights involves the rights guaranteed to U.S. citizens and residents by legislation and by the Constitution, Free Dictionary. . rel.

(c) Words and phrases---

----"Obligations", meaning of---Obligations may refer to anything that a person was bound to do or forbear from doing, whether the duty was imposed by law, contract, promise, social relations, courtesy, kindness or morality and anything that an individual was required to do because of a promise, vow, oath, contract, or law; and it referred to a legal or moral duty that an individual could be forced to perform or penalized for neglecting to perform.

Black's Law Dictionary. 9th Ed. p.1179 rel.

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

----Ss. 10(1)(i), 5, 4 & 6---Punjab Judicial Service Rules, 1974, R.7A---Constitution of Pakistan, Arts.10A, 4, 9, 14 & 25---Constitutional petition---Civil service---Judicial Officers---Probation---Termination of service during the initial or extended period of probation---Constitutionality of termination of service without notice under S.10(1)(i) of the Punjab Civil Servants Act, 1974---Petitioners were appointed as Civil Judges-cum-Judicial Magistrates, subject to probation and their services were terminated thereafter, under S.10(1)(i) of the Punjab Civil Servants Act, 1974 without notice and without disclosing of reasons---Petitioners challenged the vires of S.10(1)(i) of the Punjab Civil Servants Act, 1974 on the ground that same was unconstitutional in view of Art.10A of the Constitution---Held, that, in the present case, Ss.4, 5 & 6 of the Punjab Civil Servants Act, 1974, conferred a right to confirmation, once the judicial officer successfully completed his period of probation and also conferred an obligation on the authority to confirm the appointment of the officer if the probationer successfully completed the period of probation---Probationer was also under an obligation to meet the requirements of R.7A of Punjab Judicial Service Rules, 1974 and had a corresponding right to confirmation subject to his fulfilling such obligations---Probationer, in effect, already stood appointed but had to undergo the process of confirmation and therefore, the right of confirmation of a probationer or the obligation of the authority to confirm the probationer, if he successfully completed the period of probation, or vice versa, were covered under Art.10A of the Constitution and such rights and obligations had to be determined through a fair trial and due process---One of the requirements for confirmation after period of probation were given under R.7A(a) of the Punjab Judicial Service Rules, 1974, wherein "performance evaluation" was subjective and relied on sources other than the result of the Departmental Examination and the Course and Training scorecard and if the information or evidence collected was adverse to the interest of the judicial officer, natural justice and the strength of the settled jurisprudence required that the judicial officer be put on notice and be heard after an adequate disclosure of the adverse material and information was made available to such judicial officer---Said well-established principle stood Constitutionalized as a fundamental right under Art.10A of the Constitution, and fair trial and due process required that adequate disclosure was made and the probationer was put on notice and even otherwise, right to life which included right to livelihood and right to dignity of a person under Art.14 of the Constitution also stood behind Art.10A and that S.10(1)(i) of the Punjab Civil Servants Act, 1974, therefore, offended Art.10A of the Constitution in such respect---Termination simplicter was termination from service when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment was ad hoc and dependent on certain conditions or if the post itself was abolished and such like termination was not punitive or penalizing in nature and it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer; which under the law was referred to as a "discharge" from service---Probationer, in such a case, therefore need not be put on notice if the termination was actually a discharge from service or was termination simpliciter as no useful purpose could be served by issuing any such notice as the authority had already granted the probationer an opportunity of appearing before the authority in the departmental examination and also in the course and training conducted by the authority---High Court observed that in such a case of termination simpliciter, the competent authority was under no obligation to issue notice before termination of service and S.10(1)(i) of the Punjab Civil Servants Act, 1974 was applicable in such a case; however probationer under Art.10A of the Constitution was, free to challenge the legality of the termination order or the merits of the departmental examination or the transparency of the departmental training in a court of competent jurisdiction, if he so desired, on grounds other than the ground of failure to issue notice---Where termination carried allegations of misconduct, inefficiency and corruption, the civil servant was entitled to a notice to defend himself and also to an adequate disclosure of the evidence against him and if such adverse information and material had weighed on the mind of the authority and had been the dominant reason behind the order of termination, withholding of any such allegation or avoiding to disclose any reason for termination, in order to bypass the requirement of notice by opting for termination simpliciter was offensive to Art.10A of the Constitution and the option of termination simpliciter was available with the authority only when the termination according to the service record of the civil servant, was not based on any allegations of misconduct, inefficiency or corruption against a civil servant---While S.10(1)(i) of the Punjab Civil Servants Act, 1974 was unconstitutional in some situations, it was constitutionally permissible in others, and hence in such a situation, the Constitutionality of the said section could be saved if the same was read down, instead of being struck down---High Court, therefore, held that in the light of Art.10A of the Constitution read with Arts.4, 9, 14 & 25 of the Constitution, S.10(1)(i) of the Punjab Civil Servants Act, 1974 was read down, to the extent, that firstly in cases where termination of a probationer was on the grounds of misconduct, inefficiency, corruption, etc. prior notice was mandatory and was required to be issued to the probationer; and that secondly where the probationer had failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer could be terminated without notice, but any such termination order must carry reasons for termination; and thirdly that; in case the probationer had passed the eligibility criteria and had been found liable for misconduct, inefficiency or corruption, the competent authority did not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order---Constitutional petitions were allowed, accordingly.

Asif Saeed v. Registrar, Lahore High Court and others PLD 1999 Lah. 350; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Pakistan Peoples Party v. Government of Punjab and others PLD 2014 Lah. 330; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another PLD 2014 SC 283; Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others 2012 PTD 1815; Bilal Akbar Bhatti v. Election Tribunal, Multan and 15 others PLD 2015 Lah. 272; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Imtiaz Ahmad Kaifi v. Government of Punjab and others PLD 2013 Lah. 598; Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences Jamshoro and others 2014 SCMR 1236; State of M.P. v. Rakesh Kohli and another 2013 SCMR 34; Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; Federation of Pakistan v. Riaz Ali Khan PLD 1958 (W.P.) Lah. 22; Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and others PLD 2010 SC 483; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2003 PLC (C.S.) 1421 and Liaqat Ali Shahid, Ex-Civil Judge, Bhalwal v. Government of the Punjab through Chief Secretary, Punjab, Lahore 1999 PLC (C.S.) 334 ref.

Mrs. Abida Parveen Channar v. High Court of Sindh 2011 PLC (C.S.) 836 rel.

(e) Civil service---

----Termination from service---Probationer---Requirement of notice prior to terminating the services of a probationer---Termination simplicter---Scope---Services of a probationer could be terminated without notice, in case of termination simpliciter but where there were allegations of misconduct or inefficiency levelled against the probationer, in such an eventuality, it was mandatory that the officer was put on notice and if there were allegations of inefficiency, misconduct or corruption, a probationer was required to be served with a notice, with the rationale being that any termination in the nature of dismissal or removal carried a stigma, hence the civil servant should be granted an opportunity to defend and wash away any slur and taint alleged against such a civil servant.

Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2004 SCMR 44; Muhammad Iqbal Khan Niazi v. Lahore High Court, Lahore through Registrar 2003 PLC (C.S.) 285 and Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275 rel.

(f) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man, etc.---Civil service---Termination from service---Reasons for termination---Every termination order must carry reasons and this was equally applicable to the case of termination simpliciter and there was no plausible explanation why a public authority must shy away from giving reasons for termination---To withhold reasons for termination of a civil servant generated a host of adverse assumptions against the character of a civil servant which had a bearing on his reputation and goodwill and failure of disclosing or intentional withholding of reasons was, therefore, below the dignity of any white collared officer and offended Art.14 of the Constitution.

(g) Civil service---

----Termination simpliciter---Concept---Concept of termination simpliciter as opposed to a termination carrying a stigma---"Termination simpliciter" meant termination without any ceremony or termination in a summary manner and such a termination from service was when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment is ad hoc and dependent on certain conditions or if the post itself is abolished---Such like termination was not punitive or penalizing in nature and more importantly, it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer and in such cases, probationer therefore need not be put on notice if the termination is actually a discharge from service or was termination simpliciter.

National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another PLD 2014 SC 283 rel.

(h) Interpretation of statutes---

----Purposive or contextual construction---Reading down of statute---Concept and scope---Where literal construction or plain meaning caused hardship, futility, absurdity or uncertainty, the purposive or contextual construction was to be preferred to arrive at a more just, reasonable and sensible result---Every law was designed to further the ends of justice and not to frustrate it on mere technicalities and though the function of the courts was only to expound the law and not to legislate, nonetheless the Legislature could not be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law and in such circumstances, it was the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute---Statutes must be interpreted to advance the cause of statute and not to defeat it and if certain provision of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional; the court would lean in favour of the former construction---For upholding any provision, if it could be saved by reading it down, it should be done, unless plain words were so clear as to be in defiance of the Constitution---Such interpretations spring out because of the concern of courts to always let legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation and words were not static but dynamic and this infused fertility in the field of interpretation---Principle of reading down, however, could not be available, where the plain and literal meaning from a bare reading of any impugned provision clearly showed it conferred arbitrary, uncanalised or unbridled power---Reading down the meanings of words with loose lexical amplitude was permissible as part of the judicial process and to sustain a law by interpretation was the rule---Courts could and must interpret words and read their meanings so that public good was promoted and power misuse was interdicted.

Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Indus Jute Mills Ltd. v. Federation of Pakistan 2009 PTD 1473; Interpretation of Taxing Statutes by Mittal; Maharao Saheb Shri Bhim Singhji and others v. Union of India and others AIR 1981 SC 234; Muhammad Umer Rathore v. Federation of Pakistan PLD 2009 Lah. 268; Federal Steam Navigation Co. Ltd. and another v. Department of Trade and Industry (1974) 2 All E R 97; Delhi Transporate Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101; Sunil Batra v. Delhi Administration and others AIR 1978 SC 1675 and Jagdish Pandey v. The Chancellor, University of Bihar and others AIR 1968 SC 353 rel.

Muhammad Aslam Rizvi and Mushtaq Ahmed Mohal for Petitioners.

Azhar Iqbal, Muzammal Akhtar Shabbir, Muqtedir Akhtar and Ch. Muhammad Shahid Iqbal for Petitioners (in connected writ petitions).

Shan Gul, Addl. A.-G. Punjab and Barrister Qasim Ali Chowhan, Asstt. A.-G. Punjab for Respondents.

Junaid Jabbar Khan Amicus Curiae.

Assisted by Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

Date of hearing: 6th May, 2015.

2016 P L C (C.S.) 190

[Lahore High Court]

Before Shah Khawar, J

MUHAMMAD GHAZI

Versus

ADDITIONAL SECRETARY HEALTH, PUNJAB, LAHORE and others

W.P. No.9488 of 2012, decided on 19th June, 2014.

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

----Ss. 2(c), 10, 12(3) & Preamble---Constitution of Pakistan, Art.199---Constitutional Petition---Civil service---Appointment against 2% quota reserved for handicap---Registration of disabled persons, requirement of---Departmental lapse in appointment of respondent violating the requirements of law contained in Displaced Persons (Employment and Rehabilitation) Ordinance, 1981---Effect---Petitioner being registered as a disabled person with the Employment Exchange applied for appointment through the Employment Exchange---Contention of the petitioner was that he was entitled for appointment against the quota reserved for handicap, as he fulfilled all the codal formalities as provided in the Ordinance, but the Authority had deprived him of his valuable right by appointing the respondent, who even did not fulfill the mandatory requirements of law---Validity---Disabled persons desirous of being employed were required to get them registered before the Employment Exchange, which shall refer all names so registered to the Provincial Council---Respondent was not registered and had not resorted to the mandatory provisions of the Ordinance, so the petitioner had a superior right to be considered and appointed against one of the vacancies of Junior Clerk or Store Keeper---Respondent's appointment had created a right in his favour, therefore, he could not be made to suffer due to irregularities and illegalities committed by the Selection Committee, which was responsible to adopt due diligence at the time of scrutinizing the cases of disabled candidates---Recruitment did not follow the provisions of Ordinance due to which the petitioner had been deprived of his valuable right to be employed against one of the vacant posts---Authority was directed that whenever any vacancy occurs in future, the petitioner shall be considered and appointed on priority basis and if some post of Junior Clerk/Store Keeper was still vacant against the disabled quota, the petitioner might be appointed against the same---Constitutional petition was disposed of accordingly.

Muhammad Usman Sharif Khosa for Petitioner.

Allah Bakhsh Kaluchi for Respondent No.3.

Dr. Mukhtar Ahmed, Demonstrator, on behalf of Principal D.G Khan, Medical College, D.G. Khan/respondent No.3.

2016 P L C (C.S.) 269

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

MUHAMMAD ZUBAIR KHAN NIAZI

Versus

MARYAM NAWAZ SHARIF and 3 others

W.P.No.22798 of 2014, decided on 14th November, 2014.

Public office---

----Chairperson, of Public office---Appointment process---Non-transparency---Appointee lacking any experience of heading and managing a public fund---Daughter of Prime Minister was appointed as Chairperson, Prime Minister's Youth Programme, however it was not shown whether there was a transparent process for her selection and appointment and that whether she possessed the requisite experience to head and manage a public fund of Rs.9 billion---Chairperson had tendered her resignation before present order, thus in wake of such resignation present matter stood concluded---High Court, however observed that considering that the Chairperson was to "manage, finalize and supervise the implementation of the Program" which comprised tax payer's money to the tune of Rs.9 billion, any future appointment to the said post must be transparent and through proper open selection process after giving due weightage to relevant experience and qualifications of the person concerned---Constitutional petition was disposed of accordingly.

Sheraz Zaka for Petitioner..

Naseer Ahmad Bhutta, Additional Attorney General for Pakistan.

Ch. Aamir Rehman and Nasar Ahmad, Deputy Attorney Generals for Pakistan.

Hasham Ali Bhutta, Advocate for Federation of Pakistan.

Abdul Rasheed Shakir, Research Officer, Prime Minister Youth Program.

Kaleem Ahmed Shahzad, Section Officer, Cabinet Division, Islamabad.

2016 P L C (C.S.) 296

[Lahore High Court]

Before Muhammad Qasim Khan, J

MUHAMMAD RIAZ

Versus

MEDICAL SUPERINTENDENT, SERVICE HOSPITAL, LAHORE and 2 others

W.P. No.461 of 2014, decided on 12th March, 2015.

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

----Ss. 5 & 7---Constitution of Pakistan, Arts. 199 & 10-A---Constitutional petition---Maintainability---Contract employee---Misconduct and charge of inefficiency---Effect---Show cause notice, issuance of---Termination of service---Regular inquiry, dispensation of---Principles---Discretion, exercise of---Natural justice, principles of---Reasonable opportunity of showing cause---Right of fair trial---Scope---Services of petitioner, a contract employee were terminated by issuing show cause notice by dispensing with regular inquiry---Validity---Petitioner was a contract employee---Competent authority had right to dispense with regular inquiry---Whenever any discretion was given to an authority it had to be exercised not arbitrarily, but honestly, justly and fairly in consonance with the spirit of law after application of judicious mind and for substantial reasons---Nature of allegations against the employee had to be considered for exercise of such discretion---When allegations could be decided with reference to admitted record or the authority had formed opinion that un-rebutted evidence to prove the charge against the accused/employee was available on record, regular inquiry might be dispensed with, otherwise ends of justice would demand an inquiry through an inquiry officer or inquiry committee---Such discretion had to be made in the nature of judicial decision---Discretion had to be exercised with due care and caution keeping in mind the principles of natural justice, fair trial and transparency---Authority should record reasons with regard to dispensing with regular inquiry---Where recording of evidence was necessary to establish charge then departure from regular inquiry would amount to condemn a person unheard---Serving of show cause notice and reply thereto in denial of allegations would not amount to affording the employee reasonable opportunity of showing cause---Requirement of reasonable opportunity of showing cause could only be satisfied if particular of charge or charges, substance of evidence in support of charges and specific punishment which would be called for after the charge or charges were established were communicated to the civil servant who was given reasonable time and opportunity to show use---Specific allegations had been leveled against the employee which included inefficiency and misconduct---Petitioner had denied both the charges and authority was bound to order for a regular inquiry---Departure from normal course did riot reflect bonafide of Authority rather same would show mechanical application of mind---Authority in fact was biased towards the employee---Right of fair trial had been associated with the fundamental right of access to justice which should be read in every statute even if not expressly provided for, unless specifically excluded---Order terminating service of employee contained stigmatic allegations, therefore, constitutional petition was maintainable---Order of removal from service passed against the petitioner did not stand the test of judicial scrutiny as same was against the spirit of law---Impugned order was set aside and petitioner was reinstated in service---Period between removal till reinstatement should be considered as leave without pay---Constitutional petition was accepted in circumstances.

Rana Asif Nadeem v. Executive District Officer, Education, District Nankana and 2 others 208 PLC (CS) 715; Rai Zaid Ahmad Kharal v. Water and Power Development Authority, through Chairman WAPDA and another 2008 PLC (CS) 1005 and 1997 SCMR 1543 ref.

2003 SCMR 1110 and PLD 2012 SC 553 rel.

(b) Discretion---

----Exercise of---Principle---Whenever any discretion was given to an Authority it had to be exercised not arbitrarily, but honestly, justly and fairly in consonance with the spirit of law after application of judicious mind and for substantial reasons.

(c) Words and phrases---

----Right of fair trial---Meaning---Fair trial would mean right to proper hearing by an unbiased forum.

(d) Words and phrases---

----"Decision"---Meaning.

Black's Law Dictionary Eighth Edition rel.

Muhammad Iqbal Mohal for Petitioner.

Imtiaz Ahmad Kaifi, Addl. A.G.

2016 P L C (C.S.) 306

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD SIKANNDAR

Versus

DISTRICT COLLECTOR/DCO RAJANPUR

Writ Petition No.8959 of 2015, decided on 16th June, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Transfer of an employee---Terms and conditions of service---Scope---Employee was transferred frequently i.e. more than four times within short time---Validity---Transfer order of the employee would pertain to terms and conditions of his service---High Court in exercise of its constitutional jurisdiction had no jurisdiction to entertain/adjudicate upon the constitutional petition against the transfer order---Copy of constitutional petition alongwith its annexures were transmitted as per request of employee to the department with the direction by the High Court to treat the same as a representation and decide the same in accordance with law within a specified period---Operation of impugned order would remain suspended till the date fixed for decision of representation and same would automatically lapse thereafter---Employee should avail alternate remedies available to him against the impugned order---Constitutional petition was disposed of accordingly.

PLD 2013 SC 1; PLD 1995 SC 530; 2009 PLC (CS) 94; 2013 SCMR 1 and PLD 2013 SC 195 ref.

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

Sahibzada Mohammad Nadeem Fareed for Petitioner.

2016 P L C (C.S.) 315

[Lahore High Court]

Before Muhammad Qasim Khan, J

HASSAN MEHMOOD

Versus

HABIB BANK LIMITED through President and 4 others

W.P. No.11472 of 2006, decided on 18th June, 2015.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Bank employee---Respondent-Bank being a private organization, had non-statutory Rules---Effect---Terms and conditions of service enforcement---Scope---Petitioner (employee of Bank) was dismissed from service---Contention of Bank was that constitutional petition was not maintainable against the Bank, being a private organization having no statutory rules---Validity---Constitutional petition would not lie against the bodies having no statutory Rules of service---Respondent-Bank, a banking limited company was not the creation of any statute---Services of employees of respondent-Bank were governed by its own manual---If a private authority had adopted any government law for its internal affairs even then by such adoption of laws it could not be said that the employees of said authority would be governed by a statute---Petitioner although was proceeded under Removal from Service (Special Powers) Ordinance, 2000 but it could not be said that he was proceeded under the statute---Petitioner could not file constitutional petition to seek enforcement of terms and conditions of his service against the Bank---Constitutional petition was dismissed being not maintainable.

Noor Badshah v. United Bank Limited through President and 3 others 2015 PLC (CS) 468 and Al Qera Atiq v. Federation of Pakistan through Secretary Aviation and 19 others 2015 PLC (CS) 363 distinguished.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Noor Badshah v. United Bank Limited through President and 3 others 2015 PLC (CS) 468 and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 rel.

Munawar Ahmad Javed for Petitioner.

Syed Fazal Mahmood for Respondent/Bank.

2016 P L C (C.S.) 319

[Lahore High Court]

Before Ali Baqar Najafi, J

Syed IRSHAD HUSSAIN ABIDI

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Lahore and 2 others

W.P.No.252y of 2011, decided on 10th December, 2014.

West Pakistan Government Servants (Medical Attendance) Rules, 1959---

----Rr. 6 & 13---Constitution of Pakistan, Art.199---Constitutional petition---Reimbursement of medical charges incurred on treatment abroad---Plea of petitioner-employee was that he incurred 18560 US Dollars on treatment abroad---Government turned-down request of employee for reimbursement of medical charges on the ground that there was ban on treatment abroad---Validity---Letter with regard to ban on treatment abroad was issued after the sanction accorded in favour of employee, said letter was not retrospective---Government servant was entitled to receive from government any amount paid by him on account of medical attendance on production of certificate in writing by the authorized medical attendant---Reimbursement of medical charges was permissible if a Government servant was sent abroad on duty---Petitioner went abroad on duty with permission from the Government---Employee incurred medical expenses on emergency basis which he claimed and was allegedly permitted but subsequently said sanction was cancelled---Such act of department was unwarranted under the law as earlier sanction had neither been set aside nor it was the case of department that petitioner was not entitled to the medical expenses---Impugned orders were set aside and respondents were directed to reimburse the expenses already incurred by the petitioner within a specified period---Constitutional petition was accepted in circumstances.

Irshad Hussain v. Secretary, Ministry of Finance and others PLD 2002 SC 387 rel.

Syed Qalb-i-Hassan for Petitioner.

Wali Muhammad Khan, A.A.-G. with Ejaz Farrukh, Senior Law Officer for Health Department for Respondents.

2016 P L C (C.S.) 341

[Lahore High Court]

Before Shahid Bilal Hassan and Ch. Muhammad Iqbal, JJ

IFTIKHAR AHMAD

Versus

MEMBER BOARD OF REVENUE/SECRETARY TO GOVERNMENT OF THE PUNJAB REVENUE DEPARTMENT

ICA No.733 of 2015, decided on 22nd June, 2015.

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

----Ss. 9 & 21---General Clauses Act (X of 1897), S.21---Constitution of Pakistan, Arts.49 & 212---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Promotion, withdrawal of---Terms and conditions of service--- Locus Poenitentiae, principle of---Applicability---Appellant was civil servant and he assailed notification whereby he was reverted to his original post of junior clerk---Single Judge of High Court, in exercise of Constitutional jurisdiction, declined to interfere in the matter---Validity---When it came to the knowledge of competent authority that appellant was not appointed/ promoted under the law, then it had withdrawn the appointment/ promotion notification on the principle of locus poenitentiae in the light of provisions of S.21 of General Clauses Act, 1897---Single Judge rightly passed the order and did not commit any illegality or irregularity because it was not the case of fitness rather it was the case of reversion of appellant to his original post of junior clerk---Such act of authorities fell under the ambit of terms and conditions of service and appellant had remedy before Service Tribunal---Intra court appeal was dismissed in circumstances.

The Engineer-in-Chief Branch through Ministry of Defence Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Inspector General of Police and another v. Ahmad Mustafa 1990 SCMR 1238; Pervaiz Aslam v. Ilyas Hussain Shah and another 1999 SCMR 784 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 rel.

Abid Saqi for Appellant.

Malik Abdul Aziz Awan, Asstt. A.-G. with Shahzad Habibi, Deputy Director (Legal) and Zubair Iqbal Chishti, Assistant Board of Revenue for Respondents.

2016 P L C (C.S.) 354

[Lahore High Court]

Before Faisal Zaman Khan, J

MUHAMMAD RIAZ MEHMOOD

Versus

SECRETARY, GOVERNMENT OF THE PUNJAB Local Government and Community Development and another

Writ Petition No.19764 of 2012, decided on 27th October, 2014.

(a) Constitution of Pakistan---

----Arts. 199, 4, 9 & 10-A---Constitutional petition---Civil service---Repatriation of employee to his parent department after absorption in the new department---Effect---Show cause notice, issuance of---Maxim: Audi alteram partem---Applicability---Locus poenitentiae, principle of---Applicability---Petitioner was repatriated to his parent department after absorption in the new department---Contention of petitioner was that neither any show cause notice was issued nor any opportunity of hearing had been provided to him---Validity---Order of absorption had been made on the recommendation of a committee constituted by the concerned department---Petitioner no more remained to be on the roll of his parent department---Petitioner had become the employee of respondent department---No reason had been given as to why the initial order of absorption was declared null and void---Petitioner has been left in lurch as he could not be repatriated to his parent department being no more in their service---Valuable right had accrued in favour of petitioner and he did deserve an opportunity of hearing prior to recall of order of his absorption---Department was bound to issue a show cause notice and pass any order with reasons after affording an opportunity of hearing---Act of not affording an opportunity of hearing would mitigate the concept of natural justice and fair play---Impugned order was not sustainable on the ground of condemning the petitioner unheard---Mere declaration with regard to an order being null and void would not suffice and the same could not take any valuable right---Impugned order was against the principle of natural justice, fair play and in violation of Arts.4, 9 & 10-A of the Constitution---Constitutional petition was accepted in circumstances.

(b) Maxim---

----"Audi alteram partem"---Exceptions.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another PLD 2010 S.C. 483 and Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 rel.

(c) Locus poenitentiae, principle of---

----Applicability---Scope---Principle of locus poenitentiae was not to harbor or perpetuate a wrong but was to protect the rights of persons in whose favour decisive step had been taken by the government which they had to own.

Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others 2012 SCMR 673; Chief Secretary, Government of Punjab and others v. Malik Asif Hayat 2011 SCMR 1220; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2011 SCMR 408 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2009 PLC (C.S.) 161 rel.

Muhammad Muzammil Qureshi for Petitioner.

Ms. Asma Hamid, AAG for Respondents.

2016 P L C (C.S.) 363

[Lahore High Court]

Before Muhammad Qasim Khan, J

MUHAMMAD IMRAN

Versus

PUNJAB PUBLIC SERVICE COMMISSION LAHORE through Secretary and 3 others

W.P.No.1017 of 2015, decided on 10th March, 2015.

(a) Civil service---

----Advertisement for appointment of Sub-Inspectors in Police Department--- Fundamental Rights--- Word "family"--- Scope---Appointment letter was not issued to the petitioner by the department on the ground that he did not have good family background---Validity---No law/rules/regulations/SOPs could grab the Fundamental Rights protected by the Constitution---Authority could not be permitted to crush the rights and dignity of man on his whims without any justification---Every person was reasonable for his act and conduct and no liability could be fixed on the basis of blood or family relationship---No one could be penalized only due to the reason that someone from his relatives had been charged/indicted---Every person was responsible for his own act and he would be awarded according to his characteristics---Word "family" could not include the whole tribe---Neither the petitioner nor his father or brother were involved in any criminal case---Petitioner could not be declared having not good family reputation or his family belonged to a bad character family or a man supporting the criminals in society---If during service it was found that an employee was not fulfilling his duties or that his working was bringing bad name to the department then authority might proceed against him---No person could be debarred from service on the basis of presumptions or due to involvement of any person from his tribe in a criminal case---Act of authorities was violative of Arts.4 & 9 of the Constitution---Petitioner had been deprived from the right of life which would include the right to earn, right to work, right to serve, right to be appointed after selection on merit---Impugned order was set aside and department was directed to implement the recommendations of Public Service Commission in letter and spirit without any loss of time---Constitutional petition was accepted in circumstances.

Al-Baqra-286; An Najam 38-39; Az-Zummur-7; Yousaf-79; Chapter 2. A Man Is Not To Be Punished For The Wrongs Done By His Father or Brother and The Holy Prophet (S.A.W.), at the time of The Khutbah of Hajj-ul-Wida rel.

(b) Words and phrases---

----Family"---Connotation.

Black's Law Dictionary (English Edition); Baby Krishnan Prafula C. Pant in his book WORDS and PHRASES (Second Edition 2007; Muhammad Masoom, General Secretary Employees' Union v. Messrs Pak-American Fertilizers Ltd., Daudkhel 1965 PLC 467 and Mst. Arjumand Bano v. Ch. Ali Muhammad 1991 MLD 250 rel.

Barrister Shahid Masood Khan for Petitioner.

Imtiaz Ahmad Kaifi, Addl. A.G. with Asghar DSP and Javed SHO for Respondents.

2016 P L C (C.S.) 418

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Dr. ASIF MEHMOOD HAMRAZ

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and another

W.P.No.20764 of 2015, decided on 16th September, 2015.

West Pakistan Government Servants (Medical Attendance) Rules, 1959-----

----Rr. 3 & 6---Constitution of Pakistan, Art. 199---Constitutional petition---Reimbursement of medical bill---Prior approval, requirement of---Principle---Petitioner was a civil servant who became a patient of Bilateral Internal Ear Disease and surgeons advised him Cochlear Implant Surgery-Petitioner had undergone surgery from a private sector hospital and asked for ex gratia grant of Rs.2 million for financial assistance but the same was declined by authorities on the plea of stringent financial position of province and treatment without prior approval---Validity---Government was responsible to provide adequate medical treatment to petitioner but the same was not available at any public sector hospital of the province---In emergency, petitioner had no other option except to get operated at a private sector hospital---After the surgery, petitioner had taken necessary procedural steps for reimbursement of expenses of his treatment/surgery---Stringent financial position of province and treatment without prior approval of surgery were not valid grounds to reject claim of reimbursement of expenses incurred by petitioner on his treatment specially when Special Medical Board constituted by government itself reported that CT Scan and MRI of petitioner fulfilled the requirements of Cochlear Implant Surgery which was being done in private sector only---In cases of urgent nature or emergency, where the question of life was involved or a disease could disable the patient, it was not possible for the government servant to wait for prior approval from the government department before proceeding with his treatment as the procedural delay in getting such approval could nullify the very object of such relief to be granted by government to government servant---Sanction could always be granted post facto, keeping in view the emergency involved to the petitioner---Rejecting of claim of petitioner by authorities without examining it on merits was illegal and unjustified---Petitioner was entitled to reimbursement of charges incurred by him on his medical treatment---High Court directed the provincial government to initiate necessary steps for approval of summary from Chief Minister for reimbursement of medical expenses by petitioner---Petition was allowed accordingly.

Nazir Ahmed Siddiqui v. Government of Sind and 2 others 1981 PLC (C.S.) 467 rel.

Ch. Muhammad Rasheed for Petitioner.

Muhammad Asif Iqbal, Law Officer of Health Department for Respondents.

2016 P L C (C.S.) 427

[Lahore High Court]

Before Muhammad Qasim Khan, J

MUHAMMAD MUQADDAS KHAN

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and 3 others

W.P. No.17666 of 2014, decided on 20th March, 2015

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

----R. 17-A---Shaheed Policy [Office Letter No.1668-78/SE-II/VIII dated 10-04-2003]---Constitution of Pakistan, Art.199---Constitutional petition---Shaheed Policy---Scope---Petitioner being brother of shaheed constable submitted his application for appointment which was turned down on the ground that in presence of child of Shaheed employee his brother could not be appointed---Validity---Shaheed constable was brother of petitioner who left behind one child and a widow---Shaheed employee was survived by one son and petitioner could not be said to be covered by the Shaheed Policy---Affidavit did not have the overriding effect against the Shaheed Policy---Constitutional petition was dismissed in circumstances, however Inspector General of Police was directed for considering the Shaheed Policy to bring it in consonance with R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as widow had been ignored in the said Policy.

Ch. Tahir Mehmood for Petitioner.

Imtiaz Ahmad Kaifi, Addl. A.-G. with A.D. Dhakoor Inspector (Legal) for Respondents.

2016 P L C (C.S.) 437

[Lahore High Court]

Before Shezada Mazhar and Shah Khawar, JJ

MULTAN ELECTRIC POWER COMPANY

Versus

AFTAB AHMAD and others

I.C.A. No.4 of 2014, decided on 2nd December, 2014.

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

----S. 3(c)---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Civil service---Employees filed constitutional petition against their termination which was accepted and termination order was set aside and authorities were directed to proceed further in accordance with S.3(c) of the Removal from Service (Special Powers) Ordinance, 2000---Contention of employer company (Electric Power Company) was that Removal from Service (Special Powers) Ordinance, 2000 had been repealed ---Validity---Removal from Service (Special Powers) Ordinance, 2000 was repealed during the terms of employment of employees and same was not applicable to the employees---Employees were subjected to written test and interview which they could not succeed and their services were terminated---Employees could not claim their status as of "workman" as their employment was protected on provisional basis and their continuation in service was subject to the passing of test and interview---Since provisions of Removal from Service (Special Powers) Ordinance, 2000 had already been repealed so same could not have been pressed into service---Single Judge of High Court had fallen in error by setting aside impugned order of general termination with the direction to the authorities to proceed further in accordance with S.3(c) of the Removal from Service (Special Powers) Ordinance, 2000 after issuing show cause notices to the employees---Impugned judgment was set aside and general termination order passed by the employer company stood revived and same would hold the field---Intra-court appeal was accepted in circumstances.

Ch. Saghir Ahmad Bhatti and Amir Aziz Qazi for Appellant.

Hamayoun Syed Rasool, Muhammad Suleman Bhatti, Malik Muhammad Tariq Rajwana, Sh. Ghias-ul-Haq, Ch. Ahsan Ali Gill and Asad Hussain Jafari for Respondents.

Date of hearing: 23rd June, 2014.

2016 P L C (C.S.) 459

[Lahore High Court]

Before Muhammad Qasim Khan, J

Syed HASSAN ASKARI

Versus

PROVINCE OF PUNJAB through Chief Secretary and 2 others

W.Ps.Nos.4619, 12820 of 2015 and C.M. Nos.2, 1699, 4, 3023, 5 of 2015, decided on 16th June, 2015.

Civil service---

----Seniority of employee, fixation of---Matter of terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Discrimination---Violation of Fundamental Right---Effect---Seniority of civil servant would entail terms and conditions of service and same could be settled by the Service Tribunal alone---High Court could not decide matter of discrimination with regard to seniority of employees as same was covered by the terms and conditions of service---If an employee had been discriminated or any of his Fundamental Right had been violated, he could file appeal/representation before the departmental hierarchy and then appeal before the Service Tribunal---If there was a question of violation of any of the Fundamental Right even then bar of Art.212 of the Constitution would attract---Forum for determination of such issue would be the Service Tribunal and not the High Court---Constitutional petition was dismissed being not maintainable.

Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Divisional Superintendent Pakistan Railways Quetta and others v. Shaukat Ali and another 2015 SCMR 836; Dr. Riffat Kamal and others v. Federation of Pakistan and others 2015 SCMR 847; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Bashir Akhtar Shahi v. Government of Punjab and others 1978 PLC (CS) 216; Ali Iftikhar Jafri and 12 others v. I.-G. Police, Punjab and 336 others 2005 PLC (CS) 811 and Syntron Limited v. Huma Ijaz and others 2014 SCMR 531 ref.

Iftikharullah Khan, Sub-Divisional Officer and others v. The Secretary, Irrigation and Power Department, Government of Punjab, Lahore and 3 others 2002 PLC (CS)+ 720; Mukhar Ahmad Junejo and 2 others v. Province of Sind and others PLD 1986 SC 560; L.H. Shaikh v. General Manager, Karachi Telecommunication Region and others 1974 SCMR 82; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Jamal Khan Jaffar and another v. Rahim Shah and 3 others 1994 SCMR 759 rel.

Waqar Hassan Mir for Petitioner in (Writ Petition No.4619/2015).

Tallat Farooq Sheikh for Petitioner (in Writ Petition No.12820/2015).

Imtiaz Ahmad Kaifi, Additional Advocate General with Kamran Adil SSP/Additional I.G (Legal), Qaisar Ali Sheikh SP/Additional I.G (Legal), Imtiaz Ali Sheikh DSP, Javed Asif Inspector (Legal), Miss Rabia Salim Inspector Legal and Athar Yaqoob Assistant from Inspector General of Police Office.

Tahir Mahmood Khokhar, Standing Counsel on Court's call.

Sheezada Mazhar for the Applicant in (C.M.No.02/2015 in W.P.No.4619/2015.

Khawaja Umar Masood, Advocate for Applicant (in C.M.No.1699/2015).

Manzoor Hussain Dogar for Applicant (in C.M.No.04/2015).

Shabbir Hussain for Applicant (in C.M.No.2023/2015).

Masood Ahmad Chishti for Applicant (in C.M.No.05/2015).

2016 P L C (C.S.) 472

[Lahore High Court]

Before Muhammad Qasim Khan, J

Mrs. RIFFAT SATTAR

Versus

GOVERNMENT OF THE PUNJAB through Secretary and 6 others

Writ Petition No.11995 of 2015, decided on 2nd September, 2015.

(a) West Pakistan Civil Servants Pension Rules, 1963---

----Rr. 5.7 & 5.8---Retirement of employee---Pension, sanction of---Procedure---Slackness and mala fide of public functionaries---Effect---Employee stood superannuated but her pension case was not finalized despite expiry of one year---Effect---Pension was not a bounty or an ex-gratia payment but a right acquired in consideration of past services---Pension of a retired government employee had to be sanctioned one month in advance of the due date of his retirement and final payment order must be issued not more than a fortnight in advance thereof---Pension was a vested right and a legitimate expectation of a retiring civil servant---Such being a right could not be arbitrarily abridged or reduced except in accordance with law---Petitioner-employee had successful completed service tenure---No departmental inquiry was either pending or was in the offing---Employee had not contributed towards delayed finalization of her pension case---Nothing was on record as to why the pension case of employee was not finalized despite passage of nearly one year---Mala fide on the part of officials was on record---Functionaries were responsible for slackness and concealment of fact on their part---Employee had suffered agony for a long period without their being any fault on her part---Criminal proceedings as well as action for contempt of judgment of Supreme Court could be initiated against the authorities---Constitutional petition was allowed with costs of Rs.100,000/- which should be paid to the employee by the Government within specified period---Government could recover the said amount from the concerned department.

Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2015 PLC (C.S) 296 and Haji Muhammad Ismail Memon, Advocate PLD 2007 SC 35 rel.

(b) Civil service---

----Pension, sanction of---Scope and procedure---Pension was not a bounty or an ex-gratia payment but a right acquired in consideration of past services---Pension of a retired government employee had to be sanctioned one month in advance of the due date of his retirement and final payment order must be issued not more than a fortnight in advance thereof---Pension was a vested right and a legitimate expectation of a retiring civil servant---Such being a right could not be arbitrarily abridged or reduced except in accordance with law.

Syed Muhammad Ali Gillani for Petitioner.

Mubashir Latif Gill, Asstt. A.G. with Tariq Hameed Bhatti, Deputy Secretary (Admn) Higher Education Department, Lahore for Respondents.

Pir Masood ul Hassan Chishti, Advocate for respondent University of Education with Ashiq Dogar Registrar University of Education, Lahore.

