PLCCS 2017 Judgments

2017 P L C (C.S.) 109

[Federal Service Tribunal]

Before Kazi Afaq Hossain and Syed Nasir Ali Shah, Members

Mst. SADIA MASOOD

Versus

PRIME MINISTER OF ISLAMIC REPUBLIC OF PAKISTAN, ISLAMABAD through Secretary, Government of Pakistan and another

Appeal No.109(L)CS of 2014, decided on 26th November, 2015.

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

----Ss. 3 & 4(b)(iii)---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Penalty of removal from service was imposed on the civil servant after holding inquiry against her on allegations of being least interested in service; casual and non-serious attitude towards attending the office; absence from duty for 650 days; illegally drawing pay/regular allowance and special allowance---Charge with regard to illegal drawing of allowances and special allowance during absence was proved during the inquiry---Impugned order was based on the said charge---Penalty of removal from service imposed upon the civil servant was commensurate with the enormity of the allegations levelled and proved against her during enquiry---All three charges were partially proved---Nature and intensity of allegations, did not warrant the imposition of harsh penalty of removal from service---No reason existed for Authorized Officer to recommend the imposition of major penalty of removal from service---Competent authority, was not justified in rubber stamping the recommendations of the Authorized Officer---Holistic approach was required for imposing penalty upon the civil servant---Civil servant remained on leave for 452 days and 756 days, reasons for such long absence, were her family and health issues, and the ailment of her son---Civil servant, upon gaining knowledge of the impugned order, had tendered resignation from service---All said factors cumulatively showed that civil servant had neither the capacity, nor the will to continue her service---Appeal filed by the civil servant, was disposed of by modifying the penalty of "removal from service" to "compulsory retirement from service" from the date of passage of the impugned order.

State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426; N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah 2006 SCMR 453; Mrs. Roqiaza Akbar and others v. Secretary, Education (S&L), N.-W.F.P. and others 2010 SCMR 1564; Gulbat Khan v. Water and Power Development Authority through its Chairman, Lahore and another 1992 SCMR 1789 and Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another 2006 PLC (C.S.) 294 ref.

Ch. Tariq Javed for Appellant.

Ehsan-ul-Haq Mughal, Standing Counsel for Respondent No.1

Ibrar Ahmad for Respondent No.2.

2017 P L C (C.S.) 1042

[Supreme Appellate Court Gilgit-Baltistan]

Present: Dr. Rana Muhammad Shamim, CJ and Javed Iqbal, J

MUHAMMAD YASIN and another

Versus

VC KIU and others

Civil Appeal No.01 of 2017 in CPLA No.100 of 2015, decided on 14th March, 2017.

Gilgit-Baltistan Civil Servants Act (V of 2011)---

----S. 4---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.60 & 71---Appointment on contract basis---Regularization of service---Petitioners, who were appointed on contract basis, rendered their services as Lecturers BPS-18 from 2008 to 2012---Authorities advertised regular posts of Lecturers and petitioners filed appeal against said advertisement and prayed to regularize their services against said advertised posts---Appeal of petitioners by the department and their writ petitions were dismissed by the Chief Court---Validity---Services of the petitioners were terminated and other candidates who appeared in the test and interview were appointed---Petitioners appeared before Selection Board for regularization of their services, but they could not qualify, consequently the Selection Board did not recommend them for regular appointment---Petitioners could not point out any illegality/irregularity in the impugned judgment passed by the Chief Court---Well reasoned impugned judgment, warranted no interference---Petition for leave to appeal was converted into appeal by Supreme Appellate Court and dismissed, in circumstances.

2010 SCMR 115 rel.

Asadullah Advocate along with Munir Ahmed, Advocate and Ali Nazar Khan Advocate-on-Record for Petitioners.

Mir Akhlaq Hussain, Advocate for Respondents Nos.1, 2, 3, 5 and 8.

Muhammad Abbas Khan, Advocate on behalf of the Respondent No.7.

2017 P L C (C.S.) 1067

[Supreme Appellate Court Gilgit-Baltistan]

Present: Dr. Rana Muhammad Shamim, CJ and Javed Iqbal, J

USMAN ALI

Versus

VC KIU and 2 others

Civil Appeal No.08 of 2017 in CPLA No.76 of 2016, heard on 17th March, 2017.

Gilgit-Baltistan Civil Servants Act (V of 2011)---

----S. 10---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.60 & 71---Termination of service---Petitioner, who was University employee, after obtaining three days casual leave, left the university and remained absent for a period of 1 year 4 months and 13 days---Authorities issued various notices to the petitioner to join service, but he remained absent from duty resultantly, services of the petitioner were terminated---Validity---Petitioner had left the university without obtaining ex-Pakistan/extraordinary leave to proceed abroad for serving there---Petitioner had left the university at his own without obtaining long leave to serve abroad---Nothing was on record to show that petitioner was allowed to proceed abroad by granting him any leave or on deputation as claimed by the petitioner---Counsel for the petitioner, could not point out any illegality or infirmity in the impugned order---Well reasoned impugned order warranted no interference---Petition for leave to appeal was converted into appeal by Supreme Appellate Court and dismissed, in circumstances.

Malik Shafqat Wali Senior Advocate along with Ali Nazar Khan, Advocate-on-Record for Petitioner.

Mir Akhlaq Hussain, Advocate on behalf of Respondents.

2017 P L C (C.S) 40

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

MOHAMMAD ALI AKHTAR and 13 others

Versus

PROVINCIAL GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary and 12 others

Writ Petition No.2 of 2014, decided on 28th April, 2016.

(a) Civil service---

----Terms and conditions for allotment of government accommodation---Terms and conditions regarding allotment of government quarters---Scope---Petitioners had been termed as licensees and had never been accepted as tenants, and the Provincial Government and its officials, were the rightful custodians of the government quarters---Licensees had no right whatsoever regarding allotment of any government quarter, except the use of the same till the same was in their possession, in the light of allotment order---Petitioners had not shown that the allotments of the quarters to other persons was illegal---Only embargo on the authorities was to make all allotments strictly in accordance with the merit---Custodian and the licensee had contractual liabilities and duties to each other; therefore, constitutional petition was not maintainable to question such a relationship---Writ petition was dismissed in circumstances.

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

----Art. 71---Writ petition---Restoration of petition subject to payment of cost which had not been paid---Petitioners could not be heard by the Chief Court.

Manzoor Ahmed, Basharat Ali and Sanaullah for Petitioners.

Assistant Advocate General for Respondents.

2017 P L C (C.S.) 184

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

REHMAT JAN and 5 others

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 5 others

Writ Petition No.84 of 2015, decided on 26th May, 2016.

Civil service---

----Promotion---Employees-petitioners being Deputy Superintendent of Police (Legal)---Separate seniority list of petitioners and other officers of the same rank---Scope---Contention of petitioners was that they had been denied promotion on the pretext that they were Deputy Superintendents Police (Legal) and were not of general cadre---Validity---Department had no powers to maintain two separate lists of seniority of the officers of same rank---Discrimination shown with the petitioners could not be justified on strength of any law or rules or simple practice---If discrimination made with the petitioners was allowed to be continued, they would be forced to retire from the rank they were holding presently---Department was directed to maintain common seniority list of the petitioners and other officers of same rank of general cadre and process promotion cases at par with Deputy Superintendent of Police of general cadre---Writ petition was allowed in circumstances.

Amjad Hussain Basharat Ali and Ijlal Hussain for Petitioners.

2017 P L C (C.S.) 387

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed and Yar Muhammad, JJ

MUHAMMAD KAZIM BAIG and 23 others

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 4 others

W.P. No.15 of 2015, decided on 6th June, 2016.

Civil service---

----Contract employments--- Termination of--- Scope--- Petitioners employees were appointed on contingent basis and their services were terminated being against Rules---Employees moved Service Tribunal and also filed appeals before the Chief Minister---Chief Minister set aside the termination order and directed the department to reinstate the petitioners in service but department did not comply with the said order of Chief Minister---Validity---Disputed appointments had been made without opening the vacancies for all through advertisement---Petitioners were initially appointed on contingent basis and thereafter their services were brought into permanent footing---Authority which made the illegal appointments had not been penalized---Chief Court observed that government should avoid contract appointment and ensure that opportunity for obtaining job had been provided to eligible persons---Chief Minister had reinstated the petitioners in their services and said order had not been assailed by the department---Department was directed to reinstate the petitioner in compliance of order of Chief Minister with all back benefits---Writ petition was allowed in circumstance.

2005 SCMR 534; 2007 SCMR 318; 2003 PLC (C.S) 1029 and 2012 SCMR 673 ref.

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

Ijlal Hussain and Basharat Ali for Petitioners.

Assistant Advocate General, for Respondents.

2017 P L C (C.S.) 1321

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz J

Mst. SUMAIRA AKRAM

Versus

SECRETARY EDUCATION, GILGIT-BALTISTAN and 6 others

Writ Petition No.203 of 2016, decided on 19th April, 2017.

Gilgit-Baltistan Civil Servants Act (V of 2011)---

----S. 4---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71(2)---Writ petition---Appointment---Petitioner/candidate applied and qualified the test and interview and became eligible and placed at Serial No.8 of the recommended candidates on the basis of merit list---Respondent who was not permanent resident of the concerned Union Council submitted her credentials showing herself the resident of the concerned Union Council, but after announcement of the result, when she could not find place on merit list she got CNIC from NADRA after about one month of announcement of the result showing herself to be resident of the relevant Union Council---Claim of the petitioner was that by such an apparent manipulation, the petitioner had been deprived of her right of appointment---List of eligible candidates showed the name of respondent at Serial No.34 of the list and her address was that of not concerned Union Council---Petitioner had a valuable right of appointment in her initially identified area---Chief Court, directed that extra care and caution should be taken while dealing with such like cases, as every erroneous decision, not only adversely affect the reputation of the concerned department, but also give rise to multiple litigations in courts of law---Writ petition was allowed with direction to the respondent Authority to appoint the petitioner in the concerned Union Council as she had vested right to be appointed.

Ehsan Ali and Naseem Akhtar for Petitioner.

A.A.G. assisted by Legal Advisor Education Department.

Basharat Ali for Respondents.

Faqir Ullah D.D. Legal Education Department present.

Zakriya Ahmad for Respondent No.6.

2017 P L C (C.S.) 1478

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, J

CIVIL AVIATION AUTHORITY through Director General and 2 others

Versus

IRSHAD ALI and 9 others

Civil Revision No.74 of 2015, decided on 16th March, 2017.

Civil service---

----Pension---Employee was not granted pension benefits on the ground that he had not completed minimum required ten years service as permanent employee in the department---Validity---Two other incumbents who were colleagues of the employee were getting the pensionary benefits---Case of other two employees was same and identical in all respects---Findings of courts below were based on facts of the present case as well as that of the previous suits of the same nature---Revision was dismissed in circumstances.

Johar Ali for Petitioners.

2017 P L C (C.S.) 20

[High Court (AJ&K)]

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

Syed KHALID HUSSAIN GILLANI

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 2 others

Writ Petitions Nos.1390 of 2011 and 257 of 2014, decided on 2nd July, 2015.

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

----Ss. 3 (3) & 4---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44, 47, 43(3) & (5), 15 & 17---Writ petition---Civil service---Petitioner being District and Sessions Judge was appointed as Chairman Service Tribunal but was retired on completing superannuation period---Condition of retirement as civil servant---Scope---Discrimination---Terms and conditions of service of petitioner-employee were that he should be entitled to pay, allowances and other privileges equal to Judge of High Court while serving as Chairman Service Tribunal, however, he would be retired as being civil servant on completing superannuation period---Validity---Chairman Service Tribunal could be appointed by the President being a person who was or had been or was qualified to be Judge of High Court---Petitioner-employee upon his appointment as Chairman Service Tribunal on contract basis could not be repatriated to his parent department---Petitioner-employee had ceased from the cadre of judicial officer as District and Sessions Judge and he was no more a civil servant---Condition of retirement as a civil servant on attaining the age of superannuation was not ascribed in the notification for appointment of petitioner-employee as Chairman Service Tribunal rather it was mentioned that his terms and conditions would be determined later on---Government had failed to bring on record anything that the said condition of superannuation was accepted by the petitioner-employee---No such condition of retirement as a civil servant was on record at the time of appointment of petitioner-employee as Chairman Service Tribunal and joining the said post---Petitioner-employee was qualified to be appointed as Judge of High Court---Petitioner-employee was appointed as Chairman Service Tribunal and he was granted salary, allowances and privileges as Judge of High Court while performing his duties except his retirement as a civil servant on attaining the age of superannuation---No justification was available for such condition when petitioner-employee had been granted all other perks and privileges of Judge of High Court---Equality before law and equal protection of law had been guaranteed by the Constitution---No State Subject otherwise qualified for appointment in service should be discriminated against with regard to any appointment on the ground of only race, religion, caste or sex---Condition for retirement of employee as civil servant on attaining the age of superannuation was discriminatory and was unlawful and illegal---No Rules for appointment of Chairman and Member of Service Tribunal had been framed---Petitioner was no more a civil servant and S.9 of Azad Jammu and Kashmir Civil Servants Act, 1976 was not applicable to his case---Terms and conditions of Chairman Service Tribunal were to be independently determined so as to make him outside the executive influence---Impugned condition of retirement of petitioner-employee as civil servant on attaining the age of superannuation was declared as without lawful authority having no legal effect---Impugned notification with regard to retirement of petitioner-employee was quashed---Writ petition was accepted in circumstances.

Ali Azhar Khan v. Province of Sindh 2015 SCMR 456 ref.

Raja Shahnawaz Khan, Chairman Azad Jammu and Kashmir Zakat Council v. Azad Government of the State of Jammu and Kashmir and 3 others 2013 PLC (C.S.) 728; Azad Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 and Sh. Riaz-ul-Haq, ASC and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501=2013 PLC (C.S.) 1308 rel.

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

----Ss. 15 & 17---Equality before law---Scope---Equality before law and equal protection of law had been guaranteed by the Constitution---No State Subject otherwise qualified for appointment in service should be discriminated against with regard to any appointment on the ground of only race, religion, caste or sex.

(c) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----R. 18---Decision of Full Bench of High Court---Binding effect---Decision of Full Bench was binding on Division and Single Bench.

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

----S. 47---Appeal to Supreme Court---Scope---Appeal would lie to the Supreme Court from a judgment or order passed by the Service Tribunal if the case involved a substantial question of law of public importance and leave had been granted.

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

----Ss. 3 & 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Chairman Service Tribunal---Transfer of---Scope---No provision existed in Azad Jammu and Kashmir Service Tribunal Act, 1975 with regard to transfer of Chairman Service Tribunal---Azad Jammu and Kashmir Service Tribunal was part of judicial system---Chairman Service Tribunal could neither be transferred from the post of Chairman Service Tribunal nor removed from the post except when he was incapable of performing duties of his office due to physical or mental incapacity or he was guilty of misconduct---Chairman Service Tribunal was not to be transferred from the post of Chairman Service Tribunal till the age of 62 years---Writ petition was accepted in circumstances.

Raja Muhammad Hanif Khan for Petitioner.

2017 P L C (C.S.) 242

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

SHABNAM SHAZADI

Versus

PUBLIC SERVICE COMMISSION AJ&K through Secretary and 3 others

Writ Petitions Nos.771, 841, 1028 of 2011 and 370 of 2013, decided on 6th January, 2016.

(a) Civil service---

----Quota for initial appointment and departmental promotion---Distribution of posts---Procedure---If a candidate for direct recruitment and a candidate claiming promotion to a particular job simultaneously had contested for the job then the candidate claiming promotion should be given priority---Three posts existed in the department for which 50% quota had been provided for departmental promotion and 50% had been reserved for initial recruitment---If all three posts are divided between the two components then right of person claiming promotion should be considered on priority and second post should go to the quota reserved for direct recruitment and third post again would go to the departmental promotion---Out of three posts two would fall in favour of quota reserved for promotion and one post would fall for quota reserved for initial recruitment---Post reserved for departmental promotion should be filled first before making direct recruitment---One post had been rightly requisitioned by the department and after due process a candidate had been appointed against the advertised post on recommendation of Public Service Commission---Petitioner had no bone of contention to fight upon---Writ petition was dismissed in circumstances.

1989 PLC (C.S.) 546 and 1993 SCMR 2258 rel.

(b) Civil service---

----Ad hoc appointment---Scope---Ad hoc appointment against a post reserved for departmental promotion would not create a right for regular job.

(c) Civil service---

----Candidate for direct recruitment and a candidate claiming promotion---Priority---If a candidate for direct recruitment and a candidate claiming promotion to a particular job simultaneously had contested for the job then the candidate claiming promotion should be given priority.

Kh. Ansar Ahmed for Petitioner (in Writ Petition No.771 of 2011).

Kh. Muhammad Naseem for Petitioner (in Writ Petition No.841 of 2011).

Ch. Muhammad Latif for Petitioner (in Writ Petition No.1028 of 2011).

2017 P L C (C.S.) 1453

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

SHAHISTA NOREEN

Versus

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

W.P. No.1066 of 2014, decided on 20th February, 2017.

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

----Ss. 44 & 51---Writ petition---Civil service---Spouses to be posted at one station---Notification---Scope---Contention of petitioner was that her husband was a government employee and authorities by violating relevant notification had decided to transfer her outside of the municipal limits where her husband was posted---Validity---Petitioner-employee was performing her duties as Assistant Professor in Fatima Jinnah Post Graduate College for Women Muzaffarabad and her husband was performing his duties within the municipal limits of Muzaffarabad as Deputy Director---Husband and wife were entitled to be posted at one station as far as possible---Female civil servant was to be transferred nearest to residence of her husband even if he was not a government servant---Petitioner-employee was entitled to equitable relief of writ jurisdiction---Authorities were restrained to transfer the petitioner-employee from the post of Assistant Professor Fatima Jinnah Post Graduate College for Women Muzaffarabad till her husband remained posted at Muzaffarabad---Writ petition was accepted in circumstances.

(b) Notification---

----Nature---Notification could be included in definition of law.

Raja Muhammad Hanif Khan for Petitioner.

2017 P L C (C.S.) 7

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

Dr. BASHARAT HASSAN BASHIR

Versus

ALTERNATIVE ENERGY DEVELOPMENT BOARD and others

W.P. No.933 of 2016, decided on 28th April, 2016.

Alternative Energy Development Board Act (XIV of 2010)---

----Ss. 9, 18 & 19---Consultant---Termination of service---Petitioner was appointed as consultant by Alternative Energy Development Board and was aggrieved of termination of his contract---Validity---Petitioner had no written employment contract in his favour and he could not demonstrate from record that his services were regularized in accordance with law---Petitioner even failed to demonstrate that his services were regularized in Board Meeting in accordance with requirements of Alternative Energy Development Board Act, 2010, rules and regulations and after adopting due process---Judgment by Supreme Court in Dr. Mukhtar Ahmed's case (Criminal Petition No.560 of 2014) was applicable to all those individuals who were holding positions in MP scales and if said judgment was applied to case of petitioner, his previous service, which was regularized by the Board was illegal---If petitioner was to take exception to such Board meeting, case of petitioner would come to the purview of a contract employee but petitioner had not been given any contract, even there was no contract on record therefore, order in question was rightly issued--- Petitioner had no employment contract in his favour and had no extension in his favour therefore, he could not claim any right on the basis of his regularization in AES-II as his appointment was made without adopting due process and without following codal formalities---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

1996 SCMR 1350; 2015 SCMR 1418; 2006 SCMR 1163; PLD 2015 SC 6; PLD 1987 SC 145; 2013 PLC (C.S) 289; 2013 SCMR 225; PLD 2013 SC 829; PLD 1965 SC 90; 2011 PLC (C.S) 709; PLD 1991 SC 691 and Chairman State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495 distinguished.

Dr. Mukhtar Ahmed and another v. Muhammad Anees Saddozai and another Criminal Petition No.560 of 2014 rel.

Hafiz Arfat Ahmed Ch. and Ms. Kashifa Niaz Awan for Petitioner.

Rashid Hanif and Abrar Bashir for Respondents.

2017 P L C (C.S.) 79

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

AAQIB SAQLAIN and 8 others

Versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED and 2 others

Writ Petitions Nos.2333, 1931 and 4455 of 2014, heard on 12th November, 2015.