2016 P L C (C.S.) 497

[Lahore High Court]

Before Muhammad Qasim Khan, J

SAFDAR ALI NASIR

Versus

CHAIRMAN TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY (TEVTA) and 5 others

W.P.No.2231 of 2011, decided on 19th February, 2015.

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

----Ss. 2(f)(i)(ii) & 16---Constitution of Pakistan, Art.199---Constitutional petition---Disciplinary proceedings, initiation of---Competent authority---Petitioner was employee with Punjab Small Industries Corporation and he was transferred to Technical Education and Vocational Training Authority where he was imposed major penalties of recovery and dismissal from service---Contention of petitioner was that he was employee of Punjab Small Industries Corporation and Chairman Technical Education and Vocational Training Authority was not the authority against him and only Punjab Small Industries Corporation being the parent department could initiate disciplinary proceedings---Validity---Petitioner was employee of Punjab Small Industries Corporation and his services were transferred to Technical Education and Vocational Training Authority and absorbed therein later-on---Petitioner was to be considered as an absorbed employee of Technical Education and Vocational Training Authority---Chairman Technical Education and Vocational Training Authority had been authorized to initiate proceedings against such employees of the Punjab Small Industries Corporation working therein---Chairman Technical Education and Vocational Training Authority was the competent authority against the petitioner (employee)---Chief Minister might authorize any officer or authority to exercise powers of competent authority---Said officer should not be inferior in rank to the appointing authority---Chairman Technical Education and Vocational Training Authority was not inferior in rank to the appointing authority of the petitioner---Chairman Technical Education and Vocational Training Authority was the authority for all the employees of Punjab Small Industries Corporation working therein after approval of Chief Minister---Employees who had been awarded any penalty under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 might file an appeal before the appellate authority---If order was passed by the Chief Minister then employees might file review against the said order---Remedy of departmental appeal was available to the petitioner but he had skipped the same---No litigant could be allowed to avoid statutory remedies available to him and to adopt a forum of his own choice---Employee (petitioner) had not availed the remedy of appeal under S.16 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 which he might avail if so advised---Constitutional petition was dismissed in circumstances.

Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 and Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 rel.

(b) Administration of justice---

----No litigant could be allowed to avoid statutory remedies available to him and to adopt a forum of his own choice.

Sh. Munir Ahmad for Petitioner.

Ms. Mehvish Tahira for Respondent No.1.

2016 P L C (C.S.) 526

[Lahore High Court]

Before Mahmood Ahmad Bhatti, J

MUMTAZ AHMAD KHAN

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT DEPARTMENT, LAHORE and 2 others

W.P.No.7692 of 2015, heard on 27th May, 2015.

(a) Employee of Provincial autonomous body---

----Transfer of employee---Mala fide---Effect---Two orders of transfer of employee were made within a span of a fortnight---Validity---Employee (petitioner) was not a government servant but was an employee of Local Government Board which was an autonomous body---Where a person complained of the violation of statutory rules or had challenged an order which was tainted with mala fides then constitutional petition was maintainable---Employee was ordered to be repatriated to an authority which had ceased to exist and had become defunct---Validity---Employee was not treated fairly, justly and equitably---Transfer of employee was not in the public interest or was not necessitated by an exigency or his services were not required for a particular post or for a particular station---Employee had been made an officer-on-special duty and had been left in the lurch---If courts of law countenanced and approved such exercise of authority then it would make a mockery of law and travesty of justice---Such acts of department would not give a message of hope to the honest and scrupulous persons and might tend to undermine their confidence---Employees of government or autonomous bodies were not to be made rolling stones---Impugned order passed by the department was declared to have been passed without lawful authority and of no legal effect and authority---Employee would continue to discharge his duties at the place where he was performing the same prior to his transfer--Impugned order was set aside---Constitutional petition was accepted in circumstances.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195; Regarding Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963=2011 PLC (C.S.) 1489 and Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Where a person complained of the violation of statutory rules or had challenged an order which was tainted with mala fides then constitutional petition was maintainable.

Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 rel.

Allah Bakhsh Khan Kulachi for Petitioner.

Muhammad Javed Saeed, A.A.G. for Respondents Nos.1 and 2.

Muhammad Akram Chaudhary for Respondent No.3.

Date of hearing: 27th May, 2015.

2016 P L C (C.S.) 572

[Lahore High Court]

Before Muhammad Qasim Khan, J

Syed ABBAS RAZA

Versus

PUNJAB through Chief Secretary and 2 others

Writ Petition No.11138 of 2015, decided on 20th May, 2015.

(a) Civil service---

----Inquiry, initiation of---Scope---Committee was constituted for recommendations for initiation of legal/criminal action against the delinquents---Validity---Inquiries conducted earlier were not under Punjab Employees' Efficiency, Discipline and Accountability Act, 2006 or any other law rather those were preliminary inquiries---Chief Minister being authority against the employees of senior post could initiate any fact finding inquiry---Consideration for such inquiry must be to unearth the real delinquents---Such practice would promote a sense of responsibility amongst the employees---No right of petitioner had been infringed as no action had been taken so far and no adverse order had been passed---Mere on the basis of apprehension, no direction could be issued to stop inquiry process---Petitioner had attempted to frustrate the inquiry proceedings---Reference to National Accountability Bureau could be submitted if tangible material was collected against the person/employee during proposed inquiry---Mere findings or recommendations of such inquiry committee were not to be considered as judgment of guilt against such person or employee---Constitutional petition being premature was dismissed in circumstances.

Khalid Mahmood Ch. and others v. Government of The Punjab through Secretary, Livestock and Dairy Development 2002 SCMR 805 and Mir Nabi Bakhsh Khan Khoso v. Branch Manager, National Bank of Pakistan, Jhatpat (Dera Allah Yar) Branch and 3 others 2000 SCMR 1017 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---No writ could be issued to stop inquiry process on the basis of apprehension.

Azam Nazir Tarrar and Khalid Ishaq for Petitioner.

Imtiaz Ahmad Kaifi, Addl A.G with Muhammad Awais, Law Officer HUD&PHE for Respondents.

2016 P L C (C.S.) 616

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

QASIM HUSSAIN

Versus

The PUNJAB VOCATIONAL TRAINING COUNCIL and others

W.P.No.13253 of 2014, decided on 29th July, 2015.

Civil service---

----Disciplinary proceedings---Penalty---Inquiry Officer recommended major penalty of recovery of Rs.108,536 and reduction to a lower post and pay scale from the current post for a period of two years but competent authority imposed major penalty of removal from service and recovery of said amount---Validity---Competent authority was not bound by the recommendations, of Inquiry Officer qua the award of penalty to the accused officer---If competent authority was not inclined to agree with the recommendations of Inquiry Officer then it had to give notice to the accused officer and had to pass a reasoned order for disagreeing with the recommendations of Inquiry Officer and for enhancement of punishment with conscious application of mind---Competent authority had not made any specific reference to the evidence or material which was found favour with the same to award major penalty of dismissal from service---Major penalty of dismissal from service did not appear to be in conformity with the evidence on record---Impugned orders were declared to be illegal and without lawful authority---Authority was directed to re-consider the matter and decide same afresh keeping in view the entire evidence available on record and after affording an opportunity of hearing to the employee in accordance with law within a stipulated period---Constitutional petition was disposed of in circumstances.

Executive Counsil Allama Iqbal Open University Islamabad through Chairman and others v. M. Tufail Hashmi 2010 SCMR 1484 and Muslim Commercial Bank Ltd. v. Mahmood Ahmad Butt and others 1997 PLC 550 ref.

Asif Yousaf v. Secretary Revenue Division, CBR Islamabad and another 2014 SCMR 147; Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 187 and Shibli Farooqui v. Federation of Pakistan 2009 SCMR 281 rel.

Muhammad Ameen Malik for Petitioner.

Syed Ahmed Ali Bukhari for Respondents.

2016 P L C (C.S.) 627

[Lahore High Court]

Before Faisal Zaman Khan, J

SALAMAT ULLAH

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and 2 others

Writ Petition No.11633 of 2015, decided on 12th October, 2015.

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

----Preamble---Punjab General Clauses Act (VI of 1956), S.24-A---Demotion from post of Area Manager to Sales Manager---Appeal against findings of departmental enquiry---Guidelines for adjudication of appeal---Petitioner had been proceeded against under State Life Employees (Service) Regulations, 1973 and penalty of down-grading from the post of Area Manager to Sales Manager on him, against which the petitioner filed departmental appeal, which was dismissed---Validity---Impugned order of the appellate authority did not qualify to be reasoned order as contemplated under S.24-A of Punjab General Clauses Act, 1956 as no independent reasons or findings had been given, which was mandatory---Mandate to provide an appeal was frustrated if said appellate authority was merely to uphold the order of the subordinate functionary and not to give its independent findings that too backed by reasons---Different aspects which the appellate authority was supposed to consider were: (a) questions agitated in the representation/appeal; (b) order was passed by the competent authority; (c) grounds of appeal raised by the appellant; and, (d) after appraisal of the above, independent finding with reasons rendered by the appellate authority---Impugned order being not sustainable was set aside, and appellate authority was directed to decide the appeal in accordance with law---Constitutional petition was allowed in circumstances.

Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511 and Muhammad Amin Muhammad Bashir Ltd., Karachi v. Government of Pakistan through Secretary Ministry of Finance Central, Secretariat, Islamabad and others 2015 SCMR 630=2015 PTD 1100 rel.

Asif Javed Khan for Petitioner.

Muhammad Ali Lashari for Respondents.

2016 P L C (C.S.) 637

[Lahore High Court]

Before Faisal Zaman Khan, J

FAQIR MASIH

Versus

JOINT SECRETARY (ADMN.) and another

Writ Petition No.7606 of 2011, heard on 15th October, 2014.

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

----Ss.3 & 5(4)---Constitution of Pakistan, Art.199---Constitutional petition---Penalty of removal from service---Allegation of misconduct on account of absence from duty---Authority dispensed with the regular inquiry without assigning any reason---Non-availability of sufficient evidence for dispensing with the regular inquiry---Effect---Non-observance of procedure provided under the law---Competent Authority had not considered the gravity of charge and awarded penalty, which was not commensurate with the guilt alleged to have been committed by the employee---Appellate authority without applying independent mind through a non-speaking order confirmed the penalty order passed by the competent authority---Validity---No independent finding had been rendered by the appellate authority and in a convenient manner had decided the appeal endorsing the findings of the competent authority, which could not be considered to be a "speaking order"---Appellate authority was duty bound to independently analyze the case before him and once he arrived at a conclusion, independent of findings rendered by the competent authority, he had to give his own reasons for acceptance or otherwise of the appeal---Penalty awarded to an employee had to commensurate with the offence committed---Appellate authority without considering the gravity of the offence and the quantum of penalty upheld the order of the competent authority---While dispensing with the inquiry, reasons had to be given---Competent authority dispensed with the inquiry without confronting the petitioner with the numerous reports on the basis of which show-cause notice was issued---High Court set aside the order passed by the appellate authority by remanding the matter to the appellate authority to decide the same strictly in accordance with law through a reasoned order---Constitutional petition was accepted in circumstances.

Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484 ref.

Inspector-General (Prisons), N.-W.F.P., Peshawar and another v. Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others 2009 PLC (C.S.) 47; Allied Bank Limited through attorney and others v. Syed Nasir Abbas Naqvi and others 2007 SCMR 1143; Saeed Ahmad Awan v. Registrar, Lahore High Court, Lahore 2013 PLC (CS) 928; Secretary to Government of the Punjab, Food Department, Lahore and another v. Javed Iqbal and others 2006 SCMR 1120; Deputy Inspector General Investigation, Lahore v. Asghar Ali 2012 PLC (CS) 787; Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others 2009 SCMR 339; M/s. Best Buy Computers, Lahore and another v. Director, Intelligence and Investigation (Customs and Excise), Lahore and others 2009 SCMR 19 = 2009 PTD 2019; Tariq Mehmood v. District Police Officer, Toba Tek Singh and another PLD 2008 SC 451; Deputy Inspector-General Investigation, Lahore v. Asghar Ali 2011 SCMR 1389; Dr. Pakiza Raza Hyder v. Ministry of Health and others PLD 2010 SCMR 501; Javed Iqbal Qamar v. Pakistan Telecommunication Co. Ltd. through its Chairman, Islamabad and another 2004 PLC (CS) 435 and Executive Engineer and others v. Zahid Sharif 2005 SCMR 824 rel.

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

----S. 24A---Speaking order---Appellate authority---Speaking order especially by an appellate authority should have the ingredients viz point in issue; stance taken by the parties; finding rendered by the forum below; grounds of assailing an order; independent findings based upon reasons and the final result of the appeal.

Andaz Jillani Khan for Petitioner.

M. Sohail, Standing Counsel for Respondents.

Date of hearing: 15th October, 2014.

2016 P L C (C.S.) 653

[Lahore High Court]

Before Shah Khawar, J

GHULAM FARID

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.15236 of 2014, decided on 11th December, 2014.

Civil service---

----Commutation/gratuity allowance, payment of---Scope---Judicial review---Petitioner had filed constitutional petition for release of commutation/gratuity allowance which stood due in his favour after his retirement from service---Validity---Non-payment of gratuity by the department to the petitioners/employees would tantamount to violation of fundamental rights of such employees---Payment of gratuity, on the day when petitioner/employees stood retired from services, was their constitutional and legal right---Employees, after retirement, had developed legitimate expectancy to receive the pensionary benefits so that they could utilize the same for their future livelihood---State functionaries were duty bound to calculate and arrange for the pensionary benefits of their employees before the date of their retirement and to pay the same, the day they were retired from service---Department had failed to perform its constitutional and legal obligations towards the petitioners/employees, by not paying their gratuity in time---Petitioner had acknowledged the receipt of a cheque for payment of his gratuity from the department---Grievance of the petitioner having been redressed, High Court while exercising power of judicial review could not ignore the other equally placed employees of the department---Other employees of the department had not been paid gratuity which was unfair---High Court directed the authorities to pay the gratuity to the rest of employees of the department within a specified period---Government was directed to ensure that, in future, each and every employee of the department was paid all pensionary benefits including gratuity on the day when they got retired from their services---Constitutional petition was accepted, in circumstances.

Syed Mudassir Ali Naqvi for Petitioner.

Mian Muhammad Ashfaq Hussain, Legal Adviser for Respondents.

Sh. Naveed Iqbal Goreja, Standing Counsel with Riaz Ahmad Awan, Assistant Accounts Officer for Respondents.

2016 P L C (C.S.) 676

[Lahore High Court]

Before Ch. Mushtaq Ahmad, J

PAKISTAN MEDICAL ASSOCIATION through President

Versus

PAKISTAN through Secretary, Ministry of National Health Services Regulations and Coordination, Islamabad and 5 others

Writ Petition No.2281 of 2013, decided on 18th December, 2014.

(a) Civil service---

----Repatriation of employee (deputationist) to his parent department---Aggrieved person---Scope---Registrar of Pakistan Medical and Dental Council was transferred/repatriated to his parent department without appointing any person as Registrar in his place---Contention of authorities was that petitioner/Pakistan Medical Association had no locus standi to file constitutional petition, nor it was an "aggrieved person"---Validity---Registrar of Pakistan Medical and Dental Council had been repatriated to his parent department who was on deputation---No order against the petitioner/Association had been passed in any manner and it was the Registrar of Pakistan Medical and Dental Council who was affected by the impugned order---Right which was the foundation of an application under Art.199 of the Constitution was a personal and individual right---Legal right might be statutory right or a right to be recognized by the law---Person could be said to be aggrieved only when he/she was denied of a legal right by someone who had a legal duty to perform an act with regard to such right---Justifiable right should be in existence to give jurisdiction to the High Court in the matter---Registrar of Pakistan Medical and Dental Council was the "aggrieved person" who could challenge the impugned order---Petitioner had neither locus standi to challenge the impugned notification nor it would fall within the ambit of aggrieved party---Deputationist did not have vested right to remain on the post forever or for a stipulated period---Deputationist could be ordered to be repatriated to the parent department at any time without assigning any reason---Parent department, of deputationist, was not bound by any law to assign any reason for his repatriation or vice versa---Constitutional petition was not maintainable which was dismissed, in circumstances.

M/s. Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income Tax, Lahore Range and 7 others PLD 1978 SC 151; Hafiz Hamid Ullah v. Saifullah and others PLD 2007 SC 52; NWFP Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 844; Zaheeruddin Sheikh and 30 others v. United Bank Ltd. 2002 CLC 147; Syed Mufeed Shah and another v. Principal, Khyber Medical College, Peshawar and 4 others 2003 CLC 1348; Muhammad Idrees v. Province of Punjab through Collector District Sialkot and others 2014 CLC 130; S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 and Dr. Shafi ur Rehman Afridi v. C.D.A. Islamabad through Chairman and others 2010 SCMR 378 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction, invocation of---Requirements.

For a petitioner in a constitutional petition, it is essential that:---

(i) he had a locus standi to invoke constitutional jurisdiction being an aggrieved person as his right was denied to be give to him

(ii) the right was infringed and the right so infringed was justiciable right and that

(iii) he had no alternate, adequate remedy for redressal of his grievance except a petition under Article 199 of the Constitution.

(c) Words and phrases---

----"Aggrieved party"---Meaning.

Black's Law Dictionary, 9th Edition at page 1232 rel.

(d) Civil Service---

----Deputation---Scope---Deputationist did not have vested right to remain on the post forever or for a stipulated period.

Mujeeb-ur-Rehman Kiyani for Petitioner.

Barrister Adnan Saboor for Petitioner (in C.M. No.1666 of 2014).

Raja Shafqat Mehboob for Petitioner (in C.M. No.1693 of 2014).

Syed Qamar Hussain Sabzwari for Respondent No.5.

Shakeel-ur-Rehman Khan for Remaining Respondents.

Date of hearing: 28th November, 2014.

2016 P L C (C.S.) 693

[Lahore High Court]

Before Abid Aziz Sheikh, J

Ch. AZHAR HUSSAIN

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB LG&CD DEPARTMENT, LAHORE and 2 others

Writ Petition No.2849 of 2011, heard on 28th October, 2014.

Civil service---

----Promotion/proforma promotion after retirement---Vested right---Discrimination---Plea of petitioner was that he was duly recommended by the Provincial Selection Committee but meeting of the Board was not convened to implement the said recommendation and he stood retired from service---Validity---Petitioner could not be treated as civil servant for the purpose of Service Tribunal Act, 1974---No specific provision existed in the Punjab Civil Servants Act, 1974 which would preclude or debar the Board to consider the case of petitioner for promotion after his retirement---Promotion including proforma promotion could not be claimed as of right---Vested right would accrue in favour of petitioner to be considered for promotion by the Board, once he was recommended by the Provincial Selection Committee---Petitioner was due for his promotion since 2005 and was finally recommended by the Provincial Selection Committee---Petitioner could not be made to suffer merely on account of departmental lapse of holding Board meeting not earlier but after four days of his retirement---Petitioner had been deprived of his vested right to be considered for promotion due to acts of department which would cause him permanent loss of pensionary benefits of higher grade---Petitioner was pursuing his case for promotion diligently and he had also filed written representation---Department was required to act justly, fairly and in accordance with law---Department had neither redressed the grievance of the petitioner nor even decided his written representation---Constitutional petition was not hit by laches---Petitioner had successfully made out a case of discrimination against him---Department was directed to consider the petitioner in the Board meeting for promotion---Petitioner had already retired and his promotion would not affect the seniority of any person already in service and he would be entitled to his emoluments and pensionary benefits---Constitutional petition was accepted, in circumstances.

Aftab Gulzar and others v. Chairman Punjab Local Government Board, Lahore and 2 others 2005 PLC (C.S.) 714; Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126; Dr. Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others 2008 SCMR 1535; Federation of Pakistan and others v. Amir Zaman Shinwari, Superintending Engineer 2008 SCMR 1138; Mrs. Naseem M. Qadri v. Federation of Pakistan 2009 PLC (CS) 229; Raja Muhammad Naseem Khan v. Azad Jammu and Kashmir Govt. through Chief Secretary and others 2010 PLC (CS) 439; Muhammad Hussain v. Secretary to Govt. of the Punjab S&GAD, Lahore and 3 others 2006 PLC (C.S.) 849; Abdul Qayyum Mirza v. Director General, Federal Directorate of Education, Islamabad 2008 PLC (CS) 173; Federation of Pakistan v. Afzal Muhammad Farooq 2005 PLC (C.S) 1424; Dr. Muhammad Amjad v. Dr. Israr Ahmed 2010 SCMR 1466; Government of Pakistan through Establishment Division, Islamabad v. Hameed Akhtar Niazi, Academy of Administrative Training, Walton, Lahore 2003 PLC (C.S) 212 and Muhammad Aslam Sultan v. Federation of Pakistan through General Manager, Pakistan Railways, HQRS, Lahore 2006 SCMR 1465 rel.

Muhammad Boota for Petitioner.

Muhammad Naeem Khan and Kh. Salman Mahmood, Asstt. A.-G. for Respondents.

Date of hearing: 28th October, 2014.

2016 P L C (C.S.) 766

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

SOHAIL TUFAIL

Versus

SECRETARY HEALTH, GOVERNMENT OF THE PUNJAB, LAHORE and 2 others

W.Ps. Nos.2907 of 2013 and 4183 of 2012, decided on 10th June, 2015.

(a) Civil service---

----Ad hoc appointment, termination of---Policy matter---Mala Interference by High Court---Scope---Petitioners were terminated when Public Service Commission recommended regular incumbents and said recommendees had been posted all over the Province---Authority had already formulated policy that no further appointment would be made on ad hoc basis unless requisition was sent to the Public Service Commission for regular appointment---Petitioners failed to qualify for the said post in the requisite test and viva of Public Service Commission---Ad hoc appointment did not confer any right or interest on appointee---Service of such an appointee could be dispensed with at any moment without assigning any reason---Appointment, in the present case, was only for the period of one year from the date of joining and same would automatically be terminated on the expiry of said period or till the availability of a regular incumbent/selectee of Public Service Commission whichever was earlier---Such appointee were estopped to raise any question on legality or validity of their contractual employment by accepting the terms and conditions of service---No discrimination had been pointed out by the said appointees--- Candidates who had qualified in interview and test could not be equated with those who had failed---High Court could not interfere in policy matter which would fall within the domain of government unless it was shown to be mala fide, illegal and unconstitutional---Constitutional petition was dismissed in circumstances.

Abdul Sattar Khan Durani v. Province of Balochistan through Chief Secretary 2015 PLC (CS) 489; Akhtar Gohri v. Province of Sindh 2014 SCMR 1149; Government of Balochistan v. Dr. Zahida Kakar 2005 SCMR 642; Nila Khalid v. Pakistan through Secretary Defence and others PLD 2003 SC 420; Dr. Rab Nawaz Malik v. Province of Punjab 2015 PLC (CS) 411; 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 Session Judges and others 2011 PLC (C.S) 78 rel.

(b) Civil service---

----Ad hoc appointment did not confer on an appointee any right or interest to continuous service.

Mian Babar Saleem for Petitioner (in W.P.No.2907/2013).

Sahibzada Muhammad Nadeem Fareed for Petitioner (in W.P.No.4183/2012).

Aziz-ur-Rehman, A.A.G.. with Dr. Nasir Javed D.M.S. Nishtar Hospital, Multan.

2016 P L C (C.S.) 826

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD ARSHAD IQBAL

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.1221 of 2015, decided on 30th June, 2015.

(a) Pakistan Telecommunication Corporation (Re-organization) Act (XVII of 1996)--

----Ss. 35 (2), proviso & 36 (1), proviso---Voluntary Separation Scheme package---Curtailment of qualifying length of service of employee---Past and closed transaction, doctrine of---Applicability---Discrimination---Scope---Employer-company announced Voluntary Separation Scheme and petitioner-employee was also offered a package under the said scheme with specific calculation package benefits---Employee accepted the package offered to him but company curtailed the qualifying length of service of petitioner from 19 years, 10 months and 10 days to 12 years, 9 months and 29 days---Validity---Voluntary Separation Scheme package was offered by the company to the employee-petitioner---Employee-petitioner was offered the package with the qualifying length of service of 19 years, 10 months and 10 days---Terms and conditions provided under Voluntary Separation Scheme became binding on both the parties upon acceptance of the same offered to the employee-petitioner---Acceptance of offer by the employee-petitioner was unconditional and he had no right to wriggle out of the same ---Employee-petitioner was entitled to the benefits that were part of the offer contained under the Voluntary Separation Scheme itself---Company had no authority to take away any benefit offered by it to the employee-petitioner which had already been accepted by him---Issuance of Revised Voluntary Separation Scheme package was illegal, unlawful and without lawful authority---Company had no power to vary the terms and conditions of service of employee-petitioner to his disadvantage who was employee of the company---Principle of past and closed transaction was attracted in the present matter---No discrimination had been pointed out by the employee-petitioner---Voluntary Separation Scheme package offered to the employee-petitioner could not be termed as discriminatory as same was accepted by him without any reservation---Petitioner became employee of company on 13-02-1995 and rules of employment which were applicable to him during service were statutory rules---Revised Voluntary Separation Scheme package was declared to be illegal---Constitutional petition was disposed of in circumstances.

Pakistan Telecommunication Company Limited and others v. Yasmeen Tabassum and others 2014 PLC 176 and Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others 2012 SCMR 152 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Question of fact could not be decided by the High Court while exercising constitutional jurisdiction.

Shahnaz Parveen v. PTCL through President and others 2011 SCMR 1924 rel.

Syed Shahid Hussain for Petitioner.

Muhammad Tariq Usman Joiya for Respondents.

2016 P L C (C.S.) 920

[Lahore High Court (Multan Bench)]

Before Mahmood Ahmad Bhatti, J

AKHTAR ALI SHAH and 2 others

Versus

SECRETARY INFORMATION/CHAIRMAN PAKISTAN BROADCASTING CORPORATION HEADQUARTERS, ISLAMABAD and 3 others

W.P.No.15816 of 2014, heard on 11th December, 2014.

Civil service---

----Transfer of employee---Scope---Plea of petitioners was that transfer could be made only in public interest and on administrative grounds or where exigencies of a situation so demanded---Validity---Petitioners had not been victimized---Question of downgrading of any of the petitioners did not arise in the present case---Services of petitioners were liable to be transferred to any part of Pakistan---Petitioners were going back on their commitments by challenging their transfer orders---Transfer orders did not suffer from any infirmities nor had been passed in flagrant violation of any principle and same could not be struck down---Constitutional petition was dismissed in circumstances.

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

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

Tahir Mahmood for Petitioners.

Ajmal Hussain Qureshi, Standing Counsel for Pakistan and Pir Masood ul Hassan Chishti for Respondents.

Date of hearing: 11th December, 2014.

2016 P L C (C.S.) 928

[Lahore High Court]

Before Ali Baqar Najafi, J

MUHAMMAD RAFIQUE

Versus

DISTRICT ACCOUNTS OFFICER, FAISALABAD and another

W.P.No.23288 of 2012, decided on 21st January, 2015.

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

----S. 12(ii)---Constitution of Pakistan, Art.199---Constitutional petition---Compulsory retirement---Reinstatement of civil servant---Recovery of interest on the amount received by the employee due to such retirement---Scope---Petitioner was compulsory retired from service in disciplinary proceedings but he was reinstated in service by converting the same into stoppage of one increment for two years by the Service Tribunal---Petitioner was directed to pay interest on the amount which he received due to retirement---Validity---Petitioner had returned the entire amount which he received---Reinstatement of government servant retired under S.12(ii) of Punjab Civil Servants Act, 1974 would be conditional to return of pension, gratuity and commuted value of pension drawn by him which had to be treated as advance to him and would be recoverable along with interest at the rate applicable at the time of reinstatement---Judgment passed by the Service Tribunal did not reveal any such recovery of interest which had excluded the petitioner for the purposes of recovery of interest---Judgment of Service Tribunal would be operated prospectively and would be applied to the civil servant on the date when it was announced---No payment of interest was mentioned in the judgment of Service Tribunal and the same could not be recovered from the petitioner---Nothing was on record that at the time of receiving amount petitioner committed that he would pay it back with interest at the event of his reinstatement in service---Authorities were restrained from recovering the amount of interest from the petitioner as he had paid back the entire received amount---Constitutional petition was accepted, in circumstances. A, B, C, D & E

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

----S. 12(ii)---Constitution of Pakistan, Art.199---Constitutional petition---Compulsory retirement---Reinstatement---Recovery of amount paid in lieu of such retirement---Scope---Reinstatement of government servant retired under S.12(ii) of Punjab Civil Servants Act, 1974 would be conditional to return of pension, gratuity and commuted value of pension drawn by him which had to be treated as advance to him and would be recoverable along with interest at the rate applicable at the time of reinstatement---Government should not sustain any loss for any payment made on account of inflation of money which was subsequently found to have made unnecessary---Such event might arise either when appeal against compulsory retirement was allowed by the departmental authority or by the Service Tribunal---Order permitting reinstatement would have to be followed while ascertaining as to whether any interest was specifically mentioned as recoverable from such employee---Such situation might also arise when government servant retired before its superannuation was subsequently reinstated in service---Government servant would not be able to claim interest on the delayed payment of his post retirement benefit as said amount was to be paid at the time when it was found payable. B, C & D

Ch. Muhammad Ikram Zahid for Petitioner.

Khawaja Salman Mehmood, Asstt. A.-G. for Respondents.

2016 P L C (C.S.) 932

[Lahore High Court]

Before Shujaat Ali Khan, J

AFZAAL ANWAR BAIG----Petitioner

Versus

PRESIDENT NATIONAL BANK OF PAKISTAN and 2 others----Respondents

W.P.No.24976 of 2012, decided on 6th April, 2016.

Civil service---

----Bank employee---Retirement---Promotion policy 2011-12---Direction was sought for issuance of call letter for interview for promotion---Contention of employee was that despite fulfilment of eligibility criteria he was not called for interview for promotion---Validity---Government servant could not ask for issuance of call letter for interview for promotion after his retirement---Retirement from service did not debar from promotion but when employee had not appeared for interview or was not called for the same by the competent authority to adjudge his eligibility for promotion, he could not claim vested right in his favour with just announcement of promotion policy---Nothing was available in the promotion policy that all persons eligible on that day would stand promoted rather same was subject to suitability and availability of vacant posts---Nothing was on record as to whether any post for promotion of employee was available at the relevant time and present employee was only suitable person for promotion against the said post---Constitutional petition was dismissed in circumstances. A, B, C & D

Muhammad Azam v. Muhammad Tufail 2012 PLC (C.S.) 1104; Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan, Islamabad through Secretary and others PLD 2008 SC 395; Muhammad Aslam Sultan v. Federation of Pakistan through G.M Pakistan Railways, HQRs, Lahore and another 2006 SCMR 1465; Abid Hussain Sherazi v. Secretary M/O Industries and Production, Government of Pakistan, Islamabad 2005 SCMR 1742; 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; Finance Secretary, Government of Pakistan, Islamabad and 2 others v. Shahid Hussain and others 1992 SCMR 77; Muhammad Yousaf v. The Chairman, Railway Board/ Secretary, Ministry of Railways, Islamabad and others 1991 SCMR 1559; Kokab Iqbal v. Manager National Bank of Pakistan, Lahore and 3 others 2014 PLC (C.S.) 876; Muhammad Alamgir v. National Bank of Pakistan through Regional Head and others 2014 PLC (C.S.) 963; Liaqat Ali v. Government of N.W.F.P. through Secretary Home and Tribal Affairs Department, Peshawar and 10 others 2014 PLC (C.S.) 982; Nazeer Ahmed Chakrani and 2 others v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Government of Pakistan and 2 others 2009 PLC (C.S.) 776; Nagina Bakery v. Sui Southern Gas Limited and 3 others 2001 PLC (C.S.) 760; Rehman v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1983 PLC 210; Mirza Majeed Baig and 3 others v. Messrs Futehally Chemicals Ltd., Karachi and 2 others 1973 PLC 297 and Secretary, B.&R., Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625 ref.

Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126; Farasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others 2005 PLC (C.S.) 890; The Province of the Punjab, through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf 1973 SCMR 304; Raja Muhammad Ashraf v. Punjab Public Service Commission through Secretary and another 2009 PLC (C.S.) 471 and Mrs. Naseem M. Qadri v. Federation of Pakistan and another 2009 PLC (C.S.) 229 distinguished.

Umar Hayat Khawaja for Petitioner.

Umar Abdullah for Respondents.

2016 P L C (C.S.) 941

[Lahore High Court]

Before Faisal Zaman Khan, J

Dr. Syed ZAHID HUSSAIN----Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL, ISLAMABAD through Chairman and another----Respondents

W.P. No.15521 of 2015, decided on 5th May, 2016.

Civil service---

----Representation---Scope---Order without reasons---Effect---Fair trial---Scope---Contention of employee was that impugned order was without reasons which was not sustainable---Validity---Impugned order passed by the department did not qualify to be a reasoned order---No independent reasons/findings had been given by the authorities which was mandatory---Mandate to file an application/representation would be frustrated if the Authority was merely to convey an order of dismissal without assigning any reasons---Person who approached a public functionary for redressal of his grievance would expect that he should be afforded an opportunity of hearing and thereupon order passed on his application/representation would be conveyed that too with reasons---No one should be made to gather information on which his application/representation had been decided---Purpose to furnish such information was to ascertain as to before whom employee had to assail the order---Department had neither given an opportunity of hearing to the employee nor had supplied reasons dismissing the application/representation---Right of fair trial had been violated in circumstances---Impugned order was not sustainable which was set aside---Representation filed by the employee was to be deemed to be pending before the Authority who, after affording an opportunity of hearing to him, and all other concerned parties should pass a speaking order in accordance with law---Constitutional petition was allowed in circumstances. A, B, C, D & E

Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511; Muhammad Amin Muhammad Bashir Ltd., Karachi v. Government of Pakistan through Secretary Ministry of Finance Central, Secretariat, Islamabad and others 2015 SCMR 630=2015 PTD 1100, Government of Pakistan through Director General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1; Fasih ud Din Khan and others v. Government of Punjab and others 2010 SCMR 1778; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Independent Music Group, SMC (Pvt.) Ltd. and another v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2011 Kar. 494 rel.

Shaigan Ijaz Chadhar for Petitioner.

Mian Irfan Akram, D.A.G.

2016 P L C (C.S.) 952

[Lahore High Court]

Before Mirza Viqas Rauf, J

MUHAMMAD ARSHAD RAFIQUE----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary and 4 others----Respondents

Writ Petition No.26319 of 2015, decided on 27th April, 2016.

(a) Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---

----R. 5---Pakistan Water and Power Development Authority Act (XXXI of 1958), S. 3 (3)---General Clauses Act (X of 1897), S. 21---Employee of Water and Power Development Authority---Criminal charge against---Suspension---Scope---Contention of employee was that suspension was not to be for indefinite period---Validity---Authority appointing the employee had power to undo the same---Federal Government had supervisory authority of the employer---Employee was involved in criminal cases having allegations of corruption and misappropriation---No illegality had been committed by the department while placing the employee under suspension---Suspension was not a punishment and employee even under suspension was entitled to full emoluments---Constitutional petition was dismissed in circumstances. B, D & E

Suo Motu Case No.18 of 2010, in the matter of Violation of Public Procurement Rules, 2004 PLD 2011 SC 927; Muhammad Arshad Kaleem v. Chairman Town Committee and others 1991 PLC (C.S.) 80 and Government of N.W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 ref.

Engineer Ghazanfar Ali Khan and others v. F.O.P. and others 2014 CLD 664 and Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253 rel.

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

----S. 25---Instructions contained in ESTACODE had the force and effect of Rules by virtue of S.25 of Civil Servants Act, 1973. C

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

(c) Civil service---

----Suspension---Scope---Suspension was not a punishment and employee under suspension would be entitled to full emoluments. D

Ghaffar Ali and others v. Provincial Police Officer, Khyber Pakhtunkhwa and others 2014 PLC (C.S.) 558 and Muhammad Haroon v. Water and Power Development Authority PLD 1978 Lah. 1108 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Statutory rules---Constitutional petition would only be maintainable on behalf of an employee whose services were to be governed by the statutory rules. A

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 and Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 rel.

Muhammad Raza Qureshi for Petitioner.

Hafiz Tariq Naseem and Usman Akram Sahi for Respondents.

Date of hearing: 27th April, 2016.

2016 P L C (C.S.) 966

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

ABDUL QAYYUM ARIF and 54 others

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Lahore and 8 others

W.Ps.Nos.29220, 29221, 29877 of 2012, 22965 and 22966 of 2013, decided on 26th April, 2016.

(a) Punjab Irrigation and Drainage Authority Act (XI of 1997)---

----S. 15---Notification No. DS (O&M)5-3/2004/CONTRACT(MF) dated 14-10-2009---Civil service---Contract employees---Regularization of---Scope---Earlier constitutional petition filed by the petitioners-employees was accepted and matter was remitted to the Provincial Chief Secretary for redressal of petitioners' grievance---Chief Secretary refused to regularize the services of petitioners-employees---Contention of Government was that the posts of petitioners were contractual and not permanent---Validity---Petitioners were contract employees who were offered contract of service 9 to 11 years ago through an open competition after due process of law---Government had extended contract of petitioners without break of single day---All assets and liabilities of irrigation and drainage system had been transferred to the Authority---Petitioners-employees were performing their duties from the last more than 10 to 11 years and notification dated 14-10-2009 for regularization of services was applicable to their case---If authorities were aggrieved of the findings recorded in the previous constitutional petition that the regularization notification was applicable to the petitioners, they should have assailed the same according to law---Authorities had failed to point out that petitioners were appointed on a project---Act of authorities to terminate services of petitioners by declaring them as contract employees was against the "fundamental right of life"---Government was directed by High Court to regularize the petitioners' services in terms of regularization Notification No.DS(O&M)5-3/ 2004/CONTRACT(MF) dated 14-10-2009---Constitutional petition was allowed in circumstances. B, C, D, E, F & G

Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Secretary (Schools) Government of Punjab Education Department and others 2010 SCMR 739; Mst. Farhana Naz and others v. Government of Punjab and others 2014 PLC (C.S.) 1270; Aftab Ahmad and others v. Government of Punjab and others 2012 PLC (CS.) 602; Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan 2013 SCMR 13; Tahir Yasmin and others v. Government of the Punjab and others 2014 PLC (C.S.) 1256; Ameer Solangi and others v. WAPDA and others 2016 SCMR 46 and Federation of Pakistan through Secretary Law Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120 ref.

(b) Punjab Irrigation and Drainage Authority Act (XI of 1997)---

----Preamble---Scope. A

Ahmad Awais, Tipu Salman Makhdoom, Waheed Ahmad, Ch. Naseer Ahmad Bhutta, Mehmood Ahmad Qazi, Rai Shahid Saleem, Saeed Ahmed Cheema, Moeen Ahmed and Awais Ali for Petitioners.

Muhammad Siraj-ul-Islam Khan, Addl. A.-G., Punjab and Syed Ghazanfar Haider Pasha for Respondents.

Date of hearing: 5th April, 2016.

2016 P L C (C.S.) 1039

[Lahore High Court]

Before Faisal Zaman Khan, J

JAHANZAIB KHAN NIAZI----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Irrigation, Lahore and 8 others----Respondents

W.P. No.28334 of 2015, heard on 4th April, 2016.

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

----S. 4(1)(b)(v)---General Clauses Act (X of 1897), S.24-A---Contract employee---Penalty of removal from service, imposition of---Appeal---rder without reasons---Scope---Employee was removed from service after conducting regular inquiry against which appeal was also dismissed---Contention of employee was that order passed by the appellate authority was without reasons---Validity---Order passed by the appellate authority did not qualify to be a reasoned order---No independent reasons/findings had been given by the appellate authority which was mandatory---If appellate authority was merely to uphold the order of subordinate functionary then mandate to provide an appeal would be frustrated---Appellate authority was supposed to consider the questions agitated in the representation/appeal; order passed by the competent authority; grounds of appeal raised by the appellant and independent findings with reasons to be rendered---Appellate authority had neither applied its independent mind nor had recorded his reasons while deciding the appeal of the employee---Impugned order passed by the appellate authority was not maintainable which was set aside---Appeal of employee would be deemed to be pending before the appellate authority who should decide the same in accordance with law through reasoned order after hearing all the necessary parties---Constitutional petition was allowed in circumstances.

Secretary Ministry of Health, Government of Pakistan Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511 and Muhammad Amin Muhammad Bashir Ltd. Karachi v. Government of Pakistan through Secretary Ministry of Finance Central Secretariat, Islamabad and others 2015 SCMR 630=2015 PTD 1100 rel.

Tipu Salman Makhdoom and Rai Shahid Saleem for Petitioner.

Ghazanfar Haider Pasha and Omer Farooq Khan, A.A.G. for Respondents.

Date of hearing: 4th April, 2016.

2016 P L C (C.S.) 1046

[Lahore High Court]

Before Abid Aziz Sheikh, J

Syed RAZA MEHDI BAQARI

Versus

PROVINCE OF PUNJAB through Secretary, LG & CD Department and 2 others

W.P. No.39142 of 2015, heard on 2nd February, 2016.

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

----Ss. 1(4)(iii) & 21---Retirement of an employee---Penalty, imposition of---Scope---Inquiry against employee was initiated after his retirement which could not be concluded within two years after his retirement---Contention of employee was that after two years from retirement the inquiry proceedings would become abated and competent authority would become functus officio---Validity---Time prescribed under proviso to S.21 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 was mandatory---Impugned order was passed after prescribed limitation period of two years after retirement of employee under S.21 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Once two years period was lapsed and no final order was passed, provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 would not be applicable to the employee---After two years the proceedings initiated under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 stood abated and competent authority would become functus officio and could not pass orders---Impugned orders were set aside being passed without lawful authority and of no legal effect---Government was directed to release all the retirement benefits of employee---Constitutional petition was allowed in circumstances.

PLD 1996 SC 182; M/s Super Asia Muhammad Din Sons (Pvt.) Limited through Chief Executive v. Collector of Sales Tax Gujranwala and another 2008 PTD 60; Secretary Education (Schools) Government of Punjab Lahore v. Muhammad Akhtar, Ex-Head Master 2006 SCMR 600; Sami ur Rehman v. Chief Secretary Government of Sindh and 2 others 1983 PLC (CS) 832; Parveen Javaid v. Chairman WAPDA and 5 others 2011 PLC (CS) 1527; Roshan Dani and 11 others v. WAPDA through Chairman and 3 others 2015 PLC (CS) 263 and Muhammad Siddique v. Division Forest Officer Okara 2014 PLC (CS) 253 rel.

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

----Ss. 2(h)(i) & 19(i)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Employee of Punjab Local Government Board---Jurisdiction of Service Tribunal was not available to the employee of the Board and only adequate remedy available to the employee was constitutional jurisdiction of High Court---Constitutional petition was maintainable.

Muhammad Amin and another v. Government of Punjab and others 2015 PLC (CS) 1082 rel.

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

----S. 21, proviso---Word "shall" contained in S.21 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Scope---Word "shall" used in proviso to S.21 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 would make the said provisions mandatory.

(d) Interpretation of statutes---

----Words and phrases---Word "may" would involve a choice and "shall" an order---Word "may" would become mandatory when the object of the power was to effectuate a legal right---Where time frame was prescribed to do certain act by public functionaries then same would be directory---If such act was not likely to effect the rights of any person, where public functionary was empowered to create liability or impose penalties against any person within prescribed time then time so prescribed would not be directory but mandatory.

(e) Administration of justice---

----Every person should follow the law as laid down and should not exceed the limit of law for any reasons whatsoever.

Junaid Jabbar Khan for Petitioner.

Muhammad Naeem Khan for Respondent No.3.

Barrister Khalid Waheed Khan, Assistant Advocate General for Respondent.

Date of hearing: 2nd February, 2016.

2016 P L C (C.S.) 1066

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD QAMAR

Versus

OIL AND GAS REGULATORY AUTHORITY through Chairman and 3 others

Writ Petition No.23895 of 2015, decided on 4th May, 2016.

Civil Service---

----Appointment---Constitutional petition---Maintainability---Petitioner, in response to advertisement, applied for the post of 'Chemical Engineer', in a Gas Company and secured 74 marks in written examination and was called for interview, but his name did not appear in the list of selected candidates---Validity---Gas Company was a public limited company incorporated under Companies Ordinance, 1984 and was listed with Stock Exchanges of Pakistan---Said company was being run through its Board of Directors constituted under its Memorandum and Articles of Association, thus did not come under definition of "person" mentioned in Art.199 of the Constitution---Where service rules were neither framed by the Government, nor with approval of the Government, same did not have, a statutory force---Service Rules being not statutory, appointment, would be contractual in nature and constitutional petition was not maintainable---Mere clearance of written examination, would not by itself vest or create any fundamental right for enforcement in favour of the petitioner, especially when he failed to qualify the interview test---One hundred and four candidates, including the petitioner, were called for interview and petitioner was at Serial No.67 in the final list---Factual controversies, as to whether petitioner cleared the interview, could not be resolved by High Court constitutional jurisdiction---On such score also petitioner had no merits---Constitutional petition, being not maintainable, was dismissed, in circumstances.

Riaz Gul and 5 others v. Federation of Pakistan through Secretary, Ministry of Water and Power Government of Pakistan, Islamabad and 36 others 2016 PLC (C.S.) 350; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Qazi Tehmid Ahmad v. Secretary Ministry of Petroleum and 3 others 2015 PLC (C.S.) 449 and Muhammad Nasim Asif, and others v. SNGPL, and others C.P.No 104-L of 2013 ref.

Muhammad Iqbal Malik for Petitioner.

Muhammad Saleem Baig for Respondents.

2016 P L C (C.S.) 1074

[Lahore High Court]

Before Ayesha A. Malik and Faisal Zaman Khan, JJ

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

Versus

Syed RIAZ ALI ZAIDI

I.C.A. No.565 of 2015 in Writ Petition No.5406 of 2011, decided on 9th July, 2015.

(a) Constitution of Pakistan---

----Arts. 199, 208, 120, 121 & 122---High Court (Lahore) Rules and Orders Vol. V, Chapter 10, Rr. 4, 17, 18 & 22---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Employees of High Court (Lahore)---Grant of fifty percent increase in Judicial Allowance and Ad hoc Allowance---Independence of judiciary---Scope---Constitutional petition was filed for grant of fifty percent increase in Judicial Allowance and Ad hoc Allowance which was accepted holding that High Court had budgetary and financial control, that it could draw its own administrative expenses including remuneration of its officers and servants; that administrative expenses did not require the approval of Governor or the consent of Provincial Assembly; that expenses proposed by the High Court could not be turned down, revised or altered by the executive or legislature and that no provision existed that could allow the Provincial Executive to delay or reconsider, negate, alter or reduce the administrative expenses of the High Court---Validity---High Court (Lahore) Rules and Orders had provided for the appointment and conditions of service for the establishment of the High Court---Said Rules had been approved by the Governor---Approval of Governor was required for making the High Court Rules but not for increase in pay and allowances---Chief Justice as a competent authority could create posts, make appointments, fix seniority and grant promotion---Chief Justice could determine pay and allowances of the members of the establishment of High Court---Terms and conditions of service, pay and any increase thereof along with grant of any allowance had to be decided by the Chief Justice without any approval of the Governor---Once rules had been approved, the Governor had no role and could not interfere in the pay and allowances fixed by the Chief Justice---Government was bound to comply with the orders of Chief Justice and Administration Committee---Article 121 of the Constitution protects the administrative expenses and remunerations payable to the officers and servants of the High Court---Judiciary should have absolute control over its employees and it should have decide all the matters with regard to terms and conditions of its employees---Such decisions could not be made subject to the approval of Governor---Employees of High Court did not fall under the control and management of Provincial Government---Employees of the High Court would be governed by the provisions of Civil Service Rules (Punjab) with regard to salaries, allowances, leave or pension but they were not civil servants---Intra court appeal was dismissed in circumstances.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 ethers PLD 1993 SC 341; Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Abdul Rasheed and others v. Province of Sindh and others 2011 PLC (C.S.) 926 and Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375 rel.

(b) Constitution of Pakistan---

----Art. 175-independence of judiciary---Constitution protects the independence of judiciary from the executive and the legislature which includes financial independence from the other two pillar of the State.

(c) Words and Phrases---

----"Separation of power"---Meaning.

Muhammad Shan Gull, Additional Advocate General assisted by Naeem Yousaf along with Ahmad Raza Sarwar, Special Secretary Finance Department, Muhammad Akhtar, Treasury Officer and Nadeem Riaz Malik, Section Officer, Finance Department for Appellant.

Mian Bilal Bashir assisted by Raja Tassawar Iqbal, Mohammad Azhar Siddique for Applicant (in C.M. Nos.5061 and 5062 of 2015 and for Petitioner in Crl. Org. No.1719-W of 2015).

Date of hearing: 9th July, 2015.

2016 P L C (C.S.) 1099

[Lahore High Court]

Before Shahid Mubeen, J

ABDUL RAUF

Versus

GOVERNMENT OF THE PUNJAB through Secretary (Food), Civil Secretariat, Lahore and another

W.P.No.7261 of 2009, decided on 27th July, 2015.

(a) Civil Service---

----Promotion---Withholding of promotion due to pendency of enquiry---Scope---Promotion of employee was deferred due to pendency of enquiry against him---Validity---Pendency of enquiry and even minor penalty could not come in the way of promotion---Department was directed by High Court to place the matter before the departmental promotion committee within two months---Departmental promotion committee should consider the employee's case fairly, justly and in accordance with law, rules and regulations---Constitutional petition was accepted in circumstances.

2003 PLC (CS) 1496; 2008 PLC (CS) 1019 and 2009 PLC (CS) 40 rel.

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

----S. 4---Promotion---Denial of promotion---Appeal before Service Tribunal---Competency---When a civil servant was deferred for promotion, the case would fall within the ambit of fitness and against that order appeal before Service Tribunal was not competent.

2003 PLC (CS) 1496 rel.

Bilal Bashir Mian and Raja Tasawar Iqbal for Petitioner.

Asim Aziz Butt, Asstt. A.G. for the State along with Muhammad Asad SO (Estt.)

2016 P L C (C.S.) 1142

[Lahore High Court]

Before Ali Akbar Qureshi, J

SIDRA IDREES

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Chairman

Writ Petition No.21863 of 2015, decided on 6th August, 2015.

Civil service---

----Advertisement for appointment of Educator (BS-16) in Education Department---Non-submission of original Bank challan to the Public Service Commission---Effect---Petitioner was not recommended for appointment due to non-submission of original Bank challan---Validity---Petitioner had deposited examination fee within time---Number of Bank challan had been mentioned in the application form for appointment submitted before the Public Service Commission---Public Service Commission could inquire from the concerned bank the veracity of said application submitted by the petitioner---Public Service Commission instead of performing its primary and fundamental duty had deleted the name of petitioner form the merit list in a mechanical way---Public Service Commission was vested with the parental jurisdiction to overcome such type of technicalities---Institution which was known to provide employment was expected to act as parents---Omission or illegality committed by the Public Service Commission should not be remained in field---Order of Public Service Commission to reject the candidature of petitioner and refusing to recommend her name for appointment in the concerned department was declared illegal, unlawful and without lawful authority---Matter was referred to the Public Service Commission with the direction to consider the same within a specified period---Petitioner was directed to appear before the Public Service Commission on the date fixed for further proceedings---Constitutional petition was accepted in circumstances.

Sheeraz Aziz Cheema v. Punjab Public Service Commission, through Secretary and 2 others PLD 2004 Lah. 545; Nazia Javed v. Government of the Punjab through Secretary, Education Department, Lahore and another 2009 PLC (C.S.) 58 and Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 rel.

Dawood Aziz Khokhar for Petitioner.

Tariq Mehmood Chaudhry, Assistant Advocate-General.

Mian Ghulam Shabbir Thaheem for Punjab Public Service Commission.

2016 P L C (C.S.) 1164

[Lahore High Court]

Before Muhammad Qasim Khan, J

Dr. MUHAMMAD SHARIF

Versus

PROVINCE OF PUNJAB through Secretary, Department of Agriculture and 2 others

W.P.No.10858 of 2007, decided on 22nd April, 2015.

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

----Ss. 1(4)(iii), 4(c) & 26(2)---West Pakistan Civil Servants Pension Rules, 1963, R.1.8(b)---Constitution of Pakistan, Art.199---Constitutional petition---Applicability and scope of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Issuance of show cause notice after retirement of employee---Scope---Contention of employee was that at the time of retirement clearance certificate was issued by the department and no proceedings could be initiated against him---Validity---Government servants were bound to work efficiently and perform functions assigned to them in discharge of their duties---Conduct of government servants during service should not be prejudicial to good order or service discipline---Government servants should not be involved dishonestly or fraudulently in misappropriation of funds or indulge in embezzlement of government property or resources---Section 1(4)(iii) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 would apply to the employees in government and corporation service and would cover whole of service period of employee even before the promulgation of said Act and after its enforcement---Competent authority could proceed against an employee on the allegations of inefficiency or seizure of efficiency for any reason, misconduct, corruption or reasonably considered to be corrupt, engaged or reasonably believed to be engaged in subversive activities even if period of charge/allegations was before the enforcement of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Proceedings against retired employees could be initiated during service or within a period of one year of his retirement--- Punjab Employees Efficiency, Discipline and Accountability Act, 2006 could apply retrospectively to all employees who had even retired before promulgation of the Act but not after the expiry of one year of retirement---Penalty provided for a retired employee under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 would be different as compared to the penalties for serving employees---All serving civil employees and retired civil servants (within a period of one year of their retirement) could be proceeded under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 irrespective of the period of charge/allegations---Issuance of show-cause notice against the petitioner was in accordance with law and no illegality had been found therein--- Constitutional petition was dismissed in circumstances.

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

----Preamble---Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Object and Scope---Act was promulgated to provide good governance to improve efficiency, discipline and accountability of employees in government and corporation service and matters connected therewith or ancillary thereto.

Ch. Inayat Ullah for Petitioner.

2016 P L C (C.S.) 1209

[Lahore High Court]

Before Ijaz ul Ahsan and Faisal Zaman Khan, JJ

FAZAL AHMAD RANJHA and 28 others

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education (Schools), Lahore and 39 others

I.C.As. Nos.321, 323 to 328, 330 to 333 and 356 of 2014, heard on 25th March, 2015.

Civil service---

----District Teacher Educators--- Posting and transfer of a civil servant---Terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Fundamental Rights---Employees filed constitutional petition against their repatriation/transfer back to their parent department which was dismissed---Validity---Posts of District Teacher Educators were to be filled from amongst the teachers who were already holding posts with the Education Department---Employees were simply to be transferred/posted/placed for a period of five years with the stipulation that in case the government did not wish to retain them they could be sent back or else if the employee did not wish to stay at his new assignment then he could go back---District Teacher Educators were simply given an additional incentive of Rs. 3,000/- plus Rs. 1500/- per month as allowances and it was clarified that the same would not be included towards their pension---Seniority of District Teacher Educators-employees were to remain intact with their parent department and they were to be considered for promotion on their turn---Terms and conditions were agreed by the employees through a consent form---Employees could not wriggle out of their own undertaking at this stage---Employees were posted/placed as District Teacher Educators and no fresh appointment was made---Employees were civil servants and were transferred/posted/placed as District Teacher Educators through different orders---Transfer/posting/ placement was part of terms and conditions of service---Employees could not assert any right in case they had been sent back/transferred/posted/repatriated---If an order passed by a departmental authority qua terms and conditions of service of a civil servant was mala fide, coram non judice, ultra vires or without jurisdiction even then High Court had no mandate to look into or decide about the vires of such an order---Bar of jurisdiction contained in Art.212 of the Constitution was absolute---Service Tribunal had been constituted to adjudicate upon and decide exclusively about the matters and issues with regard to terms and conditions of service of civil servants---Opportunity of hearing was not mandatory in each and every case---Chance of hearing could not be provided while posting/ transferring a civil servant from one place/post to another---Question of violation of Fundamental Rights would not vest with High Court with jurisdiction to adjudicate a question which was with regard to terms and conditions of service of a civil servant---Employees who were civil servants and were merely transferred/posted/placed as District Teacher Educators for a limited period and subsequently transferred/ posted/repatriated could not assert a vested right against the said posts before High Court---Constitutional petition was not maintainable and impugned judgment was upheld---Intra-court appeal being not maintainable was dismissed.

Secretary to Government of the Punjab Health Department, Lahore and others v. Dr.Abida Iqbal and another 2009 SCMR 61; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Syed Mazher Hussain Bukhari v. Secretary, Government of Punjab, Local Government and Rural Development, Department, Lahore and others 1998 SCMR 1948; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; National Assembly Secretariat v. Manzoor Ahmed and another 2015 SCMR 253; Gen. (R) Pervaz Musharaf v. Nadeem Ahmad (Advocate) and another PLD 2014 SC 585 338; Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another PLD 2010 SC 483 and I.A. Sherwani and others v. Government of Pakistan and others 1991 SCMR 1041 rel.

Hafiz Tariq Nasim along with Malik Saleem Iqbal Awan and Malik Nisar Ahmad Khokhar for Appellants.

Muhammad Azeem Malik, Addl. A.G. along with Rana M. Younas, Senior Law Officer for Respondents.

Gulzar Ahmad, Law Officer and Zubair Shahid D.S. Law.

Waqar A. Sheikh for Secretary Education.

2016 P L C (C.S.) 1228

[Lahore High Court]

Before Atir Mahmood, J

MUHAMMAD IBRAHIM

Versus

DIVISIONAL SUPERINTENDENT RAILWAYS and others

Writ Petition No.424 of 2012, heard on 19th May, 2015.

Accommodation Allocation Rules, 2002---

----R. 15(2)---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Allotment of residential accommodation---Fundamental rights---Aggrieved person---Scope---Petitioner applied for allotment of residential accommodation on the basis of "Father to Son Policy" but no response was given---Validity---Accommodation which was earlier allotted to the employee could be allotted to his serving spouse or children on his retirement or expiry of his contract---Serving widow or serving legitimate children of deceased employee could be allotted accommodation which was earlier in possession of their predecessor through legitimate allotment but same could only be allotted if the person was eligible or had become eligible within one year of the death of the predecessor---Mother of the petitioner was allowed to retain the possession of the disputed house for five years which period had expired---No employee (other than officers) could be allotted any accommodation beyond his entitlement under any circumstances---Petitioner had joined the service in the year 2007 and till today he had not served for a period of ten years---Petitioner could not claim the allotment of said house as a matter of right---Allotment of a residential accommodation was not a vested or fundamental right of any employee---Petitioner could not be termed as an aggrieved person---Constitutional petition was dismissed in circumstances.

Mst. Altaf Bibi v. Government of Pakistan and others 2006 PLC (C.S.) 803 and Malik Tahir Mehmood v. Chief Executive Islamabad Electric Supply Company, Islamabad and another 2005 PLC (C.S.) 279 rel.

Raja Muhammad Arif for Petitioner.

Suleman Kazmi for Pakistan Railways and Fazak Dayan, Estate Inspector for Respondents.

2016 P L C (C.S.) 1254

[Lahore High Court]

Before Muhammad Qasim Khan, J

GHULAM AKBAR and 5 others

Versus

GOVERNMENT OF PUNJAB through Secretary Home and others

Writ Petitions Nos.3250, 5984, 5694, 3402, 5855, 5720, 6580, 6451, 7310, 7633 of 2015, decided on 20th March, 2015.

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

----Art. 7---Sub-Inspectors and Inspectors (Appointment and Conditions) of Service Rules, 2013---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Direct recruitment and promotion of Police sub-inspectors---Discrimination---Petitioners being employees of police department were working as Assistant Sub-Inspectors and Head Constables---Plea of petitioners-employees was that they were eligible and qualified for their further promotion to the rank of Sub-Inspectors---Public Service Commission advertised the posts of Sub-Inspectors wherein on open merit age limit of 20 to 25 years had been specified and from in-service employees age limit of 23 to 35 had been given---Contention of petitioners-employees was that Art.7 of Police Order, 2002 did not provide any age limit for promotion in police service and no condition could be imposed through subservient legislation i.e. Rules---Validity---Government could change Rules or qualification criteria in order to improve the working as well as to maintain good governance in the department considering the changing demands of progressive era---Such change could be taken note by the courts if it was found that same was a person tainted with some mala fides---No fundamental right of the petitioners could be said to have been infringed by change of promotion criteria/rules as such rules had not been changed or framed for any specific person---Recruitment criteria, pay and allowances and all other conditions of service of the police should be such as the Government might from time to time determine---Qualification for direct recruitment and promotion of Sub-Inspectors had been determined through Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013---General law would not apply when there was a special law---Present matter was with regard to police service and it would be governed by Police Order, 2002 as well as the rules framed thereunder---Police Act, 1861 and Police Rules, 1934 would be applicable to a discipline force only while Punjab Civil Servants Act, 1974 could not serve the purpose---Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 were applicable to all the civil servants under the Provincial Government---Numbers of organizations, bodies under the control of Provincial Government had formulated their service rules and they were governed by such rules---Police force had not been established under Punjab Civil Servants Act, 1974---Police Order, 2002 was a special law only applicable to police department---Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 had no applicability to the present petitioners as they would be governed by special law---Reasonable classification was permissible under the law---No discrimination had been made out in the present case---Condition of upper age limit imposed in the advertisement was right and in consonance with law---Constitutional petitions were dismissed in circumstances.

Ghulam Mustafa v. Punjab Public Service Commission, Lahore and others 2008 PLC (C.S.) 1117; Muhammad Qasim and 6 others v. Home Department, Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others 2004 PLC (C.S.) 69 and Ehsan Ullah and 3 others v. Inspector-General of Police, Punjab, Lahore and 4 others 2006 PLC (C.S.) 964 ref.

I.G.P. v. Mushtaq Ahmad Warraich PLD 1985 SC 159; Farrukh Riaz and others v. Government of Punjab and others 2012 PLC (C.S.) 941; Tahira Haq v. A.H. Khan Niazi and others PLD 1968 Lah. 344 and Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Javed and others 2015 SCMR 269 rel.

(b) Constitution of Pakistan---

----Art. 189---Judgment of Supreme Court---Binding effect---Judgment rendered by the Supreme Court would be considered as precedent and same would be binding on all other courts to the extent it had decided a question of law or was based upon or enunciated a principle of law.

Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 and Commissioner of Income Tax v. Habib Bank Limited and ANZ Grindlays Bank PLC 2014 SCMR 1557 rel.

(c) Interpretation of statutes---

----Normally word "or" was disjunctive and the word "and" was conjunctive---Both these words should be read as vice-versa to give effect to the manifest intent of the legislature.

Statutory Interpretation by Justice G.P. Singh, 8th Edition, 2001, p.370 and Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011 SCMR 1591 rel.

Syed Abdul Wakeel Trimzi for Petitioners (in W.Ps.Nos.5984/2015 and 5694/2015).

Aftab Hussain Bhatti for Petitioner (in W.P.No.3402/2015).

Mian Asim Ullah for Petitioner (in W.P.No.5855/2015).

Nemo for Petitioners (in W.P. No.3250/2015 and W.P.No.5720/2015).

Khalid Jamil for Petitioner (in W.P.No.6580/2015).

Qasim Hassan Buttar for Petitioner (in W.P.No.6451/2015).

Aftab Hussain Bhatti for Petitioners (in W.P.No.7310/2015).

Waqar Ahmad Hanjra for Petitioner (in W.P.No.7633/2015).

Imtiaz Ahmad Kaifi, Additional Advocate General with Mian Ghulam Shabir Thaheem, Advocate/ Law Officer PPSS for Respondents.

Muhammad Salim Chughtai DSP (Legal), Sh. Muhammad Asif DSP (Legal) and Khuda Yar Inspector (Legal)

2016 P L C (C.S.) 1335

[Lahore High Court]

Before Mirza Viqas Rauf, J

MUHAMMAD SHAHID AKRAM

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and 3 others

Writ Petition No.18593 of 2012, heard on 31st March, 2015.

(a) Punjab Emergency Service Act (IV of 2006)---

----S. 9---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Writ of quo warranto---Scope---Appointment to public office---Mala fide---Effect---Plea of petitioner was that appointment of respondent as Director General, Punjab Emergency Service was made in a non-transparent and illegal manner---Validity---One of the petitioner was an ex-employee of Emergency Service who was proceeded departmentally under the orders of respondent and he was removed from service---Motivation and mala fide was found on record to file the petition challenging the appointment of respondent---Grant of relief in writ of quo warranto was based on principles of equity---Conduct and motive of petitioner could be looked into by the High Court while entertaining petition for writ of quo warranto---Constitutional jurisdiction could not be resorted to settle the personal differences between the parties---Present petition was outcome of the personal vengeance and same was not maintainable on such score---When there were statutory provisions, rules and regulations governing the matter of appointment, same must be followed---Respondent (appointee) had fulfilled all the conditions for eligibility---Government was competent to appoint a person fulfilling the said conditions to be Director General for the service and also extend its tenure on the basis of satisfactory performance---Appointment of respondent was fully covered under the law and there was no illegality on record---Constitutional petition was dismissed in circumstances.

Director, Social Welfare, N.-W.F.P, Peshawar v. Sadullah Khan 1996 SCMR 1350; Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343; Dr. Altaf Hussain v. Federation of Pakistan and others 2013 PLC (C.S.) 1178; Abdul Malik and others v. Government of Balochistan through Secretary, Home and Tribal Affairs Department and others 2013 PLC (C.S.) 736; Capt. (Retd.) Muhammad Naseem Jijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720; Shahid Orakazi and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another PLD 2011 SC 365; Mashood Ali v. Senior Member, Board of Revenue Balochistan and others 2011 PLC (C.S.) 548; Dr. Shagufta Shahjehan v. Government of Punjab through Chief Secretary and another 2008 PLC (C.S.) 659; Abdul Bashir and 9 others v. Government of Balochistan through Secretary, Civil Secretariat, Quetta and 3 others 2001 PLC (C.S.) 771; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876 and Government of N.-W.F.P through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313 ref.

Dr. Shazia Khawaja v. Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute and Hospital, Lahore and 7 others 2012 PLC (C.S.) 1056; Tariq Mehmood A. Khan and 3 others v. Sindh Bar Council through Secretary and others 2011 YLR 2899; Allauddin Abbasey v. Province of Sindh through Chief Secretary, New Sindh Secretariat, Karachi and 3 others 2010 PLC (C.S.) 1415; Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/O Law, Islamabad and others PLD 2013 SC 413; Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6; Muhammad Raza Naqvi and 5 others v. Muhammad Din through Legal Heir 2004 SCMR 400 and Dr. Jalil Qadir v. Province of Sindh through Chief Secretary, Government of Sindh and 2 others 2010 PLC (C.S.) 731 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ of quo warranto---Scope---Proceedings of writ of quo warranto were not strictly adversarial in nature but same were inquisitorial and anybody could move the court for the same---Such proceedings should be for the benefit of public at large and not for the personal vengeance---Court could examine whether such proceedings could qualify the yardsticks laid down in Art.199(1)(b)(ii) of the Constitution or not---Grant of relief by writ of quo warranto was based on principles of equity---Conduct and motive of petitioner could be looked into by the High Court while entertaining petition for writ of quo warranto.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ of quo warranto---Laches---Scope---Laches could not be equated with limitation---Laches could be determined on the basis of facts and circumstances of each case---Writ of quo warranto could be issued when claimed disqualification of the employee held the field till the date of decision of the constitutional petition.

(d) Punjab Emergency Service Act (IV of 2006)---

----Preamble---Scope and object of---Punjab Emergency Service Act, 2006 was to establish emergency service for the purpose of maintaining a state of preparedness to deal with emergencies to provide timely response, rescue and emergency medical treatment to the persons affected by emergencies and recommending measures to be taken with regard to related organizations to avoid emergencies.

Mian Bilal Bashir and Raja Tassawar Iqbal for Petitioner.

Syed Moazzam Ali Shah for Respondent No.3.

Rana Shamshad Khan, Asstt. A.-G. Punjab for Respondents Nos.1 and 2.

2016 P L C (C.S.) 24

[Peshawar High Court]

Before Muhammad Younis Thaheem, J

MUHAMMAD NAVEED

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Education, Peshawar and 3 others

Writ Petition No.886-A of 2014, decided on 23rd December, 2014.

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

----S. 10---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Posting and transfer of an employee---Terms and conditions of service---Jurisdiction of High Court---Scope---Posting and transfer of a civil servant was a part of terms and conditions of service---Civil servant could be transferred during period of service anywhere which would fall under terms and conditions of service---Jurisdiction of High Court under Art.212 of the Constitution was explicitly barred---Present matter would come within the domain of Service Tribunal---Constitutional petition was dismissed in limine.

Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169 rel.

Fida Bahadur for Petitioner.

Respondents.

Date of hearing: 24th December, 2014.

2016 P L C (C.S.) 106

[Peshawar High Court]

Before Malik Manzoor Hussain, Qalandar Ali Khan and Muhammad Ghazanfer Khan, JJ

AMEER TAIMOOR and 7 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Senior Member Board of Revenue and 3 others

W.Ps.Nos.3398-P along with 3556, 2242-P and 1833-P of 2014, decided on 4th February, 2015.

Per Malik Manzoor Hussain, J.

(a) Land Records Manual---

----Chap. 3 para.3.6---West Pakistan (Northern Zone) Patwari Subordinate Service Rules, 1963, Rr.5 & 7---Constitution of Pakistan, Art.199---Constitutional petition---Patwari, appointment of---Procedure---Plea raised by petitioners was that for appointment of Patwaris, test and interview was not the criteria rather appointment was to be made from the senior most Patwar-pass persons mentioned in the list entered in Register Patwar---Validity---Appointments of Patwaris, under para.3.6 of Land Records Manual, were to be made from amongst the list of candidates of all Patwar-Pass persons, maintained by Sub-Divisional Collector in Form P-1 appendix "G", subject to observance of service rules and recruitment policy prevalent at the relevant time---Method of recruitment of Patwaris was given in service rules, i.e. Rr.5 & 7 of West Pakistan (Northern Zone) Patwari Subordinate Service Rules, 1963---Until and unless rules prescribed for appointment of Patwaris provided in Land Records Manual as well as service rules with regard to method of recruitment of Patwaris were not amended or struck down, the authorities were bound to make appointments in accordance with existing rules and policy governing the subject-matter---When law required a thing to be done in a particular manner, that thing was to be done in that particular manner and not otherwise---Petition was allowed accordingly.

Executive District Officer (Revenue) v. Ijaz Hussain and another 2011 SCMR 1864 and Zafar Iqbal and another v Director Secondary Education, Multan Division and 3 others 2006 SCMR 1427 ref.

(b) Interpretation of statutes---

----When words are not clear, or provision in question is confusing, then duty of interpretation arises and if language is clear and explicit, the Court must give effect to it.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy making---Scope---Making policy is prerogative of government and Court in exercise of its Constitutional jurisdiction cannot make policy for government---Court cannot interfere in government policy unless there is infringement of legal rights or found to be ultra vires to the Constitution and injunction of Islam.

2008 SCMR 531 and Dr. Alyas Qadeer Tahir v. Secretary 2014 SCMR 997 rel.

Per Qalandar Ali Khan, J.

(d) Land Records Manual---

----Chap. 3, para. 3.6---Patwari, appointment of---Procedure---Inbuilt mechanism is available in para.3.6 of Land Record Manual, providing sufficient space to adopt a dynamic approach towards appointment of Patwaris in order to achieve ultimate object of ensuring merit---High Court advised that separate and specific marks be assigned in a transparent manner to Patwar examination, other qualifications of candidate, his knowledge and skill acquired in the field, together with other requisite measures deemed essential for the job, in order to allay misgivings prevalent about appointment of Patwaris in Revenue Department, also causing discontent and breeding frustration in the department and general public alike and contributing to general feeling about lack of good governance.

Shakeel Ahmad for Petitioners.

Muhammad Rahim Shah for Respondents.

Date of hearing: 4th February, 2015.

2016 P L C (C.S.) 218

[Peshawar High Court]

Before Yahya Afridi and Musarrat Hilali, JJ

Mst. UZMA IQBAL and 3 others

Versus

DISTRICT EDUCATION OFFICER, ELEMENTARY AND SECONDARY EDUCATION, (MALE AND FEMALE) DISTRICT SWABI and 2 others

W.P. No.1401-P of 2014, decided on 19th June, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Vested right---Petitioners applied for the post of Physical Education Teacher and after going through the process of recruitment, petitioners were placed at Serial Nos.1 and 2 of the merit list---Petitioners' names were subsequently deleted from the merit list on the ground that prescribed qualification for the post in question was Junior Diploma in Health and Physical Education while the petitioners were holding Senior Diploma in Health and Physical Education---Contention of the petitioners was that they were entitled for appointment and a vested right had been created in their favour on account of figuring of their names at Serial Nos.1 and 2 of the merit list---Validity---Prescribed qualification for the post in question was B.A., B.Sc. or equivalent eligibility with one year Junior Diploma in Physical Education course or equivalence certificate from Pak Army or other equivalent eligibility---Petitioners were holding Senior Diploma in Physical Education and if their qualification was not equivalent to the requisite qualification/criteria question would arise as to why their applications were entertained and why they were allowed to participate in the whole process of recruitment---Once the petitioners took part in the entire process of recruitment and got high scoring position, then a vested right had accrued in their favour, which could not be taken away without bringing on record any cogent and strong reason, moreso, when in the constitutional petitions, the SDPE's holders were allowed to compete for the purpose and subsequently appointed having high merit position, hence, the case of the petitioners being on the same footing, they could not be dealt with on different yardstick---Constitutional petition was allowed in the circumstances.

Mukhtar Ahmad Maneri for Petitioners.

Qaisar Ali Shah for Respondent.

Date of hearing: 19th June, 2014.

2016 P L C (C.S.) 308

[Peshawar High Court]

Before Nisar Hussain Khan and Roohul Amin Khan, JJ

Mst. RASHIDA KHATOON and 2 others

Versus

DISTRICT EDUCATION OFFICER (MALE) and 3 others

Writ Petition No.2393-P of 2013, decided on 6th May, 2015.

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

----S. 19---Civil Service Regulations, Para. 423---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Death of an employee having service of nine years and six months---Qualifying service for pensionary benefits---Condonation of deficiencies---Leave on full pay or half pay---Effect---Bar of Art.212 of the Constitution---Applicability---Employee died having service of nine years and six months---Plea of employee's heirs was that a deficiency of a period not exceeding six months in the qualifying service for pensionary benefits of an official should be deemed to have been condoned automatically---Validity---Qualifying service for pensionary benefits was ten years---Deficiency not exceeding six months in qualifying service for pensionary benefits of an official should be deemed to have been condoned automatically---Even the authority competent to sanction pension might condone the deficiency of more than six months and less than one year provided the official/civil servant died during service or retired prematurly under circumstances beyond his control---Sanction for condonation was not required in the present case as employee had completed more than nine years and six months service which was automatically condonable---Employee had availed leave either on full pay or on half pay which was countable towards his continuous service---Department had illegally deprived the heirs of deceased employee from their due pensionary benefits---Period of extraordinary leave should not be treated as qualified service for pension but only as a bridge between the period of qualifying service---Entire leave availed by the employee was either on full pay or half pay which could not be treated as extraordinary leave---Any interruption in service due to other reason might be condoned provided such interruption was not due to any fault or willful act of civil servant---Accounts Officer was bound to maintain the leave account of civil servant---Heirs of deceased employee did not fall within the definition of "civil servant" and bar of Art.212 of the Constitution would not be applicable against them---Sanctioned leave granted to the employee either on full pay or half pay had illegally and wrongly been treated as leave without pay---Deceased employee had rendered service for more than nine years and six months---Legal heirs of the deceased employee were entitled for the pensionary benefits---Department was directed to immediately grant family pension to the legal heirs of deceased employee---Constitutional petition was allowed in circumstances.

Government of N.-W.F.P. through Secretary to Government of N.-W.F.P. Communication and Works Department, Peshawar v. Muhammad Said Khan and others (PLD 1973 Supreme Court of Pakistan 514; I.A. Sherwani case 1991 SCMR 1041 and Secretary to Government of the Punjab, Finance Department v. M. Ismail Tayer and 269 others 2015 PLC (CS) 296 rel.

(b) Khyber Pakhtunkhwa Service Tribunal Act (I of 1974)---

----S. 4---Appeal to Service Tribunal---Scope---Civil servant had remedy of an appeal before Service Tribunal against any final order whether original made by the departmental authority or appellate with regard to terms and conditions of his service.

(c) Civil Service---

----Leave either on full pay or half pay could not be treated as extraordinary leave.

Riaz Ahmad for Petitioners.

Rab Nawaz Khan, A.A.-G. for Respondents.

Date of hearing: 6th May, 2015.

2016 P L C (C.S.) 322

[Peshawar High Court]

Before Waqar Ahmad Seth and Irshad Qaiser, JJ

MUHAMMAD WASEEM ULLAH AWAN

Versus

CHAIRMAN KYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION, PESHAWAR and 5 others

Writ Petition No.2232-P of 2014, decided on 21st April, 2015.

Khyber Pakhtunkhwa Public Service Commission Regulations, 2003---

----Regln. 34(2)---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Advertisement for the appointment of Civil Judges-cum-Judicial Magistrates/Alaqa Qazis---Zonal allocation---Scope---Petitioner was placed at top of zone and he was righteous candidate for appointment but he had been waiting for his appointment---Validity---Once zonal allocation was made and advertisement was issued then no zonal quota/seat/post could be reallocated except when suitable and qualified candidates was not available in the said zone and that with the approval of Government/Department---Zonal allocation could be altered in case of deficiency of qualified candidates from the particular areas---No such situation had arisen in the present case---One post in the zone became vacant and petitioner was next candidate on merit in the said zone---No allegation of any deficiency with regard to qualification of candidate or otherwise was on record---No reason existed to appoint someone from another zone, in presence of qualified candidate within the zone, as per merit list---Petitioner had preferential right to be recommended for the allocated seat of the zone---Reallocations of seats were made to give advantage to some one---Same formula should apply without any option of zonal allocation---Merit of each zone should be made/prepared and the vacancies in rotation allocated to the zones should be filled in from amongst the merit in the respective zones---Formation and allocation of vacancies could not be changed in any circumstances---Respondents were directed to recommend the name of petitioner against the seat of zone within specified period and he be appointed without back benefit and seniority---Constitutional petition was accepted in circumstances.