Civil service---

----Appointment---Advertisement for---Ban imposed on recruitments after completion of process of written test and interview---Initiation of process for fresh recruitment--Scope---Cases of petitioners for appointment were forwarded to the competent authority after completion of recruitments process---Prime Minister imposed ban upon all sort of recruitments and process of selection of petitioners could not be completed---Prime Minister on the summary for fresh recruitment by the competent authority granted approval and fresh applications for appointments were invited---Validity---No reason had been assigned for fresh appointments when earlier candidates were put to written test and interviewed and they were recommended for appointment---Persons who participated in recruitment process though had spent huge amount, undertook journey, made preparation and appeared in written test as well as interview but no right had accrued in their favour as no letter of appointment had been issued as yet, however, when no reason had been assigned when process of recruitment was at final stage, then initiation of process for fresh recruitment was illegal---Petitioners had made out a strong case---Authorities were directed to initiate process of recruitment form the stage where they left it on imposing ban and then finally announce the result of successful candidates---Constitutional petition was accepted accordingly.

Raja Faisal Younas and Khurram Mehmood Qureshi for Petitioners.

Mir Afzal Malik, Rehan Seerat and Ch. Sultan Mansoor for Respondents.

Date of hearing: 12th November, 2015.

JUDGEMMT

NOOR-UL-HAQ N. QURESHI, J.--- All these writ petitions involving common questions of law and facts are being decided through this single order.

1. Brief facts of the cases are that in response to invitation made by respondent No.1 through newspaper "The News" dated 12.10.2012 for professional training for eleven months in different disciplines, the petitioners submitted applications, their tests were held and on declaring them as successful candidates their names were shortlisted and they were interviewed. After completion of almost entire process, cases of the petitioners were forwarded to the competent authority for approval but before grant of approval, the Prime Minister of Pakistan imposed ban upon all sort of recruitments, hence, the process of selection of petitioners could not be completed. Respondent No.2 on the basis of acute shortage of technical professionals, flouted a summary for fresh recruitment by mentioning that the trainees shall be offered jobs in the company at the end of their training, depending on the outcome of their training/merit and availability of vacancies. The Prime Minister of Pakistan accorded permission for recruitment against 100% posts vacant in OGDCL. On grant of approval, respondents Nos.1 and 2 invited fresh applications depriving the trainees of their rights as all process of their appointments was completed before imposition of ban. Hence, the above writ petitions.

2. Learned counsel for the petitioners has argued that acts of respondents regarding stoppage of recruitment of trainees is based on mala fide and in violation of their past practice simply to accommodate their favorites and to deprive the petitioners of their lawful rights; that the petitioners are qualified and eligible candidates to be recruited on the posts advertised by respondent No.1 in "Daily The News" dated 12.10.2012; that in similar situations Hon'ble Peshawar High Court, Peshawar has also protected the rights of affectees. That the petitioners have no other efficacious remedy except to invoke the jurisdiction of this Court by filing these writ petitions.

3. Learned counsel for respondents has argued that the petitioners have got no legal or fundamental right which has been infringed and they have no cause of action and locus-standi to file the present writ petitions; that the respondents have not denied right of the petitioners to apply afresh against the advertised posts. Hence, instant writ petitions are liable to be dismissed.

2017 P L C (C.S.) 115

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Syed IJAZ HUSSAIN

Versus

FEDERATION OF PAKISTAN and others

Writ Petitions Nos.1269, 1523, 1566, 1453, 1454, 1429, 1383, 1501, 1561, 1562, 1657, 2058, 1359 1401, 1416, 1418, 1426, 1432, 1462, 1464, 1466, 1484, 1503, 1504, 1505, 1506, 1507, 1518, 1540, 1446, 1511, 1440, 1509, 1564, 1565, 1583, 1612, 1496, 1439, 1451, 1472, 1542, 2033, 1568, 1589, 1607, 1961, 1588, 1415, 1447, 1955, 2095, 1756, 1446 of 2015, 1855 of 2013 and 3656 of 2014, decided on 27th July, 2015.

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

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7 & 8---Revised Promotion Policy, 2007, Para.2(i)(b)---Service Tribunals Act (LXX of 1973), S.4(1)(b)---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Arts.199, 212, 4 & 25--- Constitutional petition--- Maintainability--- Civil service---Promotion of an employee---Fitness, determination of---Criteria---Assessment by Central Selection Board---Bypassing of service record---Effect---Discretion, exercise of---Equal treatment of citizens---Placement in categories to the employees to be promoted---Scope---Promotion of petitioners/employees was denied due to recommendations of Central Selection Board---Contentions of petitioners/employees was that they fulfilled the requirements for their promotion but they had not been treated reasonably, fairly and justly---Validity---Service Tribunal had no jurisdiction on the controversy of determination of fitness and suitability of a person for a job and for promotion---Constitutional petitions were maintainable as petitioners-employees had challenged the criteria on the basis of which the fitness for promotion was determined---Civil servant had vested legal right to be considered for promotion in accordance with law---Withholding of promotion was a major penalty which could be inflicted by proceedings against a civil servant under the rules---Any action must be based on fair, open and just consideration and arbitrariness should be avoided---Decision of deferment of petitioners/employees had not been made in accordance with law---Nothing was on record as to why juniors to the petitioner/ employees were given preference over them---No opportunity of hearing was provided to the petitioner/employees before inflicting major penalty of withholding promotion---Impugned recommendations of Central Selection Board did not fulfill the requirements of S.24-A of General Clauses Act, 1897---Authority had not applied its mind while exercising its discretion to promote the employees which had resulted in pick and choose---Every individual had an inalienable right to be dealt with in accordance with law---Equal treatment of citizens had been guaranteed by the Constitution which could be denied only in peculiar circumstances of the case---Formula for giving more discretion without tangible material on point of integrity of civil servants and consequently placement in categories was against law---Authority could not be allowed to block the promotions of civil servants by arbitrary placement in category without recording any reason or referring any tangible material---Establishment Division of the Government was directed to reframe the formula by taking away the overriding effect of the marks to be awarded by Central Selection Board and categorization and place the cases before Central Selection Board within specified period---Assessment should be made on the basis of entire performance and in case of any tangible material asking question with regard to integrity of civil servant was available then he might be confronted with the same and any opinion of deferment or supersession might be made but not on the basis of hypothesis and reputation in air.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; PLD 1991 SC 118; 2003 SCMR 291; 2004 PLC (C.S.) 586; 2010 PLC (C.S.) 515; 1998 SCMR 2268; 2011 SCMR 1; PLD 1989 SC 26; 1993 PLC (C.S.) 576; Liaqat Ali Chughtai v. Federation of Pakistan an others 2012 PLC (CS) 1062; Secretary Establishment Division v. Aftab Ahmed Manikan 2015 SCMR 1006; PLD 1986 SC 168; PLD 2012 SC 106, PLD 1965 SC 90; PLD 1968 Lah. 1630; 2007 SCMR 1355;2009 PLC (C.S.) 40; 2007 PLC (C.S.) 716; 2007 PLC (C.S.) 811; 2011 PLC (C.S.) 534; 2005 PLC (C.S.) 974; 2007 SCMR 682; 2014 PLC (C.S.) 1134; 2009 PLC (C.S.) 40; PLD 2010 SC 857; 2008 PLC (C.S.) 1121; 2003 PLC (C.S.) 503; 2010 SCMR 130; Government of Pakistan v. Hameed Akhter Niazi PLD 2003 SC 110; I.A. Sherwani's case 1991 SCMR 1041 and 2006 PLC (C.S.) 564 ref.

Iram Adnan and others v. FOP and others 2012 PLC (C.S.) 1355; Oriya Maqbool Abbasi's case 2014 SCMR 817; Khalid Mehmood Watoo v. Government of Pakistan and others 1998 SCMR 2280; Liaqat Ali Chughtai v. Federation of Pakistan and others PD 2013 Lah. 413; 2012 PLC (C.S) 1062; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.W.F.P and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Abdul Wahab and another v. Secretary Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 rel.

(b) Constitution of Pakistan---

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4(1)(b)---Promotion of an employee---Determination of eligibility and fitness---Constitutional petition---Maintainability---Service Tribunal had no jurisdiction on the controversy of determination of fitness and suitability of a person for a job and for promotion---Constitutional petition would be maintainable when criteria on the basis of which the fitness for promotion was determined had been challenged.

(c) Civil service---

----Civil servant had vested legal right to be considered for promotion in accordance with law.

(d) Constitution of Pakistan---

----Art. 4---Rule of law---Scope---Every individual had an inalienable right to be dealt with in accordance with law.

(e) Constitution of Pakistan---

----Art. 25---Equality of citizens---Scope---Equal treatment of citizens had been guaranteed by the Constitution.

Hafiz S.A. Rehman Advocate Supreme Court and Muhammad Anwar Mughal for Petitioners (in W.Ps. Nos.1523, 1566, 1453 and 1454 of 2015).

Muhammad Munir Paracha, Advocate Supreme Court and Nauman Munir Paracha AHC for Petitioner (in W.P No.1429/2015).

Abdul Rahim Bhatti and Yasser Rahim Bhatti for Petitioners (in W.Ps. Nos.1383, 1501, 1561, 1562, 1657 and 2058 of 2015).

Abdur Rehman Siddiqui and Ch. Asghar Ali for Petitioners (in instant petition as well as Writ Petitions Nos. 1359, 1401, 1416, 1418, 1426, 1432, 1462, 1464, 1466, 1484, 1503, 1504, 1505, 1506, 1507, 1518, and 1540 of 2015).

Muhammad Aftab Alam Rana for Petitioners (in W.P. Nos.1446 and 1511 of 2015).

Barrister Masroor Shah for Petitioners (in W.Ps. Nos.1440, 1509, 1564, 1565 and 1583 of 2015).

Fiaz Ahmed Jandran for Petitioners (in W.Ps. Nos.1855/2013, 3656/2014 and 1612/2015).

Mansoor Beg for Petitioner (in W.P No.1496 of 2015).

Saeed Khursheed Ahmed for Petitioner (in W.Ps. Nos.1439 and 1451 of 2015).

Muhammad Shabbir Bhutta for Petitioners (in W.Ps. Nos.1472, 1542 and 2033 of 2015).

Ahsan Hameed Dogar for Petitioners (in W.Ps. Nos.1568, 1589, 1607 and 1961 of 2015).

Barrister Muhammad Shoaib Razzaq and Zulfiqar Ali Safdar for Petitioners (in W.P. No.1588 of 2015).

Petitioner in person (in W.Ps. Nos.1415, 1447 and 1955 of 2015).

M. Kowkab Iqbal for Petitioners (in W.P No.2095/2015).

Sardar Taimoor Aslam for Petitioner (in W.P No.1756 of 2015).

Ghulam Rasool Bhatti for Petitioner (in W.P No.1446/2015).

Afnan Karim Kundi, Addl. Attorney General and Jehangir Khan Jadoon, Standing Counsel.

Ms. Naveeda Noor, Advocate for Respondents Nos.3 to 14 (in W.P No.3656/2014 and Respondents Nos.3 to 7 in W.P. No.1466/2015).

Muhammad Shoaib Shaheen and Muhammad Umair Baloch for Respondent No.5 in instant petition and for respondents Nos.5 to 8 (in W.P No.1432 of 2015).

Imran Fazal for Respondent No. 6 in instant writ petition and for FBR (in W.Ps. Nos.1426 and 1451 of 2015).

Mrs. Misbah Gulnar Sharif for Respondent (FBR) in instant writ petition as well as (in W.Ps. Nos.1383 and 1439 of 2015).

Zafar Iqbal Chaudhry and Khalid Waheed Khan for Respondents Nos.4 to 7 (in W.P No.1383 of 2015).

Ms. Ambreen Khan for Respondent No.4 (in W.P No.1464/2015).

Muhammad Asif Gujjar for Respondents Nos. 9, 10 and 15 (in W.P No. 1401 of 2015).

M. Aurangzeb Daha, Senior Prosecutor NAB (in W.P No.1415/2015).

Respondent No.6 in person (in W.P No. 1484 of 2015).

Ijaz Anwar for Respondent No.12 (in W.P. No.1503/2015), Respondent No.24 (in W.P No.1540/2015) and respondent No.3 in W.P. No.1454 of 2015).

Rai Azhar Iqbal Kharal, Advocate for Pakistan Railways (in W.Ps. Nos.1446, 1464, 1504 to 1507 and 1518 of 2015).

Barrister Jawad Niazi for Respondent (in W.P No.1588 of 2015).

Sajid Ijaz Hotiana for Respondent No.7 in instant Petition.

Abdul Saboor and Naveed Dar, Assistants, M/o Housing and Works.

Mohsin Raza Gondal, Deputy Director on behalf of Respondent No.4 (in W.P. No. 2058/2015).

Zeeshan Raza Zaidi, Section Officer, Establishment Division.

2017 P L C (C.S.) 191

[Islamabad High Court]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

GHANSHAM DAS

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and others

I.C.A. No.25 of 2016, decided on 20th January, 2016.

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

----R. 20-A---Office memorandum No. 1(28)/75-D.II/R.1 dated 18-02-1987--- Deputationist--- Repatriation of--- Scope--- Employee impugned his repatriation order through constitutional petition which was dismissed---Validity---Deputationist could not remain on deputation for indefinite period or stipulated period---Deputation could be terminated at any stage during prescribed period of deputation---Normal period for deputation would be three years which was extendable for two years with the prior approval of competent authority---Competent authority could repatriate the employee at any stage to his parent department without assigning any reason---Employee could not have any grievance against his repatriation by the borrowing department to his parent department---Parent department of the employee had not been abolished and employee should comply with the impugned notification of repatriation without fail---Employee had been correctly repatriated to his parent department---Matters with regard to deputation and repatriation were related to the terms and conditions of service and constitutional petition was not maintainable before the High Court---No infirmity was pointed out in the impugned order passed by the Single Judge in Chamber---Intra-court appeal was dismissed in circumstances.

Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad through Chairman and others 2010 SCMR 378; Mst. Robia Ayub v. Federation of Pakistan through Secretary, Ministry of Education and others 2013 PLC (C.S.) 915; Safeer Hussain v. Federation of Pakistan 2013 PLC (C.S.) 28; Muhammad Yousaf v. Abdul Rashid 1996 SCMR 1297; Azra Riffat Rana v. Secretary, Ministry of Housing and Works PLD 2008 SC 476; Fazali Rehmani v. Chief Minister, NWFP PLD 2008 SC 769; Pakistan v. Fazal Rehman Khundkar and another PLD 1959 SC (Pak.) 82; Abdul Majeed v. Chief Secretary, Punjab 2015 PLC (C.S.) 1381; Lal Khan v. Employees Old Age Benefit Institution 2010 PLC (C.S.) 1377; Rasheed Tareen v. Chairman Works Welfare Board 2012 PLC (C.S.) 54; Zahoor Khan v. Government of Khyber Pakhtunkhwa 2015 PLC (C.S.) 824 and Abdul Jabbar Memon v. Federation of Pakistan 2011 PLC (C.S.) 513 rel.

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

----S. 25(2)--- Office memorandum--- Scope--- Office memorandum issued from time to time consistent with the statute had force of rules.

Senate Secretariat v. Faiqa Abdul Hayee 2014 SCMR 522; National Assembly of Pakistan v. Muhammad Aslam Shami 2012 SCMR 412; Mst. Robia Ayub v. Federation of Pakistan through Secretary, Ministry of Education and others 2013 PLC (C.S.) 915 and Rasheed Tareen v. Chairman Works Welfare Board 2012 PLC (C.S.) 54 rel.

(c) Civil service---

----Deputation---Scope---Deputation could be terminated at any stage during prescribed period of deputation.

(d) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Deputation being matter related to terms and conditions of service---Constitutional petition by deputationist for his continuation on deputation was not maintainable.

(e) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction--- Scope--- Constitutional jurisdiction under Art. 199 of the Constitution was equitable in nature which could not be extended in favour of a person whose conduct was inequitable.

(f) Administration of justice---

----He who seeks equity must do equity.

(g) Words and phrases---

----"Deputation"--- Meaning--- Deputation was an administrative arrangement between the borrowing and lending authorities.

2017 P L C (C.S.) 260

[Islamabad High Court]

Before Aamer Farooq, J

MUHAMMAD ASLAM HAYAT

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.2845 of 2016, decided on 21st July, 2016, Service Tribunals Act (LXX of 1973)---

----S. 4---Direction from High Court under Art.199 of the Constitution was sought by the employee for providing the documents to prepare defense in the departmental proceedings---Validity---Employee had assailed inquiry proceedings pending before the inquiry officer---Disciplinary matters would pertain to terms and conditions of service of civil servant---Service Tribunal had jurisdiction in such like case and jurisdiction of other courts in such a case had been barred under Art.212 of the Constitution---Constitutional petition was not maintainable in circumstance which was dismissed in limine.

Aneesur Rehman v. Federation of Pakistan and others 2010 PLC (C.S.) 812; Javed Iqbal Awan v. Zari Taraqiati Bank Ltd. and 2 others 2006 PLC (C.S.) 661; G. Asghar Malik v. Federation of Pakistan and others 2002 SCMR 433; Shakeel Ahmed v. Commandant 502 Central Workshop EME Rawalpindi and another 1998 SCMR 1970; Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440; Tahir Mahmud v. Qasim M. Niazi and others 2014 PLC (C.S.) 1199; Muhammad Adnan Moin v. Federation of Pakistan and others 2016 PLC (C.S.) 549 and Secretary Establishment Division, Federation of Pakistan, Islamabad v. Aftab Ahmed Manika and others 2015 SCMR 1006 ref.

Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others 1998 SCMR 1948; Tahir Jamil Butt v. Mian Jehangir Pervaiz and another 1999 SCMR 2779 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel.

2017 P L C (C.S.) 533

[Islamabad High Court]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

AZRA JAMALI and others

Versus

FEDERATION OF PAKISTAN through Secretary, M/o Commerce and another

I.C.A. No.281 of 2015, decided on 17th March, 2016.

(a) Constitution of Pakistan---

---- Arts. 199 & 212--- Constitutional petition--- Bar of jurisdiction---Principle--- Matter over which Service Tribunal does not have appellate jurisdiction, can lawfully be agitated before High Court in its Constitutional jurisdiction under Art.199 of the Constitution.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy decisions---Interference by High Court---Principle---High Court does not sit as an appellate authority over policy considerations and cannot examine correctness, suitability and appropriateness of policies---Executive has the authority to formulate a policy and Courts can interfere with it only if it violates fundamental rights enshrined in the Constitution or is opposed to the provisions of the Constitution or is opposed to a statutory provision---High Court cannot interfere with a policy either on the ground that it is erroneous or that a better and fairer alternative was available---Administrative actions and polices of government which relate to enforcement of fundamental rights of people and are of public importance, must be framed in consonance with the policy of law and mandate of the Constitution.

Ghiasuddin v. Ghulam Mohyuddin 2005 SCMR 471 rel.

(c) Rules of Business, 1973---

----Part-C, R.15(a)---Letter of appointment/posting---Policy decision---Interference by High Court---Appellants were government officials who were serving as Trade Officers at various overseas diplomatic missions and they were aggrieved of Strategic Trade Policy Framework, 2012-2015---Validity---No occasion existed to interfere with decision dated 10-2-2015, taken by Prime Minister of Pakistan on the recommendation of the Ministry of Commerce contained in its summary dated 30-5-2014---Terms of letter of appointment/posting could not override a decision made under R.15(a) of Part-C of Rules of Business, 1973---Appellants had worked as Trade Officers for more than two years and in accordance with the policy decision taken by competent authority on 10-2-2015, they must return and serve wherever posted by their departments---Such officers did not have a 'vested right to remain posted at a particular place---Competent authority having made departure from an important policy, appellants could not question subsequent policy decision taken by Prime Minister in Constitutional jurisdiction of High Court---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court---Intra Court Appeal was dismissed in circumstances.

Orya Maqbool Abbasi v. Federation of Pakistan 2014 SCMR 817; Secretary Establishment Division v. Aftab Ahmad Manika 2015 SCMR 1006 and Liaqat Ali Chughtai v. Federation of Pakistan PLD 2013 Lah. 413 ref.

Case law relied.

Baz Muhammad Kakar and Babar Sohail for Appellants.

Syed Hasnain Ibrahim Kazmi, Deputy Attorney-General; Altaf Asghar, Joint Secretary (Admn) and Muhammad Faridoon, Section Officer Ministry of Commerce for Respondents.

2017 P L C (C.S.) 578

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

NAZEER-UD-DIN

Versus

GOVERNMENT OF PAKISTAN through Secretary, Passport and Immigration Department and others

Writ Petition No.2876 of 2016, decided on 26th December, 2016.

Civil service---

----Promotion---Non-consideration of employee for promotion due to pendency of criminal case---Scope---Department did not consider the employee/petitioner for promotion due to criminal case pending against him---Validity---No one could be punished by denying promotion or considering for promotion before the charge was established against him---Mere pendency of a criminal case was no ground for denying consideration for promotion---First Information Report had been registered against the employee but it was yet to be established whether or not he was guilty of the alleged offence---Employee could not be denied consideration for promotion until the conclusion of trial against him---Promotion was not vested right but consideration for promotion in accordance with law was a vested right---Jurisdiction of Service Tribunal would not attract with regard to matter concerning with fitness of employee for promotion---Department was directed by High Court not to consider the criminal case pending against the employee as an obstacle for his consideration for promotion in accordance with applicable law if he was otherwise eligible for such consideration---Constitutional petition was allowed in circumstances.

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

Zia ul Hassan v. Nadeem Chaudhry 2000 SCMR 645 distinguished.

Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd. PLD 2002 SC 1060; Muhammad Hanif v. Province of Sindh 2011 PLC (C.S.) 543; Salahuddin Mughal v. Province of Sindh 2012 PLC (C.S.) 1018; Secretary, Establishment Division v. Aftab Maneka 2015 SCMR 1006 and I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 rel.

Amjad Ali for Petitioner.

Arshad Khan Jadoon, Deputy Attorney-General for Respondents.

2017 P L C (C.S.) 602

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIAC)

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.2808 of 2013, decided on 18th November, 2016.

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

---Arts. 9 & 32---Appointments in Pakistan International Airline Corporation---Jurisdiction of Mohtasib, exercise of---Scope---Candidate for appointment filed complaint before the Mohtasib which was dismissed but the President accepted the representation against the said order---Validity---Ombudsman could exercise jurisdiction only if any allegation of "maladministration" was levelled---Complaint of the candidate, therefore, should have been rejected on this score alone---President issued direction to the Airline to accommodate the complainant in the next available training---Decision on representation to the President was not based on the finding of "maladministration"---Action called into question by way of filing complaint was an "executive function" which fell out of the domain of Ombudsman---When Ombudsman had no jurisdiction to entertain the complaint, the President was not vested with any authority to issue direction to accommodate the candidate---Impugned order passed by the President was set aside---Constitutional petition was allowed in circumstances.

Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman), Islamabad and others PLD 2016 SC 940 rel.

M. Umer Khan Vardag for Petitioner.

Arshad Mehmood Kiyani learned DAG for Respondents.

Muhammad Bashir Khan for Respondent No.2.

2017 P L C (C.S.) 955

[Islamabad High Court]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

ASJAD ASAD WASI----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, M/o Railway and another----Respondents

I.C.A. No.519 of 2015, decided on 26th April, 2016.

(a) Civil service---

----Resignation---Withdrawal of---Scope---Employee had voluntarily resigned from service and his resignation had been accepted by the competent authority---Relationship of employer and employee had ceased to exist---Employee had no right either to claim the post or a right to withdraw his resignation which had already become effective---Employee could not withdraw his resignation after it was accepted by the competent authority---Resignation must be voluntarily tendered expressing a desire to quit service---Nothing was on record that employee did not tender his resignation voluntarily or he was coerced into tendering his resignation---Intra-court appeal of employee was dismissed in circumstances.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 852; Anwar-ul-Haq v. Secretary, Ministry of Industries and Production, Government of Pakistan Islamabad and others 2010 SCMR 1386; Registrar, Lahore High Court, Lahore v. Syed Javed Akbar and another 2007 SCMR 792; Chaudhry Khush Akhtar Subhani v. Returning Officer and another 2008 YLR 2132; Mrs. Neelam Yasmin Abbasi v. Returning Officer and 2 others 2010 MLD 527; Saifullah Khan v. Hafiz Hamdullah and 4 others PLD 2005 Quetta 145; Tahsin Ahmad Mehmoodi v. Pakistan Steel Mills Company Ltd. 1990 MLD 1132; Muhammad Mansha v. Government of Punjab 1984 CLC 2231; Mohammad Khan v. Pakistan through Secretary, Ministry of Interior, Karachi PLD 1958 Kar. 75; Dr. Muhammad Munir-ul-Haq and others v. Dr. Muhammad Latif Chaudhry 1992 SCMR 2135; Muhammad Zahoor v. Registrar, Lahore High Court 2005 SCMR 1174; M/s. J.K. Cotton Spg. and Wvg, Mills Co. Ltd., Kanpur v. State of U.P. AIR 1990 SC 1808; P. Kasilingam v. P.S.G. College of Technology AIR 1981 SC 789; Union of India v. Shri Gopal Chandra Misra AIR 1978 SC 694; Biddle v. Willard, Governor 10 Ind. 62, 1857 WL 5759 (Ind.); Hoke v. Henderson 4 Dev. N.C.) 29 and Jai Ram v. Union of India AIR 1954 SC 584 rel.

(b) Civil service---

----Resignation---When public servant had submitted a letter of resignation his service/employment would stand terminated from the date on which letter of resignation was accepted by the competent authority.

(c) Civil service---

----'Resignation'---Meaning.

Corpus Juris Secundum, Volume LXXVII at page 77 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact could not be resolved while exercising constitutional jurisdiction.

Shoaib Shaheen ASC for Appellant.

2017 P L C (C.S.) 973

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Syed TALLAH SHAH

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.40 of 2011, decided on 18th November, 2016.

(a) Civil service---

----Promotion---Scope---Contention of employee of a Corporation was that he was superseded in an unjust and arbitrary manner---Validity---Employer Corporation was not only owned by the Federal Government but its affairs relating to appointment of officers of higher grade were also regulated by the Federal Government---Employer being Public Service Corporation was amenable to the Constitutional jurisdiction of High Court---Employee was a consistent performer for the Organization but Departmental Promotion Committee had ignored the prolific career of the employee in order to favour and oblige other persons---Act of department was contaminated with rarity, oppressive, polluted, whimsical and result of colourable exercise of authority, offensive to Fundamental Rights and thus unlawful---Authority vested in Departmental Promotion Committee of making recommendations was a sacred trust, depriving any deserving person from promotion was not less than a breach of trust---High Court observed that person of unquestionable integrity, sanctity and veracity should not be penalized for his authentic, incorruptible, laudable and un-pretended performance and veritable achievements---Public functionaries should decide the accrued rights of person(s) subordinate to them with honesty, without likes/dislikes, fear or favour and by considering the responsibility as a sacred trust---Deprive someone from his due intentionally and malafidely was nothing but a rude and noisome act---Constitutional petition was allowed in circumstances.

2003 PLC (C.S.) 503; (sic) PLC (C.S.) 103; 2004 PLC (C.S.) 62; 2002 SCMR 574; 1990 SCMR 1692; 1995 PLC (C.S.) 188; Federal Government Employees Housing Foundation and others v. Muhammad Akram Ali Zai, Deputy Controller. PBC Islamabad PLD 2002 SC 1079 and 1998 NLR Service 30 ref.

Munawar Hussain Bukhari v. Appellate Authority/Tribunal Alipur and others 2016 SCMR 1087; Major General (Rtd.) Malik Muhammad Farooq v. Government of Pakistan and others 2013 PLC (C.S.) 962; I.A. Sharwani and others v. Government of Pakistan, through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Corruption in Hajj arrangements in 2010 PLD 2011 SC 963; Tariq Aziz-ud-Din and others in Human Rights cases 2010 SCMR 1301; Dr. Mubashir Hassan v. FOP 2010 SC 265; Dr. Muhammad Amjad and another v. Dr. Israr Ahmad and others 2010 SCMR 1466; Abid Hassan and others v. PIAC and others 2005 SCMR 25 and Allah Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256 rel.

(b) Public functionaries---

----Public functionaries should decide the accrued rights of person(s) subordinate to them with honesty, without likes/dislikes, fear or favour and by considering the responsibility as a sacred trust.

Barrister Syed Masood Raza for Petitioners.

Arshad Mehmood Kiani, DAG.

Asaf F. Vardag for Respondents Nos.2 and 3.

2017 P L C (C.S.) 1113

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

NOOR WALI KHAN and others

Versus

FEDERATION OF PAKISTAN and another

W.P. No.1875 of 2016, decided on 18th January, 2017

Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----Ss. 35 & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9 [since repealed]---Constitution of Pakistan, Arts.199 & 189---Constitutional petition---Maintainability---Employees of Pakistan Telecommunication Corporation Limited---Service benefits, grant of---Scope---If discrimination was reported to the High Court by an aggrieved person(s) with regard to accrued rights protected by law at the time of transfer of Pakistan Telecommunication Corporation Limited, constitutional petition was maintainable---Public functionaries vested with authority to decide the accrued right of person(s) subordinate to them or any other person(s) was required to decide honestly, without likes/dislikes, fear or favour so that benefit could be extended to the one qualified for---Pronouncements of Supreme Court was law and employer Pakistan Telecommunication Corporation Limited was bound to follow the same---Denial of any fiscal benefit to the employees under settled question of law was not less than disobedience, defiance and an endeavor to frustrate the law declared by the Supreme Court-Department was directed by the High Court to extend those benefits to the employees to which equally placed persons had been declared entitled to by the Supreme Court---Constitutional petition was allowed in circumstances.

PTCL and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362; Muhammad Riaz v. Federation of Pakistan through Secretary, M/o Information Technology, Government of Pakistan, Islamabad and others 2015 SCMR 1783; Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others v. Muhammad Arif and others 2015 SCMR 1472; Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/o Information Technology and Telecommunication and others 2012 SCMR 152; PTCL v. Iqbal Nasir and others PLD 2011 SC 132; PTCL v. Muhammad Zahid and 29 others 2010 SCMR 253; Quran Surah (4) Nisa, Verse 58 and Sayings of Holy Prophet ref.

Hafiz Arfat Ahmad Ch. and Ms. Kashifa Niaz Awan for Petitioners.

Shahid Anwar Bajwa for Respondents.

2017 P L C (C.S.) 1327

[Islamabad High Court]

Before Athar Minallah, J

Mirza ABDUL REHMAN

Versus

FEDERATION OF PAKISTAN and others

W.P. No.1021 of 2015, decided on 14th April, 2017.

(a) Drug Regulatory Authority of Pakistan Act (XXI of 2012)---

----Ss. 5 & 8---Constitution of Pakistan, Art.199---Quo warranto, writ of---Maintainability---Civil service---Drug Regulatory Authority of Pakistan---Chief Executive Officer---Appointment of---Requirements---Expression 'financial' or professional' interest---De facto, doctrine of---Scope---Contention of petitioner was that appointment of respondent was made in violation of prescribed eligibility criteria provided under Drug Regulatory Authority of Pakistan Act, 2012---Validity---Eligibility criterion and conditions had nexus with the date when a person was selected and subsequently appointed pursuant to completion of the selection process---Word 'appoint' had been used in S.5 of Drug Regulatory Authority of Pakistan Act, 2012 and said expression could not be used as 'to be appointed'---Condition for the purpose of eligibility with regard to age limit prescribed under S.5 of Drug Regulatory Authority of Pakistan Act, 2012 was relevant and would be attracted on the date when notification of appointment was issued---Person so appointed must not be less than 45 years of age or more than 56 years---Age of respondent, in the present case, on the date of appointment i.e. issuance of notification, was more than 56 years---No provision existed in Drug Regulatory Authority of Pakistan Act, 2012 which empowered the appointing authority to grant relaxation in the prescribed age limit nor age restriction had been relaxed---Appointment made in violation of mandatory prescribed age would be void---Expression 'financial' or 'professional' interest used in S.18 of Drug Regulatory Authority of Pakistan Act, 2012 were preceded by the wordany'---Expression 'any' was used to indicate something that was not particular or specific---Quantity, amount or quantum of interest was not relevant to trigger the disqualification provided under S.18 of Drug Regulatory Authority of Pakistan Act, 2012---Financial or professional interest as a disqualification was attracted at the time of determining the eligibility of a person---Person having any financial or professional conflict of interest was not eligible to be considered for appointment as Chief Executive Officer of Drug Regulatory Authority of Pakistan---Single share in an entity at the time of determination of eligibility would be sufficient to render a person as being disqualified for being considered---Legislature by prescribing financial or professional conflict of interest as a disqualification had acknowledged the fiduciary status of Chief Executive Officer for the purposes of Drug Regulatory Authority of Pakistan Act, 2012---Respondent was Director of a Pharmaceutical Company and also a shareholder of the said company at the time when he applied in response to the advertisement published in the newspapers---Company of which respondent was Director and owned shares was amenable for its activities and business to the regulatory framework provided under Drug Regulatory Authority of Pakistan Act, 2012---Respondent was not eligible to be considered during the selection process with regard to appointment as Chief Executive Officer of Drug Regulatory Authority as he had financial conflict of interest---Appointment of respondent was in violation of Ss.15 & 18 of Drug Regulatory Authority of Pakistan Act, 2012---Disposing of shares later was inconsequential---Technicalities or minor irregularities would not render an appointment to a public office as invalid---Respondent was not eligible to be appointed as Chief Executive Officer of the Drug Regulatory Authority of Pakistan---Impugned notification was illegal, void and without lawful effect which was set aside---Acts done or orders passed by the respondent till rendering of present judgment would be protected under the de facto doctrine---Government was directed by the High Court to initiate process for selection of Chief Executive Officer of Drug Regulatory Authority of Pakistan---Constitutional petition was allowed accordingly.

Muhammad Yasin v. Federation of Pakistan, through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 ref.

Mehram Ali and others v. FOP and others PLD 1998 SC 1445; Malik Asad Ali and others v. FOP, through Secretary Law and Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Manzoor Hussain v. The State PLD 1998 Lah. 239; Abdus Sattar v. The State PLD 1997 Lah. 683 and Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 rel.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Preconditions to be fulfilled for issuance of writ of quo-warranto enumerated.

Article 199(1)(b)(ii) of the Constitution empowers a High Court to issue a writ in the nature of quo warranto on an application by any person. The High Court may require a person on such an application, within the territorial jurisdiction of High Court, holding or purporting to hold a public office, to show under what authority of law he claims to hold that office. The pre-conditions for the issuance of a writ of quo warranto are, firstly, making of an application by 'any' person who need not be aggrieved, secondly, the person against whom a writ is being sought must be within the territorial jurisdiction of the High Court before which the petition has been filed, thirdly, the application must be in respect of a person holding or purporting to hold a public office and, lastly, the petition is in respect of requiring such a person to show that under what authority of law he claims to hold that office. A writ in the nature of quo warranto, therefore, would be issued if the above conditions are fulfilled. Territorial jurisdiction and holding or purporting to hold a public office are the two most important conditions to be satisfied. The expression public office has not been defined in the Constitution.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bai and 10 others PLD 1975 SC 244; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; N.-W.F.P. Public Service Commission through Chairman and another v. Dr. Samiullah Khan and 2 others 1999 SCMR 2786; Hafiz Hamdullah v. Saif Ullah Khan and others PLD 2007 SC 52; Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97; Capt. (R) Muhamamd Naseem Hijazi v. Province of Punjab through Secretary Housing and Physical Planning and 2 others 2000 PLC (C.S.) 1310; Ghulam Shabbir v. Muhammad Munir Abbasi and others 2011 PLC (C.S.) 763; Muhammad Rafiq and 2 others v. Muhammad Pervaiz and others 2007 PLC (C.S.) 853; Qazi Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan and others v. General Pervaiz Musharraf, Chief Executive and others PLD 2002 SC 853 and Malik Nawab Sher v. Ch. Muneer Ahmed and others 2013 SCMR 1035 rel.

(c) Constitution of Pakistan--

----Art. 199---Writ of quo warranto---Holding of a "public office" by a person---Determination---Test---Jurisdiction of High Court---Nature and scope.

The object of a writ in the nature of quo warranto is to determine whether a person is holding a 'public office' legally. The test for determination was to ascertain whether or not the person against whom a writ has been sought holds a 'public office'. It is not necessary for the petitioner to show that he/she is an 'aggrieved person'. The bona fides of the petitioner may be relevant but not a determinant factor for the purposes of exercising discretion under Article 199(1)(b)(ii) of the Constitution. The jurisdiction vested in a High Court in respect of a writ of quo warranto is inquisitorial in nature. The High Court has to consider whether the person who holds a public office fulfils the necessary qualifications prescribed under the relevant law and that the legal provisions relating to appointment have not been violated. The jurisdiction vested in the High Court being discretionary in nature may, therefore, be exercised in an appropriate case despite being satisfied that the person who has brought the matter may be having a personal interest, or his bona fides may appear to be suspect. Technicalities or minor irregularities would not render an appointment to a public office as invalid.

(d) Drug Regulatory Authority of Pakistan Act (XXI of 2012)---

----S. 8---'Conflict of interest'---Connotation.

Black's Law Dictionary Eighth Edition and Conflict of Interest in the Professions Edited by Michael David and Andrew Stark (New York; Oxford University Press, 2001 rel.

(e) Words and phrases----

----'Any'---Meaning and scope.

Khawaja Muhammad Farooqui and Ali Nawaz Kharal for Petitioner.

Adnan Saboor Rohaila and Afnan Karim Kundi, Addl. Attorney General for Respondents.

2017 P L C (C.S.) 1365

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD MASROOR-UL-HAQ

Versus

FEDERATION OF PAKISTAN through Secretary, M/o Overseas Pakistan and HRD Islamabad and others

Writ Petition No.2604 of 2016, decided on 13th December, 2016.

(a) Civil service---

----"Deputation"--- Nature and meaning of--- Repatriation of deputationist---Wedlock policy for civil servants---Application in case of deputationist---Principles---Deputation has been defined as an administrative arrangement between borrowing and lending authorities for utilizing services of an employee in public interest and exigency of services against a particular post---Deputation was a contract between the borrowing and lending authorities, which was liable to be terminated at any stage during the prescribed period of deputation---Deputationist could not remain on deputation for an indefinite period or stipulated period in accordance with his/her own whims and wishes---Deputationist may not necessarily complete the tenure for which he/she was deputed and such power rested with the competent authority to repatriate a deputationist without assigning any reason---In case of transfer on deputation, no vested right accrued to a deputationist to continue for the period of deputation and a competent authority was empowered to repatriate a deputationist as and when the exigencies of service required the same---Deputationist could not occupy a post reserved for a promotion quota---Reliance on the "wedlock policy" was not a valid plea to continue on deputation as the law could not be circumvented to bring spouses to the same station and thus a claim to continue deputation on the basis of the "wedlock policy" was not justifiable.

Constitution Petition No.D-767 of 2009 ref.

Pakistan v. Fazal Rehman Khundkar and another PLD 1959 SC (Pak) 82; Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad 2010 SCMR 378; Mst. Robia Ayub v. Federation of Pakistan 2013 PLC (C.S.) 915; Abdul Majeed v. Chief Secretary, Punjab 2015 PLC (C.S.) 1381; Lal Khan v. Employees Old Age Benefit Institution 2010 PLC (C.S.) 1377; Zubair v. Federation of Pakistan 2016 PLC (C.S.) 259; Dr. Altaf Hussain v. Federation of Pakistan 2013 PLC (C.S.) 1178; Safdar Ali Sahito v. Province of Sindh 2011 PLC (C.S.) 956 and Asma Shaheen v. Federation of Pakistan 2013 PLC (C.S.) 391 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Civil service---Deputation and repatriation of civil servants---Aggrieved persons---Scope---Deputationist could not be treated as an "aggrieved person" because he/she had no vested right to remain on a post as deputationist forever or for a stipulated period of time and could be repatriated at any time.

Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad 2010 SCMR 378 rel.

Muhammad Ramzan Khan for Petitioner.

Muhammad Arbab Alam Abbasi for Respondent No.2.

Ms. Sitwat Jahangir, Standing Counsel.

Faisal Tairq, Deputy Director Workers Welfare Fund, Islamabad.

2017 P L C (C.S.) 1393

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Athar Minallah, JJ

Syed AZHAR ABBAS JAFRI

Versus

HBFC WORKMEN UNION OF PAKISTAN and others

I.C.A. No.594 of 2012, decided on 31st January, 2017.