Jehanzeb Mehsud for Petitioner.

Rabnwaz Khan, A.A.-G. along with Samiullah, Judicial Assistant PHC for Respondents.

Date of hearing: 21st April, 2015.

2016 P L C (C.S.) 346

[Peshawar High Court]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

MUHIBULLAH KHAN

Versus

GOVERNMENT KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and 2 others

Writ Petition No.1062-P of 2014, decided on 29th January, 2015.

(a) Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline Rules, 2011---

----R. 19(1)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Show cause notice was issued to the petitioner under Khyber Pakhtunkhwa Government Servants (Efficiency & Discipline) Rules, 2011 and he was removed from service---Departmental appeal of petitioner had also been dismissed---Whole proceedings were conducted under Khyber Pakhtunkhwa Government Servants (Efficiency & Discipline) Rules, 2011---Petitioner had to file an appeal before Khyber Pakhtunkhwa Service Tribunal under Rule 19 (1) of Khyber Pakhtunkhwa Government Servants (Efficiency & Discipline) Rules, 2011 were applicable to "Government Servants" and not only to "Civil Servants"---Jurisdiction of High Court was barred under Art.212(2) of the Constitution in matters---Constitutional jurisdiction of High Court under Art.199 of the Constitution could only be pressed into service when there was no alternate remedy available to the aggrieved party---Constitutional petition being not maintainable which was dismissed, in circumstances, however petitioner might approach the proper forum, if so advised.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court under Art.199 of the Constitution could only be pressed into service when there was no alternate remedy available to the aggrieved party.

Amin-ur-Rehman Khan for Petitioner.

Rab Nawaz Khan, A.A.-G. for Respondents.

Date of hearing: 29th January, 2015.

2016 P L C (C.S.) 370

[Peshawar High Court]

Before Mazhar Alam Khan, C.J. and Rooh-ul-Amin Khan, J

Dr. MUHAMMAD ALAM and another

Versus

GOVERNMENT OF NWFP through Secretary Health, NWFP, Peshawar and 3 others

Writ Petition No.630 of 2010, decided on 5th November, 2014.

(a) Civil service---

----Advertisement for the posts of Senior Registrar in Ophthalmology Department---Marks for teaching experience were awarded to the respondents during meeting of Departmental Selection Committee---Contention of petitioner was that awarding of teaching experience marks was against the prescribed rules---Validity---Minimum qualification against the post of Senior Registrar in Ophthalmology Department for appointment was provided in the advertisement---Candidate not equipped with the requisite qualification was not entitled and eligible to apply for the said post---Higher qualification or experience in the relevant filed could be considered and a candidate should not be penalized for acquiring higher qualification---Respondents were allocated 8 and 4 marks for their teaching experience in the relevant capacity---Said marks had been awarded in accordance with the approved scoring criteria of the Institution Management Council---Respondents attained the highest merit position amongst the contestants and were suitable and deserving for selection---Minimum qualification enunciated in the advertisement did not entail that only Medical Officer clothed with minimum qualification should be considered and the candidate possessing higher qualification and better experience be deprived---Doctors working in other teaching hospitals and even the Assistant Professors etc might also apply and they would be entitled for the marks of their experience gained at other institutions inside or outside the country---Selection process would not be said to be unfair merely because in the advertisement the entire selection criteria was not disclosed---Court could not compel the employer not to apply its recruitment policy/criteria merely because it was not published in its entirety in the advertisement through which applications were invited---Selection criteria was found fair, just and reasonable and same had been rightly applied by the Selection Committee---Petitioner had no vested right to be appointed for the post of Senior Registrar in Ophthalmology Department---Marks and scoring for research papers were awarded to all the candidates in pursuance of the recommendation and advice of the Research Scrutiny Committee---High Court could not substitute its opinion for that of the Selection Committee---Constitutional petition was dismissed in limine.

(b) Civil service---

----Minimum qualification would mean that anybody possessing the qualification less than the prescribed by the rules could not be eligible for making application against the post and he could not be considered for appointment, but if a candidate had higher qualification and previous experience, the bar of minimum qualification would not be operated against him.

(c) Civil service---

----Employer had every right to fix the minimum criteria for selection of an employee.

Muhammad Ijaz Khan Sabi for Petitioners.

Qazi Muhammad Anwar and Waqar Ahmad, Addl. A.-G. for Respondents.

Date of hearing; 5th November, 2014.

2016 P L C (C.S.) 424

[Peshawar High Court]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

ABDUL HAMEED

Versus

PROVINCE OF K.P.K. through Chief Secretary, Peshawar and 3 others

W.P.No.3062-P of 2014, decided on 24th December, 2014.

(a) Civil service---

----Suspension of employee---Scope---Petitioner had assailed order of his suspension through constitutional petition---Validity---Petitioner had been suspended by the department and yet no final order had been passed against him---Petitioner was civil servant against whom action under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 was proposed to be initiated---Petitioner might be placed under suspension for a period of ninety days if in the opinion of the authority suspension was necessary or expedient---If period of suspension was not extended for a further period of ninety days within thirty days of the expiry of initial period of suspension then government servant would be deemed to be reinstated---Authority having power to appoint had also the power to suspend---If authority while holding the inquiry was satisfied that charge against the civil servant was connected with his position as a government servant or was likely to embarrass him in the discharge of his duties or he was involved in moral turpitude then he could be suspended pending the inquiry---Suspension of government servant was not a punishment---Suspension was only a temporary measure wherein petitioner was entitled to receive his full emoluments---If any penalty was imposed against the petitioner then he had got a right of appeal before the competent authority---Petitioner was entitled to file appeal against his suspension order before the concerned authority but he did not file the same---Suspension pending disciplinary action germane to the terms and conditions of service and appeal against such order was maintainable before Service Tribunal---Constitutional jurisdiction of High Court under Art.199 of the Constitution in such like matters was ousted---Suspension order of the petitioner had been issued by the authority which had been conveyed to him and same had attained finality---Petitioner had alternate remedy by approaching the proper forum i.e. Service Tribunal---Constitutional petition was not maintainable which was dismissed, however, petitioner would be at liberty to approach the proper forum for redressal of his grievance.

Government of N.W.F.P. v. I.A. Sherwani PLD 1994 SC 72 and Muhammad Sadiq Khokhar's case 1985 SCMR 63 rel.

(b) Civil service---

----Suspension of government servant meant that no work was to be taken from him during the period of suspension.

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

----S. 16---Power to suspend an employee---Scope---Authority having power to appoint had also the power to suspend.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court could only be invoked by an aggrieved person when there was no alternate or efficacious remedy available to him.

Shahzada Irfan Zia for Petitioner.

Syed Qaisar Ali Shah, A.A.-G. for Respondents.

2016 P L C (C.S.) 502

[Peshawar High Court]

Before Waqar Ahmad Seth, J

ARBAB MUNIR AHMAD and 2 others

Versus

PAKISTAN ELECTRIC POWER COMPANY (PVT.) LTD. through Managing Director and 7 others

Civil Revision No.616-P of 2014, decided on 30th March, 2015.

(a) Pakistan Water and Power Development Authority Service of Electric Engineers, Rules, 1965---

----Water and Power Development Authority Act (XXXI of 1958), S.17(1)(b)---Civil Procedure Code (V of 1908), O.VII, R. 10 & S.9---Employees of corporate companies of WAPDA---Promotion---Plaint, return of---Jurisdiction of civil court---Scope---Plaint was returned for presentation before the proper forum---Validity---Plaintiffs were employees of the company having no statutory service rules---Companies and autonomous bodies having no statutory rules could neither file constitutional petition nor could approach the Service Tribunal---Returning the case of the plaintiffs to be presented before the Service Tribunal was not justified---No one could be left remediless---Grievance agitated by the plaintiffs in their suit was genuine as junior to them were promoted without any reasons or justification and in contravention of rules---Department had made Rules for promotion---Plaintiffs had claimed the enforcement of Pakistan WAPDA, Service of Electrical Engineers Rules, 1965 and subsequent office memorandums which had been adopted by the defendant-company---Plaintiffs were employees of WAPDA and after their absorption in the power supplying companies, Rules and Regulations of WAPDA were applicable till the same were framed by the companies---Claim made under the adopted Rules could not be brushed aside nor the master's/employer i.e. official defendants could be permitted to violate and contravene the said Rules/Regulations although not statutory---Discrimination, victimization, nepotism and pick and choose was on record in the present case---Impugned judgments and orders passed by the courts below were set aside---Suit of plaintiffs would be deemed to be pending before the Trial Court---Trial Court was directed to decide the case on merits within specified period---Revisions were accepted in circumstances.

1992 SCMR 1112; 2001 SCMR 909; AIR 1991 SC 1525; 1987 SCMR 1776; 2000 CLC 1796; PLD 1979 Kar. 668 and PLD 1984 SC 194 distinguished.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Hamayun Akhtar and others v. Chairman WAPDA and others PLJ 2008, Tr.C. (Services) 374; Masood Ahmad Bhati and others v. Federation of Pakistan 2012 SCMR 152 and 2013 SCMR 1707 rel.

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

----S. 9---Jurisdiction of civil court---Scope---Any person having right had a corresponding remedy to institute suit in a court unless the jurisdiction of the civil court was barred---Civil court had been granted general jurisdiction to try all suits of a civil nature---Whenever the object of proceedings was the enforcement of civil rights then civil court had jurisdiction to entertain the suit independently of any statute unless its cognizance was either expressly or impliedly barred---Final decision with regard to a civil right, duty or obligation should be that of the civil court.

(c) Maxim---

----"Ubi jus ibi remedium"---Meaning---When there was right, there was a remedy.

Ijaz Anwar for Petitioner.

Gul Nazir Azam and Naveed Akhtar for Respondents.

Date of hearing: 30th March, 2015.

2016 P L C (C.S.) 569

[Peshawar High Court]

Before Waqar Ahmad Seth and Mussarat Hilali, JJ

MUHAMMAD AMIN

Versus

MANAGING DIRECTOR, HOUSE BUILDING FINANCE CORPORATION and 2 others

Writ Petition No.3673-P of 2012, decided on 9th September, 2015.

House Building Finance Corporation Service Regulations, 1957---

----Regln. 16---Promotion---Seniority cum fitness---Selection on merits---Pendency of departmental proceedings---Effect---Employee had prayed for issuance of appropriate writ directing department to give him due seniority and promotion---Contention of employee was that juniors to him had been promoted in violation of rules and policy on the subject---Validity---Employee had unblemished service record on his credit with nothing adverse---Promotions to the post up to the rank of Assistant was to be made on the basis of seniority cum fitness and promotions to other posts by "Selection" on merits---No one could be punished by denying promotion before establishing charge---Pendency of inquiry was no ground for denying promotion to the employee---Employee had been exonerated from the charges leveled against him by the competent authority---Department was directed to issue promotion order of employee with effect from the date when junior of the petitioner was promoted within a specified period---Constitutional petition was accepted in circumstances.

Maj Ziaul Hassan, Home Secretary and others v. Miss Naseem Chaudry 2000 SCMR 645 and Hammad Raza Qureshi v. Departmental Promotion Committee, Punjab 2008 PLC (C.S) 551 rel.

Shamsul Hadi for Petitioner.

Muhammad Arif Khan for Respondents.

Date of hearing: 9th September, 2015.

2016 P L C (C.S.) 575

[Peshawar High Court]

Before Waqar Ahmad Seth and Syed Afsar Shah, JJ

MANSOOR KHAN and others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

W.P.No.2307-P of 2013, decided on 6th November, 2014.

Civil service---

----Contract employees--- Termination of service--- Scope---Discrimination---Petitioners were holding civil posts in connection with the affairs of the Federation and were civil servants---Terms and conditions of service of petitioners were to be regulated by Khyber Pakhtunkhwa Civil Servants Act, 1973---Matters falling within the domain of Art.240 of the Constitution and Khyber Pakhtunkhwa Civil Servants Act, 1973 would not be out of the ambit of a Constitutional court---Procedure for the purpose of appointment was followed properly and selection of petitioners were made by the competent selection committees---All the appointments were temporary on contract basis for fixed terms or till arrival of recommendations of Public Service Commission---Petitioners took-over the charge under the settled law of the land---All the posts were converted into regular with creation of regular posts---Petitioners were continuously in-service right from the day of appointments till the issuance of impugned dispensation order---Even dispensed with/terminated employees had been re-appointed by reducing the upper age limit against the regular posts---Appointments had been made on regular basis from amongst the dispensed with employees---Petitioners had been discriminated who had become over-aged by now---Constitutional petition was accepted in circumstances.

2013 SCMR 304 distinguished.

Haji Zahir Ali and others v. Government of Balochistan and others 2010 SCMR 678 and Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others" 2007 PLC (C.S) 285 rel.

Ghulam Nabi Khan for Petitioners.

Rab Nawaz Khan, AAG for Respondents.

Date of hearing: 6th November, 2014.

2016 P L C (C.S.) 649

[Peshawar High Court]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MUSHTAQ HUSSAIN

Versus

CHIEF EXECUTIVE

W.P. No.76-A of 2014, decided on 6th May, 2015.

Civil service---

----Repatriation of an employee after permanent absorption---Scope---Petitioner was transferred and absorbed in the new department but was subsequently repatriated to the parent department---Validity---Petitioner was permanently absorbed in the new department and he performed there as a permanent employee---Notification with regard to permanent absorption of the petitioner was never challenged---Silence of department in circumstance would amount to approval/confirmation of the absorption---Said absorption of petitioner in new department was unconditional and was not subject to confirmation---Misconduct, in-subordination and defiance of orders of the department by the petitioner could justify departmental proceedings but same would not justify his repatriation after his permanent absorption---Department was unable to defend its act of repatriation which was declared illegal, unlawful and without jurisdiction/authority---Petitioner was declared as employee of new department after his permanent absorption---Constitutional petition was accepted in circumstances.

Fawad Saleh for Petitioner.

Muhammad Naeem Abbasi, A.A.-G. and Sardar Jan Alam for Respondents Nos.1 to 5.

Date of hearing: 6th May, 2015.

2016 P L C (C.S.) 664

[Peshawar High Court]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MUHAMMAD AFZAL

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA

Writ Petition No.532-A of 2014, decided on 30th June, 2015.

Civil service---

----Recruitment in service---Petitioner had sought appointment order against the vacant post according to the merit list prepared by the Selection Committee---Validity---Department could not decline appointment to the petitioner as post was still vacant---High Court directed the department to appoint the petitioner forthwith against the post keeping in view his eligibility for the same and merit position---Constitutional petition was accepted in circumstances.

Musa Wazir's case 1993 SCMR 1124 distinguished.

Haji Sabir Hussain Tanoli for Petitioner.

Muhammad Naeem Abbasi, A.A.-G. for Respondent.

Date of hearing: 30th June, 2015.

2016 P L C (C.S.) 686

[Peshawar High Court]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

Professor Dr. GHAZALA YASMEEN

Versus

CHANCELLOR SHAHEED BANAZEER BHUTTO WOMEN UNIVERSITY, KHYBER PAKHTUNKHWA and 4 others

W.P.No.1255-P of 2014, decided on 16th December, 2014.

(a) Khyber Pakhtunkhwa Universities Act (X of 2012)---

----S. 12---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Art.199--- Constitutional jurisdiction--- Scope--- Civil service---Advertisement for the post of Vice Chancellor---Discretion, exercise of---Speaking order---Scope---Judicial review---Equity and good conscious---Panel of three candidates consisting upon petitioner on top secured marks at serial No.1 and respondents at serial Nos.2 & 3 were recommended and approved by the convener of Search Committee (Special Assistant to the Chief Minister for Higher Education Department) and consequent upon recommendation of Search Committee summary for 'Chief Minister' was submitted by the Higher Education Department to Chief Minister and Chief Secretary who recommended respondent at serial No.3 for the post of Vice Chancellor---Contention of authorities was that Chief Minister had discretion to recommend any candidate out of the panel to the Governor/Chancellor for appointment of Vice Chancellor---Validity---Search Committee consisted of eminent educationists and members of the society apart from government senior officers had recommended a panel of three candidates and out of the same, on advice of government (Chief Minister), Vice Chancellor was to be appointed by the Chancellor---Government had discretion to appoint one candidate out of the panel recommended by Search Committee---Discretion should be exercised with conscious and independent application of mind---Government had recommended only respondent at serial No.3 without assigning any reasons which would amount to disposal of the matter in hasty and summary manner without taking into consideration the eligibility, merit and recommendation of high profile Search Committee constituted for assessment of eligibility and merit of the candidates---Government should not take shelter under technicalities of law---Impugned order passed by Government comprising of single word "recommended" was not in line with law nor could be termed as reasoned order---Authority entrusted with quasi judicial powers must dispose the matter with a reasoned judgment---Conclusion reached by the authority should be just and result of fair play and good conscious---Party to the dispute was entitled to know the grounds on which Authority had rejected the right claimed---Excessive use of power by government would become unlawful and same was amenable to jurisdiction of High Court---Executive and administrative actions and decisions tainted with arbitrariness and lacking fair play and transparency could be subjected to judicial review in appropriate cases---Criteria for consideration of respondent at serial No. 3 in merit ignoring the petitioner placed at serial No. 1 in the panel had not been shown---Government had neither afforded opportunity to the petitioner of being heard nor considered the recommendations made by the Search Committee---Government was expected to be a gentlemen nay the noblest person in a State---Government should not ignore merit ascertained and forwarded to it by a high profile Search Committee---Executive authority exercising judicial powers had to record reasons while passing any order under any provision of law---Impugned order was set aside and case was remanded to the Government (Chief Minister) for considering the matter afresh on merit in the light of recommendations of Search Committee in accordance with law by exercising discretion judicially after affording opportunity to the petitioner of being heard---Constitutional petition was accepted in circumstances.

Mahabir Parsad's AIR 1970 SC 1302 rel.

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

----S. 24-A---Speaking order---Scope---Speaking rather than cursory order passed in arbitrary fashion was imperative nay indispensible.

(c) Administration of justice---

----Basic object of establishment of courts was not only to administer law but was in fact to dispense justice---Ultimate goal of courts was to do complete justice and ensure the right of parties without any hurdles.

(d) Administration of justice---

----Justice should not only be done but seen to be done.

Qazi Jawad Qureshi and Mian Naveed for Petitioners.

Qazi Mohammad Anwar for Respondents.

Date of hearing: 16th December, 2014.

2016 P L C (C.S.) 703

[Peshawar High Court]

Before Waqar Ahmad Seth and Assadullah Chamkani, JJ

MUHAMMAD AYUB and 15 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.2737-P of 2013, decided on 22nd January, 2015.

Civil service---

----Contract/ad hoc appointment, regularization of--- Locus poenitentiae, principle of--- Applicability--- Discriminatory treatment---Petitioners were appointed on the recommendations of Departmental Selection Committee on contract basis against existing vacancies---Project along with posts was converted from development to non-development---Different employees were appointed against those posts but on temporary basis---Incumbents of the said project were regularized leaving behind the petitioners from regularization without any plausible reason---Notification for regularization of petitioners was issued from the date of their initial appointment which was acted upon---Petitioners received their salaries as regular employees---Without mentioning any reasons, justification or approval of the Competent Authority said notification for regularization of petitioners was suspended---Petitioners had preferential rights to be regularized---Inefficiency and ulterior motives of the authorities were apparent from the impugned notification---Regularization notification had been acted upon and petitioners had gained the protection of law of locus poenitentiae--- Petitioner had been discriminated--- Impugned notification of suspension of regularization of service of petitioners was set aside being illegal, unlawful, void and mala fide---Petitioners should be deemed to be regular employees since their initial appointment--- Departmental disciplinary proceedings were recommended against the officials involved in the matter of petitioners---Constitutional petition was accepted in circumstances.

Chairman, Minimum Wage Board, Peshawar and another v. Fayyaz Khan Khattak 1999 SCMR 1004 rel.

Ijaz Anwar for Petitioner.

Farooq Afridi and Sabitullah Khan and Rab Nawaz Khan, A.A.G. for Respondents.

Date of hearing: 22nd January, 2015.

2016 P L C (C.S.) 779

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

Mullana IHSAN UL HADI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others

Writ Petition No.1990-P of 2013, decided on 30th October, 2014.

(a) Civil service---

----Up-gradation of post---Promotion---Terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution--­Scope---Petitioners were working in different departments of Provincial Government and performing their duties as Pesh-i-Imam/Khatib in different mosques---Appointments of petitioners had been made under Khyber Pakhtunkhwa Appointment Promotion and Transfer Rules, 1989---Petitioners were having the status of civil servants---Change of grade must change the scale of pay of petitioners---Element of selection would be involved for promotion---Order of competent authority would be required to be passed for revision of pay and consideration of the comparative suitability and entitlement of the incumbent---Grant of selection grade, uprgradation and promotion to higher pay scale would relate to terms and conditions of service---Any change in the pay scale of the employee would bring his case within the ambit of terms and conditions of service---Service Tribunal had exclusive jurisdiction to determine such question in view of explicit bar under Art.212 of the Constitution---Order passed on the basis of mala fide, coram non judice or in violation of any rule could only be challenged before the Service Tribunal---High Court had no jurisdiction to entertain the present constitutional petition which was dismissed being not maintainable.

Government of the Punjab through Secretary Services, Punjab, Lahore and 14 others v. Muhammad Awais Shahid an4 others 1991 SCMR 696; Muhammad Saeed Ahmad v. Secretary to Government of Punjab Health Department and others 2013 PLC (C.S) 538; Sajjad Hussain Kazmi v. Secretary, Establishment Division, Government of Pakistan Islamabad and 2 others 1998 PLC (C.S) 1463; Mukhtar Ahmad Siddiqui v. Secretary to Government of Pakistan, Ministry of Finance, Islamabad and others 2001 SCMR 923; Syed Nasim-ul-Haq Naqvi v. Secretary Ministry of Commerce, Islamabad and 4 others 1992 PLC (C.S) 195 and Kamal Uddin and 30 others v. Province of Punjab and others 1986 PLC (C.S) 807 rel.

(b) Civil Service--

----"Promotion" and "up-gradation"---Distinction and scope.

(c) Civil service--

----"Up-gradation"---Meaning.

(d) Civil service---

----"Promotion"---Meaning.

Muhammad Farooq Afridi for Petitioner.

Muhammad Riaz Khan Paina Khel, A.A.G. for Respondents.

Date of hearing: 30th October, 2014.

2016 P L C (C.S.) 845

[Peshawar High Court]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

AHMAD HASSAN

Versus

MUHAMMAD ARSHAD

C.R. No.469 with C.M. No.777-P of 2015, decided on 3rd November, 2015.

(a) Tort---

----Civil wrong arose when a person breached a legal duty owed to another---Legal duties were of two kinds: one was contractual duty and the other was non-contractual duty---Breach of contractual duty was not a tort while breach of non-contractual duty emanating from legal obligation gave rise to tort---Breach of contractual duty may be redressed by its enforcement through specific performance while in the latter case, it accrued a right of damages for civil wrong caused.

(b) Tort---

----Maxim:- Ubi jus ibi remedium---Frivelous litigation---Where there was a right there was a remedy, a person had a right of fair treatment and free enjoyment of peaceful society and he undoubtedly was vested with right of remedy as well---Courts were conscious about elementary question for consideration that whether a party was bringing an unfounded action, not with a view to vindicate justice but for the purpose of harassing the opponents---Prevention of vexatious litigation was also an essential and prime object and people must resort to courts for vindicating justice and not for harassing others which in turn gave rise to right of action against the plaintiff of frivolous and vexatious litigation---Tendency of abuse of process of court and harassing the innocents was on increase which was incongruous to the concept and scheme of law of torts as such was required to be curbed at every level to ward off and thwart the flood of unwarranted litigation.

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

----S. 23A---Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011, R.21---Indemnity---Bar against suits---Nature and scope---Section 23-A of Khyber Pakhtunkhwa Civil Servants Act, 1973 supplied immunity against any suit, prosecution or other legal proceedings, to a civil servant for anything done in his official capacity, which in good faith was done or intended to be done under the said Act or Rules, instructions or directions made or issued thereunder---Section 23-A of Khyber Pakhtunkhwa Civil Servants Act, 1973 reflected that it started with non obstante clause which demonstrated its mandatory nature with addition of word "shall", against institution of any suit for the act done by a civil servant during the performance of his official duties---Similar protection had been provided to competent authority by virtue of R. 21 of Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011.

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

----S. 23A---Writing of ACR/PER---Bar against suits---Protection of competent authority---Rationale---Scope---Suit for damages against reporting Officer on ground of adverse remarks---Maintainability---Writing of ACR/PER was admittedly related to efficiency and discipline of a civil servant which was reflected by reporting officer, in his annual confidential or performance report---Legislature in its wisdom had supplied double protection to competent authority for his action taken in good faith against his subordinates---High Court observed that had there been no immunity supplied in the statute, there would have been stream of litigation against the competent authority on such bald allegations and no one would have dare to write such remarks even if subordinate would have been ruining the institution by his acts, omissions and commission and incompetency and there would have been chaos and anarchy in administration of departments---Goal of civilized society or good governance could only be achieved by strict adherence to rule of law and a violation thereof or non-adherence thereto would ultimately relegate to a position which was chaotic and bizarre---If the immunity provided in the law was relaxed or removed or deemed to be so then it would break open flood gates of suits for damages against reporting officers---By virtue of Khyber Pakhtunkhwa Civil Servants Act, 1973, such suits were barred by law and the remedy had been provided in the statute itself of making representation before competent authority or appeal before Tribunal which had been availed by plaintiff and his grievance had been redressed, though on technical grounds---Competent authority while expunging remarks did not observe that observations in PER recorded by defendant were incorrect or mala fide, rather there was observation that before recording adverse remarks, defendant was required to issue counselling or warning and thereafter could have passed such remarks---Mere irregularity in recording ACRs or PERs did not amount to mala fide on facts of law against the plaintiff which may constitute or accrue a cause of action---Suit was therefore not maintainable for lack of cause of action and liable to be dismissed.

(e) Limitation Act (IX of 1908)---

----Arts. 23, 28 & S.5---Suit for compensation for an illegal, irregular or excessive distress against civil servant---Limitation---Suit for damages against reporting Officer for adverse remarks in the Annual Confidential Report---Scope---Competent Authority expunged remarks of civil servant on 24-02-2014 while the suit was filed on 26-02-2015---Article 28 of Limitation Act, 1908 provided one year limitation for filing suit for compensation for illegal, irregular or excessive distress---Article 23 of Limitation Act, 1908 was not attracted in the present case as there was no prosecution in the case---Though suit was bared by two days but since a harsh step had been taken by plaintiff seeking recovery of huge amount as compensation for official act done by defendant, therefore, he was required to be vigilant in pursuing his remedy, if any---Plaintiff may not be shown any leniency when he had not sought condonation of delay nor offered any explanation much less plausible---Matter of limitation was a mixed question of law and fact but when documentary evidence was available on record in the form of official record, no better evidence could be led by plaintiff at the trial of condonation of delay, thus by virtue of S.3 of Limitation Act, 1908 suit of plaintiff was rightly dismissed---Revision petition was dismissed, accordingly.

Rab Nawaz Khan, A.A.-G. for Petitioner.

Respondent Muhammad Arshad in Person.

Date of hearing: 3rd November, 2015.

JUDGMENNT

NISAR HUSSAIN KHAN, J.--- Instant revision petition is directed against order of learned Civil Judge-XI, Peshawar, dated 20.5.2015 whereby petitioner's application under Order VII, Rule 11, C.P.C. was turned down.

1. Learned AAG on behalf of the petitioner contended that Section 23-A of Civil Servants Act, 1973 gives full protection against an official responsibility discharged by the petitioner and that the suit of the respondent/plaintiff in view of Article 23 of the Limitation Act was time barred.

2. Respondent, appearing in person, while controverting the stance of the petitioner, argued that petitioner being his reporting officer recorded adverse remarks in his PFR which were expunged by the competent authority on his representation. He maintained that protection under section 23-A of the Civil Servants Act, 1973 is provided only on action done in good faith while in the instant case, petitioner has tried to ruin the career of the respondent, hence no such protection is available to the petitioner, because procedure of prior counselling has not been followed.

3. We have heard learned AAG and the respondent in person and have gone through the record with their valuable assistance.

4. It appears that petitioner being the reporting officer of the respondent remarked in his pen picture that: "he exhibits strange behaviour towards official business. It lead me to conclude that he has some psychological problem, which he vividly displays in official work. Extremely negative and always shirks responsibility. Does not have the capacity to work in a team". In view of such findings, it was recommended that he should never be posted on responsible post, especially independent posting. However, he remarked that he is fit for research work. On over all grading, he placed him as below average and not yet fit for promotion and additional assignment. Respondent on communication of such report, filed a representation which was accepted by the Chief Minister, the competent authority, and the remarks were expunged for some technical and procedural deficiency.

5. As per Rules/Instructions, petitioner/defendant was the Reporting Officer of plaintiff/respondent being the Secretary of the concerned Department and Chief Secretary was the Countersigning Officer who also agreed with the Reporting Officer, on all counts. He, while commenting on the report of the Reporting Officer, graded the comments as fair. He did not term them as exaggerated or biased, which he could. It is provided in Para 0.5(v) of the Instructions on Performance Evaluation Report, as compiled by the Establishment and Administration Department, Government of KPK, Civil Secretariat, Peshawar, that the Countersigning Officer should make un-biased evaluation on the quality of performance evaluation made by the Reporting Officer by categorizing the reports as exaggerated, fair or biased which would evoke a greater sense of responsibility from the Reporting Officers. The concurrence of Countersigning Officer with the Reporting Officer has further cemented the evaluation and grading made by the Reporting Officer. In Para 3.6(c) of the ibid Instructions, it is stipulated that non-observance of government instructions would amount to misconduct on the part of Reporting Officer attracting disciplinary action. In view of such safeguard provided in the Instructions, no one would dare make biased or exaggerated remarks which has provided an in-built mechanism for check and balance against mala fide and biased remarks on the part of Reporting Officer. At the same time, it is contemplated in Para 4.1(iv)(b) of the Instructions that the Officers making representation against adverse remarks recorded in their Evaluation Reports should not make any personal remarks or remarks against integrity of the Reporting Officer. The violation of this rule will be considered misconduct and would also render representation to be summarily rejected. This is a safety valve provided in defence of the Reporting Officer. Similar safeguard has been supplied in Para 6.2 (i) of the Instructions, by virtue of which disciplinary action may be taken against Officer levelling allegations of indiscrete and irresponsible nature against the Reporting Officer/Countersigning Officer. The Instructions compiled for Performance of Evaluation Reports supplied safeguards against baseless and biased reports of the Reporting Officer as well as frivolous allegations of the Officer, against Reporting and Countersigning Officers, which both would render them liable to disciplinary action if the reports or allegations in representation are in violation of the ibid Instructions. Perusal of the plaint reflects that the Officer under report has levelled allegations of malice and mala fide, against the Reporting Officer, on the basis of report which was affirmed by the Countersigning Officer, by agreeing with it and termed it as a fair report. It is pertinent to mention that the Countersigning Officer who agreed with the Reporting Officer has not been sued by the plaintiff which itself speaks volumes about mala fide of the plaintiff to harass the Reporting Officer, so that he may not dare make any such report in future even if the Officer under report is incompetent and irresponsible in discharge of his official duties.

6. Plaintiff/respondent has resorted to civil Suit for recovery of damages for alleged civil wrong which in general terms is claimed under "law of Torts". Civil wrong arisen when a person breaches a legal duty owed to another. The legal duties are of two kinds; one contractual duty and the other non-contractual duty. Breach of contractual duty is not a Tort while breach of non-contractual duty emanating from the legal obligation gives rise to a Tort. The breach of contractual duty may be redressed by its enforcement through Specific Performance. While in the latter case, it accrues a right of damages for the civil wrong caused. Allegations against petitioner/defendant are of misuse or abuse of his authority. The authority vested in the petitioner/defendant has certain privileges and obligations to act but within the limits allowed by the policy of the law which creates the privilege. If defendant used a particular machinery of law, for the purpose for which it was intended, he is ordinarily not liable, notwithstanding a vicious or vindictive motive provided he does not attempt to attain the same collateral objective, outside the process of the operation employed. On the principle of Ubi Jus Ibi Remedium: that where there is a right, there is a remedy, a person has a right of fair treatment and free enjoyment of peaceful society. He undoubtedly is vested with right of remedy as well. However, courts are conscious about elementary question for consideration, that: whether a party is bringing an unfounded action, not with a view to vindicate justice but for the purpose of harassing the opponents? The prevention of vexatious litigation is also an essential and prime object. The people must resort to courts for vindicating justice and not harassing the others which in turn gives rise to right of action against the plaintiff of frivolous and vexatious litigation. Tendency of abuse of the process of court and harassing the innocents is in increase which is incongruous to the concept and scheme of law of Torts, as such is required to be curbed at every level to ward off and thwart the flood of unwarranted litigation.

7. In James Rhodes v. OPO (By His Litigation Friend BHM) and another, honourable Supreme Court of UK(2015 UKSC-32) (2015 SCMR 1097), has exhaustively dealt with the law of Tort. To resolve the issue, an excerpt of Mayor of Bradford v. Pickles [1895] AC 587 was referred, which is also relevant for the case in hand and reproduced as below:-

"This is not a case in which the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however, ill the motive might be, he had a right to do it. If it was an unlawful act, however, good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant."

In the report, history of tort has been traced, since the judgment in Wilkinson v. Downton [1897] 2 QB 57 decided on 8th May, 1897. The case law encompasses a civil wrong causing mental distress, psychological impact or injury by an intentional, malicious or negligent act. The claimant for damages is also required to establish that act was not only malicious and intentional but was also without any justification. To supplement the proposition, opening part of Para 74 is relevant which runs as follows:-

"The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant ……"

1. The question of imputing the existence of an intention resulting in mental distress has also been addressed in Para 81 of the judgment (supra), which is as follows:-

"There is a critical difference, not always recognised in the authorities, between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact. Imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. It is unsound in principle. It was abolished in the criminal law nearly 50 years ago and its continued survival in the tort of wilful infringement of the right to personal safety is unjustifiable. It required the intervention of Parliament to expunge it from the criminal law, but that was only because of the retrograde decision in DPP v Smith. The doctrine was created by the Courts and it is high time now for this court to declare its demise."

1. The august Supreme Court of UK allowed the appeal by concluding that tort is contained by the combination of: Firstly, the conduct element requiring words or conduct directed at the claimant for which there is no justification or excuse; Secondly: the essential element requiring an intention to cause at least severe mental or emotional distress and thirdly: the consequence element requiring physical harm or recognised psychiatric illness. The appeal was allowed by the Supreme Court and injunctive order issued against publishing of a Book containing autobiography with vivid graphic language, was vacated.

The ratio of judgment squarely encompasses the issue in hand, on two counts: First, the claimant of damages is to establish that defendant acted in a calculated manner, with malice and bad intent to cause physical, mental or psychological injury, without legal justification or excuse. The defendant herein had written PER of the plaintiff, to which he was legally obliged. His such legal duty stands unrebutted and undisputed. The imputed element of intent or malice, to cause any injury, also evaporates, with the approval of adverse report by countersigning officer. In view of this factual and legal frame of facts, the plaintiff is denuded of any actionable claim.

1. Secondly, in the referred case an injunctive order was passed by Court of Appeal against publication of a Book, which according to claimant would cause psychological injury and emotional disorder, to plaintiff, the minor son of defendant because of vivid graphic statement by defendant relating to his private life. The Supreme Court by accepting appeal, restored the order of Trial Judge, allowing publication of the Book. In such state of affairs, after the permission of the Supreme Court, the Book shall be published and trial of the case would stand redundant, being an exercise in futility. Being conscious of this legal and factual consequence, the Supreme Court, nevertheless, allowed appeal, on tentative assessment of facts, at intermediary stage, at the touchstone of recognised principle of law, declared by the Courts. It didn't deem it appropriate to wait for trial. Thus, in the instant case too, it would be a futile exercise, to put the parties to trial, on issues of facts when the defendant was legally duty bound to express his opinion, being Reporting Officer of his junior, which he did. Thus, he had the legal justification to express his opinion in the PER. The countersigning officer approved his report. The approval of countersigning officer, eliminates, the imputed malice. In such backdrop, this case- has no triable issue, so need not be allowed to proceed with.

2. Besides that record reveals that expunction order was passed by competent authority on 24.2.2014, on the basis of which respondent filed a suit for damages on 26.2.2015 in the court of Senior Civil Judge, Peshawar wherein petitioner's application under Order VII, Rule 11, C.P.C. was not acceded to. Though plaintiff/ respondent has levelled allegation of mala fide against petitioner in recording his adverse remarks in his PER but there is nothing on record in black and white, revealing any prior animosity or malice of the defendant, against the plaintiff, except entry of the adverse remarks in the PER. Section 23-A of the KPK Civil Servants Act, 1973 supplies immunity against any suit, prosecution or other legal proceedings, to a civil servant for anything done in his official capacity, which in good faith is done or intended to be done under this Act or the Rules, instructions or directions made or issued thereunder. The section was inserted vide KPK Ordinance No.XIV of 2002 dated 2.5.2002, which for ease of reference and proper appraisal of the legal import is reproduced as follows:-

"23A. Indemnity.- No suit, prosecution or other legal proceedings shall lie against a civil servant for anything done or intended to be done in good faith in his official capacity under this Act or the Rules, instructions or direction made or issued thereunder."

1. A cursory glance on the section reflects that it starts with non-abstante clause which demonstrates its mandatory nature with addition of word "shall", against institution of any suit for the act done by a civil servant during the performance of his official duties. Likewise similar protection has been provided to the competent authority by virtue of Rule 21 of the KPK Government Servants (Efficiency and Disciplinary) Rules, 2011 which is also reproduced in extenso as under:-

"21. Indemnity-. No suit, prosecution or other legal proceedings shall lie against the competent authority or any other authority for anything done or intended to be done in good faith under these rules or the instructions or directions made or issued thereunder".

1. Writing of ACR/PER is admittedly relating to Efficiency and Discipline of a Civil Servant which is reflected by reporting officer, in his annual confidential or performance report. The Legislature in its wisdom has supplied double protection to the competent authority for his action taken in good faith against his subordinates. Had there been no immunity supplied in the Statute, there would have been stream of litigation against competent authority on such like bald allegations and no one would have dare write such remarks even if subordinate would have been ruining the institution by his acts, omissions and commission and in-competency. There would have been chaos and anarchy in administration of departments. The goal of civilized society or good governance can only be achieved by strict adherence to rule of law. A violation thereof or non-adherence thereto would ultimately relegate to a position, chaotic and bizarre. Should the immunity provided in Act and Rules is relaxed or removed or deemed to be so, it would break open flood gates of suits for damages against reporting officers.