Banks (Nationalization) Act (XI of 1974)---

----S. 11(12)(c)---Banks (Nationalization) (Amendment) Act (XXIV of 2011), Preamble---Companies Ordinance (XLVII of 1984), S.199(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Appointment of Managing Director/Chief Executive Officer of a Corporation controlled by Government---Scope---Appointment of employee (a foreign national) was declared as not in accordance with law and benefit derived by him were directed to be recovered---Validity---Federal Government nominated the respondent employee as Chief Executive Officer for a period of three years---Board of Directors of the Corporation confirmed the said nomination---Employee's three-year tenure expired in January, 2012---Retiring Chief Executive should continue to perform his function until his successor was appointed unless non-appointment of his successor was due to any fault on his part or his office was expressly terminated---Employee continued to perform duties as Chief Executive of the Corporation until the impugned judgment was passed by the Single Judge of the High Court---General provisions pertaining to management of Banks contained in S.11 of Banks (Nationalization) Act, 1974 were no longer applicable to the Corporation after enactment of Banks (Nationalization) (Amendment) Act, 2011---Employee, in question, was appointed prior to enactment of Banks (Nationalization) (Amendment) Act, 2011---Appointment of employee was unlawful as same was in violation of S.11(12)(c) of Banks (Nationalization) Act, 1974---Employee did work during the period for which he was appointed as Chief Executive Officer---Employee was not to be burdened with the direction for the recovery of benefits to which he would be otherwise entitled---Intra court appeal was allowed to the extent of recovery of benefits derived by the employee in circumstances.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207; Administrator, District Council v. Ghulab Khan 2001 SCMR 1320; Asad Ali Alvi v. Secretary, Government of Punjab 2007 PLC (C.S.) 924; Shaukat Ali v. District Government, through Nazim/Chairman Selection Committee 2005 PLC (C.S.) 790; Khalida Parveen v. District Education Officer 2003 PLC (C.S.) 1376 and Mumtaz Ali Mangi v. National Bank of Pakistan 1995 PLC (C.S.) 119 rel.

Faisal Siddiqui for Appellant.

Hashmat Ali Habib for Respondent No.1.

Ehsan Ahmad Khawaja for Respondent No.4.

Sultan Mazhar Sher for Respondent No.5.

M.A. Rehman Qureshi for Respondent No.8.

2017 P L C (C.S) 1434

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Dr. MUHAMMAD USMAN

Versus

COMSATS INSTITUTE OF INFORMATION TECHNOLOGY

W.P. No.1316 of 2016, decided on 31st January, 2017.

Civil service---

----Appointment on contract basis---Wilfull absence from duty---Dismissal from service---Scope---Employee had gone abroad on scholarship but did not return to Pakistan according to the agreement---Services of employee were terminated---Validity---Mere filing of an application for extension of ex-Pakistan leave was no justification to stay beyond sanctioned period of leave---Employee was informed that his application for extension of ex-Pakistan leave, had not been approved by the competent authority---When employee did not return to Pakistan and report for duty after expiry of ex-Pakistan leave, he could be proceeded against for wilful absence from duty---Employee stayed abroad for more than the sanctioned leave---Employee's contract with the department had expired---Employee's failure to resume his duties after expiry of his sanctioned ex-Pakistan leaves was a serious matter---Such conduct of employee did not entitle him to seek issuance of writ of mandamus---Petitioner was bound in a contract of employment with the department which he was expected to honour---Employee had no prerogative to choose the portion of contract period in which to serve---Employee was supposed to work for his entire period of contract unless he was granted leave by the competent authority---Employee's absence from duty was unauthorized---Constitutional petition was dismissed in circumstances.

Tariq Aziz ud Din- Human Rights Case No.4834/2009 (2010 SCMR 1301); I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Shrin Munir v. Government of Punjab PLD 1990 SC 295 and Pakistan v. Muhammad Himayat Ullah Farouqi PLD 1969 SC 407 ref.

Chairman, WAPDA v. Tabbassum Zaib 2002 SCMR 692; Asjid Hussain v. Chief Engineer (Administration) Power, WAPDA 2011 SCMR 1102; Muhammad Ilyas Sheikh v. Secretary/Chairman Ministry of Railways 2011 SCMR 1429; Iftikhar Ahmed Malik v. Secretary, Ministry of Petroleum and Natural Resources 2005 SCMR 806 and Zafar Hameed v. NESCOM 2016 MLD 647 rel.

Hafiz S.A. Rehman for Petitioner.

Abid Hassan for Respondent.

2017 P L C (C.S.) 180

[Sindh High Court]

Before Muhammad Ali Mazhar and Arshad Hussain Khan, JJ

MUSHTAQUE AHMED SOOMRO

Versus

NATIONAL BANK OF PAKISTAN through President and others

C.P. No.D-4160 of 2015, decided on 6th October, 2016.

(a) Civil service---

----Employee of State-owned Bank---Misconduct---Dismissal from service---Right of fair trial---Scope---Inquiry was conducted and employee was dismissed from service---Contention of employee was that neither he was examined nor allowed to cross-examine the representative of the management---Validity---No defense witness was produced by the employee and complainant Bank did not cross-examine him---Reply of employee was disregarded by the Bank and defense was not considered---No examination-in-chief or cross-examination was recorded in the inquiry---Such defect in inquiry proceedings was sufficient to declare entire process as sham and distrustful---Right of fair trial was a Fundamental Right by dint of which a person was entitled to a fair trial and due process of law---Employee had been deprived of his indispensable Fundamental Right of fair trial---Impugned order of dismissal of employee was set aside and he was reinstated in service with back benefits---High Court observed that Bank could conduct de novo inquiry but should conclude the same within two months---If inquiry was conducted, ample opportunity should be provided to the employee to defend the charges---Payment of back benefit amount would be subject to the final outcome of the de novo inquiry if any---Constitutional petition was disposed of in circumstances.

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

----Arts. 131 & 133---Examination-in-chief and cross-examination---Significance---Non-examination-in-chief or cross-examination in an inquiry was incurable and irredeemable oversight and discernible defect in the inquiry proceedings sufficient to declare entire process sham and distrustful.

Muslim Commercial Bank Ltd. v. Abdul Waheed Abro and others 2015 PLC 259 rel.

Arshad Khan Tanoli for Petitioner.

Ch. Mohammad Ashraf for Respondents Nos.1 and 2.

Shaikh Liaqat Hussain, Standing Counsel.

2017 P L C (C.S.) 226

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

AYAZ AHMED MEMON

Versus

PAKISTAN RAILWAYS through Chairman and 8 others

Constitutional Petition No.D-4546 of 2012, decided on 18th October, 2016.

(a) Civil service---

----Contract appointment---Regularization of---Due process of law---Contention of petitioner employee was that he was appointed against a permanent post and was entitled for regularization---Validity---Earlier, petitioner employee filed constitutional petition wherein department was directed to consider and assess his suitability for permanent absorption---Said order had not been complied with and petitioner employee had filed present constitutional petition for implementation of order in its true perspective---Petitioner employee was performing his duties for a considerable period of time against a permanent post---Regularization of petitioner employee was to be based in terms of the order passed by the High Court---No justification existed to seek advice of Federal Public Service Commission after order by the High Court which was not challenged in the Supreme Court---Department had no issue against the performance or working of petitioner employee---No rational or logic existed to extend the period of contract from time to time---To enjoy the protection of law and to be treated in accordance with law was inalienable right of every citizen---Public functionaries were supposed to function in good faith honestly and within the precincts of their powers---State should ensure to eliminate all forms of exploitation---Authorities were directed to issue notification of petitioner's regularization in service within fifteen days---Constitutional petition was allowed in circumstances.

Muhammad Akram Solangi and others v. D.C.O. Khairpur and others 2013 PLC (C.S) 121; Ikram Bari's case 2005 SCMR 100; Ejaz Akbar Kasi v. Ministry of Information and Broadcasting 2011 PLC (C.S.) 367; Chairman, Pakistan Railways v. Arif Hussain and others 2008 PLC (C.S.) 240 and Hakim Ali Ujjan v. Province of Sindh 2012 PLC (C.S.) 127 rel.

(b) Constitution of Pakistan---

----Art. 4---Due process of law---Scope---Every person to be treated in accordance with law---No action detrimental to life, liberty, body, reputation or property to any person could be taken except in accordance with law.

(c) Constitution of Pakistan---

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

(d) Public functionaries---

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

Petitioner in person.

Syed Samiullah Shah for Respondents Nos.1 to 4.

Nemo for Respondents Nos.5 to 9.

2017 P L C (C.S.) 343

[Sindh High Court]

Before Muhammad Ali Mazhar and Muhammad Iqbal Mahar, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Deputy General Manager

Versus

Syed MUHAMMAD MEHDI RAZA RIZVI

H.C.A. No.323 of 2015, decided on 6th June, 2016.

Pakistan International Airlines Corporation Personnel Policies Manual---

----Cl. 34.13---Re-instatement of employee---Plaintiff was recruited as cadet pilot in the Airline but he was terminated for submitting forged educational certificate---Later on, Managing Director of the Corporation (Airlines) set aside the termination letter as the certificate had been verified by the relevant authorities---Suit filed by plaintiff was decreed in his favour by Single Judge of High Court---Plea raised by Airline Corporation was that Managing Director could not have set aside termination letter as it was issued by the direction of the Board of Directors of the Corporation---Validity---Intermediate certificate of plaintiff was verified from concerned Board and the Managing Director of Airlines Corporation was competent to reinstate plaintiff in service---High Court declined to interfere in the judgment passed by Single Judge of High Court---Intra court appeal was dismissed in circumstances.

Nighat Yasmin v. Pakistan International Air Lines Corporation Karachi and another 2004 SCMR 1820 and Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 ref.

Salman Talibuddin and Ms. Sara Malkani for Appellant.

Muhammad Ali Lakhani for Respondent.

2017 P L C (C.S.) 350

[Sindh High Court]

Before Salahuddin Panhwar and Muhammad Saleem Jessar, JJ

HASSAN BUX

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, HYDERABAD through Chairman and 3 others

Constitution Petition No.D-225 of 2016, decided on 10th November, 2016.

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

----R. 12-A---Date of birth---Alteration---Scope---Contention of petitioner employee was that his date of birth was 21-03-1959 instead of 21-03-1956, his matriculation Certificate has been lost and Board of Intermediate and Secondary Education had not issued duplicate certificate---Employee had sought direction to the Board of Secondary Education to issue duplicate certificate with specific date of birth---Validity---When a thing was required to be done in a particular manner, same had to be done in that manner or not at all---Candidate/student could be supplied/issued certificate only once and in case of its loss/destroyed or stolen away he might be supplied with duplicate copy of certificate provided he satisfied the Controller of Examination or any Officer of the Board in that behalf---Application for supply of duplicate copy of certificate was to be submitted through Head of the Educational Institution from which candidate had appeared for examination along with affidavit that original had been lost, stolen or destroyed---Petitioner employee had not followed the prescribed procedure for applying for duplicate certificate---High Court could not make change in the date of birth of civil servant at the verge of his retirement---No one was not entitled for a thing directly which he could not obtain indirectly---Request of petitioner employee for issuance of duplicate certificate with a disputed date of birth could not be entertained while exercising constitutional jurisdiction---Petitioner being government servant was aware of the situation but he remained mum for a noticeable period---Date of birth once recorded at the time of joining government service was final and no alteration in the same was permissible---Petitioner employee had not been able to make out a clear legal right and failure of the Board in avoiding their bounden legal duty---Employee had attempted to obtain a relief which he could not obtain within four corners of constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 and Mst. Zubaida Khatoon v. Mrs. Tehmina Sajid Shaikh and others 2011 SCMR 265 ref.

Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279; Ahmed Khan Dehpal v. OGDCL and others 2013 SCMR 759 and Khalil Ahmed Siddiqui v. Pakistan, through Secretary Interior, Islamabad and others 2004 PLC (C.S.) 1044 rel.

(b) Constitution of Pakistan---

----Art. 199---Mandamus, writ of---Scope---Writ of mandamus could only be issued where one legally bound to perform an act had avoided---Person seeking such writ must prove that there was no other efficacious remedy and he had a clear legal right.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed/controversial facts could not be determined in constitutional jurisdiction of High Court.

Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279 rel.

(d) Administration of justice---

----When a thing was required to be done in a particular manner then same had to be done in that manner or not at all.

Sulleman Dahri for Petitioner.

Ashfaque Nabi Qazi, Asstt. A.G. for official Respondent.

Shabir Hussain Hashmi for Respondents Nos.1 to 3.

2017 P L C (C.S.) 362

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

MOHAMMAD AYUB FAZLANI

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others

Constitution Petition No.D-2941 of 2016, decided on 11th November, 2016.

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

----R. 9-A---Repatriation of an employee to his parent department---Scope---Employee was repatriated to his parent department---Contention of employee was that he was permanently absorbed in the borrowing department against existing vacancy---Validity---Repatriation of employee to his parent department was unjustified where he was already declared surplus along with other officers--- Employee was absorbed in the borrowing department in consistent with R.9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Notification for repatriation of Said employee had already been cancelled by the Secretary to Government with the approval of competent authority---Department was directed to allow the employee to join and perform his duties in the borrowing department---Constitutional petition was disposed of accordingly.

Contempt proceedings against the Chief Secretary, Sindh and others case 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh and others 2015 SCMR 456 ref.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Binding effect---Decision of Supreme Court to the extent that it had decided question of law or enunciated a principle of law was binding on all other courts in Pakistan.

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

Petitioner in person.

Munir-ur-Rehman for M.D.A.

Abdul Jalil Zubedi, A.A.G.

Ghulam Brehmani, Additional Secretary (Services), SGA&CD, Government of Sindh.

2017 P L C (C.S.) 409

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

ARBAB A. MUNIR

Versus

MACKINNONS MACKENZIE AND COMPANY through Secretary

Suit No.207 and C.M.A No.1811 of 2012, decided on 27th January, 2016.

Employer and employee---

----Employee of the company---Allegation of disclosing trade secret and confidential information---Amendment in the pension rules to disentitle the employee for pension---Scope---Contention of employee-plaintiff was that amended rule should not be applied retrospectively---Validity---Business of a company such as shipping companies was not a novel or unique business which was not known to the people at large---Nothing was on record as to what trade secrets or confidential information had been passed on by the employee-plaintiff of the company---No such embargo existed on the employee-plaintiff to commence a competitive business---Only obstacle was that employee-plaintiff should not disclose trade secret and confidential information which company had failed to point out---Companies with whom defendant was associated with or working for might have found the employee-plaintiff more suitable and appropriate and/or economical and employee might have been providing better services---Such act of employee-plaintiff did not amount contrary to the contract between the employee and company---No agreement could be made in violation of Art.18 of the Constitution---Employee-plaintiff had served the company-defendant throughout his life---Matter of livelihood of employee could not be denied on account of the score that it would amount to running a parallel business---Employee-plaintiff had resigned much prior to the alleged amendment and same could not be applied retrospectively---Company-defendant could not enforce such terms which were contrary and violative of the fundamental and constitutional rights---Application against stopping the pension by the company was allowed in circumstances.

Ghazain Zafar Magsi for Plaintiff.

Faisal Mahmood Ghani for Defendant.

2017 P L C (C.S.) 419

[Sindh (Larkana Bench)]

Before Salahuddin Panhwar and Shahnawaz Tariq, JJ

MUHAMMAD SAMMI ABRO and others

Versus

PROVINCE OF SINDH through Secretary Education and others

C.Ps. Nos.D-661, D-723, D-758 of 2012, D-654 of 2013 and D-344 of 2014, decided on 27th January, 2016.

(a) Civil service---

----Appointment of teachers---No-disclosing result of successful candidates---Allegation of ignoring merit and recruitment procedure---Contention of petitioners was that authorities did not publish list of successful candidates rather issued offer order/appointment letters to the blue-eyed while ignoring the merit and recruitment procedure---Validity---Secretary Education Department was directed by High Court to constitute a committee to examine the cases of candidates who were appointed in pursuance of advertisement; to examine the fate of corrigendum issues by the department and that appointments were made under relevant rules and in accordance with law and to fix liability against the delinquent persons after providing opportunity to all the concerned persons---Secretary Education should ensure that appointments with regard to teaching staff and other categories in education department except for reserved quota should be conducted after initial examination through N.T.S.---Policy (Criteria) of such appointment should also be framed within three months---Secretary Education should ensure process of appointments through Public Service Commission which should include initial test through N.T.S.---Public Service Commission was directed to introduce procedure with regard to appointments in education sector---Constitutional petitions were disposed of in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---If policy made by the authorities failed the test of reasonableness, transparency and/or was otherwise unjust and unfair or suffered from mala fide then High Court had jurisdiction to set aside such action.

Habibullah Energy Ltd. v. WAPDA PLD 2014 SC 47; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167; Muhammad Shariq v. Federation of Pakistan PLD 2015 Isl. 180; Ghulam Rasool v. Government of Pakistan PLD 2015 SC 6 and Pir Imran Sajid and others v. Managing Director/General Manager and others 2015 SCMR 1257 rel.

(c) Words and phrases---

----Test---Meaning and object.

Oxford dictionary rel.

(d) Words and phrases---

----'Teacher'---Meaning.

Ghayoor Abbas Shhani for Petitioner (in C.P. No.D-661/2012).

Ashfaque Hussain Abro for Petitioner (in C.P. No.D-723/2012).

Habibullah G. Ghouri for Petitioners (in C.Ps. Nos.D-758/2012 and D-344/2014).

Faiz Mohammad Larik for Petitioner (in C.P. No.D-654/2013).

Safdar Ali Ghouri, holding brief for Asif Ali Abdul Razzak Soomro, along with private Respondents (in C.Ps. Nos.D-661/2012 and D-723/2012).

Abdul Hamid Bhurgri, A.A.G along with Syed Fida Hussain Shah, State Counsel along with Badaruddin Dhamrah, Deputy Director for D.S.E. (Elementary) and Nawab Ali Khokher, Deputy Director for D.S.E (Primary) Larkana and Mushtaque Ahmed Kalhoro, D.O. Headquarter.

Mohammad Ashiq Dhamrah, Counsel.

Syed Soofan Shah, files power on behalf of Respondent No.28 (in C.P. No. D-723/2012), taken on record.

2017 P L C (C.S.) 510

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

SOHAIL AHMED and 7 others

Versus

PROVINCE OF SINDH through Secretary and 2 others

C.P. No.D-4679 of 2016, decided on 1st December, 2016.

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

---R. 8(1)(d)---Constitution of Pakistan, Arts.199(5) & 208---Notification No.SOR (SGA&CD) 2-3/93 (P-III) dated 26-07-2016--- Constitutional petition against High Court--- Maintainability---Advertisement for appointment of Additional District and Sessions Judges---Expression 'otherwise qualified in accordance with law'---Scope---Petitioners being judicial officers applied for the post advertised before cutoff date but they were declared not eligible being judicial officers in view of amendment made in R.8(1)(d) of Sindh Judicial Service Rules, 1994---Validity---Petitioners being entitled to apply before the amendment under the original Rules, could not be excluded from the process provided they fulfilled other canons---Mere deletion of condition in the advertisement without amendment in the Rules had no significant effect when petitioners were otherwise qualified in accordance with law---Right of petitioners to apply for the post advertised continued up to the date of amendment notified by the Government---High Court and Supreme Court had been excluded from the definition of "person" to the extent of judicial jurisdiction and not from administrative/executive/consultative matters---Provisions of Art.199 (5) of the Constitution barred constitutional jurisdiction against High Court if the issue was with regard to judicial order or judgment---Constitutional petition lay against an administrative/ consultative/ executive order passed by the Chief Justice or the Administration Committee involving any violation of Rule framed under Art.208 of the Constitution causing infringement of Fundamental Rules of citizens---Notification with regard to amendment in the Sindh Judicial Service Rules, 1994 published in the official gazette on 22-09-2016 could not be given retrospective effect---Petitioners had applied before the cutoff date mentioned in the advertisement and till such time no amendment was notified creating any embargo against them being judicial officers---Petitioners were eligible and qualified to join the competitive process and their applications were wrongly rejected---Registrar, High Court (Sindh) was directed to arrange the prequalification test and then written test of the petitioners and other applicants who submitted their applications in the same competitive process before the cutoff date but their applications were rejected for the reason being judicial officers---Registrar should make request to the Authority to withhold the result of interview for ongoing selection process till such time the competitive process of petitioners and similarly placed candidates was completed so that consolidated merit list of entire selection process might be issued for appointment---Constitutional petition was allowed in circumstances.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Chief Administrator Auqaf v. Mst. Amna Bibi 2008 SCMR 1717; Government of The Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Government of Sindh and others v. Messrs Khan Ginners (Private) Limited and 57 others PLD 2011 SC 347; Muhammad Siddique v. The Market Committee, Thandlianwala 1983 SCMR 785 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 ref.

Muhammad Akram v. Registrar, Islamabad High Court and others in C.P. No.3/2014 and C.M.A. No.8540 of 2015 and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 rel.

(b) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Once competent authority had taken a decision backed by law it would not be in consonance with the norms of judicial review to interfere in policy making decision of executive authority---Grounds upon which an administrative action was subject to control by judicial review would include illegality which meant that decision-maker must understand the law correctly and regulate his decision-making power and must give effect to it.

(c) Sindh General Clauses Act (VI of 1956)---

----Ss.2(41) & 19-A---General Clauses Act (X of 1897), S.20-A---`Notification'---Meaning---"Notification" meant a notification published under proper authority in the official gazette and rules---Notification, orders, regulations and circulars having effect of law made or issued under any enactment were required to be published in the official gazette.

(d) Civil service---

----Administration of justice---If court had decided a point of law which covered not only the case of a civil servant who litigated but also of other civil servants, dictates of justice would demand that the benefit of judgment should be extended to other civil servants also who might not be parties to the litigation.

(e) "Notification"---

----Scope.

Scope of Notification is as under:---

i. That Notification which purports to impair an existing or vested right or imposes a new liability cannot operate retrospectively.

ii. That Notification which curtails or extends rights will take effect from date of its publication in the Gazette and not from any prior date.

iii. That a notification which confers benefit cannot operate retrospectively does not seem to be correct proposition of law.

iv. That the word notification shall mean a notification published under proper Authority in the official Gazette.

v. That Notified order would mean notification through publication in official Gazette and not by passing an order and keeping same in office of department concerned.

vi. That when a state of things is to take place by publication of a notification which means from the date of its publication in the Gazette and not from any prior date. If it is prior to the date of the publication in the Gazette, it will tantamount to give a retrospective effect.

vii. That issuance of a Notification is not of any significance or legal importance till it is published in an official Gazette.

viii That once the competent authority in the government has taken a decision backed by law, it would not be in consonance with the well-established norms of judicial review to interfere in policy making domain of the executive authority.

ix. That grounds upon which an administrative action is subject to control by judicial review, includes, illegality, which means the decision-maker must understand the law correctly that regulates his decision-making power and must give effect to it and

x. That if the court decides a point of law which covers not only the case of the civil servant who litigated, but also of other civil servants, the dictates of justice demand that the benefit of the judgment be extended to other civil servants also who may not be parties to the litigation.

Abid S. Zuberi, Ayan Mustafa Memon, Muhammad Saad Siddiqui, and Atta H. Khoso for Petitioners.

Abdul Jalil Zubedi and Abdul Jabbar Qureshi, A.A.G.

Ghulam Mustafa Memon, Registrar of this court along with Asif Majeed, Additional Registrar (Research) and Ashraf Memon, Addl. MIT-I.

2017 P L C (C.S.) 562

[Sindh High Court (Larkana Bench)]

Before Abdul Maalik Gaddi and Abdul Ghani Soomro, JJ

SIKANDAR ALI

Versus

PRINCIPAL CHANDKA MEDICAL COLLEGE, LARKANA and 2 others

Constitutional Petition No.D-82 of 2015 and M.As. Nos.275 of 2015 and 391 of 2016, decided on 27th January, 2016.

(a) Civil service---

----Temporary employee--- Restoration of--- Scope--- Similar constitutional petition filed by the petitioner had already been dismissed---Present constitutional petition was not maintainable only on the basis of a news item---Petitioner had been appointed on leave vacancy for a particular period---Petitioner could not claim his restoration as a right---Constitutional petition was dismissed in limine.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Constitutional petition was not maintainable on the basis of news item.

2017 P L C (C.S.) 625

[Sindh High Court (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Muhammad Faisal Kamal Alam, JJ

ABDUL GHAFFAR

Versus

GOVERNMENT OF SINDH through Secretary Food and 4 others

Constitution Petition No.D-1519 of 2011, decided on 26th April, 2016.

West Pakistan Civil Services Pension Rules, 1963--

----Rr. 4.6 to 4.10---'Family' of deceased civil servant, who was issueless and his wife had produced him--- Scope--- Group insurance/ gratuity/pension, right to---Scope----Respondents took plea that the word 'family' mentioned in Rr.4.6 & 4.7 of West Pakistan Civil Services Pension Rules, 1963 although included daughter-in-law and sister of the deceased government servant, but the same did not include his nephews and nieces---Validity---Group insurance was not part of inheritance and the same was payable to the nominee mentioned therein---Petitioner was entitled to the amount of group insurance, as he had been mentioned as nominee in the Nomination Form of State Life Insurance Corporation---Petitioner and his siblings fell within the purview of heirship of the deceased, as the deceased was issueless and his wife had pre-deceased him---Rule 4.8 of the Rules provided that when a government servant left no family, then the gratuity amount could either be given to a person who had been validly nominated and/or, if that was not the case, then to the relatives including brothers below the age of 21 years, unmarried and widowed sisters, father and mother of the deceased---Said rule was applicable mutatis mutandis in case of family pension---No one, except the present petitioner, had come forward for claiming the post death service dues of the deceased during all years since his death---Authorities under impugned letter had only disallowed the group insurance claim of the petitioner, and his claim relating to financial assistance had not been mentioned therein---Amount payable under the head of financial assistance/financial benefits did not form part of heritable estate of the deceased family, who were entitled to the same as per the rules and regulations of service---Authorities having neither disputed that petitioner was a valid nominee of the deceased nor had they agitated any other express prohibition under the rules, hence, the amount payable under financial assistance and other service dues would be payable to the petitioner---High Court directed the authorities to pay the amount of group insurance and financial assistance to the petitioner---Constitutional petition was allowed in circumstances.

PLD 1984 Kar. 237; 1999 CLC 806; PLD 1991 SC 731 and PLD 2010 Kar. 153 rel.

Sohail Ahmed Khoso for Petitioner.

Liaquat Ali Shar, Addl. A.G.

2017 P L C (C.S.) 632

[Sindh High Court]

Before Muhammad Ali Mazhar and Zulfiqar Ahmad Khan, JJ

AZHAR HAYAT

Versus

CHAIRMAN KARACHI PORT TRUST and 2 others

C.P No.D-696 of 2015, decided on 22nd March, 2016.

Civil service---

----Person retired from the Naval service---Employment on contract basis---Permanent absorption in service---Scope---Principles---Question before the High Court was as to whether the law provided for permanent absorption of the petitioner, who was with the rank of Rear Admiral, after his retirement from the Naval Services---In terms of Sl.231 and 231-A of ESTACODE, 2007, Vol. I, pages 344 and 349, paragraph No.18, the officers above the rank of Lt. Col. and above (as was the case of the petitioner) were eligible for re-employment on contract for 3 to 5 years only; however, such a contract could be renewed up to the age of 60 years---Summary had been sent and approval of the Prime Minister had been sought for re-employment or absorption of the petitioner in accordance with Joint Services Instructions (JSI) 4/85, which dealt with the terms and conditions of service of the Armed Forces Officers---Section 2 of said JSI dealt with the tenure of such officers, which showed that the recommendations were initially for offering employment to the officer for a period of up to 3 years; however in exceptional circumstances, such period could be extended by one year---Sl.No.214, paragraph V of ESTACODE dealt with the induction of commissioned officers in secondment viz-a-viz their respective tenure were identical with the respective provisions contained in JSI 4/85---Appointment of the petitioner having been in accordance with JSI 4/85 as well as Sl.No.214 (b) of ESTACODE and the both having been pari materia provisions, no possibility existed that the petitioner could have been inducted permanently on his secondment after his retirement from the Naval Service---In order to take the benefit of the principle of locus poenitentiae, the employee had to have a vested right in the job, which had accrued by issuance of appointment letter and not before and any award of benefit to a person in violation of law would not attract principle of locus poenitentiae; whereas, in present case, the appointment letter issued to the petitioner was the Notification dated 28.09.2012 offering the post on contract basis, which had been duly accepted by the petitioner; thus the said Notification had formed the basis of the petitioner's service---Board's resolution was a proposal, and no vested rights could have accrued to the petitioner merely from the proposal made in said Board's resolution---Petitioner had been appointed on contract basis for a specific term which he had completed; therefore no vested right could be claimed by him keeping in view of the terms of his contractual engagement---Constitutional petition was dismissed in circumstances.

Sameer v. Board of Revenue 1981 SCMR 604; Muhammad Tufail v. LDA 1997 MLD 2642; Humaira Hafeez v. Government of Punjab 2014 PLC (C.S.) 987; Mumtaz Hussain v. District Magistrate 1990 PCr.LJ 1784; Sardar Hidayatullah Khan Mokal v. Govt. of Punjab 1991 PLC (C.S.) 532 Rehmat Sanober v. Balochistan Public Service Commission 2015 PLC (C.S.) 1246; Muhammad Bilal v. The Principal National College of Textile Engineering, Faisalabad 1991 MLD 1605; Dilawar Hussain v. DCO Okara 2004 CLC 324; Excell Builders v. K.M.C. and others 1999 YLR 2659 and Lucky Cement Ltd. v. CBR PLD 2001 Pesh. 7 ref.

2015 SCMR 1418; 2015 SCMR 74; 2014 PLC (C.S.) 82; PLD 2014 (sic) 338; 2013 SCMR 1752; PLD 2013 SC 829; 2012 PLC (C.S.) 1271; 2011 SCMR 994; Muhammad Nadeem Arif v. Inspector General of Police Punjab 2011 SCMR 408; EDO Rawalpindi v. Rizwana Kausar 2011 PLC (C.S.) 1296; Mian Tariq Javed v. Province of Punjab 2008 SCMR 598; Muhammad Feroz v. DDO Education and others 2007 PLC (C.S.) 58 and 1996 PLC (C.S.) 90 rel.

Farrukh Zia Shaikh for Petitioner.

Khalid Jawed and Mohammad Azam for Respondents Nos.1 and 2.

Salman Talibuddin, Additional Attorney General for Respondent No.3.

Commandant Khalid Munir, Manager (Legal), K.P.T. and Sabir Haider, Deputy Manager (Legal), K.P.T.

2017 P L C (C.S.) 659

[Sindh High Court]

Before Muhammad Ali Mazhar and Muhammad Karim Khan Agha, JJ

SHAUKAT SALEEM AKHUND

Versus

PAKISTAN STEEL MILLS CORPORATION LIMITED through Chairman and 2 others

C.P. No.D-3206 of 2010, decided on 22nd December, 2015.

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

----S. 3---Compulsory retirement of an employee---Service Tribunal found irregularities/illegalities in the procedure which led to the major penalty and directed the department to reinstate the employee into service for facing inquiry---Department was further directed to complete the inquiry within a period of 120 days from the date of receipt of a copy of judgment and if inquiry was not completed within stipulated period then it would be presumed that no fresh action would be taken in the matter and employee should be reinstated in service with all back benefits---Inquiry Officer recommended a major penalty of reduction to a lower post but department removed the employee from service by enhancing penalty---Contention of employee was that department had failed to comply with the judgment of Service Tribunal---Validity---Department was bound to complete inquiry within the time stipulated by the Service Tribunal---Due process should be ensured in terms of providing necessary documents to the employee which he required to defend his case---Inquiry had been concluded within time---Technical defect in the proceedings did not prevent employee from making a defense to the allegations leveled against him---Employee was not allowed to cross-examine one of the witnesses---Employee was removed from service without assigning any reason for enhancement of penalty---Employee had unblemished service record and he could not be awarded major penalty without speaking order as to why penalty was enhanced---Penalty had been enhanced without reasons and in an arbitrary manner---Competent authority was not bound by the recommendations of Inquiry Officer---Second show cause notice did not specify the type of major penalty to be imposed upon the employee---If department was inclined to impose a major penalty beyond the recommendations of Inquiry Officer then employee should be confronted with the reasons---Impugned order was set aside---Department was directed by High Court to provide an opportunity of personal hearing to the employee by passing a speaking order within 20 days failing which it should pay all the back benefits as recommended by the Inquiry Officer until he reached superannuation within 7 days and thereafter any consequential benefits if any as pension---Employee should vacate official accommodation after receipt of back benefits---Constitutional petition was disposed of in circumstances.

Zarai Taraqiati Bank v. Aftab Kalachi 2009 SCMR 129; Secretary Local Government Punjab v. Ahmad Yar Khan 2010 PLC (C.S.) 495; Allah Yar v. General Manager Railways HQ Lahore 2001 SCMR 256 and Province of Punjab v. Farooq Ahmed Rehman 2007 PLC (C.S.) 781 ref.

Secretary Local Government Punjab v. Ahmad Yar Khan 2010 PLC (C.S.) 501 Muneer Ahmed v. Asstt. Chief Human Resource 2015 PLC (CS) 501 and Government of Punjab v. Abdul Sattar 1990 SCMR 995 rel.

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

----Preamble---Scope---Object of Removal from Service (Special Powers) Ordinance, 2000 was to provide mechanism for speedy disposal of cases.

(c) Civil service---

----Competent authority would not be bound by the recommendations of inquiry officer.

(d) Administration of justice---

----Matters should be decided on merits rather than on technicalities.

Latif Sagar for Petitioner.

Mazhar Jaferi for Respondents Nos.1 and 2.

2017 P L C (C.S.) 745

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ

AZIZ-UR-REHMAN CHAUDHRY

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman/CEO

C.P. No.D-2271 of 2012, decided on 29th May, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Employee of corporation---Non-statutory rules---Scope---Pakistan International Airlines (Corporation) was performing functions in connection with the affairs of the Federation having no statutory rules---Relationship between the Corporation and its employees would be that of a "master and servant"---Constitutional petition was not competent with regard to terms and conditions of the employees of the Corporation---Employees of the Corporation might file suit, if so advised, for redressal of their grievance before the competent forum---Constitutional petition being not maintainable was dismissed.

Shahabuddin Haider v. Chairman, Pakistan International, Airlines Corporation and 2 others PLD 1992 SC 531 and Pakistan International, Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 rel.

Petitioner in person.

Khalid Javed for Respondent.

2017 P L C (C.S.) 864

[Sindh High Court (Hyderabad Bench)]

Before Syed Hassan Azhar Rizvi and Salahuddin Panhwar, JJ

MIR HASSAN

Versus

PROVINCE OF SINDH through Secretary and 3 others

Const. Petition No.D-294 of 2011, decided on 22nd September, 2015.

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

----R. 11-A---Notification No.SORI(SGA&CD)2-3/92 dated 17-07-2007 ---Appointment of one of the children of deceased civil servant---Procedure---Vested right---Scope---Petitioner moved application for his appointment on deceased quota but same was declined---Validity---Vested right could be taken away retrospectively only through an enactment passed by an Authority or Parliament but not through sub-ordinate legislation i.e. through issuance of notification by executive---Change in R.11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 had been brought through a notification which could only have prospective effect---Notification issued on 17-07-2009 should become applicable from 17-07-2009 onwards only---If a right of employment had already accrued to any of the children of a deceased or invalid or incapacitated civil servant then he/she could not be deprived of the benefit accrued through a subsequent notification---Department was directed to issue appointment order in favour of petitioner on any post for which he qualified within a period of two months---When application for appointment was moved the Authority did not decide the same at its own and summary(ies) were submitted to Chief Minister or other high-ups for approval to fill-up post(s) under R.11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Said Rule did not insist for any such procedure and sending summary was not within object of the same---Authority was directed not to resort such procedure in future---Summaries, if any, moved by the department(s)' either to Chief Minister or any other superior authority be considered to have never been sent/moved and department should decide the fate of such applications within prescribed period---Benefit of R.11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 was applicable to all civil servants, therefore, Chief Secretary (Sindh) was directed by the High Court to circulate a directive to all the head of the departments that in future the department should intimate families of all such civil servants with regard to their right to apply and deserving ones be given their due right---Such procedure be completed within a period of three months and if applicant of family of such civil servant qualified the requirement then same should be given job---Chief Secretary (Sindh) should also frame a policy whereby son-quota/deceased-quota was not exploited by the Authority rather merit was considered in such recruitment---Constitutional petition was allowed in circumstances.

(b) Notification---

----Notification would operate only prospectively.

(c) Administration of justice---

----Things should be done strictly in the manner provided for doing so or not otherwise.

(d) Vested right---

----Vested right could be taken away retrospectively only through an enactment passed by an assembly or parliament but not through subordinate legislation i.e. through issuance of notification by executive.

Ahsan Gul Dahri for Petitioner.

Allah Bachayo Soomro, Addl. A.G.

2017 P L C (C.S.) 914

[Sindh High Court]

Before Muhammad Iqbal Kalhoro, J

Brig. Retd. ARIF MAHMUD MALIK

Versus

KARACHI INTERNATIONAL CONTAINER TERMINAL through Chief Executive

Suit No.369 of 2008, decided on 4th January, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 120 & 129---Money suit---Civil service---Contract employment---Termination of---Breach of contract---Recovery of damages---Burden of proof---Principle of master and servant---Applicability---Contention of plaintiff-employee was that defendant-company had caused financial loss to him by terminating his service contract illegally---Validity---Plaintiff-employee was bound to establish additional assurance or representations made to him by the defendant-company---Nothing was on record apart from the terms and conditions of appointment of plaintiff-employee---Nothing was on record that termination from service had resulted into breach of any assurance or promise---Principle of master and servant was involved in the present case---Only remedy for the plaintiff-employee was to file suit for damages in circumstances---Plaintiff-employee could not ask for restitution of his service in circumstances---Burden to prove his entitlement to the reliefs on the grounds as stated in the plaint was on the plaintiff-employee---Any compensation or damages could not be awarded to the plaintiff-employee for a loss or damage which had been sustained by him indirectly by reason of breach of contract---Plaintiff-employee was bound to show that defendant's action of terminating his service was against the terms and conditions of contract---Plaintiff and defendant were in equal position to choose to terminate service by giving a 30 days written notice in advance or making the payment in lieu thereof--- Defendant-company was within the domain to terminate service of plaintiff-employee by resorting to scheme of appointment letter---Defendant-company had not committed any breach of contract in circumstances---Thirty days period contained in the appointment letter was too short for a person to find out a new job in the private sector---Period of 120 days was reasonable within which a person could secure a new job of the same stature in the private sector---Plaintiff-employee was entitled to either 120 days written notice in advance or payment in lieu thereof---Plaintiff-employee had received 30 days salary in lieu of the stipulated notice and other emoluments and deductions---Plaintiff-employee was directed to be paid the salary of remaining 90 days and other emoluments as per his entitlement---Suit was partly decreed accordingly.

2013 SCMR 120; 2015 PLC (CS) 323; PLD 1971 SC 550; 2009 CLD 1329; 2010 PLC (CS) 417; 2004 SCMR 1874; 2003 YLR 406; AIR 1940 Bombay 386; AIR 1929 Ranghon 167; AIR (sic) Dehli 427; AIR 1958 SC 12; AIR 1938 Madrass 672; AIR 1969 Bombay 373; 2009 CLC 1329 and 2010 CLC 420 ref.

Malik Altaf Javed for Plaintiff.

Javed Asghar Awan for Defendant.

2017 P L C (C.S.) 929

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

AZHAR JAWAID through Attorney

Versus

FEDERATION OF PAKISTAN through Secretary and 3 others

C.P. No.D-5048 of 2016, decided on 13th January, 2017.

Constitution of Pakistan----

----Art. 199---Constitutional jurisdiction of High Court---Scope---Policy decision---Petitioner was aggrieved of policy decision taken by Federal Government in the year, 1991 with regard to distribution of quota for Armed Forces personnel in appointments made through Federal Public Service Commission---Validity---Policy was evenhanded and not person specific moreover it had been in vogue since year, 1991, which otherwise did not infringe or intrude on any Fundamental Right of the petitioner for induction in Police Service of Pakistan beyond the benchmarks---Court does not sit in judgment over a policy of government nor interfere or strike down it unless it is proved mala fide or made in colourful exercise of authority or power---High Court, in exercise of Constitutional jurisdiction, declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Ameer-ur-Rehman Khan v. Federal Public Service Commission 2002 CLC 1642; The Province of West Pakistan v. Ch. Din Muhammad and Zafar Ali Shah and others PLD 1964 SC 21; Fazal-I-Qadir v. Secretary, Establishment Division PLD 1988 SC 131; Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi PLD 1999 Kar. 76; Messrs Polyron Ltd. v. Government of Pakistan PLD 1999 Kar. 238; Human Rights Case No.14392/2013 and others 2014 SCMR 220 and Doctor Alyas Qadeer Tahir v. Secretary M/O CADD Education Islamabad 2014 SCMR 997 ref.

Khalid Jawed Khan for Petitioner.

Respondent No.4 in person.

Sheikh Liaquat Hussain, Standing Counsel.

2017 P L C (C.S.) 1020

[Sindh High Court]

Before Muhammad Ali Mazhar and Adnan-ul-Karim Memon, JJ

Syed MUHAMMAD SOHAIB (SHOAIB) and others

Versus

FEDERATION OF PAKISTAN through Secretary and others

C.Ps. Nos.D-5176 of 2013 and 151 of 2014, decided on 15th December, 2016.