2. By virtue of both provisions of statute, such suits are barred by law. The remedy has been provided in the Statute itself of making representation before the competent authority or appeal before the Tribunal which has been availed by the plaintiff/respondent and his grievance has been redressed, though on technical grounds. The competent authority while expunging remarks, did not observe that observations in the PER recorded by the defendant/ petitioner were incorrect or mala fide. Rather there is observation that before recording adverse remarks, defendant/petitioner was required to issue counselling or warning and thereafter could have passed such remarks. Mere irregularity in recording ACRs or PERs does not amount to mala fide on facts or law, against the plaintiff/respondent which may constitute or accrue a cause of action, hence the suit was not maintainable for lack of cause of action too.

3. Beside that, competent authority expunged the remarks on 24.2.2014 while the suit was filed on 26.2.2015. Article 28 of the Limitation Act provides one year limitation for filing suit for compensation for an illegal, irregular or excessive distress. Article-23 of Limitation Act is not attracted because there is no prosecution in this case. Though the suit is barred by two days but since a harsh step has been taken by the plaintiff, seeking recovery of huge amount as compensation, for official act done by the defendant/petitioner, so he was required to be vigilant in pursuing his remedy, if any. He may not be shown any leniency in the matter of limitation, particularly, when he has not sought condonation of delay nor offered any explanation much less plausible. Though the matter of limitation is a mixed question of law and facts but when documentary evidence is available on the record in the form of official record, no better evidence than that can be led by the plaintiff at the trial for condonation of delay. Thus by virtue of Section 3 of the Limitation Act suit of the plaintiff is liable to be dismissed.

2016 P L C (C.S.) 875

[Peshawar High Court]

Before Mazhar Alam Khan and Abdul Latif Khan, JJ

JEHAN ROZ

Versus

AUDITOR GENERAL OF PAKISTAN and 5 others

Writ Petition No.3949-P of 2014 with COC.65-P of 2015, decided on 26th March, 2015.

(a) Civil service---

----Repatriation of employee to his parent department---Scope---Vested right---Deputationist---"Aggrieved person"---Scope---Employee had no vested right to claim deputation or it was not necessary that he should complete deputation period---Borrowing and lending departments had to consider their need with regard to repatriation of services of deputationist---Department could not be compelled by the deputationist to retain the post on deputation for the entire period of deputation or for indefinite period---No vested right would accrue to the deputationist to continue with the post of deputation rather it was discretion of the competent authority---Deputationist could not be treated as "aggrieved person" provided he was placed on same grade and status in borrowing cadre which he was availing before his status as deputationist---Petitioner could not question the order of repatriation as no right would vest in deputationist to serve in borrowing department---Employee had not been deprived of his right by repatriation---Constitutional jurisdiction of High Court could not be exercised in such matter---Order of repatriation was not amenable to the constitutional jurisdiction of High Court---Petitioner had no bona fide cause of action---Constitutional petition was dismissed in circumstances.

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

(b) Civil service---

----Deputation---Scope---Deputation could be termed as administrative arrangement between borrowing and lending departments to hire the services of an employee in public interest.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil service---Constitutional jurisdiction of High Court could not be invoked in the matters of deputation and repatriation of civil servant.

Asad Jan for Petitioner.

Qaisar Ali Shah, D.A.G. and Amjad Ali for Respondents.

Date of hearing: 26th March, 2015.

2016 P L C (C.S.) 961

[Peshawar High Court]

Before Yahya Afridi and Muhammad Younis Thaheem, JJ

Dr. AHMAD ALI AAJIZ

Versus

UNIVERSITY OF PESHAWAR through Registrar and others

Writ Petition No.213-P of 2013, decided on 2nd February, 2015.

Civil service---

----Educational Institution---Appointment of Associate Professor---Committee for scrutiny of eligibility of candidates, constitution of---Publication of specific number of research papers in recognized journals, requirement of---Determination---Petitioner and respondents, in response to advertisement in daily newspaper submitted their applications for post of Associate Professor at the University---Scrutiny Committee was constituted after finalization of prescribed procedure for scrutinizing eligibility of candidates, which, after its meeting, dropped petitioner finding him ineligible for subject post for not having required number of publications---Contention raised by petitioner was that Scrutiny Committee had been incompetently constituted, which had wrongly scrutinized eligibility of candidates---Validity---As per criteria for subject post as laid down by Higher Education Commission, applicants must have ten research publications in the Higher Education Commission's recognized journals---Petitioner had admitted in his plaint (in suit filed before civil court on same subject matter, which was dismissed) that he had publications in his credit published in journals duly recognized by Higher Education Commission, but same were less than in numbers as required for subject post---Entire process of selection had been completed according to rules and policy by competent authority---Petitioner's contention that respondent-Vice Chancellor at relevant time was acting and was not vested with authority to constitute Scrutiny Committee or Selection Board, was not sustainable---Petitioner, in his application to the Vice Chancellor of the University regarding cancellation of meeting of Scrutiny Committee, had not taken said objection, which meant that petitioner had accepted criteria, constitution of Scrutiny Committee and Selection Board---Said objection being mixed question of law and facts, High Court, under constitutional jurisdiction, could not take cognizance over factual controversy---Constitutional petition was dismissed in circumstances. A, B, C, D & E

Raja Muhammad Nasir Khan v. Acting Vice-Chancellor and others 2013 PLC (C.S) 353; Trustees of the Port of Karachi through Chairman KPT v. Messrs N.K. Enterprises through Partner PLD 2013 Sindh 264 and Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 ref.

Muhammad Isa Khan for Petitioner.

Khalid Rehman and Muzammil Khan for Respondents.

Date of hearing: 13th November, 2014.

2016 P L C (C.S.) 993

[Peshawar High Court (Abbottabad Bench)]

Before Mazhar Alam Khan Miankhel, C.J., Nisar Hussain Khan, Mrs. Irshad Qaiser, Syed Afsar Shah and Muhammad Younis Thaheem, JJ

Dr. IFTIKHAR AHMED, SENIOR MEDICAL OFFICER, ABBOTTABAD

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Civil Secretariat, Peshawar and 4 others

Writ Petition No.420 of 2015, decided on 23rd December, 2015.

(a) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble---Constitution of Pakistan, Arts. 137, 141, 148, 154, Fourth Schedule, Part II, Entries Nos. 11 & 12---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Federal and Provincial laws---Obligations of Provinces and Federation---Functions and rules of procedure---Petitioners challenged the constitutionality of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 on the ground that the Provincial Legislature was not competent to make the Act---Validity---Object of Constitution (Eighteenth Amendment) Act, 2010 was to vest the Provinces with maximum autonomy, both in legislative and administrative spheres---Authority of the Federal Government in the matters mentioned in the Concurrent List had been taken away with certain safeguards supplied in Arts. 137 & 148 (1) of the Constitution in the administrative and executive fields respectively---Article 154(1) of the Constitution related to the formulation of policies relating to Entries Nos.11 and 12, Part-II of Fourth Sched. of the Constitution, which explicitly spoke of legal, medical and other professions and standards in the institutions for higher education and research, scientific and technical institution---Federal Government could formulate policies and regulations---However, Art. 154 of the Constitution with reference to the Entries Nos.11 and 12 could not be blown out of proportion to an extent which might take away the legislative and executive powers of the Province enshrined in Arts.137 & 141 of the Constitution---Title and Preamble of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 explicitly referred to the Medical Institutions and Health care services, which had remained subject of the Province, being its sole domain---Medical Institutions and health care services had never been the subject of the Federal Government, even prior to Constitution (Eighteenth Amendment) Act, 2010---Objection was overruled. A, B, C, D, E & F

(b) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Services Ordinance (XLVII of 2002) [since repealed], Preamble---'Occupied Field' doctrine of---'Repugnancy', doctrine of---Paramountcy', doctrine of---Scope and applicability---Conflicting, supplemental, duplicative provisions, existence of---Effect---Petitioners contended that as field (medical institutions and health care services) was already occupied by Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Services Ordinance, 2002 [Since repealed], hence, the impugned Act was liable to be struck down---Validity---Held, no repugnancy or occupied field arose in the present case---Principles.

Such objection was to be raised only when Provincial Legislature enacted statute on the subject which was already occupied by a Federal Act. Doctrine of 'Occupied Field' was based on the principle, which was to avoid any conflict of the Central and Provincial laws, and when such conflict emerged between the two laws, the same attracted the principle of repugnancy. In case both Legislatures, Provincial and Federal, were competent to concurrently legislate on the same subject and obedience to the provincial legislation would not be achieved without disobeying the Federal law, then Provincial law to that extent would be repugnant and thus void. G & K

"Doctrine of paramountcy" provided that where there was conflict between the validity of Provincial and Federal laws, the Federal law would prevail, and the Provincial law would yield to the extent which contradicted with the Federal law. In case both Provincial and Federal laws were although overlapping but field of their operation was clear and the same did not conflict inter se in their operational fields, then neither of the laws might be ultra vires; however, if the field was not clear, then the Federal law was to prevail. In case Provincial statute contained conflicting provisions along with supplemental and duplicative provisions to the Federal statute, the conflicting provisions might be severed and the supplemental might be operative when the same did not conflict with the Federal law, and to the extent the same would be valid and operate concurrently with the Federal law. G

Provincial Secretary of P.E.I. v. Egan and A.G., of P.E.I. (1941), S.C.R. 396; Grand Trunk Railway Company of Canada v. A.G. of Canada (1907) A.C.65 by Privy Council; Clyde Engineering Company Limited v. Cowburn and Metters Limited v. Pickard and Lever Brother Limited v. Pickard (1926)-High Court of Australia-466 rel.

Principles of "occupied field", "repugnancy" and "doctrine of paramountcy" were applied when two laws were concurrently been enacted on the same subject-matter by two competent Legislature, Federal and Provincial. Federal Legislature had no concern with the health institutions of the Province, which was sole domain of the latter; for which reason, no Federal law existed in the field. No repugnancy or occupied field, therefore, arose in present case. H, I & J

Zeerbhai Ajmaidas v. The State of Bombay (1954 AIR 752); Ch.Tikka Ramji and others v. State of Uttar Pradesh AIR 1956 SC 676; Ex Parte Mclean (1980) 48-C.L.R. 472 and Stock Motor Club Ltd. (1932) 48 CLR 128 rel.

(c) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Ss. 16, 23, 24, 26 & Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [Since repealed], Preamble---General Clauses Act (X of 1897), S.6---Khyber Pakhtunkhwa General Clauses Act (VI of 1956), S. 4---Constitution of Pakistan, Arts. 240(b) & 265---Service of Medical Teaching Institution---Power to make rules/regulations---Petitioner raised the objection that under Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, the rights accrued to the petitioners under Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance, 2002 [Since repealed] would be taken away---Validity---Article 240 (b) of the Constitution spoke of service of the Province, and posts in connection with affairs of the Province to be determined by or under the Act of the Provincial Assembly---Services of the Medical Teaching Institutes and the employees thereof had been protected under S. 16 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015; whereas, rest of the conditions and terms of appointment, maintenance of seniority, promotion and matters ancillary and incidental thereto were to be determined and regulated by the rules and regulations framed under Ss.23 & 24 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Provisions of Art. 265 of the Constitution, which was a saving clause, S.6 of General Clauses Act, 1897 and S.4 of Khyber Pakhtunkhwa General Clauses Act, 1956, were meant to obviate a situation of chaos and confusion and not to affect the legal proceedings taken under the repealed Act-Actions taken under Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance, 2002 [Since repealed] had also been saved under Ss. 26 (4) & 26 (5) of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. L

(d) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble----Constitution of Pakistan, Arts. 2-A & 199---Judicial review, doctrine of---Parameters---Objectives Resolution, scope and applicability of---Functions of Judiciary---Principles---Acts of Legislature, presumptions as to---Petitioners contended that Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been passed to frustrate the judgments of the High Court and Supreme Court to undermine the independence of judiciary---Validity---Held, Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been validly and competently been enacted by the Provincial Legislature---Principles.

High Court observed that when law was enacted by Federal or Provincial Legislature through chosen representatives of the people, the same reflected the will of the people. Presumption of constitutionality and validity was always inherently embedded in such legislation. Mala fide or malice could not be attributed to the competent Legislature. Person challenging the validity of legislation was under bounden duty to prove that the law had malafidely been legislated or the same was in violation of the Fundamental Rights or Constitutional provisions. Courts have the power of judicial review of the enactment but within the parameters laid down in the Constitution. Court was not to enquire into motive of the legislature nor could the court ascertain the wisdom of the legislature. Powers of judicial review were corrective and directive which were only meant to see legality of administrative action. Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 could not be called as colourable legislation, as the Legislature was competent to enact the same. M & N

Zia ur Rehman's case PLD 1975 SC 49; Fauji Foundation v. Shamim ur Rehman PLD 1983 SC 457; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; PLD 1966 SC 854; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923 and KC Gajapati Narain Deo v. State of Urissa AIR 1953 SC 375 rel.

Independence of judiciary could not be judged at the touchstone of the Objectives Resolution nor on the basis of Objectives Resolution, any provision of the Constitution or law might be struck down. Function of the judiciary was not to legislate or to question the wisdom of the Legislature in making a particular law nor could the judiciary refuse to enforce the law even if the same might result in nullifying its own decision. O

Asma Jeelani's case PLD 1972 SC 139 and Al-Samraz Enterprise v. Federation of Pakistan 1986 SCMR 1917 rel.

Courts are to decide lis in accordance with law in vogue at the relevant time and not to go behind the previous laws. Courts are to consider the laws in operation and to express its opinion in accordance therewith. Court cannot and should not bind the legislature nor refrain it from new legislature with the changing circumstances. High Court observed that law is an organic document in substance, which with the change of human complexities, socio-economic values and demographic attitudes, might be molded, altered, amended or reconstituted by repeal of the earlier laws with the changed requirements. Law might not be kept as stagnant or static, which, with the passage of time, might not cope with the situation nor catered with the needs of the people for whose welfare laws were enacted. Legislature being the representative of the people, was the best judge of determination of the suitability of the law with the prevailing circumstances. Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been validly and competently enacted by the Provincial Legislature. P

Federation of Pakistan through Secretary Ministry of Law v. Munir Hussain Bhatta and others PLD 2011 SC 752 and Mehr Zulfiqar Ali Babu and others v. Government of Punjab and others PLD 1997 SC 11 rel.

(e) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----S. 16 & Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [Since repealed], Ss. 5, 9 & Preamble---Constitution of Pakistan, Part II, Chap. 1 [Arts.8 to 28] & Art. 199---Fundamental Rights---Service of Medical Teaching Institutions, protection of---Petitioner had contended that Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 was violative of the Fundamental Rights as enshrined in Part II, Chap.1 of the Constitution by promulgation of the Act autonomy of the Medical Institutions had been taken away and the control of the bureaucracy had been brought about, and that outsiders (being non-doctors) could not be assigned the task of management and administration of the Medical Institutions---Validity---Concept of assigning task to non-doctors to administer the Medical Institutions also existed in Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [since repealed]---Profession and efficiency of a professional was one thing, whereas administration of the body was altogether different phenomenon---Objection that the government had taken control of the Institution was belied by the fact that three members of the Board being the nominees of the Government had not been given the right to vote---Decision making power had absolutely been vested in the private member belonging to the public at large---Administrative landscape had been broadened by Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Services of the employees had been protected by virtue of S. 16 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Rights accrued to petitioner under the repealed Ordinance had not been affected by Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---High Court observed that phrase 'till further orders' occurring in S. 16 (2) of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 appeared to be not compatible with cl.(2) and substituted cl.(3) of S. 16 of the Act, and the same being unreasonable and unjustified was liable to be omitted and deleted. Q & R

(f) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble---Right to hold post of Medical Superintendent---Scope---No one had vested right to remain on a post for all times to come---Petitioner contended that the main object of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 was to nullify the judgments of the High Court and Supreme Court previously passed in his favour, and that after his removal from the post he had not been assigned any post in the Institution---Validity---High Court had not issued any writ in favour of the petitioner to retain the post of Medical Superintendent for all times to come, and Management Council of the Hospital had been asked to consider for appointment of the most eligible, suitable and senior medical officer possessing extra ordinary qualities both medical and professional for the post---Ratio of the judgment was that only Management Council was to make transfers and appointments within the Institution, keeping in view the criteria---Supreme Court, while maintaining said judgment of the High Court, had observed that procedural failings had resulted in the judgments without any serious restraints on future action, which showed that the petitioner had not been disturbed from the post but with some serious reservations---Statute enacted by the competent legislature might not be struck down merely on the ground that the same was enacted for nullifying the judgments of the Courts that too judgment in personam, not in rem---Once the petitioner had opted to be absorbed in the service of the Institution after his removal from the post, then he might not be treated according to the whim of the administration and should have been assigned suitable post according to his qualification---High Court directed the authorities to address said grievance of the petitioner without fail. S, T, U & V

(g) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble---Petitioners, Para-Medical staff of the Hospital, contended that doctors and nurses had been separately provided with their respective Directors, whereas the Para-Medical staff had been left without any Director---Validity--¬-No reference of Para-Medical Staff performing functions falling within the responsibilities of other medical and nursing wings had been made in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, and the Hospital Director was the overall incharge of non-clinical functions of the hospital---Para-Medical Staff, being the highest in strength as compared to doctors and nurses, was required to have a Director of Para-medics---Clinical functions could not be suitably and adequately discharged without cooperation and coherence of the Para-Medical Staff---Legislature was responsible for leaving any deficiency in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---High Court directed the authorities to make suitable amendment in the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 for provision of Director of Para-Medical Staff. V

(h) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble---Khyber Pakhtunkhwa Essential Services (Maintenance) Act (XXXIV of 1958), Preamble---Agreement between Doctors' Association and Provincial Government allowing the doctors to entertain private patients during normal working hours in the Hospital---Discipline in Department and the establishment, requirement of---Scope---Held, administration could not enter into any such agreement with the employees (doctors)---Principles.

Agreement between the doctors and the Provincial Government had allowed the doctors for the first time to entertain private patients during normal working hours in the hospitals. Provincial Legislature being representatives of the populace of the Province had reflected the will of the people in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. Preamble of the Act was manifestation of the will that was intended for provision of effective, efficient and suitable health-care services to the people of the Province, but neither the people of the Province nor their representatives were signatory to the agreement, at the altar of which the whole scheme of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been frustrated. Doctors' Association, after filing Constitutional petitions against Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, had influenced the administration by their protests, processions and strikes either to withdraw the Act or come to their terms. High Court had previously directed that medical services be declared as essential services in terms of Khyber Pakhtunkhwa Essential Services (Maintenance) Act, 1958. High Court expressed concerns about the weak and maladministration and non-adherence to the public services at the altar of favouritism, nepotism and political pressures of the doctors, which prevailed with the administration and the provisions of Khyber Pakhtunkhwa Essential Services (Maintenance) Act, 1958 had not been resorted to. High Court observed that doctors had not only constituted their associations but were also found chanting slogans, marching processions on the roads, leaving the patients in the emergency and operation theatres crying for their survival. Said inhumanly and indifferent attitude exhibited by the educated people was unbecoming of such noble profession. Mere promulgation of an Act was not big achievement unless the same was enforced and implemented in letter and spirit without fear or favour. High Court directed that the administration could not enter into any such agreement with the employees of the Medical Institutions at the cost of public at large to frustrate the spirit of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. W

High Court remarked that for smooth and effective functioning and rendering proper services to the public, smooth, responsive and strict discipline of the staff was the hallmark of an establishment. Department or establishment was bound to fail in all respect if it is faced with disarray and lack of discipline in ranks and files and has disrespect to the rule of law. Discipline could be maintained by loose administration, by pick and choose and discriminatory application of laws and regulations. Government to address the issue was not only to enact the law but also jealously implement the same. High Court directed the Government to make suitable amendments and introduce effective rules of discipline for their application and implementation to curb the menace of mismanagement, day to day protests and procession and if there was any resistance from any quarter, to proceeded against the same taking disciplinary action under the relevant laws and rules as well as Essential Services (Maintenance) Act, 1958. X & Y

(i) Interpretation of statutes---

----Constitutional provisions, interpretation of---Principles. B, C & E

(j) Constitution of Pakistan---

----Art. 199---Judicial Review---Scope. E

Mushtaq Ali Tahirkhaili for Petitioner.

Abdul Latif Yousafzai, A.G. for official Respondents.

Syed Arshad Ali and Shakeel Ahmad for MTIs for Respondents.

Date of hearing: 7th December, 2015.

2016 P L C (C.S.) 1054

[Peshawar High Court]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

ABDUL HASEEB

Versus

PRINCIPAL, KARNAL SHER KHAN CADET COLLEGE, SWABI and 2 others

W.P.No.3032-P of 2014, decided on 3rd June, 2015.

(a) Captain Karnal Sher Khan Shaheed (NH) Cadet College Swabi Employees (Terms and Conditions of Service) Regulations, 2013---

----Regln. 18---Khyber Pakhtunkhwa Government Educational and Training Institutions Ordinance (III of 1971), S.20(2)(e)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Civil service---Termination of service---Scope---Contention of petitioner-employee was that Acting Principal was not competent to pass order for termination of his services---Validity---Regulations had been framed by the Board of Governors of the College with the prior approval of Government in compliance with S.20(2)(e) of Khyber Pakhtunkhwa Government Educational and Training Institutions Ordinance, 1971 which was in complete accord with the statutory requirements---Section 20(2)(e) of Khyber Pakhtunkhwa Government Educational and Training Institutions Ordinance, 1971 did not require publication of the regulations in the official gazette---Regulations of the College were statutory in nature---Such regulations governing the services of the employees of the College were statutory in nature---Any adverse action taken in violation of the regulations was amenable to the constitutional jurisdiction of High Court---Captain Karnal Sher Khan Shaheed (NH) Cadet College Swabi Employees (Terms and Conditions of Service) Regulations, 2013 empowered the Chairman of the Board of Governors to terminate the services of employee of BPS-17 and above---Principal could pass termination order of employee of BPS-16 and below---Petitioner was an employee of BPS-17, so termination order passed by the Acting Principal was in violation of Regulations and was not sustainable---Respondents were required to put petitioner-employee on notice and conduct inquiry where he could offer his defence as allegations of misconduct, insubordination and non-adherence to discipline and rules of the College had been leveled against him---Respondents could have taken recourse to the general rules and afforded proper opportunity to the employee to offer his defence and explain his position---Nobody should be condemned unheard when there was a charge of misconduct, stigmatizing his career---Proper course of inquiry was inevitable which had wrongly been bypassed by the respondents---Punishment must commensurate to the nature of the guilt---Spirit of penal law was to get the accused realized about his responsibilities to the society as well as to his service---Petitioner-employee had been treated in derogation of regulations governing his service, hence impugned order was declared as illegal, unlawful, without jurisdiction, having been passed without lawful authority and of no legal effect which was struck down---Respondents might proceed in accordance with general rules of issuance of show cause notice and inquiry and pass an appropriate order through competent authority but proportionate to his quantum of guilt if proved---Constitutional petition was accepted in circumstances.

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

The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170 and Masood Ahmad Bhatti and others v. Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others 2012 SCMR 152 distinguished.

(b) Captain Karnal Sher Khan Shaheed (NH) Cadet College Swabi Employees (Terms and Conditions of Service) Regulations, 2013---

----Regln. 18---Khyber Pakhtunkhwa Government Educational and Training Institutions Ordinance (III of 1971), S. 20(2)(e)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Civil service---Termination of service---Scope---Contention of petitioner was that Acting principal of the College was not competent to pass termination order of his services---Validity---Regulations had been framed by the Board of Governors of College with the prior approval of Government in compliance with S.20 (2) (e) of Khyber Pakhtunkhwa Government Educational and Training Institutions Ordinance, 1971 which was in complete accord with the statutory requirements---Section 20(2)(e) of Khyber Pakhtunkhwa Government Educational and Training Institutions Ordinance, 1971 did not require publication of the regulations in the official gazette---Regulations of the College were statutory in nature---Such regulations governing the services of the employees of the College were statutory in nature---Any adverse action taken in violation of the regulations was amenable to the constitutional jurisdiction of High Court---Appointment order of petitioner did not donate that he was a contract employee---No allegation of misconduct or indiscipline was on record against the employee---Only Chairman of Board of Governors was competent to terminate the employee of College serving in BPS-17 and above while Principal could pass termination or retrenchment order of employee of BPS-16 and below---Impugned order was in violation of Regln.18 of Captain Karnal Sher Khan Shaheed (NH) Cadet College Swabi Employees (Terms and Conditions of Service) Regulations, 2013 and same was not sustainable---Act or things were to be done in the manner as provided by the law and the rules or not at all---Petitioner-employee had been treated in derogation of regulations governing his service, hence impugned order was declared as illegal, unlawful, without jurisdiction, having been passed without lawful authority and of no legal effect which was struck down---High Court observed that respondents should strike balance in exercise of discretion which must be exercised justly, fairly and reasonably with judicious application of mind---Constitutional petition was accepted in circumstances.

(c) Civil service---

----Status and nature of Rules or Regulations governing the services of employees was to be determined with reference to the statutory instrument conferring rule making power on the concerned authority---When statute had provided that Rules might be framed by the concerned authority subject to the approval of government and publish in the official gazette, then it must be followed and framed in the same manner---If condition stipulated in the statute had not been followed and Rules/Regulations were not framed as prescribed in the statute then it might be termed as non-statutory---If there was no such condition imposed by the statute for the publication of the Rules/Regulations in the official gazette then it might not be poked into on any hypothesis---Rule making authority could not supply what was not required of it nor could accord approval beyond its mandate---Said authority could not add, alternate or subtract in the elementary scope of delegating provision.

(d) Administration of justice---

----Nobody should be condemned unheard.

(e) Administration of justice---

----Punishment must commensurate to the nature of the guilt.

(f) Administration of justice---

----Act or things were to be done in the manner as provided by the law and the rules or not at all.

Ijaz Anwar for Petitioner.

Syed Muhammad Bilal Ahmad for Respondents.

Date of hearing: 3rd June, 2015.

2016 P L C (C.S.) 1147

[Peshawar High Court (Abbottabad Bench)]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

ABDUL BASEER KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Finance Department, Peshawar and others

Writ Petition No.686-A of 2015, decided on 10th May, 2016.

West Pakistan Government Servants (Medical Attendance) Rules, 1959---

----Rr. 6 & 3---Civil service---Reimbursement of medical charges---Scope---Treatment from a private hospital---Government turned down request of employee for reimbursement of medical charges on the ground that treatment from private hospital had been banned---Validity---Issue of treatment from private hospital and competency of Director General Health Services to accord ex-post facto sanction had been resolved in another case by the High Court with direction to the government to reimburse medical charges---Patients were referred to the private hospital by the doctor of government hospitals due to non-availability of medical facility in the hospital---No objection could be raised with regard to treatment in the private hospital when rules had allowed treatment of government servants and their relations at private hospital in case of non-availability of facilities in the government hospital(s)---Administrative letter/direction could not override the express provisions of West Pakistan Government Servants (Medical Attendance) Rules, 1959 without amendment in the same giving effect to such direction---Government was directed to allocate funds under head 'medical charges' for reimbursement of medical expenses borne out by the civil servants on treatment of their patients subject to condition that the payment so received by them would be liable to return in case the judgment/order passed in the previous constitutional petition or for that matter present judgment/order was reversed by the Supreme Court---Constitutional petition was allowed accordingly.

Sardar Basharat Khan for Petitioner.

Muhammad Naeem Abbasi, A.A.G. for Respondents.

2016 P L C (C.S.) 809

[Punjab Service Tribunal]

Before Khalid Mahmood Ramay, Member-V

MUMTAZ HUSSAIN

Versus

SECRETARY EDUCATION (SCHOOLS), PUNJAB, LAHORE and 4 others

Appeal No.5900 of 2015, decided on 30th December, 2015.

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

----S. 9---Punjab Service Tribunals Act (IX of 1974), S.4---Transfer--­Appellant, a Deputy District Education Officer, had alleged that authorities had transferred him in haste and against the Transfer Policy---Record had revealed that appellant was transferred due to his continuous poor performance in achieving goals indicators, set in Chief Minister Road Map for Education Sector; and despite repeated instructions in Monthly District Review Committee meetings, no visible improvement had been made to meet the target---Appellant relied on an appreciation letter awarded to him by concerned District Education Authorities, but same was inadmissible in the eyes of law, because it did not carry any date or period, and was uncertified photocopy---Appellant had conceded that present appeal was immature, as same was filed before result of departmental appeal by him---Appellant was transferred to the impugned place of posting on his own request, hence his placement outside his district of domicile, was dependent upon his will and choice---Counsel for appellant, had not been able to bring to the light any documentary evidence, which could have substantiated the genuineness of claim of the appellant, nor there was any evidence otherwise available in that regard---Appellant validly submitted his departmental appeal to the concerned authority, but without waiting for the prescribed time, he had preferred present appeal before Service Tribunal---Appellant had pointed out that impugned transfer order had been issued in violation of the Policy of 2013, but neither such policy had been appended with the appeal, nor same had been produced during the course of proceedings---Appellant, had not succeeded to put forth any mention of illegality, wrong doing or political influence in the issuance of the impugned order---Appeal was disposed of being premature and non-maintainable---Provincial Secretary Education, was directed to decide the departmental appeal of the appellant if pending with him after fulfilling all legal and codal formalities preferably within a period of 30 days.

2015 SCMR 456 ref.

Zulfiqar Ahmed Qureshi for Appellant.

Sardar Muhammad Ahmad, D.A.

2016 P L C (C.S.) 858

[Punjab Service Tribunal]

Before Khalid Mahmood Ramay, Member-V

YASIR UBAID ULLAH

Versus

SENIOR SUPERINTENDENT OF POLICE INVESTIGATION, LAHORE and 2 others

Appeal No.4443 of 2015, decided on 9th February, 2016.

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 4---Punjab Service Tribunal Act (IX of 1974), S.4---Dismissal from service---Appellant, a constable, was proceeded against departmentally for being absent from duty for considerable period---After show-cause notice and personal hearing, penalty of dismissal from service under Punjab Police (Efficiency and Discipline) Rules, 1975, was imposed---Penalty of dismissal from service was converted into forfeiture of six months approved service and was permanently reinstated into service in departmental appeal---Validity---Punishment awarded to the appellant, through impugned order, and even reduced by the Appellate Authority, did not commensurate with the quantum of his guilt; because appellant was sick, and he tendered a medical certificate in that regard, during the course of personal hearing to the departmental authority, which was not considered and evaluated before imposing the penalty---Holding a regular inquiry to remove factual controversies, was yet another binding factor upon the department---Appellant had not adopted proper procedure for seeking medical leave, and had committed a wrong which made him compelled to undergo some kind of a minor penalty---Appeal was partly accepted, and his punishment of "forfeiture of six months service", was converted by Service Tribunal into minor penalty of "Censure" by setting aside the impugned orders.

2007 SCMR 192; 2006 SCMR 846; PLD 1981 SC 335 and 2006 SCMR 434 ref.

M. Kafeel Saalik Niaz for Appellant.

Sardar Muhammad Ahmad, District Attorney for Respondents.

Date of hearing: 9th February, 2016.

2016 P L C (C.S.) 891

[Punjab Service Tribunal]

Before Khalid Mahmood Ramay, Member-V

MUHAMMAD RIAZ

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB and 3 others

Appeal No.3848 of 2012, decided on 8th December, 2015.

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

----S. 9---Punjab Service Tribunals Act (IX of 1974), S.4---Letter No.SOE-III (C&W) 1-7/97/254 dated 26-1-2001---Transfer---Appellant, a draftsman belonging to the permanent cadre of Superintending Engineer Provincial Highway Circle known as "circle cadre", had challenged transfer order of respondent, contending that he permanently belonged to the cadre of the Office of Chief Engineer; and maintained his seniority on all intents and purposes in the said Chief Engineer's office had no concern with the circle cadre to which appellant belonged---Appellant had alleged that impugned order had been issued in violation of the instructions/Policy with regard to the posting and transfer issued vide letter No.S.O.E.-III (C&W) 1-7/97/254 dated 26-1-2001; and that such transfer of respondent and his consequential induction in the cadre, had adversely affected the seniority position of employees working in the circle office; and that their promotion as Head Draftsman had been blocked by way of said transfer made illegally---Impugned transfer order had been issued on the personal request of respondent---No cogent reasons, personal or otherwise had been narrated in the request made by respondent---By said posting of respondent the chance of promotion of a senior most Draftsman had been blocked---Impugned order, was held to be void and unlawful by Service Tribunal---Appeal was accepted and order of transfer was set aside with direction to the authorities to follow the Posting/Transfer Policy, 2001 in letter and spirit---Respondent, would stand transferred back to the original cadre with immediate effect.

Muhammad Rafique Awan for Appellant.

Sardar Muhammad Ahmed, District Attorney and Hafiz Fayyaz Ahmed, Law Officer, D.R. for Respondents.

Date of hearing: 8th December, 2015.

2016 P L C (C.S.) 1083

[Punjab Service Tribunal]

Before Khalid Mahmood Ramay, Member-V

MUHAMMAD SHARIF

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and another

Appeal No.494 of 2015, decided on 21st December, 2015.

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

----S. 5---Misconduct and corruption---Compulsory retirement from service---Dispensing with regular inquiry---Requirement---Previous punishment---Effect---Employee denied the charges leveled in the show cause notice but he was awarded major penalty of compulsory retirement from service without holding regular inquiry---Validity---Material controversy of facts could not be removed without recording independent evidence---Affidavit of complainant had not been evaluated rather the same had been termed as maneuvered without supporting independent evidence---Department was bound to dig out the facts by challenging the authenticity of affidavit in the form of regular inquiry and recording evidence---Non-forwarding the case to initiate proceedings under Anti-Corruption Law had made the present matter questionable---Although department had power to dispense with regular inquiry but same had been done in violation of mandatory provision of mentioning reason to dispense with regular inquiry---Allegations had been mentioned as "clear-cut" in nature but no evidence had been incorporated during departmental proceedings---Evidence produced by the employee in his favour had also not been evaluated properly---Previous punishment could not be made justification to ward punishment in the present case---Impugned order was set aside being illegal and unlawful---Appellant was reinstated into service from the date when he was compulsorily retired from service---Intervening period should be treated as leave without pay---Appeal was allowed accordingly.

1993 SCMR 603; 1996 SCMR 234; 2002 SCMR 433 and 1989 Supreme Court 335 ref.

PLJ 2011 Tr.C. (Service) 82 rel.

Ch. Tariq Javed for Appellant.

Sardar Muhammad Ahmad, District Attorney.

Muhammad Saeed Ghufran, ASI, D.R.

Date of hearing: 9the December, 2015.

2016 P L C (C.S.) 1170

[Punjab Service Tribunal]

Before Khalid Mahmood Ramay, Member-V

NAZAR HUSSAIN

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), BHAKKAR and another

Appeal No.3930 of 2011, decided on 18th December, 2015.

Civil Service---

----Conviction in criminal case---Misconduct---Removal from service---Scope---Employee was convicted in criminal case and he was removed from service---Contention of employee was that occurrence had been held as a sudden provocation which did not constitute "misconduct"---Validity---Employee was involved in a murder case in which he was sentenced for life imprisonment which was later converted into imprisonment for ten years---Present appellant and deceased were real cousins---Occurrence was an outcome of sudden provocation and it was not a planned or organized murder with any kind of motive---Employee was recruited as PST and by virtue of his persistent performance he was elevated to the level of a Headmaster---Employee had been contributing towards different heads of the government exchequer including his pension, G.P. Fund, group insurance and to deprive him of his financial rights would not be justified in the eyes of law---Employee had compromised with his family members who deserved leniency---Impugned order was set aside and penalty of removal from service was converted into compulsory retirement from service from the date he was removed from service and he was declared entitled to all benefits and pensionary rights admissible under law---Appeal was partially allowed in circumstances.

PLD 2011 TC (S)(sic); 2012 SCMR 165 and 2011 SCMR 534 ref.

Asif Nazir Awan for Appellant.

Sardar Muhammad Ahmad District Attorney for Respondents.

2016 P L C (C.S.) 16

[Punjab Subordinate Judicial Service Tribunal]

Before Mahmood Maqbool Bajwa, Chairman and Shahid Waheed, Member

QURBAN ALI

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

S.A. No.26 of 2011, heard on 19th June, 2015.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Punjab Civil Servants (VIII of 1974), S.5(3)---Punjab Civil Judges Departmental Examination Rules, 1991, R.9---Judicial officer---Departmental examination---Grace marks, award of---Word "may" mentioned in R.9 of the Punjab Civil Judges Departmental Examination Rules, 1991---Connotation---Judicial officer, in the present case, could not qualify the departmental examination in four attempts by securing sixty six percent of the maximum marks allocated to each subject for his confirmation in service---Appellant was discharged from service---Validity---Authority had not expressed any reason for declining to award grace marks to the appellant---Word "may" mentioned in R.9 of the Punjab Civil Judges Departmental Examination Rules, 1991 had been used out of deference to the high status of the Administration Committee---Said word would merely connote an enabling or a permissive power in the sense of the usual phrase "it shall be lawful"---No investigation was required into disputed facts with regard to grant of grace marks---Administration Committee was bound to award grace marks in any paper in any examination to a candidate who failed to qualify the examination for want of five percent marks so as to enable him just to qualify the examination---No option was available with the Administration Committee to decide whether a candidate was entitled to get grace marks or not---No discretion with the Authority in the matter of grant of grace marks if a candidate was failing in the examination by short of six marks---Appellant secured 73 marks in Paper V (Accounts) whereas the qualifying marks were 79---Administration Committee could not withhold the grace marks in the present case---Administration Committee was bound to grant 6 grace marks to the appellant---Decision for not awarding the grace marks to the appellant was not valid---Appellant could not be declared fail in Paper V (Accounts) of the Civil Judges Departmental Examination---Self-imposed restraint by the Administration Committee or the Competent Authority on the exercise of its power was invalid as Rules had conferred a power on the same---Each and every case had to be decided on its own merits---Administration Committee was not to fetter its discretion by adopting an inflexible standard to be followed by it uniformly in all cases---Policy decision for grace marks could not be lawfully made so long as statutory rule making provision for grant of the same was not omitted through amendment to be made by the competent authority---Impugned notification was set aside and Authority was directed to grant grace marks to the appellant and make orders for his reinstatement in service---Service appeal was accepted in circumstances.

Muhammad Saleem v. Punjab Public Service Commission and another 1985 CLC 1544; S. Maruf Ahmad Ali, Advocate v. Punjab Public Service Commission, Lahore and another 1986 PLC (C.S) 335; Punjab Public Service Commission and another v. S. Maruf Ahmad Ali PLD 1988 SC 356; Subah Sadiq Khan v. Punjab Public Service Commission and others 1989 MLD 3859; Mst. Farah Naz v. Board of Intermediate and Secondary Education, Multan through its Chairman and another 1995 CLC 1150; Rao Muhammad Ashraf Khan v. Government of Punjab through Secretary Education, Lahore and 2 others 1997 CLC 43; Government of Pakistan through Collectorate of Customs and another v. Amar Mehmood 1999 SCMR 2268; Zahoor Hussain v. Director Education (Schools) Directorate of Education (Schools) Lahore Division, Lahore and 2 others 2002 YLR 1544 and Bahauddin Zakriya University through Vice Chancellor and another v. Muhammad Waseem Khan 2005 YLR 1197 ref.