(a) Constitution of Pakistan---

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

Muhammad, Akram Solangi and others v. D.C.O. Khairpur and others 2013 PLC (C.S) 121; Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 and Pir Imran Sajid v. Managing Director, Telephone Industries of Pakistan 2015 SCMR 1257 rel.

(b) Constitution of Pakistan---

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

(c) Public functionaries---

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

Ch. Muhammad Ashraf Khan and Ch. Azhar Elahi for Petitioners.

Sanaullah Noor Ghouri for Respondent No.2.

Muhammad Zahid Khan for Respondent No.3.

Shaikh Liaquat Hussain, Standing Counsel.

2017 P L C (C.S.) 1033

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Ghani Soomro, JJ

LORETTA IQBAL and 33 others

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

C.P. No.D-1574 of 2016, decided on 2nd September, 2016.

(a) Civil service---

----Conducting written test after completion of appointment process---Locus poenitentiae, principle of---Applicability---Scope---Department stopped payment of salaries to the petitioners-employees---Contention of employees was that they were appointed after accomplishing due process of selection and that conduct of test after appointment was mala fide of the department---Validity---No condition of written test was accentuated in advertisements for inviting applications and interview letters issued by the authority---Offer for appointment was made on recommendation of Selection Committee with the approval of competent authority on the same terms and conditions---Employees were in service and they had approached the High Court for payment of their salaries---Decision of posterior written test was taken to exasperate and impede the salary claim of employees---Employer had prerogative to take up the issue of misconduct or lack of competence or performance in accordance with law but conducting a test after one year of the appointment was without lawful justification---Selection of employees was made on merits and thereafter appointment offers were issued---No illegality or violation of law had been attributed to the selection process nor it was avowed that Selection Committee played a part beyond or in excess of their mandate---If such practice or tendency was approved, every employer might ask his employee at any belated stage to appear in the written test even after considerable length of his service to show whether at the time of his appointment he was fit or not---Once a right was accrued to a civil servant by appointment letter after complying with all the codal formalities then same could not be taken away on mere assumption, supposition, whims and fancy of any executive functionary---Such right once vested could not be destroyed or withdrawn as legal bar would come into play under the doctrine of locus poenitentiae---Nothing was on record to express any performance issue or lack of competence or misconduct of any individual employee---No lawful justification or cogent reason had been demonstrated to conduct written test when vested right had been created in favour of employees---Nothing was on record that employees at the time of appointment did not possess the required qualification---Public functionaries were supposed to function in good faith, honestly and within the precincts of their power---State had to secure well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between the employer and employees---Department was directed to start payment of current salary of the employees and also make the payment of arrears within one month on proper calculation---Decision of department calling upon the employees to sit in written test at such belated stage was set aside---Constitutional petition was disposed of in circumstances.

Water and Power Development Authority v. Abbas Ali Malano and another 2004 PLC (C.S.) 1; Mst.Basharat Jehan v. Director General, Federal Government Education, FGEI (C/Q) Rawalpindi and others 2015 SCMR 1418; Muhammad Akram Solangi and others v. D.C.O. Khairpur and others and 2013 PLC (C.S.) 121 and Ikram Bari's case 2005 SCMR 100 rel.

(b) Constitution of Pakistan---

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

Malik Naeem Iqbal and Faizan Memon for Petitioners.

Abdul Jalil Zubedi, A.A.G. along with Syed Zakir Shah, Special Secretary (Education and Literacy Department) and Abdul Majeed Bhurt, Executive Director, STEDA for Respondents.

2017 P L C (C.S.) 1080

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

SHAKEEL AHMED SHAIKH

Versus

AGA KHAN UNIVERSITY through Board of Governors and another

Suit No.2421 and C.M.A No.15984 of 2016, decided on 18th November, 2016, (a) Specific Relief Act (I of 1877)---

----Ss. 21(b), 42 & 54---Suit for declaration, injunction and damages with regard to contract---Master and servant, relationship of---Contract of employment---Termination of employment by a private organization without notice---Legality---Plaintiff alleged that defendant, a private organization terminated his services without assigning reasons and without any notice---Employment contract showed that same provided a probationary period of six months, and that service during probation period would be terminable at one months' notice from either side or salary in lieu of notice---Plaintiff was informed that he would be paid one month's salary in lieu of notice and few other emoluments---Neither employment contract nor probation period had been denied nor plaintiff had completed period of probation---Defendant employer had acted strictly in accordance with terms of employment, which were admitted and acknowledged by plaintiff at the time of joining employment and therefore, plaintiff could not plead against such employment contract---Master could always refuse to continue with employment of any of his employee and might come forward to pay compensation for breach of contract of service and could always say that employee would not be re-engaged in services---Even otherwise terms of S.21(b) of Specific Relief Act, 1877, contract for personal services could not be specifically enforced while breach of contract in those circumstances could give rise to only two relief(s) i.e. specific performance and damages and if specific performance was barred in law, then only relief of damages was available---Suit was dismissed.

(b) Civil service---

----"Probation" is a process of testing or observing the character or abilities of a person who is new to a role or job.

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

----Ss. 21(b) & 42---Contract of personal services---Scope---In terms of S.21(b) of Specific Relief Act,1877, contract for personal services could not be specifically enforced; whereas, a breach of contract in those circumstances could give rise to only two relief(s) i.e. specific performance and damages and if specific performance was barred in law, then only relief available was that of damages.

(d) Civil service---

----Probationary period---Even in cases of civil servants there existed no right during probationary period to claim protection under maxim "audi alteram partem" for issuance of show cause notice before any termination could took effect as it was against spirit and true meaning of putting an employee on "probation."

Federation of Pakistan v. Muhammad Aslam 1986 SCMR 916; Shahid Mahmood v. Karachi Electric Supply Corporation Ltd. 1997 CLC 1936; Sadiq Amin Rahman v. Pakistan International Airlines Corporation 2016 PLC (C.S.) 335; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 and Muhammad Iqbal Khan Niazi v. Lahore High Court through Registrar 2003 PLC (C.S.) 282 ref.

Samina Kamal v. Director Public Forestry Research Institute, Faisalabad PLD 2011 Lah. 563; Sadiq Amin Rahman v. Pakistan International Airlines Corporation and 3 others 2016 PLC 335; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046 and Shahid Mahmood v. Karachi Electric Supply Corporation Ltd. 1997 CLC 1936 distinguished.

2017 P L C (C.S.) 1142

[Sindh High Court]

Before Muhammad Ali Mazhar and Anwar Hussain, JJ

SOHAIL BAIG NOORI

Versus

HIGH COURT OF SINDH through Registrar and 2 others

C.P. No.D-6737 of 2015, decided on 30th June, 2016.

(a) Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006---

-----Rr. 3, 4, 5 & 19---Writ of quo warranto---Appointment of Chairman Inspection Team of High Court (Sindh) on contract basis---Upgradation---Scope---Contention of petitioner was that appointment of Chairman Inspection Team of High Court (Sindh) had been made against law and rules---Validity---Appointment of Member Inspection Team might be made by transfer of one of the senior District Judge and by promotion of an officer of High Court serving under BPS-19 on regular basis provided he was law graduate with length of seven year service---No contractual appointment could be made on the said post---Schedules appended to statutes would form part of the same---Chief Justice could create, abolish or upgrade and downgrade a post but no post in pay scale 16 or above might be created or abolished without concurrence of Administration Committee of the High Court---Chief Justice had no power to change the nomenclature of any post---Nothing was on record that any concurrence of Administration Committee was obtained before appointment of Chairman Inspection Team---Appointment of respondent was defective as no amendment was made in the schedule under R.19 of Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006---No upgradation could be made to benefit a particular individual---Creation of new post or its upgradation did not mean that induction might be made on contract basis but it was linked with non-availability of suitable person---No advertisement was published for inviting applications for the present post nor equal opportunity was provided to other persons---Name of respondent was mentioned to offer the post without mentioning anything in this regard that no other suitable person was available to hold the post in question which was requirement of R.5(d) of Sindh High Court Establishment (Appointment and Condition of Service) Rules, 2006---Appointment of retired employee on contract (as in the present case) had been denounced by the Supreme Court---Respondent, therefore, was holding the Office of Chairman Inspection Team of High Court (Sindh) without lawful authority---Impugned notification of appointment was set aside and respondent was directed to relieve the charge with immediate effect---Constitutional petition was disposed of in circumstances.

PLD 2009 SC 789; 2010 SCMR 632; 2000 SCMR 632; PLD 1998 SC 161; Civil Appeals Nos.169-K to 177-K of 2011; PLD 1975 SC 244; PLD 2012 Sindh 232; AIR 1952 Nagpur 330; PLD 1966 (W.P) Lah. 770; 2015 SCMR 456; PLD 2011 SC 277; PLD 2013 SC 443; 2013 SCMR 1752; Principles of Statutory Interpretation By Guru Prasanna Singh, page 149; Maxwell on the Interpretation of Statutes, Twelfth Edition, by P. ST. J. Langan of Lincoln's Inn, and of King's Inns, Dublin, page-12; N.S. Bindra's Interpretation of Statutes, Eleventh Edition by Amta Dhanda, page 253; American Jurisprudence Volume 42, page 879, Corpus Juris Secundum, Volume LXVII, page 97-98 and Stroud's judicial Dictionary, Fifth Edition, Volume 4, page 2092-2093 ref.

Principles of Statutory Interpretation By Guru Prasanna Singh. Page 149; Maxwell on the Interpretation of Statutes, Twelfth Edition. Page 12; N.S. Bindra's Interpretation of Statutes, Eleventh Edition. Page 253; The Law of Extraordinary Legal Remedies by Forrest G. Ferris and Forrest G. Perris. JR. of the St. Louis Bar; Halsbury's Laws of England, Fourth Edition, 2001, Reissue, Volume 1(1). Page 14 and 404; Allah Ditta v. Muhammad Munir and others PLD 1966 (W.P.) Lah. 770; Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Kumari Shrilekha Vidyarthi v. State of U.P. and others AIR 1991 SC 537; G.D. Karkare. v. T. L. Shevde and others AIR 1952 Nagpur 330; American Jurisprudence, Volume 42 Page 879; Stroud's Judicial Dictionary of Words and Phrase, Fifth Edition Pages 2092-2093; Corpus Juris Secundum, Volume LXVII. Pages 97-98; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan PLD 1993 SC 375; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 SCMR 141; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Suo Motu Case No.24 of 2010 and Human Rights Cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010 PLD 2011 SC 277; Suo Motu Case No.16 of 2011 PLD 2013 SC 443; Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; Suo Motu Case No.24 of 2010 In the matter of (Regarding Corruption in Hajj Arrangements in 2010 2015 PLC (C.S.) 73 and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 789 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quo warranto, writ of---Essentials for issuance of writ of quo warranto were that a holder of the post did not possess the prescribed qualification; that appointing authority was not competent to make appointment and that procedure prescribed by law had not been followed.

(c) Constitution of Pakistan---

----Art. 203---Functions of Registrar and Member Inspection Team---Scope.

(d) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Nature and scope.

AIR 1965 SC 491 and Halsbury's Laws of India, Volume 35. Page 145 rel.

(e) Constitution of Pakistan---

----Art. 199---Writ of quo warranto against employee of High Court---Bar of jurisdiction contained in Art.199(5) of the Constitution---Scope---High Court could entertain and decide a petition of quo warranto against its employee and rigors and or bar contained under Art.199(5) of the Constitution did not apply to make inquiry and investigation for issuing such writ against a person whose appointment was under challenge on the ground that he did not possess the prescribed qualification; appointing authority was not competent to make appointment and procedure prescribed by law was not followed.

Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman Fourth Wage Board and others 1993 PLC 673 rel.

(f) Constitution of Pakistan---

----Art. 203---Independence of judiciary---Object and scope.

Messrs Shaheen Air International Limited v. Messrs Voyage of DE Air 2006 SCMR 1684 rel.

(g) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Binding effect---Decision of Supreme Court to the extent that it had decided a question of law or enunciated a principle of law was binding on all other courts in Pakistan.

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

(h) Words and phrases---

----'Public office'---Meaning.

(i) Words and phrases---

----'Public officer'---Meaning.

(j) Words and phrases---

----"Chairman"---Meaning.

Abdul Abid for Petitioner.

Petitioner is also present.

Salahuddin Ahmed, Amicus Curiae.

Ghulam Mustafa Memon, Registrar, Sindh High Court.

Sibtain Mehmood, A.A.G.

2017 P L C (C.S.) 1192

[Sindh]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

BAKHT SIDDIQUE and 61 others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

C.Ps. Nos.D-3199, D-4605, D-5079 of 2013, D-509, D-2034 of 2014 and D-1091 of 2015, decided on 1st June, 2017.

Constitution of Pakistan---

----Art. 199(1)(a)(ii) & (5)---Expression 'person performing functions in connection with the affairs of Federation'---Pakistan State Oil, a Company body corporate performing functions in connection with affairs of Pakistan---Status---Regularization of services of employees---Petitioners were in service of respondent company and their grievance was that they had not been confirmed---Plea raised by petitioners was that they were also entitled to relief which their colleagues were granted earlier by High Court and maintained by the Supreme Court---Validity---High Court had jurisdiction to entertain constitutional petition against the company (PSO) which was a body corporate and performing functions in connection with the affairs of the State---Functions of company had element of public authority, as such the same would be amenable to constitutional jurisdiction---Petitioners were fully entitled to get benefits contained in Office Memorandum dated 29-8-2008, as the petitioners were in continuous service from the year 1984, and had been drawing salaries from the company and were regularly working on the posts of permanent nature---High Court directed Chief Executive Officer of the company to consider case of petitioners for regularization of their service without discrimination, in accordance with law and the dicta laid down by superior courts---Constitutional petition was allowed in accordingly.

Farid Ahmed v. Pakistan Burma Shell and others 1987 SCMR 1463; Syed Ashraf Ali Shah and others v. Pakistan Telecommunication Company Ltd. 2008 SCMR 314; Naseer-ud-Din Ghori v. Federation of Pakistan and others 2010 PLC 323; PIA and others v. Tanveer-ur-Rehman and others PLD 2010 SC 676; Mubeen-ul-Islam v. Federation of Pakistan and others PLD 2006 SC 602; Ramna Pipe and General Mills (Pvt.) Ltd v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 and Fouji Fertilizer Company Ltd v. National Industrial Relations Commissions and others 2013 SCMR 1253 ref.

Messrs PSO v. Ghulam Ali and others CPLA No. 95-K 2013; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 and Government of Khyber Pakhtunkhwa and others v. Adnanullah and others 2016 SCMR 1375 rel.

Syed Shoa-un-Nabi for all Petitioners.

Javed Asghar Awan for Respondent No.2.

Ghulam Murtaza Saryo for Respondent No.2 (in C.P. No.4605 of 2013).

Chaudhary Muhammad Ashraf Khan for Respondent No.3.

Muhammad Aslam Butt, DAG.

2017 P L C (C.S) 1255

[Sindh High Court]

Before Muhammad Ali Mazhar and Adnan-ul-Karim Memon, JJ

MANSUR-UL-HAQUE

Versus

GOVERNMENT OF PAKISTAN and another

Constitutional Petition No.D-2543 of 2011, decided on 17th March, 2017.

Pakistan Navy Ordinance (XXXV of 1961)---

----S. 19(4)---National Accountability Ordinance (XVIII of 1999), Ss.9 & 25---Release from service---Corruption and corrupt practices---Plea bargain---Reference was filed against the petitioner before the Accountability Court with the allegations that accused misused his public office and had received commission and kickbacks, bribe from the foreign suppliers in respect of supply of sub-marines, arms, ammunition and other defence material---Petitioner had availed the facility of plea-bargain during the pendency of reference and voluntarily offered to return 7.5 million dollars, which was accepted and he was released---Ministry of Defence suspended all benefits of petitioner including pensionary benefits---Validity---National Accountability Bureau had submitted reference against the petitioner for the offence of corruption and corrupt practices and proceedings against the petitioner had come to an end as he had been released on the basis of plea-bargain---Although National Accountability Ordinance, 1999 had provided that on termination of proceedings as a result of plea bargain, the accused-petitioner would be deemed to have been convicted, therefore, authorities had suspended pensionary benefits and withdrew all his subjective/honorary ranks for his proven misconduct after his retirement from the Naval Service---No illegality had been committed by the authorities by removing the name of petitioner from the list of Retired Personnel of Navy as act of the plea-bargain was an admission of his guilt, therefore, any perks, privileges and pensionary benefits could not be restored to him at any stage---Conviction of the petitioner having been based on corruption and corrupt practices, which fell within the definition of moral turpitude, he was not entitled for restoration of his perks, privileges and pensionary benefits---Authorities, before suspending the pensionary benefits of petitioner, removed his name from the list of Naval Retired Officers as such, question of payment of pension would not arise---Constitutional petition was dismissed in circumstances.

National Accountability Bureau v. Aamir Lodhi PLD 2008 SC 697; Messrs Pakistan Army Furnishing Stores v. Syed Ali Akbar Rizvi PLD 1985 Kar. 201 and Karachi City Cricket Association, Karachi v. Mujeebur Rahman Chairman AD HOC Committee, Pakistan Cricket Board, Lahore PLD 2003 Kar. 721 ref.

Ghulam Hussain v. Chairman P.O.F. Board, Wah Cantt and another 2002 SCMR 1691 rel.

Obaid-ur-Rehman for Petitioner.

Shaikh Liaquat Hussain, Standing Counsel.

Muhammad Altaf Awan, ADPG, NAB

Akram Jawaid, Prosecutor NAB along with Lieutenant Shafeeq-ur-Rehman Zuberi, Assistant Director Services/Superintendent Law Department, Pakistan Navy.

2017 P L C (C.S.) 1267

[Sindh High Court]

Before Zafar Ahmed Rajput, J

RECORDER TELEVISION NETWORK (PVT.) LTD.

Versus

AAMER ALI and another

Misc. Appeal No.9 of 2016, decided on 29th March, 2017.

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

----Ss. 26 & 30A---Council of Complaints---Nature and scope of powers of the Council of Complaints under S.26 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Complaint regarding employment/terms of contractual service against a broadcaster---Validity---Power of the Council of Complaints was restricted to receiving and reviewing complaints made by persons or organizations from general public against any aspects of programmes broadcast or distributed by a station established through a licence issued by PEMRA and to recommend to PEMRA appropriate actions of censure or fine against a broadcast station or licensee for violation of any codes as provided by the authority---Complaint regarding terms and conditions of service contract and enforcement of payment of salaries or dues of service did not come within jurisdiction of the Council of Complaints established by Federal Government under S.26 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002.

Shehla Javed for Appellant.

Nemo for Respondents.

2017 P L C (C.S.) 1376

[Sindh High Court]

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

ZAFAR IQBAL

Versus

FEDERAL URDU UNIVERSITY OF ARTS, SCIENCES AND TECHNOLOGY, KARACHI through Registrar and 2 others

C.Ps. Nos.D-6662 of 2014 and D-51 of 2015, decided on 8th December, 2015.

Federal Urdu University of Arts, Science and Technology (Islamabad) Ordinance (CXIX of 2002)---

----Ss. 17 & 42---Rules of Meeting of the Senate of Federal Urdu University of Arts, Science and Technology, R.29(3)(ii)(iii)(iv)---General Clauses Act (X of 1897), S.16---Convening meeting of Senate of Federal Urdu University of Arts, Science and Technology, Islamabad---Requirements---Suspension of Registrar of the University and sending Vice Chancellor on leave---Interim order passed in the Civil Suit---Effect---Contention of petitioners was that seven days' notice along with agenda was necessary to be issued by the Registrar of the University whereas notice and agenda were issued through fax but not prior to seven days---Validity---Holding of at least two meetings of the Senate in a calendar year was a statutory requirement---No meeting of Senate had been held since October, 2013---Chancellor of the University directed the Vice-Chancellor to review the administrative matters of the University with the coordination of Higher Education Commission but he declined---Interim order passed in the civil suit did not restrain the Senate from convening its meeting---Senate, in circumstances, had become dysfunctional after 23-12-2014---Affairs of the University were being conducted in violation of its statutory provisions---Issuance of seven days' notice for holding meeting of Senate along with agenda by the Registrar to the Senate members was directory in nature and not mandatory---Alleged meeting of Senate was convened on the directions of the President of Pakistan in order to break the stalemate caused by the Vice-chancellor and the Registrar and to keep the Senate intact---Said functionaries had not been penalized by the impugned decisions but they had been given an opportunity to present their point of view, both having absented themselves willfully, they could not claim to have been condemned unheard---Impugned decisions were not penal in nature as during leave period and suspension petitioners would continue to draw their salaries and enjoy all perks and privileges allowed to them---Authority who had power to appoint had also power to suspend---Temporary suspension would be deemed to be an implied term in every contract of service---Constitutional petition was dismissed in circumstances.