Julis v. Bishop of Oxford (1880) 5 AC 214; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182 and Abu Bakar Siddique and others v Collector of Customs, Lahore and others 2006 SCMR 705 rel.

(b) Words and phrases---

----"May"---Connotation---Word "may" generally did not mean "must" or "shall" but same was capable of meaning "must" or "shall" in the light of the context---Where a discretion was conferred upon a public authority coupled with an obligation then the word "may" which would denote discretion should be construed to mean a command.

Syed Ijaz Qutab for Appellant.

Zubda Tul Hussain for Respondent.

Date of hearing; 19th June, 2015.

2016 P L C (C.S.)281

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman, Abdus Sattar Asghar and Muhammad Ameer Bhatti, Members

Rao ABDUL JABBAR KHAN

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.18 of 2012, decided on 19th December, 2014.

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 6 (3) & 4 (a) (iii)---Constitution of Pakistan, Art.10-A---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Judicial officer---Cancellation of bail by the appellant---Dispensing with regular inquiry---Malice---Proof of---Withholding of annual increments---Minor penalty of withholding of annual increments for a period of three years was imposed on the appellant---Validity---Malice was a question of fact which could be proved only through reliable ocular or documentary evidence---Nothing was on record to substantiate the allegation of malice against the appellant---Judicial order could not be termed as fanciful in absence of any established malice---Appellant had good service record and was always found fit for promotion by the authority at the relevant time---Appellant in his judicial career always enjoyed good reputation as well as confidence of the authority---No smack of malice of the appellant was noticed by the Authority in the order passed by him it would not be fair to suggest that bail cancellation order passed by the appellant was based on malice in absence of any evidence---Nothing was on record to prove malice of the appellant---Authority had erred in law while dispensing with regular inquiry and issuing show-cause notice to the appellant---Malice could not be presumed on the basis of surmises and conjectures---No regular inquiry was conducted to prove any malice of the appellant---No reason, therefore, existed to propose the penalty of withholding of annual increments---Right of due process and fair trial being a fundamental right had been safeguarded under the Constitution which had been denied in the present case---Impugned notification being unfounded, without reasons, suffering from legal infirmity and vagueness had resulted into serious prejudice to the appellant and same was liable to be set aside---Appellant, however, was advised by the Tribunal to remain careful in future---Impugned notification was set aside and appeal was accepted.

(b) Constitution of Pakistan---

----Art. 10-A---Right of fair trial---Scope---Right of due process and fair trial being a fundamental right had been safeguarded under the Constitution.

Umar Rizwan Azad for Appellant.

Abdul Shakoor Choudhry, with Zahoor Ahmed and Muhammad Rizwan Ashraf Dealing Assistant (Confidential) for Respondent.

Date of hearing: 19th December, 2014.

2016 P L C (C.S.) 301

[Punjab Subordinate Judiciary Service Tribunal]

Before Mehmood Maqbool Bajwa, Chairman, Amin-ud-Din Khan and Shahid Waheed, Members

ALTAF HUSSAIN ALTAF

Versus

LAHORE HIGH COURT, LAHORE through Registrar and 30 others

S.A. No.10 of 2013, decided on 20th March, 2015.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.5---Notification No.SOR-II(S&GAD) 2-59/78 dated 19-04-2007---Judicial officer---Adverse remarks recorded by the Authority while deciding a matter disposed of by the appellant (judicial officer)---Proforma promotion---Scope---Second representation---Scope---Matter directly and substantially in issue in the present appeal was the same which was directly and substantially in issue in the earlier appeal---Appellant had rightly been deferred for promotion due to fault of his own---Appellant could not claim proforma promotion in the circumstances of the case---Second representation was not competent under the law---Disposal of incompetent petition or representation by the competent authority did not create fresh cause of action---Appeal being not competent before the Tribunal, was dismissed, in circumstances.

Mian Bilal Bashir for Appellant.

Ashfaq Qayyum Cheema for Respondent No.1.

Date of hearing: 20th March, 2015.

2016 P L C (C.S.) 338

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman, Muhammad Ameer Bhatti and Abdus Sattar Asghar, Members

Dr. Syed ALI SANA BOKHARI

Versus

GOVERNMENT OF PUNJAB and others

S.A. No.2 of 2002, decided on 20th June, 2014.

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 11(1)---Contempt of Court Act (LXIL of 1976), Ss.3 & 4---Constitution of Pakistan, Art.204---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.s5---Judicial officer---Appellant, a Civil Judge, was convicted under Ss.3 & 4 of Contempt of Court Act, 1976 read with Art.204 of the Constitution---Dismissal of appellant on the basis of conviction under the offence of moral turpitude---Validity---Facts and circumstances of the appellant's case were not examined in the light of settled principles by the competent Authority before passing dismissal order while considering his conviction under the offence of moral turpitude---Appellant had been enrolled as an advocate by the Bar Council after his dismissal from service, which did not consider him to be guilty of moral turpitude---Department had dismissed the appellant from service without deliberating upon the core issue involved in the matter---Impugned notification was set aside and matter was remanded for decision afresh in accordance with law after affording an opportunity of hearing to the appellant and considering all the legal and factual pleas raised by him---Appeal was accepted in circumstances.

Imtiaz Hussain Phulpto v. Returning Officer 1987 SCMR 468 rel.

(b) Words and phrases---

----'Moral turpitude'---Meaning and connotation "Moral turpitude"---Meaning---"Moral turpitude" was an act which would shock the moral conscience of society in general.

Imtiaz Hussain Phulpto v. Returning Officer 1987 SCMR 468 rel.

Taffazul H. Rizvi for Appellant.

Nayyar Iqbal Ghauri along with Dawood Ahmed, Assistant Registrar (Confidential), Lahore High Court for Respondent.

Date of hearing: 20th June, 2014.

2016 P L C (C.S.) 408

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman and Muhammad Ameer Bhatti, Member

MUHAMMAD AFZAL KHAN

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and others

Service Appeal No.8 of 2013, heard on 24th October, 2014.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Judicial officer---Adverse remarks---Expunction of---Proforma promotion---Fundamental right---Appellant earned adverse remarks in three consecutive ACRs which were expunged but he was not promoted by the Authority---Validity---Proforma Promotion Committee had not considered the matter of the appellant in its true perspective---ACRs of the appellant after acceptance of appeals by the Service Tribunal were ceased to be adverse---No justification existed for the Proforma Promotion Committee to ignore the said ACRs considering them to be not good---Claim of appellant was in consonance with law as his junior was promoted while he was ignored on the basis of adverse remarks recorded in his ACRs---Had such adverse remarks not been recorded in the ACRs, appellant would have been considered for promotion on the date when his junior was promoted---Claim of appellant to get himself promoted after the decision of Service Tribunal when his junior was promoted was his fundamental right---Proforma Promotion Committee was obliged to adjudge the case of appellant from the date when his junior was promoted after expunction of adverse remarks from his ACRs---Appellant became eligible to be considered for promotion by the Authority from the date when adverse remarks had precluded---Authority had incorrectly ignored the ACRs of the appellant which would amount to denying the relief granted by the Service Tribunal and upheld by the Supreme Court---Matter was remitted to the Authority with the direction to re-consider the case of the appellant as prayed for---Appeal was accepted in circumstances.

Pervaiz Inayet Malik for Appellant.

Zubda-tul-Hussain and Zahoor Ahmed, Assistant (Confidential-I) for Respondents.

Date of hearing: 24th October, 2014.

2016 P L C (C.S.) 560

[Punjab Subordinate Judiciary Service Tribunal]

Before Mehmood Maqbool Bajwa and Shahid Waheed, JJ

MUHAMMAD AKBAR SAJID CHAUDHARY

Versus

LAHORE HIGH COURT, LAHORE through Registrar and others

S.A. No.9 of 2006, heard on 24th April, 2015.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Judicial officer---Unauthorized shifting of telephone---Misconduct---Quantum of punishment---Show-cause notice, issuance of---Dispensing with regular inquiry---Minor penalty of stoppage of three annual increments was imposed on the appellant---Mala fide---Proportionality of sentence, doctrine of---Show-cause notice was issued to the appellant by dispensing with regular inquiry and he was imposed minor penalty of stoppage of three annual increments for unauthorized shifting of telephone---Validity---Departmental authorities had choice in law to determine quantum of punishment in the light of nature of misconduct---Penalty should be commensurate with the magnitude of misconduct committed by the civil servant---Unauthorized shifting of telephone from one place to another was not a penal offence---Penalty in such like case was only disconnection of unauthorized shifted telephone---Shifting of telephone was a trivial infraction of rules---Purpose of deterrent punishment was not only to maintain balance with the gravity of wrong done but also to make an example for others as a preventive measure for reformation of society---Concept of minor punishment was to make an attempt to reform the individual wrong-doer---No allegation was on record with regard to mala fide, ill-will or ulterior motive for shifting of telephone---Nothing was on record that appellant had taken benefit from a private person by shifting of telephone---Unauthorized shifting of telephone might be construed as negligence and that too of a small nature which did not breach the discipline of service---Said negligence although did deserve minor punishment but not stoppage of three increments---Mercy in the Islamic Jurisprudence was a rule where the wrong was trivial---Doctrine of proportionality of sentence had been recognized in law even in modern jurisprudence---Punishment of stoppage of three increments did not commensurate with the gravity of charge in the present case which was converted into censure---Appeal was partly allowed in circumstances.

(b) Civil service---

----Misconduct---Departmental authorities had choice in law to determine quantum of punishment in the light of nature of misconduct.

(c) Civil service---

----Doctrine of proportionality of sentence was recognized in service law.

Talat Farooq Sheikh and Maqbool Hussain Sheikh for Appellant.

Zubda Tul Hussain for Respondents.

Date of hearing: 24th April, 2015.

2016 P L C (C.S.) 666

[Punjab Subordinate Judiciary Service Tribunal]

Before Mehmood Maqbool Bajwa, Chairman, Shahid Waheed and Amin-ud-Din Khan, Members

Ch. MUHAMMAD HUSSAIN

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE

C.M. No.02 of 2009 in S.A. No.14 of 2009, decided on 27th February, 2015.

(a) Limitation Act (IX of 1908)---

----S. 5---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Service appeal---Limitation---Condonation of delay---Sufficient cause---Scope---Negligence and slackness---Condonation of delay in filing service appeal had been sought on the ground that counsel engaged by the applicant was a patient of "gout" and during Eid vacations he suffered from swelling of joints---Validity---"Sufficient cause" would be a cause beyond control of the party and same would rule out inaction, culpable slackness and negligence---Want of due care would be sufficient to non-suit the party seeking indulgence of sufficient cause---Party seeking condonation of delay had to explain each day's delay after expiry of period of appeal---Contents of application as well as affidavit were silent with regard to number of Eid holidays and commencement of the same---Appeal, in the present case, was prepared on 2nd of October, 2009 while Eid holidays were 21st and 22nd September---Appeal was ready for filing prior to Eid-ul-Fitr---Affidavits were sworn by the applicant before the Oath Commissioner on 19th of September, 2009 which was Saturday---Ample time was available with the applicant to prefer appeal in the office but no attempt was made to submit the same---Actual and physical presence of counsel for the appellant was not necessary for filing of appeal---Anyone could have filed the appeal in the office---Nothing was on record to suggest that counsel for the applicant intimated to him the compelling circumstances for non-filing of appeal though time was running and ultimately it expired---Applicant was bound to remain in touch with his counsel---Element of want of care and attention would amount to negligence and carelessness ruling out bona fide and due diligence---Date of recovery of counsel for the applicant from ailment had not been mentioned either in the application or in the affidavit seeking condonation of delay---Such omission would be sufficient to non-suit the applicant---Contents of application that appeal was promptly filed without wastage of time after recovery of counsel would not be sufficient to prove the case of applicant---Date of recovery from illness was an important factor in order to determine each day's delay---Applicant had failed to disclose the same---Applicant had not explained each day's delay which was necessary---Applicant was bound to prove that he or any person acting on his behalf was not negligent---Applicant had failed to prove that non-filing of appeal within the statutory period was result of an act or omission beyond his control or person acting on his behalf---Mere involvement of valuable right by itself would not be sufficient to condone the delay---Question of limitation was not a mere technicality and same could not be ignored---Applicant had failed to prove sufficient cause seeking condonation of delay in filing of appeal---Application for condonation of delay and appeal were dismissed being time barred.

Defence Housing Authority Lahore v. Lt. Col. (R) Muhammad Aslam 2007 YLR 135; Al-Waqar Corporation v. Rice Export Corporation and another 2011 MLD 266; Mrs. Zubaida Begum v. Mrs. S.T. Naqvi 1986 SCMR 261; Hassan Abbas v. Ist Additional District and Sessions Judge and 2 others 2014 YLR 2042 and Muhammad Malik v. Chairman, Mirpur Development Authority, Mirpur and 9 others 1997 CLC 480 distinguished.

Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and others PLD 1964 SC 236; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Rehmat Bibi and others v. Ghazanfar Hussain PLD 1983 SC (AJ&K) 21; Jhanda v. Maqbool Hussain and others 1981 SCMR 126; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Mst. Sirajun-Munira v. Pakistan through Assistant Deputy Director-General (Admn.), Islamabad 1998 SCMR 785; Mian Abdul Rahim Sethi and others v. Federation of Pakistan through Minister of Defence and another 2000 SCMR 1197; Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903; Mian Abdul Rahim Sethi and others v. Federation of Pakistan through Ministry of Defence and another 2000 PLC (C.S.) 934; Water and Power Development Authority v. Auranzeb 1988 SCMR 1354; Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 and Muhammad Islam v. Inspector-General of Police, Islamabad and others 2011 SCMR 8 rel.

(b) Administration of justice---

----Matters to be decided on merits and technicalities should not hamper the justice.

(c) Limitation---

----Condonation---"Sufficient cause"---Meaning---Sufficient cause was a cause beyond control of the party.

(d) Medical jurisprudence---

----"Gout"---Meaning.

Syed Ijaz Qutab for Applicant.

Nayyar Iqbal Ghauri for Respondent.

2016 P L C (C.S.) 715

[Punjab Subordinate Judiciary Service Tribunal]

Before Mehmood Maqbool Bajwa, Chairman, Shahid Waheed and Amin-ud-Din Khan, Members

MUJAHID ABBAS SOHAIL

Bersus

LAHORE HIGH COURT through Registrar

S.A.No.37 of 2002, heard on 30th January, 2015.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Instruction No.2, Letter No.S(R)-3542-S&GAD 4-8/65-SO-XIII dated 12-02-1968---Annual Confidential Report, initiation of---Procedure---Limitation---Adverse remarks---Delay in recording of remarks in ACR---Effect---Malice---Scope---Integrity and reputation of Reporting Officer---Scope---Annual Confidential Report for a calendar year should be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week who was supposed to give his remarks within one week---Delay in recording adverse remarks, its endorsement as well as communication by itself would be of no legal consequences---Malice could be attributed easily but it was difficult to prove the same---Appellant had failed to prove malice---If Reporting Officer had malice against the appellant, he should not have rated him in the mode and manner as he did---Reporting Officer had acted with fairness while recording remarks in the ACR of appellant---No bias or malice had been attributed to the countersigning authority---Countersigning authority being Inspection Judge got different sources to verify the opinion of Reporting Officer---Appellant was living beyond his known means---Remarks recorded were unambiguous, unbiased and the same appeared to be result of personal observation of Reporting Officer and countersigning officer---Nothing was on record to suggest even remotely that integrity and reputation of Reporting Officer was not above-board---Impugned remarks were based on facts---Appeal was dismissed, in circumstances.

Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191; Lahore High Court, Lahore through its Registrar v. K.M. Sohel 2001 PLC (C.S) 1253; The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186; Qari Ahmed Jan v. Government of Balochistan through S&GAD Quetta and 3 others 2003 PLC (C.S.) 1078; Saad Salam Ansari v. Chief Justice, High Court of Sindh Karachi 2006 PLC (C.S.) 938 and F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.W.F.P. and 5 others 1994 SCMR 722 rel.

(b) Civil service---

----Annual Confidential Report, initiation of--- Procedure---Limitation---Annual Confidential Report for a calendar year should be initiated in the first week of January by the initiating authority and forwarded to the higher authority in the same week who was supposed to give his remarks within one week.

(c) Words and phrases---

----'Malice'---Meaning.

Black's Law Dictionary (Sixth Edition) rel.

Talat Farooq Sheikh and Zulfiqar Ahmad Sheikh for Appellant.

Zubda-tul-Hussain for Respondent.

Date of hearing: 30th January, 2015.

2016 P L C (C.S.) 813

[Punjab Subordinate Judiciary Service Tribunal]

Before Shahid Waheed, Chairman, Faisal Zaman Khan and Muhammad Tariq Abbasi, Members

ZAFAR IQBAL CHAUDHRY

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

ServiceAppeal No.18 of 2013, heard on 18th March, 2016.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

---S. 5-Judicial officer---Remarks recorded by the Authority while deciding a matter---Proforma promotion---Scope---Appellant was directed by the Authority to remain careful in future and he was kept under observation for one year---Work, conduct and integrity of appellant was declared excellent during the said period---Effect--­Appellant had not earned any adverse entry during whole of judicial service---Ground and reason on the basis of which appellant was deprived of his promotion had subsequently been extinguished---Withholding of due right of appellant would not meet the ends of justice---Appellant was entitled to proforma promotion with effect from the date when the next junior to him was so promoted---Appeal was allowed in circumstances.

Syed Ijaz Qutab for Appellant.

Ishfaq Qayyum Cheema along with Muhammad Shafiq, Assistant and Nasrullah Khan Niazi, Deputy Registrar for Respondent.

Date of hearing: 18th March, 2016.

2016 P L C (C.S.) 906

[Punjab Subordinate Judiciary Service Tribunal]

Before Mehmood Maqbool Bajwa, Chairman Shahid Waheed and Amin-ud-Din Khan, Members

MUHAMMAD HAMID PERVAIZ

Versus

LAHORE HIGH COURT, LAHORE through Registrar

Service Appeals Nos.28 and 29 of 2007, heard on 27th February, 2015.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Judicial officer---Advertisement for recruitment of staff for Court Office---Proclamation for such recruitment was published by giving one day to submit applications and Judicial Officer fixed the date of interview with the margin of one day---Recruitment process initiated by the Judicial Officer was not transparent---Motive behind such act was to curtail number of applicants for recruitment; he attempted to accommodate certain persons---Adverse remarks against Judicial Officer by countersigning authority---Malice---Countersigning authority concluded that Judicial Officer did not enjoy good reputation---Contention of Judicial Officer was that said remarks were result of "malice" and "bias"---Validity---Countersigning authority called the judicial officer and asked to cancel the said recruitment process---Countersigning authority being Inspection Judge of the District was competent to intervene and interfere in the recruitment process---Judicial Officer had failed to disclose name of any alleged candidate recommended by the countersigning authority for recruitment---If countersigning authority as alleged got first process of recruitment cancelled with an intent and object to get accommodate the persons of his choice then why he did not intimate the names and particulars of such candidates to the Judicial Officer---Judicial Officer had coined the story to justify his act by getting the process of recruitment completed within couple of days---Judicial Officer had attempted to accommodate persons of his choice while depriving the suitable candidates---Malice had to be attributed to the Judicial Officer and not to the countersigning authority---Bald allegation had been made against the countersigning authority to get favourable decision---Countersigning authority had interfered in order to rectify the illegal act of Judicial Officer---Judicial Officer had failed to make out a case for interference---Appeal was dismissed in circumstances.

Muhammad Yahya Khan Kulachi v. Registrar, Lahore High Court Lahore 2011 SCMR 1381 Distinguished.

F.Q. Matiullah Khan Alizai v. Chief Secretary 1994 SCMR 722; Lahore High Court v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117 and Shabbir Hussain v. Registrar Lahore High Court PLD 2004 SC 191 rel.

(b) Words and phrases---

----"Malice"---Connotation.

Black's Law Dictionary, Eighth Edition; John Salmond, Jurisprudence 384 (Glanville L. Williams ed. 1947; The Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Sub. (Retd.) Muhammad Ashraf v. District Collector, Jhelum and others PLD 2002 SC 706; Tabassum Shahzad v. I.S.I. and others 2011 SCMR 1886 and Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 rel.

Tallat Farooq Sheikh for Appellant.

Mian Manzoor Hussain for Respondent.

Date of hearing: 27th February, 2015.

2016 P L C (C.S.) 974

[Punjab Subordinate Judiciary Service Tribunal]

Before Shahid Waheed, Chairman, Faisal Zaman Khan and Muhammad Tariq Abbasi, Members

KHIZAR HAYAT GONDAL

Versus

LAHORE HIGH COURT, LAHORE through Registrar

S.A. No.16 of 2013, heard on 1st April, 2016.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

---S. 5---Punjab Civil Servants Act (VIII of 1974), S.21----Limitation Act (IX of 1908), S.3---Judicial Officer (Civil Judge)---Adverse remarks recorded in the ACR---Expunction of---Pro forma promotion---Second representation--- Limitation--- Commencement of--- Adverse remarks recorded in the ACR of appellant were expunged and he was promoted as Senior Civil Judge---Appellant filed representation for considering him for promotion from the date when his batch-mates were promoted to the post---Said representation was deferred and appellant was promoted---Appellant filed another representation for considering him for the promotion to the post of Senior Civil Judge and then to the Additional District Judge along with his batch-mates which was dismissed---Contention of department was that initial representation was time- barred and subsequent representation as well as service appeal were not maintainable---Validity---Limitation for filing a representation accrued to the appellant from the date when his batch-mates were promoted as Senior Civil Judge, however, he did not agitate his grievance at that point of time---Appeal against adverse remarks was accepted on 26-02-2004 whereafter on 18-10-2004 he was promoted as Senior Civil Judge---During this period appellant did not file representation---Appellant could have filed departmental appeal within 60 days from 26-02-2004 when his remarks were expunged or from 18-10-2004 when he was promoted as Senior Civil Judge---Appellant preferred representation on 04-06-2005 which was beyond the period of limitation---Departmental representations filed by the appellant were not within time---Present appeal was not maintainable in circumstances---Point of limitation could be looked into by the Service Tribunal keeping in view S.21 of Punjab Civil Servants Act, 1974 read with S.3 of Limitation Act, 1908---Appeal was dismissed in circumstances. B, C, D, E & F

Syed Ashfaq Hussain Shah v. N.E.D. University of Engineering and Technology, Karachi and others 2007 SCMR 73; Messrs Sui Northern Gas Pipelines Ltd. v. Malik Murawat Hussain 2004 SCMR 527; Muhammad Boota v. The Chairman, Pakistan Postal Services Corporation, Islamabad and others 1998 SCMR 2652; Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287 and Anwar Muhammad v. General Manager, Pakistan Railways, Lahore 1995 SCMR 950 distinguished.

Muhammad Asif Chatha and others v. Chief Secretary, Government of Punjab, Lahore and others 2015 SCMR 165; Sajjad Hussain v. Secretary, Ministry of Railways, Islamabad and others 2012 SCMR 195; Raja Khan v. Manager (Operation) Faisalabad Electronic Supply Company (WAPDA) and others 2011 PLC (CS) 856 and Sohail Butt v. Deputy Inspector General of Police (North) National Highway and Motorway Police and others 2011 PLC (CS) 846 rel.

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

----S. 21---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Appeal before Service Tribunal---Requirement---Appeal could be filed before the Service Tribunal provided a right of appeal/review/representation to the departmental authorities had been availed. A

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

----S. 21---Representation---Limitation---Any person aggrieved of any departmental order could file a representation within 60 days form the order he was aggrieved of. B

Hafiz Tariq Nasim for Appellant.

Ishfaq Qayyum Cheema, Nasar Ullah Khan Niazi, D.R. and M.Shafique, Assistant for Respondent.

Date of hearing: 1st April, 2016.

2016 P L C (C.S.) 34

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ

MUHAMMAD GUL

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Technical and Higher Education, Quetta and 2 others

C.P.No.192 of 2014, decided on 24th March, 2015.

(a) Civil service---

----Terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Relief prayed for by the petitioner was with regard to terms and conditions of his service---Petitioner did not have requisite qualification---Said relief could not be granted under constitutional jurisdiction of High Court in view of the bar contained in Art.212 of the Constitution---Constitutional petition was dismissed in circumstances.

(b) Civil service---

----When suitable candidates were not available within the organization/department then Government/Employer after amending the rules could advertise the post---Government/Employer was empowered to stipulate the qualification for any vacant post keeping in view the urgency and exigency of the matter with suitable reason for choosing the best among the contestants through fresh recruitment.

Manzoor Ahmed Rehmani for Petitioner.

Tariq Ali Tahir, Additional Advocate-General, Aslam Pervaiz, Assistant Director Education Department and Irfan-ud-Din, Senior Staff Trainer Directorate of Labour and Manpower Department for Respondents Nos.1 and 2.

Abdul Zahir Kakar for Respondent No.3.

Date of hearing: 11th December, 2014.

2016 P L C (C.S.) 177

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar, Actg. C.J., and Muhammad Kamran Khan Mulakhail, J

ABDUL BARI KHADIM

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others

C.P. No.411 of 2014, decided on 15th August, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Petitioner sought direction for disposal of departmental appeal---Validity---Without discussing merits of the case and recording findings on maintainability of constitutional petition, High Court observed that such issue should be left for decision of Service Tribunal which was the relevant forum---High Court directed the competent authority to decide appeal of employee pending before it within a specified period---Constitutional petition was disposed of accordingly.

Haji Kadir Bux v. Province of Sindh 1982 SCMR 582 rel.

Muhammad Aslam Chishti for Petitioner.

Zahoor Ahmed Asstt. A.-G. Balochistan and Abdul Hakim Assistant Director Education for Respondents.

Date of hearing: 12th August, 2015.

2016 P L C (C.S.) 195

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

Dr. ASADULLAH KHAN TAREEN

Versus

GOVERNMENT OF BALOCHISTAN HEALTH DEPARTMENT and another

Constitutional Petition No.1023 of 2014, decided on 16th March, 2015.

(a) Constitution of Pakistan---

----Part VII, Chap. 3 (Arts.192 to 203_risdiction---Scope---High Court is the apex Court of a province but is creature of Constitution---High Court is vested with that jurisdiction which has been conferred on it by Constitution or under any law for the time being in force.

Shaheen Akhtar v. Government of Punjab 1998 PLC (C.S.) 70 rel.

(b) Jurisdiction---

----Determination---Mandatory for Court to decide at first instance question of its jurisdiction---Without deciding question of jurisdiction, proceedings on merits may ultimately prove a futile exercise.

Registrar High Court of Balochistan, Quetta v. Mazar Khan 2014 PLC (C.S.) 1275 rel.

(c) Balochistan Service Tribunals Act (V of 1974)---

----Ss. 4 & 5(2)---Constitution of Pakistan, Arts.199 & 212(1)---Constitutional petition---Maintainability---Judgment of Service Tribunal---Implementation---Petitioner, civil servant wanted to implement judgment passed by Service Tribunal---Validity---Service Tribunal was a civil court for the purpose of deciding any appeal regarding terms and conditions of a civil servant---Service Tribunal had all powers of civil court including those required to implement its orders as provided under the provisions of Civil Procedure Code, 1908---In case of disobedience of orders of Service Tribunal, the same could be enforced under applicable provisions of Civil Procedure Code, 1908---Underlying object of incorporation of Art.212 in the Constitution and establishment of Service Tribunal by legislation was to provide efficacious, expeditious and inexpensive remedy to civil servants for redressal of their grievances arising out of violation of terms and conditions of their service---Establishment of Service Tribunal aimed at prevention of intrusions into or inroad on terms and conditions of civil servants by departmental authorities---Unlike Constitutional jurisdiction of High Court under Art.199 of the Constitution confined to question of law without venturing upon resolution of factual controversies, it was within the jurisdiction of Service Tribunal and it was its obligation to decide all questions of law and fact sought to be raised by petitioner---High Court declined to issue direction for implementation of judgment/orders passed by Service Tribunal purportedly in favour of petitioner---Petition was dismissed in circumstances.

Niaz Muhammad Khoso v. Government of Balochistan 2012 PLC (C.S) 106; Black's Law Dictionary (Eighth Edition p.881); Ghulam Murtaza v. The State PLD 2009 Lah. 362; Dossani Travel Shop (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Secretary, Ministry of Education, Government of Pakistan, Islamabad v. Muhammad Azam Ch. 2009 SCMR 194 + 2009 PLC (C.S.) 539; 2010 SCMR 1301=2011 PLC (C.S.) 1130 and PLD 2010 Federal Statute 684 ref.

Ahmad Nawaz Khan v. Senior Accounts Officer (Admn.), Pakistan Railways, Lahore 1989 PLC (C.S.) 398; Asma Hafeez v. City Police Officer, Gujranwala 2012 PLC (C.S.) 1025; Ch. Sadiq Ali (Retd.) Assistant Engineer/S.D.O., P.W.D. v. The Chief Secretary, Azad Jammu and Kashmir Government PLD 1996 SC (AJ&K) 29; Zahooruddin Sheikh v. Pakistan Atomic Energy Commission through Chairman, Islamabad 2007 PLC (C.S.) 959; Sh. Riaz-ul-Haq v. Federation of Pakistan through Ministry of Law PLD 2013 SC 501; Imran Raza Zaidi v. Government of Punjab 1996 SCMR 645; Tariq Transport Company v. The Sargodha-Bhera Bus Service PLD 1958 SC 437; Muhammad Hashim Khan v. Province of Balochistan PLD 1976 Quetta 59; Iftikhar Ahmad v. Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445 and Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27 rel.

(d) Balochistan Service Tribunals Act (V of 1974)---

----S. 4---Appeal to Service Tribunal---Limitation---Scope---Strict application of law of limitation in service matters has logic behind it that public interest requires that there should be an end to litigation---Law of limitation provides element of certainty in conduct of human affairs and statutes of limitation and prescription are statutes of peace and repose---Law of limitation does not support sluggish person, who sleeps over his rights and that law would lull a person who slept over his right and Courts must not exercise their inherent power in favour of such a person--- Limitation creates right in favour of other party that cannot be taken away by condonation of delay.

Cap. (R) Mukhtiar Ahmed Shaikh v. Federation of Pakistan through Secretary Ministry of Law, Islamabad PLD 2014 FSC 23 rel.

(e) Constitution of Pakistan---

----S. 212---Civil service---Matter relating to terms and conditions of service and disciplinary matters---Jurisdiction of Courts---Scope---Any matter pertaining to terms and conditions of service of civil servant or disciplinary matter cannot be entertained by any Court including High Court.

(f) Balochistan Service Tribunals Act (V of 1974)---

----Ss. 4 & 5---Judgment of Service Tribunal---Implementation-- Principle-- Government is not under obligation to straightaway implement judgment of Service Tribunal but it must act promptly and invoke appellate jurisdiction of Supreme Court, if so advised---If operation of judgment of Service Tribunal is not suspended by Supreme Court, mere grant of leave to appeal cannot defeat implementation process of judgment/order passed by Service Tribunal.

Chairman/Managing Director P.I.A.C. v. Nisar Ahmed Bhutto 2005 SCMR 57; Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation, Karachi 2002 PLC (C.S.) 1083 Masood Ahmed Changwani v. Secretary, Establishment Division, Islamabad 1999 PLC (C.S.) 443; Azkar Ahmed v. Secretary, Ministry of Information and Technology (IT and Telecom Division), Islamabad 2012 PLC (C.S.) 1101 and Muhammad Ayub Rizvi v. Education Secretary 1982 PLC (C.S.) 242 rel.

(g) Interpretation of Constitution---

----Trichotomy of power, principle of---Applicability---Principle of trichotomy of power is one of the foundational values of Constitution where-under all three organs of State, namely the legislature, the executive and the judiciary are required to perform their functions and exercise their power within their allotted sphere---Such organs are exclusive in themselves with regard to respective domain or jurisdiction and cannot make inroad or transgress spheres of each other.

(h) Constitution of Pakistan---

----Part VII (Arts.175 to 212-B)---Judiciary---Duties and functions---Constitution makes it the exclusive power / responsibility of judiciary to ensure sustenance of system of 'separation of power' based on checks and balances---Such is a legal obligation assigned to Judiciary and it is called upon to enforce Constitution and safeguard Fundamental Rights and freedom of individuals.

(i) Constitution of Pakistan---

----Arts. 4 & 5(2)---Rights of individuals and obedience of Constitution---Scope---Executive authorities, by virtue of Arts.4 & 5(2) of the Constitution, are bound to obey the command of Constitution and to act in accordance with law and decide issues after application of mind with reasons as per settled law.

Federation of Pakistan through Secretary, Establishment Division v. Tariq Pirzada 1999 SCMR 2744 and Ch. Zahur Ilahi v. Zulfikar Ali Bhutto PLD 1975 SC 383 rel.

Tahir Ali Baloch for Petitioner.

Shai Haq Baloch, Astt. A.-G. for Respondents.

Mazhar Ilyas Nagi, Amicus Curiae.

Date of hearing: 26th February, 2015.

2016 P L C (C.S.) 1184

[Balochistan High Court]

Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ

ABDUL KHALIQ MANDOKHEL and 2 others

Versus

CHAIRMAN, BALOCHISTAN PUBLIC SERVICE COMMISSION and another

C.P. No.655 of 2015, decided on 23rd May, 2016.

(a) Balochistan Service Tribunal Act (V of 1974)---

----S. 4--- Constitution of Pakistan, Arts.199 & 212---Balochistan Public Service Commission Manual of Recruitment for Selection to Civil Posts, Clauses 5.2, 5.3 & 14.20---Constitutional petition---Maintainability--- Public Service Commission--- Departmental examination---Cancellation of paper---Effect---Principle of natural justice---Applicability---Scope---Final order---Departmental authority---Petitioners appeared in the departmental examination of Assistant Commissioners/Tehsildars but Public Service Commission cancelled one of the examination paper and was rescheduled---Validity---Any civil servant aggrieved by any final order whether original or appellate made by departmental authority with regard to any of the terms and conditions of service might prefer an appeal before the Service Tribunal having jurisdiction in the matter---Selection/recommendation made by the Public Service Commission could not be brought under challenge before the Service Tribunal by filing an appeal---Acts of Public Service Commission did not fall within the category of final order of a departmental authority---Public Service Commission was not departmental authority nor it had passed any order(s) against the petitioners with regard to terms and conditions of their service---Petitioners having no alternate remedy for redressal of their grievance had rightly invoked the constitutional jurisdiction of High Court---Nothing was on record that petitioners or other candidates had used unfair means or were found cheating the answers from the books or other sources---Mere correctness of the answers by the candidates could not be made a basis to hold that the same was result of cheating/ copying from the relevant books--Conjectures, suspicion and presumption could not take the place of proof---Inquiry Committee, in absence of any proof, could not give observations that the answers to the questions of examination paper were copied from the relevant books---No one could be penalized on the basis of mere presumptive findings---Public Service Commission could not cancel result on the basis of presumptive observations of Inquiry Committee---Candidates were neither summoned nor afforded any opportunity of hearing by the Inquiry Committee or Public Service Commission---Petitioners and other candidates had been condemned unheard in circumstances---No notice was served to the petitioners nor they were provided details of the allegations and opportunity of hearing was not given to the petitioners for their defence---Where procedure had been provided for doing a thing in a particular manner then same should be done in that manner and not in other way or it should not be done at all---Rules of Public Service Commission did not provide for re-evaluation of answer sheets of a competitive examination---Chairman Public Service Commission could not appoint any Inquiry Committee for re-evaluating the answer sheets or cancel the result on the basis of presumptive findings---Observations/recommendations made by the Inquiry Committee and minutes of Public Service Commission to reschedule the examination paper were declared null, void and of no legal effect---Public Service Commission was directed to announce the result of examination paper forthwith---Constitutional petition was accepted in circumstances.

Ahmad Salman Waris v. Nadeem Akhtar PLD 1997 SC 382; Samar Pervaiz v. Board of Intermediate and Secondary Education PLD 1971 SC 838; University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Abdul Bashir v. Government of Balochistan 2001 PLC (C. S) 771; Dost Muhammad v. Government of Balochistan PLD 1980 Quetta 1 and Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61 rel.

(b) Balochistan Service Tribunal Act (V of 1974)---

----S. 4--Appeal before Service Tribunal---Scope---Appeal before Service Tribunal by civil servant with regard to any dispute relating to terms and conditions could be preferred---Service Tribunal had exclusive jurisdiction over the matter falling within the ambit of terms and conditions of service except matters of "determination of fitness for promotion of a civil servant to a higher post".

(c) Constitution of Pakistan---

----Art. 4---Every individual had right to be dealt with in accordance with law.

(d) Public functionaries---

----Public functionaries were required to function within precincts of their powers.

(e) Administration of justice---

----Where procedure had been provided for doing a thing in a particular manner then same should be done in that manner and not in any other way or it should not be done at all.

Abdul Bashir v. Government of Balochistan 2001 PLC (C.S.) 771; Dost Muhammad v. Government of Balochistan PLD 1980 Quetta 1 and Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61 rel.

Mazhar Ilyas Nagi and Baz Muhammad Kakar for Petitioners.

Naseer Ahmed Bangulzai, Addl. A.G. along with Dilawar Khan Kasi, Law Officer, BPSC for Respondents.

2016 P L C (C.S.) 1267

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

MUJEEBULLAH GHARSHEEN and another

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others

C.P. No.512 of 2012, decided on 9th November, 2015.

(a) Balochistan Civil Servants Act (IX of 1974)---

----Ss. 15 & 16---Balochistan Government Servants (Conduct) Rules, 1979, Rr.30, 27-B, 31, 2(r) & 3---Civil service---Strike by civil servants---Misconduct---Public functionaries---Fundamental rights---Scope---Formation of association had not been prohibited however restriction had been imposed by law in the interest of public order---Every right would correspond to a duty and if there was no duty then there was no right---Government/civil servants and employees of statutory bodies owed some duties to the State as well as public-at-large---Holding demonstration or observance of strike and/or sit-in (dharna) would attract provisions of relevant law and any civil servant or employee of statutory body except those who fell within the definition of workmen indulged in such activity should be held guilty of "misconduct" and should be proceeded against departmentally---Fundamental rights in essence were restrained on the arbitrary exercise of power by the State in relation to any activity that an individual could engage---Freedom of association was not absolute or unfettered and it would be subject to reasonable restrictions imposed by law and morality and decency---Word "subject to reasonable restrictions" did not admit and permit total denial of right---Association of employees observed strike not recognized by any law rather such strikes had been prohibited under the law---Authorities concerned had been remiss in discharging its obligations under the Constitution or the law---Competent authorities were under constitutional and moral duty to take action against those indulged in illegal strikes---Executive was bound to enforce fundamental rights of individuals and they could not be allowed to defeat any provision of Constitution---Strikes in educational institutions and health-care centers and holding demonstrations on public thoroughfare by sit-in (dharna) was infringement of fundamental rights of every citizen---Civil servants and employees of statutory bodies were at liberty to form association or to be a member of such association but strictly in accordance with law---Chief Secretary of the Province was directed to give serious consideration to the expediency of incorporating necessary amendments in the Balochistan Government Servants (Conduct) Rules, 1979---High Court observed that if government/civil servants and/or employees of statutory bodies in future were found indulged in observance of strike or holding demonstrations/sit-in (dharna) at or by public thoroughfares then they should not only be guilty of "misconduct" but also contempt of court---Secretary of concerned department/head of statutory body should initiate departmental disciplinary action against the delinquents involved in such activities---If Secretary of the department concerned/head of statutory body failed to initiate action then Chief Secretary should initiate disciplinary proceedings against him as well as delinquent government/civil servants/employees---If Chief Secretary also failed to initiate departmental disciplinary proceedings then contempt proceedings would be initiated---Constitutional petition was disposed of in circumstances.

Muhammad Afzal v. Mushtarka Mulazmin Action Committee 1999 PLC (C.S.) 1116; Jamat-i-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; AIR 1950 SC 211; AIR 1964 SC 416; AIR 1960 SC 633; Mehtab Jan v. Municipal Committee Rawalpindi PLD 1958 (W.P.) Lah. 929; People's Union for Democratic Rights v. Union of India 1984 PSC 314; Ghulam Murtaza v. Inayatullah 1998 PLC (C.S.) 274; Khuda Bux Chandio v. Sattar 1999 MLD 3199; Watan Party v. Federation of Pakistan, PLD 2011 SC 997; Brookes Pharmaceutical Laboratories (Pakistan) Ltd., Karachi v. Karachi Buildings Control Authority 2012 CLC 131; Khwaja Ahmad Hassan v. Government of Punjab PLD 2004 SC 694; Pakistan Medical and Dental Council v. Ziauddin Medical University PLD 2007 SC 323 and Zahid Ahmed v. Province of Sindh 2012 PLC (C.S.) 124 rel.

(b) Contempt of court---

----Proceedings---Scope---Power to initiate proceedings of contempt should be used sparingly and court should exercise judicial restraint as long as possible---Such power should always be exercised cautiously, wisely and with circumspection.

Syed Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Naveed Nawazish Malik v. Ghulam Rasool Bhatti 1997 SCMR 193 and Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and Justice PLD 2012 SC 923 rel.

(c) Constitution of Pakistan--

----Arts. 4 & 5---Protection of law---Scope---Every citizen had inalienable right to be treated in accordance with law.

(d) Constitution of Pakistan---

----Art. 3---Elimination of exploitation---State was under obligation to establish a society which was free from exploitation---Right to education and medical-care was valuable right and infringement of said right was the worst form of exploitation of ordinary citizens.

Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

(e) Constitution of Pakistan---

----Art. 17---Public order'---Meaning.

AIR 1950 SC 129; AIR 1960 SC 633 and AIR 1972 SC 1656 rel.

(f) Words and phrases---

----`Strike'---Meaning.

(g) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---When fundamental rights had been violated, High Court must step in to investigate such facts and pass such order as might be just, legal and equitable---High Court was to protect fundamental rights guaranteed by the Constitution which would be regarded as inviolable under all conditions and could not be abridged.

(h) Constitution of Pakistan---

----Art. 4---'Law'---Meaning.

2011 SCMR 1; 2009 PLC (C.S.) 966; 2010 SCMR 1301 and 2011 PLC (C.S.) 1130 rel.

(i) Public functionaries---

----Duty---Public functionaries were obliged to act within four corners of mandate of / Constitution and law.

(j) Constitution of Pakistan---

----Art. 9---'Life'---Meaning.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan 2012 SCMR 6 and AIR 1950 SC 27 rel.

(k) Constitution of Pakistan---

----Art. 25-A---Right to education---Scope---Every man and woman had right to acquire ability to read, write and attain knowledge without discrimination.

Fiaqat Hussain v. Federation of Pakistan PLD 2012 SC 224 rel.

(l) Interpretation of statute---

----Preamble---Scope and object---Preamble was the key to understand the statute and preamble was a clause at the beginning of the statute explanatory of, the reasons for its enactment and the object sought to be accomplished.

Baz Muhammad Kakar for Petitioners.

H. Shakil Ahmed and Mazhar Ilyas Nagi, Amici Curiae.

Kamran Murtaza along with Dad Muhammad, President, All Pakistan Clerks Association.

Shai Haq Baloch, Assistant Advocate General, Rizwan Mehmood, Secretary, Services and General Administration Department, Abdul Rehman Buzdar, Secretary, Agricultural Department, Noor Hussain Baloch, Deputy Director (Judicial) S&GAD, Haroon Rasheed, Deputy Secretary (Judicial) Education Department, Muhammad Aslam Pervaiz, Assistant Director (Judicial), Education Department for Respondents.

2016 P L C (C.S.) 1314

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ

AURANGZAIB

Versus

DIVISION SUPERINTENDENT PAKISTAN RAILWAYS and 3 others

Constitutional Petition No.99 of 2013, decided on 24th July, 2014.

Civil service---

----Employees of Pakistan Railways--- Promotion--- Terms and conditions of service---Bar contained under Art.212 of the Constitution--- Scope--- Employees of Pakistan Railways sought promotion on the basis of reserved quota---Validity---Pakistan Railways was the department of Federal Government and its employees were covered by "persons in the service of Pakistan"---Employees were seeking promotion to the next higher grade---Remedies of appeal, review or representation before the departmental authorities had not been availed by the employees---Employees had directly approached the High Court for their promotion which relief could not be granted in view of bar contained in Art.212 of the Constitution---Matter, in the present case, did not relate to fitness of the employees but promotion to the next higher grade had been sought on the basis of reserved quota---Prayer made by the employees was with regard to "terms and conditions" of their service which could not be granted under the constitutional jurisdiction of High Court---Employees-petitioners would be at liberty to avail the remedy available to them under the law---Constitutional petition was dismissed in circumstances.

Zubaida Khatoon v. Tehmina Sajid Sheikh 2011 SCMR 265 distinguished.

Chairman of Pakistan Railways Board Lahore v. Muhammad Ali 1987 SCMR 638; Government of Pakistan v. Syed Akhlaque Hussain PLD 1965 SC 527 and Mufti Mushtaq Ahmed v. Federation of Pakistan PLD 1981 SC 172 rel.

Chaudhary Anwar-ul-Haq for Petitioners.

Sadiq Guman for Respondents Nos.1 and 2.

2016 P L C (C.S.) 1042

[Service Tribunal (AJ&K)]

Before Tariq Iqbal Lone, Chairman and Muhammad Qadeer, Members

Sardar MUHAMMAD RASHID KHAN

Versus

AZAD JAMMU AND KASHMIR COUNCIL through Secretary, AJ&K Council Secretariat, Islamabad and 4 others

Appeal No.7 of 2013, decided on 12th May, 2016.

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

----Ss. 4 & 5---Appeal to Service Tribunal---Scope---Seeking direction for promotion---Scope---Appellant moved an application to the department for promotion but no response was given---Appellant had sought direction from Service Tribunal to the department for his promotion---Validity---Existence of order of departmental Authority was must for filing appeal before Service Tribunal---Appellant had not challenged any order rather had sought a direction to the department which was not the jurisdiction of Service Tribunal---Service Tribunal might confirm, set aside, vary or modify the order appealed against---Issuance of direction was not the job of Service Tribunal---If there was any departure from law or the appellant wanted the department to do what the law required, he might approach the competent forum having such jurisdiction of issuing direction---Promotion was not a vested right and appellant could not claim promotion as a right---Appellant had not mentioned details of his claim---Claim of appellant was ambiguous and vague---No effective remedy could be granted in favour of appellant---Appeal was not maintainable which was dismissed in circumstances.

2010 SCR 156; 2005 SCR 259; 1990 SCMR 1321 and Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi 2003 PLC (C.S.) 212 ref.

(b) Civil service---

----Promotion---Promotion was not a vested right.

Mirza Zaid Ullah Fahim for Appellant.

Bostan Chaudhary for Respondents.

2016 P L C (C.S.) 821

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman Safdar Hussain, Member-I and Farzand Ali Mengal, Member-II

AHMED KHAN

Versus

GOVERNMENT OF BALOCHISTAN through Secretary S&GAD, Civil Secretariat, Quetta and another

S.A. No.618 of 2014, decided on 2nd November, 2015.

(a) Balochistan Civil Servants Act (IX of 1974)---

----S. 9---Balochistan Service Tribunals Act (V of 1974), S.4---Balochistan Agriculture College Quetta (B-16 and above) Service Rules, 1993---Seniority---Appellant and his co-employee were serving as Assistant Professors (B-18)---First Seniority List of Teaching Staff (B-18), showed co-employee at Serial No.1, whereas appellant was at serial No.2---Secretary Agriculture Department, submitted panel of appellant and his co-employee before Provincial Selection Board-1 for their promotion to the rank of Associate Professor (B-19) against two available vacancies; but there being only one post for promotion quota available, Board after due consideration, recommended co-employee (Seniority No.1) for promotion as Associate Professor (BPS-19)---Board observing deficiency in the existing Balochistan Agriculture College, Quetta (B-16 and above) Service Rules, 1993, advised, Secretary Agriculture Department to revisit said Rules and make amendments in a manner that prescribed length of service as well as provision for publication of research papers, could be added in the appendix of Balochistan Agriculture College, Quetta (B-16 and above) Service Rules, 1993---Appellant had raised objection on said observation of the Board---Validity---Government was competent to change criteria for promotion; it was prerogative of the Government to enact and amend the Rules according to the needs and exigencies of service; and it was the right of Department to improve and update its service structure to keep pace with the modern times which could not be restrained or restricted on the ground that at the time of appointment of one or few civil servants such qualification was not a requirement for promotion---Appeal filed by appellant was dismissed in circumstances.

Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110; Dr.Omer Farooq Zain v. Bahauddin Zakariya University, Multan 2008 PLC (C.S.) 1012; 2006 SCMR 1427 and Dr.Allyas Qadeer v. Secretary Ministry of Education, Islamabad and others 2014 SCMR 997 ref.

(b) Balochistan Civil Servants Act (IX of 1974)---

----S. 9---Promotion---Scope---Promotion was not a vested right of an employee; and seniority alone, was not sufficient for that purpose.

Syed Noor Hassan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others 1987 SCMR 598 ref.

Manzoor Ahmed Rehmani for Appellant.

Naseer Ahmed Bangulzai, Addl. A.G. for Respondents.

Date of hearing: 28th October, 2015.

2016 P L C (C.S.) 917

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman, Safdar Hussain, Member-I and Farzand Ali Mengal, Member-II

MUHAMMAD ALI UMRANI

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others

S.A. No.385 of 2015, decided on 21st December, 2015.

Civil service---

----Ad hoc appointment---Discretion, exercise of---Scope---Acting charge of the post was given to the junior most officer by the department---Contention of appellant was that respondent-employee had been posted in violation of rules and regulations---Validity---Acting charge had been given to the respondent-employee who was most junior officer---Respondent-employee had been posted against rules and regulations---Senior officers were available in the department Service Tribunal observed that ad hoc appointment policy should be discouraged and employees should be posted on permanent basis---Acting/additional charge must be given to the persons who were senior most---Authority had no discretion to make posting against seniority list---Discretion should be exercised judiciously based on merit---Discretion had not been exercised in accordance with law in the present case---Impugned notification had been issued in violation of rules and regulations---Department was directed by the Service Tribunal to post a senior officer against the post in question within a specified period---Government would be competent to post senior most officer as stopgap arrangement if suitable senior officer was not available for posting till availability of suitable officer---Respondent-employee was directed to cease to hold the position after expiry of stipulated period i.e. one month from the date of passing of present judgment---Appeal was disposed of in circumstances.

1999 PLC (C.S.) 264 and PLD 2013 SC 1951 rel.

Malik Sikandar Khan for Appellant.

Zahoor Ahmed Baloch, Asst. A.G. for Respondents Nos.1 and 2.

Muhammad Rauf Atta and Saleem Lashari for Respondent No.3.

Date of hearing: 18th December, 2015.

2016 P L C (C.S.) 925

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman and Farzand Ali Mengal, Member-II

Syed GHULAM MUHAMMAD

Versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and 2 others

S.A. No.337 of 2015, decided on 22nd October, 2015.

Balochistan Civil Servants Act (IX of 1974)---

----S. 10---Balochistan Service Tribunals Act (V of 1974), S.4---Notification No.(SOA)1-1/2015/FST: 4784-90 dated 30-9-2015---Transfer---Appeal, maintainability of---Appellant being aggrieved of impugned notification, whereby he was transferred from the post of "Acting Chief Conservator of Forests" to 'Director Soil Conservator---Appellant contended that impugned notification had been made in violation of Rules and Regulations; and that said notification was based on mala fide and ulterior motives of the official respondents, which was liable to be set aside---Prior to filing of appeal, appellant had preferred department appeal; and within eight days of filing the departmental appeal, appellant had filed appeal before the Service Tribunal, which was derogation of Proviso (a) of S.4 of the Balochistan Service Tribunals Act, 1974, under which elapse of 90 days from the date of preferring said departmental appeal, was mandatory---Period of 90 days had not elapsed in the present case; and departmental appeal was pending---Present appeal being pre-mature, was not maintainable---Appeal was not maintainable for mis-joinder and non-joinder of necessary parties, because, Chief Conservator of Forest, who had been posted in place of the appellant, had not been made as a respondent, whereas another respondent, who was not necessary party, had been made respondent in the appeal---Appeal being not maintainable on both points, was dismissed, in circumstances. A, B & C

2004 PLC (C.S.) 843; 2012 PLC (C.S.) 507; 2000 PLC (C.S.) 312; 1982 CLC 1614; 1986 SCMR 680; 1987 MLD 15; 1996 CLC 1009 and 1997 MLD 1453 ref.

Faisal Mengal for Appellant.

Hamayoon Tareen, Addl. A.G. for Respondents.

Date of hearing: 19th October, 2015.

2016 P L C (C.S.) 944

[Balochistan Service Tribunal]

Before Zaheer-ud-Din Kakar, Chairman

MUHAMMAD ANWAR TAREEN and others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others

S.As.Nos.23 to 26 and 161 of 2015, decided on 2nd October, 2015.

Balochistan Employees' Efficiency and Discipline Act (VI of 2011)---

----Ss. 4(b)(vii), 5(1)(i to iv), b, Proviso, 13(5) & 14---Balochistan Service Tribunals Act (V of 1974), S.4---Notification No. S.O. (P-1)3(7)/2013-S and GAD/1382-1511, dated 15-5-2013---Constitution of Pakistan, Art.10-A---Removal from service---Employees, were appointed against vacant posts of Assistant Superintendent Jail on recommendation of Departmental Selection Committee---Secretary, Home and Tribal Affairs Department by simply issuing show-cause notice, without holding any inquiry, imposed major penalty of removal from service on them on allegation of gross misconduct, allegedly producing false graduation certificate at the time of interview---Proper inquiry was required to be conducted in accordance with law, in case of awarding major penalty, where full opportunity of defence was to be provided to the relinquent Officer---Disciplinary proceedings were initiated against the employees by Secretary, Home and Tribal Affairs Department, who was not competent authority, because Chief Secretary, was re-delegated powers of the competent authority for class of employees in BPS-16 to BPS-19 vide notification dated 15-5-2013---Impugned orders, were also violative of Art.10-A of the Constitution, as employees were removed from service without holding any proper inquiry; and recording evidence in support of allegations, or in rebuttal thereof; and then their statutory departmental appeals were not regularly heard---Such course, was manifestly denial of right of fair trial to the employees in complete negation of said fundamental right guaranteed by the Constitution---Employees were removed from service vide impugned orders without adhering the provisions of Balochistan Employees' Efficiency and Discipline Act, 2011---Employees were condemned unheard, and were made to suffer for illegality committed by the Departmental Selection Committee itself---Appeals, were partly accepted, and the matter was remanded to the Authority for holding de novo inquiry against the employees strictly in accordance with the provisions of Balochistan Employees' Efficiency and Discipline Act, 2011; and to decide the matter preferably within a period of four months---Impugned orders were set aside, and the employees were reinstated in service from the date of their removal from service, without back benefits to face the de novo inquiry.

A, B, C, D, E, F, G & H

Mazher Illyas Nagi for Appellants (in S.As. Nos.23 to 26 of 2015) and Muhammad Rauf Atta for Appellants (in S.A. No.161 of 2015).

Muhammad Saleem Baloch, Addl. A.G. for Respondents.

Date of hearing: 30th September, 2015.

2016 P L C (C.S.) 236

[Sindh Service Tribunal]

Before Justice (R) Mujeebullah Siddiqui, Chairman, Ameer Faisal, Member-I and Farooq Azam Memon, Member-II

FAQIR MUHAMMAD LEGHARI

Versus

CHIEF SECRETARY SINDH and others

Appeal No.147 of 2014, decided on 18th August, 2014.

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

----Ss. 4 & 23---Sindh Civil Servants (Appeal) Rules, 1980, R.3---Limitation Act (IX of 1908), S.5---Jurisdiction of Service Tribunal---Right of appeal, enforcement of---Scope---Non-existence of final order, original or appellate---Effect---Limitation---Existence of an order for the purpose of preferring an appeal was sine qua non---At least one final order was necessary for filing of appeal---No particular form of the order was required under these proceedings---Order might be expressed or implied from which it could be inferred that the competent authority had declined the request of the civil servant---Appellant might file appeal before the appellate authority under the appeal rules and if the appeal was dismissed and order of the dismissal was communicated to the appellant or it remained undecided within the period of 90 days from the date of preferring the departmental appeal, the appellant might approach Service Tribunal for redressal---Appeal was disposed of being not maintainable.

(b) Administration of justice---

----Law and courts come to the aid of a person who is vigilant and not to the aid of person who is negligent or indolent.

Ghulam Sarwar Chandio for Appellant.

Nemo for Respondents.

Date of hearing: 18th August, 2014.

2016 P L C (C.S.) 71

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

MUHAMMAD RIAZ

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Information Technology, Government of Pakistan, Islamabad and others

Civil Petition No. 797 of 2015, decided on 1st July, 2015.

(On appeal against the judgment dated 11-3-2015 passed by the Islamabad High Court, Islamabad, in W.P. No.1727 of 2012)

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---Terms and conditions of service---Pension---Employees of Pakistan Telegraph and Telephone Department (T&T Department) who 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 revised/increased by the Federal Government---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 announced by the Federal Government, from time to time, 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---Appeal was allowed accordingly.

Taufiq Asif, Advocate Supreme Court for Petitioner.

Syed Nayab Hassan Gardezi, Standing Counsel for Respondent No.1.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 1st July, 2015.

2016 P L C (C.S.) 406

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Maqbool Baqar, JJ

AMEER SOLANGI and others

Versus

WAPDA and others

Civil Appeal No.52-K of 2012, decided on 5th August, 2015.

(Against judgment dated 15-2-2012 of High Court of Sindh, Circuit Court, Hyderabad, passed in Constitution Petition No.D-433 of 2010).

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

----Preamble---Contract employees of Water and Power Development Authority (WAPDA)---No right of regularization in service---Contract employees in question were employed by WAPDA on contract basis for a specific project---Appointment letters of contract employees mentioned that they were employed on contract basis and shall have no right to claim regular absorption in WAPDA---Extension of contract period of said employees during the completion process of the project did not give them any right to claim regularization in WAPDA---High Court had correctly found that Sacked Employees (Reinstatement) Act, 2010 was not applicable to the contract employees in the present case---Appeal was dismissed accordingly.

Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC 101 ref.

Abdul Latif Ansari, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellants.

Anwar Hussain, Advocate Supreme Court for Respondents Nos.1, 4 and 5.

Date of hearing: 5th August, 2015.

2016 P L C (C.S.) 565

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Mushir Alam and Maqbool Baqar, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Versus

AZIZ-UR-REHMAN CHAUDHRY and another

Civil Appeal No. 276-K of 2013, decided on 7th August, 2015.

(Against judgment dated 7-5-2013 of High Court of Sindh at Karachi, passed in C.P. No.D-1073 of 2009)

(a) Constitution of Pakistan---

----Arts. 185(3) & 199---Leave to appeal was granted by Supreme Court to consider whether Constitutional petition filed by respondent in the High Court in view of judgment in case titled Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed reported as 2013 SCMR 1707, was maintainable.

Pakistan Defense Officers' Housing Authority v. Jawaid Ahmed 2013 SCMR 1707 ref.

(b) Pakistan International Airline Corporation Act (XIX of 1956)---

----S. 10---Civil Procedure Code (V of 1908), S. 11---Re-employment---Back benefits---Res-judicata, principle of---Applicability---Respondent accepted terms and conditions of his re-employment, continued to serve Airline Corporation for 13 years, until he retired and also accepted and received retirement benefits---Respondent, 19 years after his re-employment, assailed his terms and conditions before High Court, which petition was allowed---Validity---Claim of respondent for back benefits was hit by doctrine of past and closed transaction, as claim of various affectees including that of respondent had already been rejected by Supreme Court---In earlier proceedings, affectees including the respondent had alleged discrimination and sought back benefits on the ground that certain other affectees were allowed such back benefits---Respondent succeeded in obtaining order in question from High Court, by concealing rejection of his earlier claim by the Supreme Court---Judgment passed by High Court was in conflict with and violative of order passed by Supreme Court and was hit by principle of res judicata---Appeal was allowed.

Pakistan Defense Officers' Housing Authority v. Jawaid Ahmed 2013 SCMR 1707; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and PIA Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545 ref.

Khalid Javed, Advocate Supreme Court for Appellant.

Respondent No.1 in person.

Date of hearing: 15th July, 2015.

2016 P L C (C.S.) 596

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Amir Hani Muslim and Gulzar Ahmed, JJ

Dr. SUMERA TABASSUM

Versus

F.P.S.C. and others

C.P. No. 212-K of 2015, heard on 27th August, 2015.

(Against the impugned judgment passed by the High Court of Sindh at Karachi in C.P. No. D-3090 of 2010 on 22-1-2015)

Civil service---

----Reserve list of candidates for a post---Candidate selected on merit not joining a post---Nomination of an alternate candidate from the reserve list---Petitioner applied for the post of lecturer in Pharmacology---Petitioner was not selected, however, she was placed in the reserve list---Candidate who stood first on the merit list for the subject of Pharmacology did not join the service/post nor did she send any intimation declining the offer---Petitioner who was the alternate nominee of the said candidate, was not recommended for the post by the competent authority, inter alia on the ground that the reserve list was valid for only six months but the Health Ministry intimated petitioner's alternate nomination to the competent authority after expiry of such period---Validity---In terms of clause (d) of Office Memorandum, Establishment Division issued on 5-5-2010, the reserve list in the present case remained valid for a period of 10 months, and the petitioner had addressed letters to the competent authority (Federal Public Service Commission) within such time period to consider her as the alternate candidate for the post in question---Admittedly petitioner was eligible and qualified for the post in question, and the only dispute was with regard to lapse of time for approaching the competent authority by the Health Ministry---Such expiry of time was not attributable to the petitioner, and could not be counted against her to deprive her from the post in question, when she was otherwise found qualified, and till date the post was vacant and had not been re-advertised---Supreme Court directed the competent authority to allow the petitioner to join the post in question---Appeal was allowed accordingly.

Musa Wazir and 2 others v. N.W.F.P. Public Service Commission through Chairman and others 1993 SCMR 1124 distinguished.

Province of Sindh and others v. Ghulam Hassan Bughio 2014 SCMR 643 ref.

Petitioner in person.

M. Aslam Butt, DAG, A.S.K. Ghori, Advocate-on-Record, Haroon Rasheed Assistant Director, FPSC, Dr. Seemin Jamali, Executive Director JPMC and Adnan Karim, Additional A.G. for Respondents.

Date of hearing: 27th August, 2015.

2016 P L C (C.S.) 629

[Supreme Court of Pakistan]

Present: Ijaz Ahmed Chaudhry and Mushir Alam, JJ

SENATE through Chairman

Versus

SHAHIQ AHMED KHAN

Civil Petition No. 2515 of 2015, decided on 17th November, 2015.

(Against judgment dated 11-6-2015 of Federal Service Tribunal, Lahore, passed in Appeal No. 238(L)/CS of 2013)

(a) Civil service---

----Deputationist, absorption of---Pensionary benefits---Unlawful notification---Employee of statutory body [National Construction Limited (NCL)] not having the status of "civil servant" sent on deputation to Senate Secretariat---Notification for permanent absorption of such deputationist in Senate Secretariat issued without approval from competent authority/Chairman Senate---Such notification was unlawful and void ab initio---Further, deputationist was not entitled to pensionary benefits because deputationist's parent department (NCL) was not a pensionable organization, and thus his services in parent department (NCL) could not be counted towards his pension with respect to Senate Secretariat, and because he had also been compensated in terms of advance increments to protect him from any loss arising due to disentitlement from pensionary benefits---Case was remanded to Service Tribunal for decision afresh.

Respondent, who was working as Director, National Construction Limited (NCL) was inducted in the Senate Secretariat in BS-20. Subsequently, a summary was got prepared and also put up, ordaining that "his services in his parent department will count towards his seniority in the Senate from the date of promotion to Director Grade equivalent to BS-20 of Government scales". Said notification was issued despite the fact that summary moved in such regard was not approved by the competent authority/Chairman Senate. Significantly respondent was working as Acting Secretary Senate, and without formal approval of the Chairman Senate/competent authority, the notification for permanent absorption of the respondent in Senate Secretariat in BS-20 and for counting of his service in the parent department was issued. Notification in question was thus issued unlawfully and was void ab initio.

Perusal of U.O. No.F.4(1)R-2/2006-527, dated 03.11.2006, showed that NCL was a company having its own pay scale and service rules and its employees were not civil servants and their pay on appointment to a civil post under the Government was not protectable under the prescribed policy of Government, circulated vide Finance Division's O.M. dated 12.08.2002 and also that NCL was not a pensionable organization having Contributory Provident Fund Scheme for its retiring employees, therefore, the service rendered in NCL by respondent could not be counted towards his pension [in terms of Article 361 of Civil Service Regulations (CSR)].To protect the respondent from loss due to disentitlement of pensionary benefits, the Finance Division recommended that the respondent be compensated through grant of six advance increments. Chairman Senate accordingly approved six premature increments to the respondent. Question then arose that when the respondent had been compensated by means of six premature increments, how pensionary benefits could be awarded to him. Furthermore, the (unlawful) notification for respondent's permanent absorption did not mention anything about his pensionary benefits.

Supreme Court remanded the case to Service Tribunal for decision afresh.

(b) Civil service---

----Void notification---Not enforceable.

(c) Civil service---

----Void order/notification---No limitation was prescribed to competently and successfully challenged such an order/notification.

(d) Locus poenitentiae, principle of---

----Scope and application---Fraud---Principle of locus poenitentiae was meant to condone a bona fide mistake and could not be pressed into service for reaping the benefit of any fraud or to camouflage the same.

Sajid Ilyas Bhatti, DAG and Rana Mazharul Haq, Dy. Secy. for Petitioner.

Aftab Alam Rana, Advocate Supreme Court for Respondent.

Date of hearing: 17th November, 2015.

2016 P L C (C.S.) 682

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Umar Ata Bandial, JJ

PROVINCE OF SINDH and another

Versus

MUHAMMAD ILYAS and others

Civil Petitions Nos.316-K and 317-K of 2015, decided on 30th July, 2015.

(On appeal from the judgment/order dated 26-3-2015 passed by Sindh Service Tribunal Karachi in Service Appeals Nos.328 and 339 of 2015)

(a) Constitution of Pakistan---

----Art. 212(3)---Civil service---Dismissal from service---Grounds---Joining service belatedly---Inefficiency---Proof---Respondents were appointed as Constables (BS-5) in police department, however their appointment letters were never sent to them by registered post, nor were they ever informed about the same by telephone or verbally---Respondents collected their appointment letters from the police department through their own efforts, and immediately joined service---Dismissal of respondents in such circumstances on grounds of belatedly joining service and inefficiency was not justified---Even the letters of dismissal from service were never sent to the respondents through registered post and they were only informed about their dismissal verbally--- Supreme Court directed that respondents be reinstated in service--- Petition for leave to appeal was dismissed accordingly.

(b) Sindh Service Tribunal Act (XV of 1973)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Appeal against dismissal from service filed before the Service Tribunal---Limitation period, commencement of---Letter of dismissal from service not sent to civil servants---Limitation period commencing from date when letter of dismissal received--- Contention of appointing authority that respondents/civil servants were dismissed from service on 9-9-2013, but they filed their appeal before the Service Tribunal in July 2014, which was well beyond the 30 days' period allowed for filing an appeal before the Tribunal---Validity---Dismissal from service letters dated 9-9-2013, were never sent to the respondents/civil servants---Respondents through their own efforts found out about their dismissal and personally collected their dismissal letters around middle of June, 2014---Subsequently respondents filed Constitutional petition before the High Court on 3-7-2014 i.e. within 30 days of collecting/receiving their dismissal letters---Said petition was treated by the High Court as an appeal and sent to the Service Tribunal---Appeal before the Service Tribunal, in such circumstances, would be treated as having been filed within 30 days from the date when respondents received their dismissal orders and as such not beyond the limitation period---Petition for leave to appeal was dismissed accordingly.

Mukesh Kumar, Additional AG Sindh, Mazhar Ali, AIG Legal and Intezar Hussain Qureshi, PDSP Hyderabad for Petitioners.

Respondents in person (in C.P. 316-K of 2015).

Respondents in person (in C.P. 317-K of 2015).

Date of hearing: 30th July, 2015.

2016 P L C (C.S.) 816

[Supreme Court of Pakistan]

Present Anwar Zaheer Jamali, C.J., Amir Hani Muslim and lqbal Hameedur Rahman, JJ

GOVERNMENT OF PAKISTAN M/o RAILWAYS, through Secretary and others

Versus

JAMSHED HUSSAIN CHEEMA and others

Civil Appeal No. 308 of 2014, decided on 7th December, 2015.

(On appeal from the judgment of the Islamabad High Court, Islamabad dated 17-9-2013 passed in I.C.A. 872 of 2013)

Civil service---

----Upgradation of post--- Discrimination--- Policy decision of Government regarding upgradation of posts---Such decision could not be challenged in constitutional jurisdiction of High Court on the purported plea of discrimination---Upgradation of post was not a vested right.

Policy decision had been taken by the competent authority with the approval of Federal Government for upgradation of pay scales of different categories of its employees in a conscious manner, looking to the nature of their jobs etc, therefore, such decision could not be challenged in writ jurisdiction (of the High Court) on the purported plea of discrimination. Moreso, when Article 25 of the Constitution itself provided a provision for such discrimination on the principle of reasonable classification. In the present case, respondents had also been granted upgradation by one step from BS-12 to BS-13 along with many others, who had been also given only one step upgradation in the scales and in many other cases upgradation was allowed by two steps. Thus, such classification/categorization by the competent authority could not be struck down on the plea of discrimination, at the whims of respondents, who had approached the High Court in such regard. Additionally respondents has also failed to show that due to the impugned action of the competent authority any Fundamental rights of the respondents had been violated or they had any vested right for such upgradation as per their choice.

Government of the Punjab through Chief Secretary, Lahore and others v. Abdul Sattar Hans and 29 others 2015 SCMR 915; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676; Secretary Economic Affairs Divisions, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848; Jahangir Sarwar and others v. Lahore High Court and another 2011 SCMR 363; Government of the Punjab through Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan through L.Rs. and others 2010 SCMR 431; Muhammad Farid Khattak and others v. Chief Secretary, Government of N.W.F.P. and others 2009 SCMR 980; Syed Mufeed Shah and another v. Principal, Khyber Medical College, Peshawar and others 2006 SCMR 1076 and Watan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 ref.

Rai Muhammad Nawaz Khan Kharal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Ch. Muhammad Anwar Bhindar, Senior Advocate Supreme Court for Respondents.

Date of hearing: 7th December, 2015.

2016 P L C (C.S.) 861

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Sh. Azmat Saeed and Qazi Faez Isa, JJ

CHAIRMAN FEDERAL BOARD OF REVENUE and others

Versus

IQBAL HUSSAIN SHAIKH and others

Civil Review Petitions Nos.43-K to 45-K of 2012 in Civil Appeals Nos.189-K to 191-K of 2011, Civil Review Petitions Nos.2-K, 3-K of 2013 in Civil Appeal No. 189-K of 2011, Civil Review Petitions Nos.4-K, 5-K of 2013 in Civil Appeals Nos.190-K, 191-K of 2011, Civil Review Petitions Nos.6-K, 7-K of 2014 in Civil Appeal No.189-K of 2011, C.M.A. No. 2238 of 2014 in Civil Review Petition No. Nil of 2014 in Civil Appeal No. 189-K of 2011, C.M.A. No.2242 of 2014 in Civil Review Petition Nil of 2014 in Civil Appeal No.190-K of 2011, C.M.A. No.2246 of 2014 in Civil Review Petition Nil of 2014 in Civil Appeal No.191-K of 2011, decided on 11th November, 2015.

(On review against the judgment dated 6-11-2012, passed by this Court in C.As. Nos.189-K to 191-K of 2011)

Civil Servants (Seniority) Rules, 1993---

----R. 4---Seniority in service---Deputationist---Seniority of persons on deputation was to be reckoned from the date of their regular appointment/permanent absorption in the transferee Group or Department and not from their posting or transfer (date) or any earlier date.

Respondents/civil servants were initially recruited and serving in different service groups. Pursuant to the decision of structural expansion of the Income Tax Group of the Federal Board of Revenue, it was decided to solicit options from the officers serving in various other Departments, for joining the Income Tax Group on deputation. Respondents expressed their willingness to join the Income Tax Group. Their case was considered by the Joint Committee constituted in such behalf and 72 Officers including the respondents were selected subject to, inter alia, the conditions that they would undergo training, pass the Departmental examination and would serve on deputation with the Income Tax Group for initial period of five years and were likely to be absorbed and inducted in the said Group. Consequently respondents were appointed on deputation in the Income Tax Group vide Notification dated 19.3.1994. After the lapse of the initial period of five years a formal decision was eventually taken to seek option from the said Officers serving on deputation in the Income Tax Group for their absorption and induction in the said Group. However, the said decision was not implemented, whereafter such officers including respondents initiated litigation which resulted in the Supreme Court declaring that respondents were inducted the Income Tax Group of Central Board of Revenue (now Federal Board of Revenue) w.e.f. 01.1.2001, however their seniority was to be reckoned from 26.03.1994.

Seniority of respondents was to be determined in terms of Rule 4 of Civil Servants (Seniority) Rules, 1993, which provided that seniority of persons on deputation was to be reckoned from the date of their regular appointment/permanent absorption in the transferee Group or Department and not from their posting or transfer (date) or any earlier date. Seniority of respondents in the present case, therefore, was to be reckoned from the date of their induction and regular appointment in the transferee Department i.e. Income Tax Group, which had been settled by the Supreme Court to be 01.01.2001. It was obviously from such date that seniority of respondents in terms of Rule 4 of the Civil Servants (Seniority) Rules, 1993 must necessarily be reckoned. Review petition was allowed accordingly.

Muhammad Arshad Sultan, Section Officer Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771 and Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185 distinguished.

S.M. Farooq and others v. Muhammad Yar Khan and others 1999 SCMR 1039; Hamid-ul-Hassain and others v. Federation of Pakistan through Secretary, Establishment and others 2006 SCMR 832 and Din Muhammad v. Director General, Pakistan Post Office, Islamabad and 20 others 2003 SCMR 333 ref.

Akhtar Ali Mahmud, Advocate Supreme Court for Petitioners (in C.R.Ps. 43-K to 45-K of 2012).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Respondents (in C.R.Ps.43-K to 45-K of 2012).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P. 2-K of 2013).

Abdul Qadir Khan, Advocate Supreme Court for Respondent No.1 (in C.R.P. 2-K of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Respondent No.2 (in C.R.P. 2-K of 2013).

Nemo for Respondent No.3 (in C.R.P. 2-K of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court along with Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in C.R.P. 3-K of 2013).

Ms. Misbah Gulnar Sharif, Advocate Supreme Court (FBR) for Respondent No.1 (in C.R.P. 3-K of 2013).

Nemo for Respondents Nos.2-3 (in C.R.P. 3-K of 2013).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P.4-K of 2013).

Abdul Qadir Khan, Advocate Supreme Court for Respondent No.1 (in C.R.P. 4-K of 2013).

Ms. Misbah Gulnar Sharif, Advocate Supreme Court for Respondent No.2 (in C.R.P. 4-K of 2013).

Nemo for Respondent No.3 (in C.R.P. 4-K of 2013).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P. 5-K of 2013).

Abdul Qadir Khan, Advocate Supreme Court for Respondent No.1 (in C.R.P. 5-K of 2013).

Hafiz S.A. Rehman, Senior Advocate Supreme Court along with M.A. Sheikh, Advocate-on-Record for Respondent No.2 (in C.R.P. 5-K of 2013).

Nemo for Respondent No.3 (in C.R.P. 5-K of 2013).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P. 6-K of 2014).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.R.P. 6-K of 2014).

Nemo for Respondents Nos.2 and 3 (in C.R.P. 6-K of 2014).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.R.P. 7-K of 2014).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.R.P. 7-K of 2014).

Nemo for Respondents Nos. 2 and 3 (in C.R.P. 7-K of 2014).

Tariq Mehmood, Senior Advocate Supreme Court for Applicants (in C.M.As. 2238, 2242 and 2246 of 2014 in C.R.Ps. Nil of 2014).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.M.As. 2238, 2242 and 2246 of 2014 in C.R.Ps. Nil of 2014).

Date of hearing: 11th November, 2015.

2016 P L C (C.S.) 1197

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J.; Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

Civil Appeal No.1072/2005

CHAIRMAN, PAKISTAN RAILWAY, GOVERNMENT OF PAKISTAN, ISLAMABAD and others

Versus

SHAH JEHAN SHAH

(On appeal against the judgment dated 29-12-2003 passed by the Federal Service Tribunal, Islamabad in Appeal No.6(P)/CS/2003)

Civil Appeal No.686/2012

Mst. ROBINA SHAHEEN

Versus

DIRECTOR EDUCATION (E&SC) KHYBER PAKHTUNKHWA and others

(On appeal against the judgment dated 9-4-2012 passed by the KPK Service Tribunal, Peshawar, in Appeal No.1539/2009).

Civil Appeals Nos. 1072 of 2005 and 686 of 2012, decided on 14th April, 2016.

(a) Interpretation of statutes ---

----When a word had not been defined in the statute, its ordinary dictionary meaning was to be looked at.

(b) Words and phrases

----"Count"---Definition.

Chambers 21st Dictionary and Oxford Advanced Learner's Dictionary of Current English 7th Edn. ref.

(c) Civil Service Regulations (CSR)---

----Art. 371-A---Pensionary benefits---Government servants rendering temporary service in a temporary establishment for more than five years---Entitlement to grant of pensionary benefits within the meaning of Art.371-A of the Civil Service Regulations (CSR)---Scope---Article 371-A of the Civil Service Regulations (CSR) would not ipso facto or simpliciter allow government servants rendering temporary service in a temporary establishment for more than five years to be entitled to grant of pension, rather such period would only be counted towards such government servants' pension if otherwise entitled to pension.[Mir Ahmad Khan v. Secretary to Government and others (1997 SCMR 1477) declared to be per incuriam]

Service rendered for more than five years as contemplated by Article 371-A of the Civil Service Regulations (CSR) would only be added, included, or taken into account for the purposes of pensionary benefits, and not make such government servant qualify for pension per se. Article 371-A of Civil Service Regulations (CSR) by itself did not provide for the entitlement for the purposes of pension, rather, it was restricted to the counting of the period of a minimum of five years which had been rendered by the temporary employee that once he was appointed on a permanent basis, such period (of five years) shall be taken into account for the object of calculating his entitlement to pension with respect to the requisite minimum period under the law.

Mir Ahmad Khan v. Secretary to Government and others 1997 SCMR 1477 declared to be per incuriam

Article 371-A cannot be used as a tool to bypass the conditions for qualifying service of pensionary benefits, and such government servant had to fulfill the minimum number of years for grant of pension. This was due to the use of the word "count" as opposed to "qualify" or "eligible" in Article 371-A of the Civil Service Regulations (CSR).

It was absurd, ludicrous and inconceivable that a government servant, who was in regular employment, would become entitled to pension after serving the minimum years of qualifying service as prescribed by the law, whereas while interpreting Article 371-A of the Civil Service Regulations (CSR), a government servant who had served as a temporary employee could be given preference over a regular employee, and after a minimum service of only five years would automatically become entitled to pension. Holding so would be against the object and spirit of the concept of pension.

PLD 2013 SC 829 ref.

(d) Civil Service Regulations (CSR)---

---Art. 371-A---Pensionary benefits---Government servants rendering temporary service in a temporary establishment---"Temporary establishment"---Meaning---Temporary establishment could be said to mean an organisation or institution which was not permanent, rather effective for a certain period only.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.A. No.1072 of 2005).

Riaz Sherpao, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Appellant (in C.A.No.686 of 2012).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondent (in C.A. No.1072 of 2005).

Ijaz Anwar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.5 (in C.A.No.686 of 2012).

Waqar Ahmed Khan, Addl. A.G. (on behalf of Khyber Pakhtunkhwa).

2016 P L C (C.S.) 221

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD ILYAS ABBASI

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 4 others

Civil Appeal No.142 of 2015, decided on 5th August, 2015.

(On appeal from the judgment of the Service Tribunal dated 16.04.2015 in Service Appeals Nos.1167 of 2014 and 25 of 2015).

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

----S. 9---Azad Jammu and Kashmir Rules of Business, 1985, R.22---Azad Jammu and Kashmir Ehtesab Act, 2001, S.21---Transfer of an employee not against any post---Posting as an Officer on Special Duty---Scope---Employee being Secretary to Government was transferred and attached with the Services and General Administration Department---Contention of employee was that civil servant could only be transferred against a post---Appeal filed by the employee was dismissed by the Service Tribunal---Validity---Civil servant could be transferred anywhere inside or outside Azad Jammu and Kashmir against a post and could not be left without a post---Postings and transfers would exclusively fall under the discretion and domain of competent authority---Such discretion should not be exercised in an arbitrary or fanciful manner but in a judiciously and in accordance with the settled norms of justice, equity and fair play---Transfer order which was politically motivated, in colorable exercise of authority, passed without wisdom and good sense was not a judicious order---Such an order would be arbitrary and fanciful which was not sustainable---Competent authority for transfer of Secretaries to the Government was the Services and General Administration Department with the approval of Prime Minister while for Additional Secretaries and Deputy Secretaries was also the same but with the consultation of concerned department---Tenure for the posts of Additional Secretaries, Deputy Secretaries, Section Officers and Heads of attached departments was three years---Post of Secretary to Government was not a tenure post---No period for transfer of Secretaries had been provided---Non-fixing of period of transfer for the post of Secretary to Government did not clothe the Government with a power to transfer him frequently at their whims without adhering law---If Secretary to Government had refused to comply with the illegal orders of executive authority then he could not be transferred as a punishment---No application or complaint was on record which was received by the Ehtesab Bureau and it had ordered inquiry against the civil servant---Ehtesab Bureau had no power or jurisdiction to direct Secretary to Prime Minister that Government should send a reference to it for inquiry against civil servant---Ehtesab Bureau could inquire into the matter if a reference was sent by the Government or an application was received---Summary for transfer of employee was initiated by the Secretary to Prime Minister and not by the Services and General Administration Department which was a violation of mandatory provision of Azad Jammu and Kashmir Rules of Business, 1985---Civil servant was left without a post---Civil servant might be posted as Officer on Special Duty (OSD) whenever required as such, however, no government servant was to be posted as OSD except under compelling circumstances---Civil servant might remain posted as OSD for a period of not more than 30 days---Impugned order for transfer of civil servant was arbitrary and colorful exercise of powers by the authority---Civil servant had been left without a post for more than six months---Order for transfer of employee was against law and was not sustainable, judgment of Service Tribunal was set aside by the Supreme Court.

Mst. Sabia Aziz v. Director Technical Education and 5 others 2011 SCR 545; Mst. Nazia Tabassum v. Mst. Robina Latif, Senior Teacher, Government Girls High School Sanghot, District Mirpur, Azad Kashmir and 8 others 2013 SCR 356 and Corruption in Hajj Arrangements in 2010 in the matter of Suo Motu Case No.24 of 2010 and Human Rights Cases, decided on 29th July, 2011 PLD 2011 SC 963 ref.

Mst. Nazia Tabassum v. Mst. Robina Latif, Senior Teacher, Government Girls High School Sanghot, District Mirpur, Azad Kashmir and 8 others 2013 SCR 356; Corruption in Hajj Arrangements in 2010 in the matter of Suo Motu Case No.24 of 2010 and Human Rights Cases, decided on 29th July, 2011 PLD 2011 SC 963; Mst. Shaista Idrees v. Mst. Gul Shireen and 7 others 2006 SCR 294; Dr. Muhammad Rafique v. Azad Government and 3 others 2007 SCR 429; Deputy Inspector General of Police and another v. Muhammad Yaseen and another 2008 SCR 611; Muhammad Maroof v. Sardar Muhammad Tariq Khan and 3 others 2009 SCR 63; Mst. Sabia Aziz v. Director Technical Education and 5 others 2011 SCR 545; Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Zareena Kousar v. Divisional Director Schools and others 2014 SCR 878; Sajjad Ahmed Javed Bhatti v. The Federation of Pakistan through Secretary Establishment Division, Islamabad and others 2009 PLC (C.S.) 953 and Mir Shah Nawaz Marri, Ex-Director, Mineral Development presently O.S.D. S&GAD, Quetta v. Government of Balochistan through Chief Secretary, Balochistan Civil Secretariat Quetta and 4 others 2010 PLC (C.S.) 533 rel.

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

----S. 9---Transfer of an employee---Scope---Civil servant could be transferred anywhere inside or outside Azad Jammu and Kashmir against a post---Civil servant could not be left without a post.

Raja Muhammad Hanif Khan for Appellant.

Sajid Hussain Abbasi for Respondent No.4.

Date of hearing: 2nd July, 2015.

2016 P L C (C.S.) 376

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J.

Mst. KANEEZ AKHTAR

Versus

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

Civil Review No.18 of 2015, decided on 27th May, 2015.

(In the matter of review from the order of this Court dated 05.03.2015 in Service Appeal No.225 of 2014).

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLVI, Rr. 4, 6 & O. XLIII, R. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42-A(1)---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4---Review of Supreme Court judgment---Procedure---Transfer of an employee---Employee was transferred which was challenged but Service Tribunal dismissed the appeal---Appeal filed by the employee before the Supreme Court was dismissed as withdrawn by her counsel on her retirement---Employee filed review petition that she wanted to withdraw the appeal only to the extent of notification of her transfer but her counsel made statement that she had retired and appeal had become infructuous---Contention of employee was that she wanted to continue the appeal to the extent of remarks passed by the Service Tribunal---Validity---Every review petition should be filed by the counsel who appeared at the hearing of the case in which judgment or order sought to be reviewed was made---Review petition might be drawn by any other counsel with special leave of the Court---Counsel who appeared in the original case should remain present in the Court in such circumstances unless his appearance was dispensed with---Counsel signing the application should specify in brief the points upon which prayer for review was based and should add a certificate with regard to consistency with law and practice of the Court that a review would be justified in the case---Such certificate should be in the form of a reasoned opinion---Review petition could not be filed without a certificate of the counsel who had signed the same---Review petition on legal question was maintainable on the basis of certificate in the form of reasoned opinion by the counsel who appeared in the original case---Employee had herself filed present review petition---Present review petition had not been competently filed---Matter before the Service Tribunal was with regard to notification for transfer of an employee---Service Tribunal dismissed the appeal but at the same time made observations which had adversely affected the service of employee---Supreme Court quashed the observations made by the Service Tribunal to the extent that "employee was not an officer of grade BS-19"---Such observations would not form part of judgment of Service Tribunal---Review petition was dismissed accordingly.

Petitioner in Person.

Nemo for Respondents.

Date of hearing: 15th May, 2015.

2016 P L C (C.S.) 556

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Masood Ahmed Sheikh, J

Kh. GHULAM SARWAR

Versus

DIRECTOR, AUQAF DEPARTMENT AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 6 others

Civil Appeal No.268 of 2014, decided on 30th June, 2015.

(On appeal from the judgment of the Service Tribunal, dated 12.06.2014 in Service Appeal No.447 of 2013).

Azad Jammu and Kashmir Civil Services Pension Rules, 1971---

----Rr. 2.3 & 2.2---Joining of employee to other department---Pension benefits, calculation of---Principles---Employee was appointed in department "A" and after that he joined the service in department "B"---Service for calculating the pensionary benefits on retirement was counted from the date when the employee had joined the service of department "B"---Contention of department "A" was that employee had joined the service in department "B" without intimation to department "A" and was not entitled for pensionary benefits for his service rendered in the former department---Appeal by the employee was dismissed by Service Tribunal---Validity---Service book maintained by the former department of appellant was transferred to the other department---Employee joined department "B" with the permission of department "A"---When a civil servant was first appointed against a post and later on joined another department with the permission of the former department without any break in service, his period of previous service was to be treated as part of his service---Employee served in department "A" for more than two years and he was entitled for pensionary benefits of the said period---Judgment of Service Tribunal was not maintainable---Department "A" was directed to pay the share of pension of employee for the period of service rendered by him accordingly---Appeal was accepted by the Supreme Court in circumstances.

Muhammad Dawood Khan Abbasi for Appellant.

Sajid Hussain Abbasi for Respondents.

Date of hearing: 4th June, 2015.

2016 P L C (C.S.) 601

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Civil Appeal No.106 of 2014

Sardar MUHAMMAD RAZZAQ

Versus

CHAIRMAN EHTESAB BUREAU OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 4 others

(On appeal from the judgment of the High Court dated 15.01.2004 in Writ Petitions Nos.1425 and 1426 of 2012].

Civil Appeal No.107 of 2014

Sardar ZIA HAMEED KHAN

Versus

CHAIRMAN EHTESAB BUREAU OF AZAD JAMMU AND KASHMIR and 3 others

(On appeal from the judgment of the High Court dated 15.01.2014 in Writ Petitions Nos.1425 and 1426 of 2012).

Civil Appeals Nos.106 and 107 of 2014, decided 17th August, 2015.

(a) Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009---

----Azad Jammu and Kashmir Ehtesab Act, 2001, Ss. 5, 6, 32 & 42---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition before High Court---Maintainability---Civil service---Employees of Ehtesab Bureau---Termination of employees by the Chairman Ehtesab Bureau---Ehtesab Bureau---Necessary party---Contention of employees was that Chairman Ehtesab Bureau had no power to terminate their services as appointing authority was the President---Writ petitions filed by the employee were dismissed by the High Court---Validity---Any order passed by the Chairman would be deemed to be the order of Ehtesab Bureau---Powers for appointment against the posts of officers and staff in the Ehtesab Bureau were exercise-able by the Ehtesab Bureau---Such powers would vest in the Chairman who should exercise the same and might delegate such powers to any of the officers---Chairman Ehtesab Bureau passed the termination order and he had been arrayed as party in the line of respondent---Ehtesab Bureau was not a juristic person and it was not necessary to array the same as respondent---Chairman Ehtesab Bureau was the necessary party but not the Ehtesab Bureau---Appointment orders of the employees were made by the President with the condition that same would be temporary in nature---Temporary appointment did not confer any right for permanent induction---President was to make Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009 in consultation with the Chief Justice of the High Court and were to be consistent with the Azad Jammu and Kashmir Ehtesab Act, 2001---Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009 had not been made by the President with the consultation of the Chief Justice of High Court which were not valid having no legal value---President had no power to frame Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009 without the consultation of Chief Justice of High Court---Said Rules, were not a statutory provision and had no legal force---Chairman Ehtesab Bureau had powers only to appoint the officers and staff in the Ehtesab Bureau when petitioners were appointed---President had no power on the relevant date to appoint a person in the Ehtesab Bureau---Person who had not come in the court with clean hands had no right to maintain a writ petition---Appointment order of employees being an ill-gotten gain, writ could not be issued for retention of ill-gotten gain---Writ petitions of employees before the High Court were liable to be dismissed on the said sole ground---Appeals were dismissed by the Supreme Court.

Raja Nasim and 2 others v. Ehtesab Bureau AJ&K 2004 YLR 2292 and Ehtesab Bureau v. Rashid Ahmed Katal and 4 others 2011 SCR 512 ref.

Ehtesab Bureau Azad Jammu and Kashmir through Chief Prosecutor, Muzaffarabad v. Ch. Abdul Razzaq and 15 others 2004 YLR 1446; Ehtesab Bureau Azad Jammu and Kashmir v. Ch. Muhammad Hanif 2004 YLR 2278; Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 48; Habibullah v. D.I.G. Police and 3 others 2004 SCR 378; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Messrs Qureshi Vegetable Ghee Mills v. Dy. Collector Excise and Taxation, Mirpur and others 1994 SCR 123; AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others 2014 SCR 382; Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt 2001 YLR 3139 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.

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

----S. 44---Writ jurisdiction---Scope---Extraordinary remedy by way of writ jurisdiction was an equitable remedy which could not be exercised for retention of ill-gotten gains.

(c) Civil service---

----Temporary appointment---Scope---Temporary appointment did not confer any right for permanent induction.

(d) Administration of justice---

----When a thing was provided to be done in a particular manner then it had to be done in same manner or not at all.

(e) Interpretation of statutes---

----When a temporary statute repealed the permanent statute or its provision, such deletion would remain in force or operative till the existence of temporary statute.

(f) Interpretation of statutes---

----Legislature had power to apply an Act with retrospective effect and retrospective effect should not affect any right accrued to a party.

(g) Words and phrases---

----"Necessary party"---Meaning---Necessary party was one in whose absence no effective order or decree could be passed.

(h) Words and phrases---

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

Sheikh Masood Iqbal for Appellant (in Civil Appeals Nos.106 and 107 of 2014).

Mir Khalid Mehmood, Chief Prosecutor, Ehtesab Bureau for Respondents (in Civil Appeals Nos.106 and 107 of 2014).

Date of hearing: 17th June, 2015.

2016 P L C (C.S.) 982

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Raja Saeed Akram Khan and Masood Ahmed Sheikh, JJ

Civil Appeal No.127 of 2015

MUHAMMAD BINYAMIN

Versus

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

(On appeal from the judgment of the High Court dated 04.02.2015 in Writ Petitions Nos.2273, 2285 and 2320 of 2014).

Civil Appeal No.128 of 2015

Qazi LIAQAT ALI QURESHI

Versus

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

(On appeal from the judgment of the High Court dated 5.3.2015 in Writ Petitions Nos.222 and 223 of 2003).

Civil Appeal No.129 of 2015

MUHAMMAD RAFIQUE CHAUDHARY

Versus

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

(On appeal from the judgment of the High Court dated 05.03.2015 in Writ Petitions Nos.222 and 223 of 2003).

Civil Appeal No.160 of 2015

MUHAMMAD AZEEM MUJADADI

Versus

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

(On appeal from the judgment of the High Court dated 04.02.2015 in Writ Petitions Nos.2273, 2285 and 2320 of 2014).

Civil Appeal No.173 of 2015

ASGHAR SADIQ

Versus

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

(On appeal from the judgment of the High Court dated 03.02.2015 in Writ Petitions Nos.2371, 2480, 2617 and 2652 of 2014).

Civil Appeals Nos.127, 128, 129, 160 and 173 of 2015, decided on 3rd November, 2015.

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

----S. 44---Writ petition---Maintainability---Second writ petition in presence of earlier one---Scope---Party who had come to the court while suppressing facts was not entitled to any relief---Petitioner filed subsequent writ petitions without disclosing the earlier one---High Court had rightly dismissed the writ petition. A & B

Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others 2012 PLC (C.S.) 524 and Waqas Latif and 3 others v. Azad Government and 6 others 2013 PLC (C.S.) 887 ref.

Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141 and Kashmir Mining and Development Works v. Azad Government and 5 others 1997 CLC 1771 rel.

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

----S. 44---Writ petition---Civil service---Ad hoc appointment---Permanent appointment---Mode---Confirmation on the basis of test and interview conducted for ad hoc appointment---Scope---Petitioner did not challenge the advertisement rather had participated in the selection process and could not qualify for the advertised post---Test/interview conducted for the appointment on ad hoc basis could not be made basis for regular appointment---Permanent appointment could only be made after following the prescribed mode of appointment on the basis of merit determined in the open competition---Appeal was dismissed in circumstances. C, D & E

Hussain Khan and 57 others v. Azad Government and 9 others 2012 PLC (C.S.) 1456; Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others 2012 PLC (C.S.) 524 and Waqas Latif and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 6 others 2013 PLC (C.S.) 887 rel.

Khawaja Muhammad Nasim, Advocate for Appellant (in Civil Appeal No.127 of 2015).

Ch. Shoukat Aziz, Additional Advocate General for Respondents (in Civil Appeal No.127 of 2015).

Asghar Ali Malik, Advocate for Appellant (in Civil Appeal No.128 of 2015).

Choudhary Shoukat Aziz, Additional Advocate General for Respondents Nos.1 to 5 (in Civil Appeals Nos.128 and 129 of 2015).

Syed Shafqat Hussain Gardezi, Advocate for Appellant (in Civil Appeal No.129 of 2015).

Tahir Aziz Khan, Advocate for Appellant (in Civil Appeal No.160 of 2015).

Choudhary Shoukat Aziz, Additional Advocate-General for Respondents Nos.1 to 3 (in Civil Appeal No.160 of 2015).

Ch. Muhammad Manzoor, Advocate for Respondent No.5 (in C.A. No.160 of 2015)

Sardar Muhammad Habib Zia, Advocate for Appellant (in Civil Appeal No.173 of 2015).

Ch. Shoukat Aziz, Additional Advocate General for Respondents Nos.1 to 3 (in Civil Appeal No.173 of 2015).

Asghar Ali Malik, Advocate for Respondent No.4 (in Civil Appeal No.173 of 2015).

Date of hearing: 5th October, 2015.

2016 P L C (C.S.) 1151

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Civil Appeal No.665 of 2014

TASKEEN NAZ

Versus

FEHMIDA BEGUM and 11 others

(On appeal from the judgment of the Service Tribunal, dated 30-11-2013 in Service Appeals Nos.76 and 77 of 2009).

Civil Appeal No.66 of 2014

NASEEM AKHTAR

Versus

DISTRICT EDUCATION OFFICER ELEMENTARY (FEMALE), DISTRICT SUDHNUTI and 9 others

(On appeal from the judgment of the Service Tribunal, dated 30-11-2013 in Service Appeals Nos.76 and 77 of 2009).

Civil Appeal No.254 of 2014

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

Versus

NIGAH SULTANA and 5 others

(On appeal from the judgment of the Service Tribunal, dated 02-05-2014 in Service Appeal No.79 of 2012).

Civil Appeal No.9 of 2015

NAZIA LATIF

Versus

SAFIA SAEED and 8 others

(On appeal from the judgment of the Service Tribunal, dated 13-11-2014 in Service Appeals Nos.739 of 2011, 1134, 1349 of 2012 and 60 of 2013).

Civil Appeal No.123 of 2015

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

Versus

ABIDA SHAHEEN and another

(On appeal from the judgment of the Service Tribunal, dated 20-10-2014 in Service Appeal No.108 of 2013).

Civil Appeal No.93 of 2015

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

Versus

SAFIA SAEED and 15 others

(On appeal from the judgment of the Service Tribunal, dated 13-11-2014 in Service Appeals Nos.739 of 2011, 1134, 1349 of 2012 and 60 of 2013).

Civil Appeals Nos.65, 66, 254 of 2014, 9, 123 and 93 of 2015, decided on 19th May, 2015.

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

----S. 12---Azad Jammu and Kashmir Civil Services Pension Rules, 1971, R.3.5---Conditional appointment of employee---Non-fulfillment of condition by employees---Retirement of employees from service after completion of 25 years of service---Principle of audi alteram partem---Applicability---Public interest---Primary teachers, in the present case, were appointed in Education Department due to non-availability of matriculate candidates, subject to acquire by them the requisite qualification i.e. matriculation---Employees could not improve their qualification and they were retired from service---Validity---None of the employees had challenged any provision of the Rules made under Azad Jammu and Kashmir Civil Servants Act, 1976---Said Rules might have application for the purpose of regulating the terms and conditions of service of teachers of education department---Civil servant could be retired on completion of 25 years of service or earlier in the public interest---Retirement orders passed after 25 years of service could not be held to be without lawful authority---Primary teachers had been retired on completion of due process with full pensionary benefits---Employees from the day one were aware of the fact that for continuation of service they would have to improve their qualification and pass the matriculation examination---Employees could not improve their educational qualification in 25 years and could not fulfill the imposed conditions---Sufficient opportunity had been provided to the employees and principle of audi alteram partem had not been violated---Retirement orders of the employees were in the public interest---Candidates who had been selected on merit were highly qualified---Notifications of retirement of employees would be effective from the date of issuance---Retired employees would be entitled for the pensionary benefits accordingly---If any service had been rendered by them after the impugned notifications then same should be treated as re-employment on contract---Retired employees whose retirement orders had been set aside by the Service Tribunal and such order had not been challenged in appeal would be deemed to be in service till the date of present judgment of the Supreme Court---Impugned orders passed by the Service Tribunal were set aside---Appeals were disposed of accordingly.

Secretary for Prime Minister and 3 others v. Muhammad Aslam and 5 others 2010 PLC (C.S.)155 ref.

Sardar Karam Dad, Advocate for Appellant (in Civil Appeal No.65 of 2014).

Asghar Ali Malik, Advocate for Respondents (in Civil Appeal No.65 of 2014).

Raja Gul Majeed Khan, Advocate for Appellant (in Civil Appeal No.66 of 2014).

Sardar Muhammad Riaz Khan, Advocate for Respondents (in Civil Appeal No.66 of 2014).

Sardar M.R. Khan, Additional Advocate-General for Appellants (in Civil Appeal No.254 of 2014).

Sadaqat Hussain Raja and Ch. Muhammad Manzoor, Advocates for Respondents (in Civil Appeal No.254 of 2014).

Raja Iqbal Rasheed Minhas, Advocate (in Civil Appeal No.9 of 2015).

Syed Shahid Bahar, Advocate for Respondents (in Civil Appeal No.9 of 2015).

Mansoor Pervaiz Khan, Advocate-General for Appellants (in Civil Appeal No.123 of 2015).

Muhammad Daood Khan, Advocate for Respondents (in Civil Appeal No.123 of 2015).

Ch. Shoukat Aziz, Additional Advocate-General for Appellant (in Civil Appeal No.93 of 2015).

Raja Sajjad Ahmed Khan, Advocate for Respondents (in Civil Appeal No.93 of 2015).

Date of hearing: 11th May, 2015.

JUDGMENNT

CH. MUHAMMAD IBRAHIM ZIA, J.--- These appeals by leave of the Court have been filed against the separate consolidated judgments of the Service Tribunal dated 30 11.2013, 02.05.2014, 13.11.2014 and 20.10.2014, whereby while accepting the appeals filed by the retired Primary Teachers, they have been reinstated in service while setting aside the notifications of their retirement.

1. The controversy in these appeals relates to the retirement of Middle Pass Primary Teachers of the Education Department. According to the relevant facts, the private-respondents were permanent civil servants working as female Primary Teachers in the Education Department. In their appointment orders, it is mentioned that due to non-availability of matriculate candidate, appointment is being made but the appointees shall be under the obligation to acquire the requisite qualification i.e. matriculation. They were time and again directed by the authorities to improve their academic qualification but they failed. Some of them sought extension of time to improve the qualification. Ultimately, they were retired from service by the Authority vide separate notifications dated 30.12.2008, 31.12.2008, 19.9.2010, 30.9.2010, 19.9.2012, 20.9.2012, 17.12.2012 and 30.1.2013. They challenged the validity of these retirement notifications through separate appeals before the Service Tribunal. However, subsequently, vide another notification dated 16.8.2013, the retirement orders to the extent of Mst. Naseem Akhter, (respondent No.2 in Civil Appeal No.93/2015), Mst. Shameem Kausar, and Mst. Zahida Begum (not before us) was recalled because they had passed the matriculation examination. The Service Tribunal through separate consolidated judgments while accepting all the appeals, setting aside the retirement notifications, reinstated all the retired female Primary Teachers in their services. Appeal Nos. 65/2014, 66/2014, and 9/2015 before this Court against the judgments of the Service Tribunal have been filed by the appellants who being eligible and qualified have been appointed in due course of law by the Authority against the posts falling vacant due to the retirement of the Middle Pass Primary Teachers. However, Civil Appeals Nos. 254/2014, 93/2015, and 123/2015 have been filed by the Government-Authority to challenge the validity of the judgment of the Service Tribunal.

2. In all the above captioned appeals the identical proposition i.e. the retirement of the middle pass primary teachers after completion of 25 years service and appointments made against those vacant posts is involved. Therefore, due to identicity of legal and factual propositions, it is felt advised to decide all these appeals through this consolidated judgment.

3. Messrs Mansoor Pervaiz Khan, Advocate-General, Ch. Shaukat Aziz, Additional Advocate-General, Sardar M.R. Khan, Additional Advocate-General, Raja Iqbal Rasheed Minhas, Raja Gul Majeed Khan, Sardar Karam Dad Khan and Sardar Nisar Ahmed Khan, Advocates, the learned counsel for the contesting appellants and Government/Authority unanimously submitted that at the time of appointments of middle pass primary teachers, the Rules prescribing basic required qualification as matric-PTC, although were not in the present shape holding the field but the laws enforced at that time were also requiring the basic qualification as such. In most of the appointment orders of the middle pass candidates, a clear condition was mentioned that they will have to pass the matriculation examination within 2 years` period. Despite rendering the services for decades, they could not fulfill this condition and thus, on this sole ground they could not have any legal right to claim to remain posted till attaining the age of superannuation. In this regard, they have referred to some orders. They further submitted that not only in the individual cases this condition was imposed but subsequently due to hardships in the educational institutions and failure of the middle passed primary teachers to perform their duties according to new curriculum, time and again the matter was considered at Government as well as Secretariat level. A number of circulars were issued to the concerned civil servants and their concerned district level Authorities, with the instructions either the middle pass primary teachers should be retired or they should fulfill the condition of passing matriculation examination, otherwise, it will amount to adversely affect the public interest. As according to the new curriculum, some subjects like English and Mathematics which were not previously included at primary level now have become part of the syllabus and it is not possible for a middle pass primary teacher to teach such syllabus. Thus, the requirement of the public interest to save the interest of future generation and to provide them fundamental requirement of the education at primary level, the induction of qualified teachers who have the ability of teaching the syllabus, is necessary. They further submitted that despite the collective and individual notices and passage of decades' period, the middle pass primary teachers could not improve their qualification. Keeping in view the services rendered, while taking lenient view, they were allowed to complete 25 years' service and thereafter with full pensionary benefits they have been retired from service. Thus, no terms and conditions of their service has been adversely affected. The particulars of newly selected candidates show that against these vacancies Master decree holders with M.Ed and B.Ed professional qualification, have been selected. They further submitted that the service laws are not stagnant. It is a live process and according to the public interest and changed circumstances, the Authority is vested with the powers to make laws and Rules. Under the constitution, the protection of the previous laws is only conditional till alteration or substitution of law. Thus, the Rules enforced are fully applicable which are consistent with the constitutional spirit. It is further argued that non-providing the opportunity of hearing is a lame excuse. In view of the peculiar facts of these appeals, it is evident that the condition of passing of matriculation examination is contained in appointment orders and subsequently, individually and collectively, their attention was drawn to pass the matriculation examination but they could not succeed. Even otherwise, the principle of audi alteram partrem has to be applied according to the facts and circumstances of each case. In a number of judgments, the principle of law has been enunciated that if the explanation proposed to be furnished after providing an opportunity of hearing is already on record or known to the parties or Authority, in such circumstances, impliedly the opportunity of hearing is deemed to have been provided. Merely on technical grounds such acts cannot be deemed as illegal. In this regard reference can be made to a case reported as Secretary for Prime Minister and 3 others v. Muhammad Aslam and 5 others [2010 PLC (C.S.) 155].

4. Conversely, M/s. Raja Sajjad Ahmed Khan, Sadaqat Hussain Raja, M. Dawood Khan Abbasi, Syed Shahid Bahar, Sardar Muhammad Riaz Khan, Asghar Ali Mallik and Ch. Muhammad Manzoor, Advocates, representing the respondents, middle pass retired primary teachers, unanimously argued that at the time of appointment, neither there was any prescribed statutory provision holding the field requiring qualification of matric-PTC nor the departmental Authority has imposed any such condition. Thus, the terms and conditions of the civil servants who have been permanently inducted have to be determined according to law enforced. Any subsequent enactment of Rules or amendment cannot be enforced in such a manner to deprive the civil servants of their accrued vested legal rights. They further submitted that according to law, the permanently inducted civil servants have legal right to serve till attaining the age of superannuation prescribed under law i.e. 60 years. Before attaining the age of superannuation retirement is violation of the terms and conditions of service which is not permissible under law. They further forcefully stressed that according to the fundamental principle of administration of justice, no one can be condemned unheard and the Authority before retiring the appellants has not provided them any opportunity of hearing. All the retirement orders are basically void, offending the most fundamental principles of administration of justice, therefore, such retirement orders could not hold the field. The Service Tribunal has rightly reinstated the respondents while declaring the retirement orders as illegal, therefore, the appeals are not maintainable.

5. We have considered the arguments advanced at bar on behalf of both sides and also examined the record carefully. According to the brief statutory history, before enforcement of the Azad Jammu and Kashmir Civil Servants Act, 1976 (hereinafter to be referred as Act, 1976), and the Rules made thereunder, ordinarily, the service matters were governed under the Kashmir Old Laws known as Kashmir Service Regulations. The cursory survey of these regulations speak that there was no classification of teachers like present i.e., primary, junior and secondary school teachers or subject specialists etc., rather the Classification was with reference to their educational qualification such like:

"(i) Middle, proficiency in Urdu, Hindi, Punjabi, Sansikrat, Persian or Arabic with least primary pass;

(ii) Teachers with above referred qualification after passing J.V. examination.

(iii) Matriculates;

(iv) Matriculate J.v's

(v) F.A;

(vi) Honors in Hindi, Urdu, Gurmukhi, Sanskrit, Persian or Arbic with at least Middle pass;

(vii) Graduate;

(viii) Trained Graduate;

(ix) M.A's;

(x) M.A. B.T.'s etc."

Whereas, after enforcement of Act, 1976, and the rules made thereunder, the service structure of education department has revolutionary been changed. Now, specially the schools teachers have been clarified as: primary teacher, junior English/Elementary Schools Teachers, Arabic Teachers, Drawing Teachers, Physical Education Teachers, Qari, Qaria, Secondary School Teachers, Subject Specialists etc. In this classification, the minimum required educational qualification along with professional training is also prescribed. Under the provisions of section 49 of Azad Jammu and Kashmir Interim Constitution Act, 1974 the continuation of previously enforced laws was conditional till enactment of new laws. According to the spirit of this constitutional provision, the law making Authority is vested with the powers to regulate the terms and conditions of person in service of Azad Jammu and Kashmir. Undoubtedly, by enforcement of Act, 1976 and the Rules made thereunder, the matter of terms and conditions of civil servants stood regulated by and the same has to be decided in the light of these laws. To this extent, the previous law will have no application. Thus, the provisions of Act, 1976 and other statutory provisions of Rules made thereunder will have force of law in relation to determination of terms and conditions of service of civil servants. Moreover, none of the retired middle pass primary teachers, has challenged any provision of the Rules made under Act, 1976, thus, it can be safely held that the Rules made thereunder may have full application for the purpose of regulating the terms and conditions of service of the teachers of the Education Department.

1. According to the statutory provisions of the fundamental laws regulating the terms and conditions of Civil Servants i.e., Act, 1976, the retirement from service is one of the terms and conditions of service. In this regard, section 12 of Act, 1976 reads as follows:-

"12. Retirement from service:-- A Civil Servant shall retire from service:-

(i) On such date after he has completed ten years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; and

(ii) If no direction is given under clause (i) then on the completion of the sixtieth year of his age:

(iii) At any time, at his option, after completion of twenty five years service qualifying for pension.

Provided that no order under clause (i) shall be made in respect of a Civil Servant unless the competent authority has informed him in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against it.

Explanation:- In this section "competent authority" means the appointing authority or a person duly authorized in that behalf not being a person lower in rank than the Civil Servant concerned.

Another provision which is also relevant in this regard is Rule 3.5 of the Azad Jammu and Kashmir Civil Servants Pension Rules, 1971 which reads as follows:

"3.5 Retiring person--- A retiring pension is granted to a Government servant who---

(i) Opts to retire after 25 years qualifying service or such less time as may for any special class of Government Servants be prescribed, or

(ii) is compulsorily retired from service by the authority competent to remove him from service on grounds of inefficiency, misconduct or corruption; or

(iii) is retired on completion of 25 years of Government service or earlier in the public interest."

Both the above referred provisions speak that the civil servant can be retired on completion of 25 years' of service or earlier in the public interest. Thus, it cannot be said that the retirement orders passed after 25 years' service are without lawful authority.

1. So far as the most heated argument regarding non-providing the opportunity of hearing is concerned, no doubt under the provisions of section 12 of Act, 1976, for retiring a civil servant in public interest the requirement is that no such order will be made unless the competent Authority has informed in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against it.

2. In the light of the peculiar facts of these cases, for determination of this aspect on behalf of the parties a number of appointment orders of middle pass primary teachers have been referred which contain the condition that:

In this regard, for example, reference can be made to annexure "B" available on the file of Service Tribunal in the case titled "Saeed Bibi v. DEO" and in the case titled Naseem Akhtar v. Azad Govt. and others. Same like, some other orders are also available in the other files. The official documents have also been brought on record that at District and Secretariat level, this matter had actively been taken up and attention of the middle pass teachers was drawn in this regard and time and again they were informed in written. In this context, it will be useful to reproduce here one of the circulars dated 25.03.1987 issued at District level which reads as follows:

Same like, at Secretariat level in some of the cases, extension was granted for passing the matriculation examination in the stipulated period. One of these orders is of 14.11.1998 which reads as follows:-

1. The record reveals that since 80's this matter remained under active consideration of collective and individual levels and finally the department decided for retirement of such middle pass primary teachers who could not improve their qualification. The Secretary of the Education Department issued order dated 14.05.2004 to the sub-ordinate administrative officers directing that:

2. It appears that in this background for implementation of decision taken in public interest, the process for retirement of middle pass primary teachers who failed to improve their qualification was initiated and side by side the process of advertisement of the posts and selection on merit was conducted. On completion of the due process, such primary teachers have been retired with full pensionary benefits on completion of 25 years' service through different notifications. One of the retirement notifications dated 19.9.2012 speaks that:

Whereas some vacancies were already available due to retirement of middle pass Primary Teachers after completion of 25 years service, vide notifications dated 30.12.2008, 31.12.008, 19.9.2010 and 30.9.2010.

1. The above stated facts clearly depict that all the middle pass Primary Teachers from the day one were well aware of the fact that for continuation of service, they will have to improve their qualification and pass the matriculation examination. Thus, it cannot be said that they have been surprisingly retired without providing the opportunity of hearing. The phraseology of the impugned orders is very much clear that in 25 years' period, they could not succeed to improve their educational qualification. Same like, as discussed hereinabove, in the departmental orders including the appointment orders the condition of passing of matriculation examination within 2 years' period is imposed and thereafter through the departmental orders time and again attention of such teachers was drawn towards passing of matriculation examination. Even their salary was also stopped in the year 1987 but despite this they could not fulfil the imposed conditions. In this background, it is obviously clear that they have been provided more than sufficient opportunity but they failed. Thus, it cannot be said that the principle of administration of justice i.e., audi alteram partem has been violated.

2. As hereinabove reproduced provisions clearly authorise the Authority to retire the civil servants in the public interest, thus, in view of the peculiar facts of these appeals, it hardly requires any further deliberation that the retirement orders of middle pass Primary Teachers are quite in the public interest. The time has gone when only reading and writing was considered as education. We are passing through the era of global changes and life has now become quite dependent on the modern inventions and other accessories. Today's generation or children's requirement is not mere to attain the ability of reading or writing but for their survival they will have to compete with the world and this requires the educational parameters compatible with the modern age. Thus, it is the basic requirement that for meeting the new era's requirements the basic educational curriculum must have to fulfil the required standards which includes the teaching of global sciences and other subjects like computers and information technology etc. Surely, such syllabus cannot be taught by the teachers who are middle pass and despite remaining teachers for pretty long time of 25 years they could not succeed to pass matriculation examination. Mere providing them an opportunity to attain the age of superannuation and ruining the future of the new generation, is neither the spirit of law nor in the public interest. Thus, the decision taken by the Government in the public interest according to the peculiar facts of these cases, is quite legal and valid.

3. According to the admitted facts brought on record, against the posts becoming available due to the retirement of middle pass Primary Teachers, the candidates who have been selected on merit are highly qualified. The majority of them is having the qualification of masters degree in different subjects as well as the professional education. Same like, some of them are B.A, B.Ed, B.A C.T. etc. This fact shows that highly qualified candidates on merits are available who can better perform the professional duties according to the required standards. Thus, through selection on merit, the selected candidates who have replaced the middle pass Primary Teachers, their qualification and eligibility is also another aspect to safeguard the public interest.