Human Rights Case Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759; Mst. Ummatullah through Attorney v. Province of Sindh, through Secretary Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others 2006 SCMR 129; Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed 2013 SCMR 1707; Lt. Col. Aziz M. Khan v. A.B.A. Haleem, Vice-Chancellor, University of Karachi and another PLD 1957 W.P. Kar. 496 and Messrs East-End Exports, Karachi v. The Chief Controller of Import and Export Rawalpindi and another PLD 1965 SC 605 ref.

Ghaffar Ali and others v. Provincial Police Officer, Khyber Pakhtunkhwa 2014 PLC (C.S.) 558 rel.

Khalid Javed for Petitioners (in C.Ps. Nos. D-6662 of 2014 and D-51 of 2015).

Faisal Kamal for Respondent No.2 (in both petitions).

Anwar Mansoor Khan for Respondent No.3 (in both petitions).

Salman Talibuddin, Additional Attorney General for Pakistan.

Moin Azhar Siddiqui for Intervener.

2017 P L C (C.S.) 1418

[Sindh High Court (Larkana Bench)]

Before Nazar Akbar and Muhammad Saleem Jessar, JJ

RAB NAWAZ and others

Versus

PROVINCE OF SINDH through Secretary Education and Literacy Department and others

Constt. Petitions Nos.D-655 and D-656 of 2014, decided on 20th April, 2017.

Civil service---

----Pensionary benefits, grant of---Rule of propriety---Equal treatment---Scope---Identical issue had been decided by the High Court which was approved by the Supreme Court---Rule of propriety was applicable to the petitioners-employees as their junior was benefited and they should have been benefited at part by extending equal treatment in terms of judgment of the Supreme Court---Objection of authorities that petitioners being civil servants should approach the Service Tribunal was never raised by them in the case of their junior---Authorities had denied benefits to the petitioners which was discriminatory and required interference by the High Court---Authority were directed by the High Court to award the pensionary benefits as well as increments in terms of the order passed by the Supreme Court in the case of their junior---Constitutional petition was allowed in circumstances.

Hameed Akhter Niazi v. Secretary, Estt. Division, Government of Pakistan and others 1996 SCMR 1185 ref.

Government of Punjab and others v. Sameena Parveen and others 2009 SCMR 1 rel.

Petitioners Nos.1, 2 and 8 in Person (in Constt. Petition No.656 of 2014).

Abdul Hamid Bhurgri, Addl. A.G. assisted by Mrs. Kalpana Devi, Asstt. A.G. for Respondents.

2017 P L C (C.S.) 98

[Khyber Pakhtunkhwa Service Tribunal]

Before Muhammad Azim Khan Afridi, Chairman and Muhammad Aamir Nazir, Member

RIFFAT ALI

Versus

PROVINCIAL POLICE OFFICER, KHYBER PAKHTUNKHWA and another

Appeal No.473 of 2015, decided on 25th August, 2016.

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

----S. 4---Khyber Pakhtunkhwa Police Rules, 1975, R.2(iii)---Government Servants (Conduct) Rules, 1966, Preamble---Appellant was enlisted as Constable/Driver in Traffic Police and was absorbed as a regular Constable and promoted as Sub-Inspector illegally---Regular inquiry was conducted and appellant was imposed major penalty of reduction by forfeiting all his promotions---Validity---Appellant was up-stretched and rocketed to higher ranks in a mode and fashion destructive to service law and rules---Conduct of civil servant serving in the Force would be prejudicial to good order of discipline and contrary to Government Servants (Conduct) Rules, 1966 if same was in conflict with or derogatory to the prescribed and required standards---Conduct prejudicial to good order of discipline or contrary to Government Servants (Conduct) Rules, 1966 would fall within the mischief of misconduct---Appellant was a recipient and beneficiary of the abuse and misuse of authority exercised offensively by others for extending his illegal favours---Employee was liable to face departmental action for his misconduct within the meaning of R.2(iii) of Khyber Pakhtunkhwa Police Rules, 1975---Rules were sidestepped, evaded and flouted with the sole object to raise the appellant to higher ranks---Whole exercise was carried out by the high-ups of the Police Force in violation of rules on the one hand and to deprive the other members of the service from their right for consideration to training courses and promotions on the other hand---Allegations and charges of "maneuvering" and "managing" promotion of appellant to higher ranks had been established---If penalty in the shape of reduction in rank was imposed against a civil servant on account of misconduct or inefficiency then such penalty should not be imposed for pulling down a civil servants to the lowest rank and that it should be limited to one stage only and not beyond that---Persons who had violated the procedures while promoting the appellant was to be subjected to departmental inquiry---Authority responsible for rule of law, good governance and mandated to uphold and command good order of discipline in Police Force should not be in a position to compromise its mandate---Favour was extended to the appellant by appointing him in Traffic Police and then absorbing him as a regular Constable and then raising him from a Constable to that of Sub-Inspector---Persons responsible for such appointment were not subjected to inquiry---Appellant could not be let free like officers who had given undue favour to him under the garb of such treatment given to another employee---Safe administration of justice required that authority concerned should evaluate the roles of those responsible for fanning and spreading disorders and portraying conduct prejudicial to good order of discipline in Police Force---Provincial Police Officer was to undertake an exercise of sorting out all responsible officers involved in the activities within a fortnight---Impugned order was set aside by modifying the penalty of reduction to lowest rank imposed against the appellant to major penalty by reducing him to one rank lower than the one to which he was promoted on regular basis---Appeal was partially allowed in circumstances.

2004 SCMR 1662 distinguished.

2008 SCMR 1296 = 2008 PLC (C.S.) 1230 rel.

Ijaz Anwar for Appellant.

2017 P L C (C.S.) 1

[Lahore High Court]

Before Faisal Zaman Khan, J

Mst. S. YASMIN

Versus

PAKISTAN RAILWAYS through General Manager and others

Writ Petition No.16949 of 2014, heard on 23rd June, 2016.

(a) Civil service---

----Pensionery benefits---Death of civil servant prior to culmination of disciplinary proceedings---Whether disciplinary proceedings abated on death of civil servant or penalty could be imposed on him posthumously---Deceased civil servant was issued a show cause notice under the Removal from Service (Special Powers) Ordinance, 2000---Dismissal order of civil servant was passed a day after he had expired---Contention on behalf of employer was that civil servant was awarded major penalty retrospectively posthumously, therefore his widow was not entitled to receive any benefit---Validity---Any matter pending before the Tribunal or Court relating to the terms and conditions of a civil servant abated upon his death---Benefits to which legal heirs of a civil servant were entitled did not abate upon his death---Constitutional petition was allowed in circumstances.

Jayanti Devi v. State of Behar and others 2001 (49) BLJR 2179; Hirabai Deshmukh and another v. State of Maharashtra 1986 Lab IC 248; M. Mayakal v. District Forest Officer, Mudurai Division Mudurai (Madras) 2010 (2) SLR 275:2009 LIC 802 and Manoj Kumar v. Central Coal Field Limited Ranchi and others W.P. (S) 2991 of 2014 rel.

(b) Civil service---

----Disciplinary proceedings---Scope---Disciplinary proceedings could only be initiated against an employee for his non-performance or ill-performance of his duties.

(c) Civil service---

----Disciplinary proceedings---Retirement of civil servant---Effect---Disciplinary proceedings initiated against civil servant stood abated on his retirement.

Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad 2013 SCMR 392; Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others 2010 SCMR 1554; Roshan Dani and 11 others v. WAPDA through Chairman and 3 others 2015 PLC (C.S.) 263; Rashida Qadir v. Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore and 4 others 2005 PLC (C.S.) 538; Syed Abdus Salam Kazmi v. Managing Director, WASA, Multan and another 2005 PLC (C.S.) 244; Noor Ahmad Shah v. Government of N.-W.F.P. through Secretary Education and 5 others 2003 PLC (C.S.) 1400 and Muhammad Anwar Bajwa, Executive Director, Agricultural Development Bank of Pakistan, 1-Faisal Avenue, Zero Point, Islamabad v. Chairman, Agricultural Development Bank of Pakistan, Faisal Avenue, Zero Point, Islamabad 2001 PLC (C.S.) 336 rel.

(d) Civil service---

----Disciplinary proceedings---Death of civil servant prior to culmination of disciplinary proceedings---Effect---Disciplinary proceedings initiated against civil servant stood abated on his demise and department was divested of the jurisdiction from imposing any penalty on a deceased employee.

Riaz Ahmad Tahir for Petitioner.

Muhammad Saeed Tahir Sulehari for Respondents.

2017 P L C (C.S.) 93

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

ABDUL GHAFOOR KHAN and others

Versus

PAKISTAN RAILWAYS and others

Writ Petitions Nos.38525, 38928, 32360, 33822, 38935, 38934, 36519, 37794, 37023, 37021, 35934, 40014, 39559 of 2015, 4191, 1146, 12864, 9371, 669 and 21531 of 2016 decided on 15th July, 2016.

Civil service---

----Employees of Pakistan Railways---Up-gradation of posts of Guards---Judgment in rem---Effects--Contention of employees was that earlier constitutional petition filed by their colleagues had been allowed and they had been upgraded but benefit of said judgment had not been extended to them---Validity---Order of High Court for up-gradation of posts of Guard had been passed in the earlier constitutional petition which was not challenged by the department---Said order had attained finality and had been implemented by the department---Benefiting certain individuals and denying the same benefit to all other equally placed persons was against the canon of justice---Case of employees (petitioners) was at par with the employees who had been upgraded---Department was directed to extend the same benefit to all the Guards of Railways within three month---Constitutional petition was allowed accordingly.

Regional Commissioner of Income Tax v. Syed Munawar Ali and others 2016 SCMR 859; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Perveen 2009 SCMR 1 rel.

Irfan Ali Shah, Asad Manzoor Butt, Ch. Imtiaz Ahmad Goraya and Ch. Muhammad Ashraf for Petitioners.

Ghulam Ali Raza for Respondents.

2017 P L C (C.S.) 220

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD SOHAIL

Versus

CHAIRMAN NTS and others

Writ Petition No.38809 of 2016, decided on 9th December, 2016.

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

----S. 4---Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974, R.3---Appointment---Change in recruitment policy---Judicial review---Scope---Petitioner/candidate in response to advertisement, applied for the post of ESE (Science and Math BPS-9)---Petitioner passed the 'NTS' test for the said post---Requisite qualification for the post was B.Sc. and F.Sc. (two science subjects)---Department again advertised and issued notification, wherein the candidates having studied Arts subject were also allowed to contest for the said post---Petitioner had sought setting aside of second notification, contending, that by issuance of second advertisement and introducing new recruitment policy, injustice and prejudice had been caused to him---Validity---Petitioner, in the present case, pursuant to the original advertisement, had passed NTS test, but mere publishing an advertisement in newspaper and passing the NTS test would not confer a vested right to a candidate; because the Government had the authority to amend or substitute an existing selection criteria by a new one for the betterment and in the larger interest of its citizens---Neither the competency of Government to change the Rules in public interest could be challenged, nor any candidate had vested right to be governed by any particular set of Rules---Government could make any alternation in the recruitment policy before finalization of the appointments---If the existing Rules were altered/changed, changed Rules would supersede the former---Conditions, qualifications and criteria prevailing at the time of appointment, were to be taken into consideration---Candidate had no vested right to claim to be governed by any particular set of Rules---Law makers, were fully competent to make Rules, alter qualification or criteria for a particular post; no one could make a grievance about the conditions and qualifications provided by the competent authority---Policy making, was the prerogative of Government---High Court, in exercise of constitutional jurisdiction, could not make or alter policy of the Government---If policy, itself was not supported by any law or Rules; or was based on discrimination, High Court had jurisdiction to examine the same---Government was within its right to prescribe any criteria permissible under the law---All the requirements for appointments must be strictly complied with---Order accordingly.

Dr. Omer Farooq Zain v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 6 others 2008 PLC (C.S.) 1012; Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472; Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772; Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144; Punjab Public Service Commission and another v. Mst. Aisha Nawaz and others 2011 SCMR 1602; Muhammad Bilal and 7 others v. Government of Khyber Pakhtunkhwa through Secretary Education and 5 others 2014 PLC (C.S.) 769 and Ibrahim Shah and 11 others v. Executive District Officer Schools and Literacy Department, District Mardan and 2 others 2008 PLC (C.S.) 1034 ref.

Ch. Zaheer Ahmad Farooq for Petitioner.

2017 P L C (C.S.) 232

[Lahore High Court]

Before Jawad Hassan, J

USMAN ASHRAF

Versus

INSPECTOR GENERAL OF POLICE and others

Writ Petition No.37308 of 2016, decided on 8th December, 2016.

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

----S. 4---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.3---Provincial Motor Vehicles Ordinance (XIX of 1965), Ss.2(13)(14) & 7(7)(8)---Police Order (22 of 2002), Art.10(3)---Appointment---Failure to issue recruitment letter and medical docket to successful candidate---Petitioner, in response to advertisement for appointment of constable/driver (police), applied for the post and was declared as successful and merit list was issued, but petitioner was not issued medical docket and recruitment letter---Report and para-wise comments filed on behalf of the Inspector General of Police, revealed that requirement for the post of constable/driver in the Unit, was at least 2 year's experience after grant of Light Traffic Vehicle (LTV) Licence, but petitioner had only eleven month's and sixteen days experience, therefore, did not fulfil the requirements of the post and was, not recruited---Validity---Petitioner had a valid (H.T.V.) Heavy Traffic Vehicle licence, and was well within the limit of two years' experience---Petitioner had a valid H.T.V. driving licence for driving motor car and motor cycle---Petitioner having 'H.T.V.' driving licence, it would be deemed that he had also effective licence to drive a motor vehicle and a motor cycle---Prima facie, the petitioner being H.T.V. licensee was eligible to drive any vehicle which was required by the advertisement of the post ---High Court observed that department being a statutory body, was expected to deal with the applications for all the posts fairly, justly, honestly and conduct its all actions transparently and in accordance with the applicable laws, rules and terms and conditions; so that the concerned person should be treated in accordance with law without any discrimination---Constitutional petition was allowed to the extent that the petitioner was entitled to issuance of docket for medical examination required for joining the post of constable/driver---High Court having ample power to direct or compel a department not to go beyond their Rules and Regulations and terms and conditions made thereunder, department was directed to issue the docket for medical examination required for joining the post of constable/driver.

Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Zulfiqar Ali v. The State 1998 SCMR 1016; Muhammad Akram Solangi and 17 others v. District Coordination Officer, Khairpur and 3 others 2013 PLC (C.S.) 121; Dr. Bashir Ahmed and others v. Province of Sindh through Chief Secretary and others 2016 PLC (C.S.) 179; Mumtaz Oad and 2 others v. Sindh Public Service Commission through Secretary and 2 others 2015 CLC 1605; Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others 2012 PLC (C.S.) 772 and Syed Muhammad Akram Shah v. Azad Government of The State of Jammu and Kashmir and another 1985 PLC (C.S.) 711 ref.

Ch. Majid Hussain Suleman for Petitioner.

2017 P L C (C.S.) 238

[Lahore High Court]

Before Atir Mahmood, J

NABID BAIG

Versus

CHAIRMAN PUNJAB PUBLC SERVICE COMMISSION and 5 others

Writ Petition No.1794 of 2015, heard on 24th May, 2016.

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

----S. 23---Advertisement for appointment of Deputy Director Technical (BPS-18) in Anti-Corruption Establishment Department---Condition for age limit being 35 to 45+5 years---Prayer for reduction in lower age limit---Scope---Public Service Commission advertised post of Deputy Director Technical in Anti-Corruption Establishment wherein age for applying the same was 35 to 45+5 years---Contention of petitioner was that condition of lesser age for the post was against fundamental right---Validity---Condition with regard to minimum age limit of 35 was imposed upon all the candidates while advertising the post in question---Said condition was not put upon the petitioner but upon all those who desired to compete for the post---Each and every prospective candidate as well as departments might be bound by the conditions mentioned in the advertisement---Petitioner was aged about 31-1/2 years on closing date of applications and he being underage could not apply for the post in question---Relaxation of age was the prerogative of the competent authority and it could not be claimed by a candidate as a vested right---Rules for the post in question had been framed on the recommendations of Anti-Corruption Establishment by adopting the procedure---Minimum age limit in different service rules had been prescribed keeping in view the required maturity of the person for a particular job---No discrimination had been committed with the petitioner by imposing age condition which was for all the candidates---Court was not to interfere with the policies of the government unless there was some violation of fundamental rights of the citizen---High Court could neither substitute the policy of government with its own nor could devise a new formula for advantage of one person and disadvantage to the rest-- High Court could not direct the department to reduce the age limit of the candidates for benefit of the petitioner---Impugned condition did not infringe fundamental right of the petitioner---Constitutional petition was dismissed in circumstances

Punjab Public Service Commission and another v. Mst. Aisha Nawaz and others 2011 SCMR 1602 rel.

(b) Constitution of Pakistan---

----Art. 25---"Discrimination"---Meaning.

Discrimination means treatment or consideration of, or making a distinction in favour of or against, a person or thing based on the group, class, or category to which that person or thing is perceived to belong to rather than on individual merit. This includes treatment of an individual or group, based on their actual or perceived membership in a certain group or social category, in a way that is worse than the way people are usually treated.

Mushtaq Ahmad Mohal and Sarfraz Ahmad Chadhar for Petitioner.

Mujeeb-ur-Rehman Kiani for Respondent No.5.

Khurshid Ahmed Satti, Asstt. A.G. with Hafiz Arshad Mahmood, Law Officer and Ahmad Saif Ullah Khan, Assistant Director (Legal), Anti-Corruption Establishment Rawalpindi for the State.

2017 P L C (C.S.) 250

[Lahore High Court]

Before Shujaat Ali Khan, J

Dr. MASOOD-UR-RAUF

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor, Lahore

Writ Petition No.6901 of 2010, decided on 2nd October, 2015.

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

----Ss. 15(3) & 43---Punjab University Employees (Efficiency and Discipline) Statutes, 1975, Paras. 12, 15 & 17---University employee---Probationer---Unsatisfactory performance---Termination of service---Non-statutory service rules---Show cause notice, issuance of---Regular inquiry---Efficacious remedy---Petitioner-employee was appointed as Senior Medical Officer (Dental) in BS-18 in the University but during probation his service was dispensed with due to unsatisfactory performance---Contention of petitioner-employee was that Syndicate being the competent authority, no adverse order could be passed without its recommendation---Validity---Where nature of the rules governing terms and conditions of service of an employee were non-statutory, constitutional petition against order of Authority was barred---Rules/regulations governing terms and conditions of service of the employee of University were non-statutory---Action taken by the authority could not be considered as arbitrary, capricious or fanciful for exercise of constitutional jurisdiction in the present case---Authority which had power to appoint anybody enjoyed the power to proceed against an appointee under the relevant provisions of law---When services of probationer were terminated on the basis of poor performance then he was not entitled for any show cause notice---No show cause notice was required to be issued prior to proceedings against the petitioner-employee---Employee would acquire certain rights only after successful completion of probation period---Not only remedy of appeal or review but that of revision had also been catered for an aggrieved employee of the University---When remedy of appeal, review or revision had been provided then no one could be allowed to by-pass the same simply for the reason that same was not efficacious---Constitutional petition being not maintainable was dismissed in circumstances.

Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Dr. Ghulam Mustafa Chaudhary v. Dr. Muhammad Ashiq Khan Durrani, Vice Chancellor, B.Z University Multan and 2 others 2000 PLC (C.S.) 385; Islamia University, Bahawalpur through Vice Chancellor v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141 and Pakistan Defence Officers' Housing Authority and others v. Col. Syed Jawaid Ahmad 2013 SCMR 1707 ref.

Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary M/O Information Technology and Telecommunication and others 2012 SCMR 152; Riaz Hanif Rahi v. Saeed uz Zaman Siddiqui and 4 others 2011 SCMR 948; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381; University of the Punjab Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; Muhammad Siddique Javaid Chaudhary v. Government of West Pakistan 1974 PLC 243; Engineer Majeed Ahmed Memon v. Liaqat University of Medical and Health Sciences Jamshoro through Principal Executive and 3 others 2010 PLC (C.S.) 856; Muhammad Iqbal Khan Niazi v. Lahore High Court, Lahore through Registrar 2003 PLC (C.S.) 285; Miss Saima Gardezi v. President, First Women Bank Ltd and 2 others 2007 PLC (C.S.) 1033; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2004 SCMR 44; Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2003 PLC (C.S.) 1421 and Mrs. Abida Perveen Channar v. High Court of Sindh 2011 PLC (C.S.) 836 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- University employee---Non-statutory service rules---Scope---Where nature of the rules governing terms and conditions of service of an employee were non-statutory then constitutional petition against an order of Authority was barred---Constitutional petition was only maintainable in the cases where no alternate remedy was provided to the aggrieved person.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could determine the legality of an order passed by a government functionary or an administrative tribunal irrespective of the fact whether rules governing terms and conditions of civil servant were statutory or non-statutory if impugned order was patently illegal.

(d) Civil service---

----Authority which had power to appoint anybody enjoyed the power to proceed against an appointee under the relevant provisions of law.

(e) Civil service---

----Probationer---When services of any probationer were terminated on the basis of poor performance then he was not entitled for any show cause notice.

Ch. Abdul Sattar for Petitioner.

2017 P L C (C.S.) 304

[Lahore High Court]

Before Jawad Hassan, J

ABDUL AZIZ and others

Versus

SECRETARY FINANCE and others

Writ Petition No.37250 of 2016, decided on 28th November, 2016.

(a) Constitution of Pakistan----

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service----Claim for allowance---Matter with regard to "terms and condition of service"---Service Tribunal, jurisdiction of---Scope---Contention of employees was that they were entitled for project program allowance which was being granted to other employees doing the similar nature of job---Validity---Project program allowance was part of terms and conditions of civil servant---Service Tribunal had exclusive jurisdiction in the matter to look into and decide the question relating to terms and conditions of service minus question of his/her fitness for promotion---Employees could approach appropriate forum for redressal of their grievance---Constitutional petition was dismissed in limine.

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; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Khalil ur Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750 and Dr. Ghazanffarullah and 2 others v. Secretary Health, Government of Punjab, Lahore and 6 others 2010 PLC (CS) 51 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Jurisdiction of High Court could not be invoked where an alternate efficacious remedy was available.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 rel.

Muhammad Shuja Baba for Petitioners.

2017 P L C (C.S.) 336

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD AZIM KHAN LEGHARI

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.37557 of 2016, decided on 5th December, 2016.

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

----Rr. 5(1)(ii) & 6---Civil Servants Act (LXXI of 1973), S.25---Constitution of Pakistan, Arts.199 & 212--- Constitutional petition---Maintainability--- Civil service--- Disciplinary proceedings--- Service Tribunal, jurisdiction of---Scope---Employee challenged order of inquiry issued by the Authority---Validity---Authorized officer had discretion to decide whether an inquiry should be conducted through an inquiry officer or inquiry committee---Employee had been asked for his written defence within seven days of receiving charge sheet---Employee, after entering into the proceedings before the inquiry officer, had challenged the same through constitutional jurisdiction of High Court---Service Tribunal having exclusive jurisdiction with regard to the matters relating to the terms and conditions of service of civil servants including disciplinary matters---Jurisdiction of High Court qua interference in the same had been barred---Orders even if mala fide or coram non judice fell within the ambit of Service Tribunal and jurisdiction of Civil Court including High Court was ipso facto ousted---Service Tribunal had been given exclusive jurisdiction for redressal of grievance of employee---Constitutional petition, in the present case, was unwarranted being premature---Adjudication of question of delay in initiating the inquiry proceedings by the department was not within the jurisdiction of High Court---Service Tribunal had the jurisdiction to determine such question---Constitutional petition was dismissed being not maintainable.

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; Fazal Ahmad Ranjha and others v. Government of Punjab and others 2016 PLC (C.S.) 1209; Monomohan Roy v. Government of Chandpur Municipality PLD 1958 Dacca 47; Gulistan Textile Mills Ltd. v. Collector (Appeals) Customs Sales Tax and Federal Excise and others 2010 PTD 251; Government of Pakistan and others v. Farheen Rashid 2009 PLC (C.S.) 966; Federal Land Commission v. Rais Habib Ahmad PLD 2011 SC 842 and Mian Aurangzeb Noor v. Rent Controller and another 2012 CLC 1729 ref.

Salim Sadiq v. Government of Punjab and others 2003 PLC (C.S.) 1258 distinguished.

Muzaffar Hussain v. The Superintendent of Police District Sialkot 2002 PLC (C.S.) 442; Khalil ur Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Muhammad Murtaza and another v. The Deputy Commissioner, Anti-Corruption Establishment, Bahawalpur and others 1997 PLC (C.S.) 214 and Salim Sadiq v. Government of Punjab and others 2003 PLC (C.S.) 1258 rel.

Ch. Muhammad Zafar Iqbal and Ch. Abdus Sattar for Petitioner.

2017 P L C (C.S.) 348

[Lahore High Court]

Before Ayesha A. Malik, J

ABDUL SHAKOOR

Versus

LAHORE HIGH COURT, LAHORE and others

Writ Petition No.32561 of 2016, decided on 2nd December, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petitioner, a judicial officer, sought adjustment of his seniority and pro-forma promotion---Validity---Case of the petitioner was considered and rejected by the Chief Justice of the High Court and no rule had been violated nor any Fundamental Right had been infringed---All actions and orders taken by the High Court or Supreme Court or by any judge thereof in the exercise of functions and powers of his office were not amenable to Constitutional jurisdiction of High Court---Constitutional petition was dismissed, in circumstances.

Asif Saeed v. Registrar Lahore High Court PLD 1999 Lah. 350 and Muhammad lqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632 distinguished.

Abrar Hussain v. Government of Pakistan and another PLD 1976 SC 315 rel.

N.A. Butt for Petitioner.

2017 P L C (C.S.) 358

[Lahore High Court]

Before Ayesha A. Malik and Muhammad Ali, JJ

ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and others

Versus

MANSOOR-UL-HAQ

I.C.A. No.643 of 2011, heard on 30th November, 2016.

Punjab Services and General Administration Department (S&GAD) Allotment Policy (as amended on 19.01.2009)---

----Cl. 15---Government housing to public employees---Vested right---Scope---Vested right/Maturity of waiting period for government housing, could not be washed away by making amendment in housing allotment policy---Provincial Government impugned order of Single Judge of High Court in Constitutional petition where it was held that the respondent employee had a vested right for allotment of a house under Punjab Services and General Administration Department (S&GAD) Allotment Policy as amended on 19.01.2009, and that the said Allotment Policy would apply prospectively and not retrospectively---Validity---Said policy would have a prospective effect as the "maturity of turn" accrued under the policy before said amendment, would carry forward and not be washed away by the amendment---Time spent waiting under the allotment policy could not be vitiated simply because of an amendment, as doing so would prejudice rights of employees whose turns had matured under the Allotment Policy after waiting a number of years --- Intra-court appeal was dismissed, in circumstances.

Agha Nadeem v. Additional Secretary Welfare and 3 others 2014 PLC (C.S.) 268 distinguished.

Chief Secretary Punjab, Lahore and others v. Mr. Fazal Karim I.C.A. No.592/2011 ref.

Ch. Sultan Mehmood, AAG along with Wasiq Abbas, Law Officer, Estate Office, S&GAD for Appellants.

Ch. Imran Raza Chadhar for Respondent.

2017 P L C (C.S.) 368

[Lahore High Court]

Before Jawad Hassan, J

SHAHRUKH AAMIR UBAID

Versus

NATIONAL HIGHWAY AND MOTORWAY POLICE

Writ Petition No.38173 of 2016, decided on 5th December, 2016.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Territorial jurisdiction of High Court---Scope---Civil service---Institutions against whom the petitioners had grievance fell outside the territorial jurisdiction of High Court---Said High Court had no jurisdiction to issue the direction/writ against the said institution.

Sandalbar Enterprises (Pvt.) Limited v. Central Board of Revenue and others PLD 1997 SC 334; Subhan Beg and 18 others v. Pakistan State Oil Co. Ltd. Rawalpindi PLD 1980 Kar. 113; Muhammad Farhan Khan v. Federation of Pakistan and another PLD 2016 Lah. 629; Mirza Luqman Masud v. Government of Pakistan and 14 others 2015 PLC (C.S.) 526; Azad Hafeez Ltd. v. Chairman, FBR and 5 others 2012 MLD 1684; Ibrahim Fibres Ltd. v. Federation of Pakistan and 3 others PLD 2009 Kar. 154; Dr. Qaiser Rashid v. Federal Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad PLD 2006 Lah. 789; Inaam Elahi Nasir and others v. National Bank of Pakistan and others 2013 PLC (C.S.) 899;Danish Kaneria v. Pakistan and others 2012 CLC 389; Mrs. Rohi Chaudhry and 2 others v. Federation of Pakistan and 3 others 2010 PTD 1233; High Noon Textile Ltd. v. Saudi Pak Industrial and Agricultural Investment Co. (Pvt.) Ltd and. 4 others 2010 CLD 567; Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and 3 others 2007 CLC 1113; Mst. Shahida Maqsood v. President of Pakistan and another 2004 CLC 565; Province of NWFP and another v. Abdur Rahman, Forest Contractor and others 1991 SCMR

1321; Muhammad Naim v. State Cement Corporation of Pakistan and others 1989 CLC 1241 and Sethi and Sethi Sons v. Federation of Pakistan 2012 PTD 1869 rel.

(b) Words and phrases---

----'Territorial jurisdiction'---Meaning.

Territorial jurisdiction by Justice (R) Fazal Karim in Judicial Review of Public Action rel.

(c) Words and phrases---

----'Dominant jurisdiction'---Meaning.

Black's Law Dictionary rel.

Muhammad Suleman for Petitioner.

2017 P L C (C.S.) 404

[Lahore High Court (Multan Bench)]

Before Atir Mahmood, J

NAEEM ABBAS

Versus

GOVERNMENT OF PUNJAB through Secretary and 4 others

Writ Petition No.16994 of 2014, heard on 30th November, 2015.

(a) Civil service---

----Promotion----Rescinding of---Audi alteram partem, principle of-- Applicability---Employee-petitioner after having clearance report was promoted who took charge of the post but his promotion was rescinded afterwards---Contention of department was that disciplinary proceedings were in progress against the employee-petitioner and he could not be promoted---Validity---Show cause notices were issued after one month of clearance report and few days prior to departmental promotion committee meeting---Mala fide was on record on the part of department to disentitle the employee-petitioner from his promotion---Had there been any complaints against the employee-petitioner then show cause notices might have been issued to him earlier---Nothing was on record that show cause notices were received by the employee-petitioner---No disciplinary proceedings were pending against the employee-petitioner when his clearance report was submitted for consideration of promotion--- Mere pendency of disciplinary proceedings against any person or even imposing of minor penalties could not debar the promotion of civil servant---Employee-petitioner's promotion could not be deferred on the basis of allegations contained in the show cause notices---Impugned notification was illegal and without lawful authority which could not sustain---Employee-petitioner had been promoted after due course of law---Promotion order not be rescinded without giving proper opportunity of defence to the employee-petitioner---Department was required to issue show cause notice to the employee-petitioner for recalling of promotion order---No notice prior to rescinding promotion order was given to the employee-petitioner---No one should be condemned unheard---Impugned notification had been issued in violation of law which was liable to be struck down on such score alone---Promotion order had been implemented which could not be reverted without affording opportunity of defense---Impugned order was set aside---Constitutional petition was allowed in circumstances.

Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637; Mrs. Sanjida Irshad, Assistant Director, Nursing, Bahawalpur v. Secretary to Government of the Punjab Health Department, Lahore and others 2008 PLC (C.S.) 1019; Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Tahir Latif Sheikh v. Federation of Pakistan and another 2000 PLC (C.S.) 582 and Muhammad Afzal Khan v. Government of the Punjab through Secretary to Government of the Punjab, G&W Department and another 2009 PLC (C.S.) 40 ref.

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

(b) Civil service---

----Promotion---Mere pendency of disciplinary proceedings against any person or even imposing of minor penalties could not debar the promotion of civil servant.

(c) Interpretation of statutes---

----Law had to take precedence over the policy.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Violation of law---Scope---Constitutional petition involving matter pertaining to violation of law and having far reaching effects on service structure was maintainable.

(e) Maxim---

----"Audi alteram partem"---Meaning---No one should be condemned unheard.

Ch. Abdul Sattar Goraya and Muhammad Masood Bilal for Petitioner.

Javed Saeed Pirzada, Assistant Advocate General, Mushtaq Hussain, SP Legal and Izhar, S.I. Legal Branch, Multan for State.

2017 P L C (C.S.) 430

[Lahore High Court]

Before Shahid Jamil Khan, J

MUHAMMAD NAEEM

Versus

EXECUTIVE DISTRICT OFFICER and others

Writ Petition No.25423 of 2015, decided on 23rd November, 2015.

(a) Civil service---

----Typing test for promotion---Plea of employee-petitioner was that he was declared successful in typing test and was recommended for promotion but subsequently he had been declared as fail in the said test---Validity---No procedure with uniform standards had been provided by the government for conducting typing test to determine valuable rights of contesting candidates---Such determination was left with the discretion of authority with every possibility of its misuse to accommodate the favorites---Procedural impropriety would be a ground for judicial review of executive action---Notified procedure should be followed to conduct typing test for determining eligibility in fair, just, transparent and reasonable manner---Typing test conducted by the department in absence of any transparent prescribed procedure was set aside---Department was directed to allow the employee as well as other contestants to participate in typing test to be conducted in transparent, fair and reasonable manner---Constitutional petition was disposed of in circumstances.

Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed Manika and others 2015 SCMR 1006; Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others PLD 2010 SC 878; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Al-Hamza Ship Breaking Co. and 14 others v. Government of Pakistan through Secretary Revenue Division, Ministry of Finance, Islamabad and others 2015 SCMR 595 and Suo Motu Case No.13 of 2009 PLD 2011 SC 619 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction--- Scope--- Procedural impropriety would be a ground for judicial review.

Ch. Muhammad Akram Khan for Petitioner.

Muhammad Hammad Khan Rai, Assistant Advocate-General, Punjab and Miss Yousra Malik, Section Officer (Regulations-IV) S&GAD for Respondents.

2017 P L C (C.S.) 437

[Lahore High Court]

Before Jawad Hassan, J

ALLAH DITTA

Versus

PROVINCE OF PUNJAB and 2 others

Writ Petition No.36681 of 2015, decided on 29th December, 2016.

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

----Ss. 4(b) (iii), 10 (1) & 13 (1) (5) (i) (ii) (6)---Taxation officer Tehsil Municipal Administration--- Allegation of irregularities---Recommendations of Inquiry Officer for imposition of penalty for forfeiture of past service of two years---Penalty, enhancement of---Requirements---Inquiry Officer had recommended penalty for forfeiture of past service of two years but the Competent Authority enhanced the penalty and dismissed the employee---Contention of employee was that he was not afforded opportunity to cross-examine the witness produced by the department---Validity---When witness was produced by one party, the other would be entitled to cross-examine such witness---Employee had been deprived of his right to cross-examine the witness produced by the other side---Inquiry could not be held in an arbitrary manner and principles of natural justice must be followed---Fair chance of cross-examination and production of evidence in rebuttal must be provided---Inquiry had not been conducted in accordance with procedure provided under S.10 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Competent authority had not considered that charge sheet was defective and inquiry officer without cross-examination had compiled his final report---Competent authority had to weigh the recommendations of Inquiry Officer and it could not differ with the same without assigning any reasons---Department had not properly examined the defence of the employee---No reasons had been given for disagreeing with the recommendations of inquiry officer---Competent Authority could either proceed in terms of S.13(5)(i) and (ii) or could have proceeded in terms of S.13(6) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and remand the inquiry or could have directed de novo inquiry after recording reasons in writing if merits of the case had been ignored or there were other sufficient grounds---Having not agreed with finding and recommendations made in the inquiry report the Competent Authority instead of following the option available to him under S.13(6) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 proceeded to award major penalty of dismissal from service which was against the spirit of S.13 of the Act---Nothing was on record that Competent Authority had disagreed specifically with the recommendations of inquiry officer---No specific findings had been given for enhancing the penalty from forfeiture of past service of two years to dismissal from service---Impugned order passed by the department was non-speaking---Authority was bound to act within four corners of the mandate of Constitution and Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and pass a speaking order---Once Competent Authority received a report from the Inquiry Officer it should examine the said report and relevant case material---Competent Authority had failed to determine as to whether inquiry had been concluded in accordance with the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Impugned order passed by the Authority was set aside and authorities were directed to hold de novo inquiry---Constitutional petition was allowed in circumstances.

Khalid Mansoor v. Director Federal Investigation Agency Rawalpindi and another 2008 SCMR 1174; Allah Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256 and Najam uz Zaman and others v. Engineer in Chief, GHQ, Rawalpindi and 2 others 2005 SCMR 1802 ref.

Secretary Government v. Khalid Hamdani 2013 SCMR 817; National Bank of Pakistan v. Muhammad Iqbal 1986 SCMR 234; Pasroor Sugar Mills Ltd. v. Abdul Qadeer 1988 PLC 246; Secretary Government of Punjab v. Ikram Ullah and others 2013 SCMR 572 = Secretary, Government of Punjab (C&W) and others v. Ikramullah and 5 others 2013 PLC (C.S.) 801; Messrs Gadoon Textil Mills v. WAPDA 1997 SCMR 641; Muhammad Iqbal Chaudhry and another v. Secretary, Ministry of Industries and Production, Government of Pakistan and others 2004 PLC (C.S.) 896; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Town Committee, Piplan v. Muhammad Hanif and others 2008 SCMR 723; Independent Newspaper Corporation (Pvt.) Ltd. and another v. Chairman. Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others 1993 SCMR 1533 and Asif Yousaf v. Secretary Revenue Division, CBR, Islamabad and another 2014 SCMR 147 rel.

(b) Constitution of Pakistan---

----Art. 4---Every citizen to be treated in accordance with law.

Hafiz Tariq Nasim and Jawad Tariq for Petitioner.

Ashfaq Ahmad Kharral, Assistant Advocate-General and Amjad Ali Assistant Director Enquiry, Punjab Local Government Board for Respondents.

2017 P L C (C.S.) 453

[Lahore High Court]

Before Shahid Karim and Jawad Hassan, JJ

NATIONAL BANK OF PAKISTAN

Versus

IFTIKHAR RASOOL ANJUM and others

I.C.As. Nos.120 to 146, 148 to 156, 460 to 464 and 991 of 2016, decided on 16th January, 2017.

(a) National Bank of Pakistan Ordinance (XIX of 1949)---

----S. 3---National Bank of Pakistan ("Bank")---Pensionary benefits---Legislative history of essential laws, rules, regulations and circulars relating to pensionary benefits of employees/officials of the National Bank of Pakistan stated.

(b) Civil service---

----Notification--- Non-publication in official Gazette--- Effect---Publication of the notification in the official Gazette was not sine qua non for its legal validity, efficacy and its non-publication was of no consequence.

Saghir Ahmed v. Province of Punjab and others PLD 2004 SC 261 ref.

(c) Civil service---

----Pension---Scope---Claim to pension was regulated by the rules in force at the time when the official retired, resigned, or was invalided, or was compulsorily retired, or was discharged from service, or was injured, or suddenly died whilst in service, depending upon the type of pension claimed.

I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041 ref.

(d) Civil service---

----Pension---Scope---Right to receive pension flowed directly out of the rules applicable and not out of any order of any officer or authority, though for the purposes of determining or quantifying the amount it may be necessary for the authorities to pass such order.

I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041 ref.

(e) Constitution of Pakistan---

----Arts. 23 & 24(1)---Pension, right to---Scope---Right to receive pension by a Government servant was property so as to attract Arts.23 & 24(1) of the Constitution and any illegal denial to a Government servant to receive the same would affect his Fundamental Right guaranteed under the said provisions of the Constitution.

I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041 ref.

(f) National Bank of Pakistan, Instruction Circular No.228 (C) dated 26-12-1977---

----Cl. 4(b)---National Bank of Pakistan, Instruction Circular No.37/1999 dated 16-06-1999---Banks (Nationalization) Act (XIX of 1974), S.20---Government of Pakistan, Finance Division (Internal Finance Wing), letter No.17(9)-IF.XI/77 dated 31-11-1977---Retired officials of National Bank of Pakistan---Pensionary benefits---Non-statutory rules or mere instructions issued by the Board of the National Bank of Pakistan ('the Bank') could not repeal, rescind or displace statutory rules relating to pension of employees of the Bank---Only the Government had powers to fix an amount of pension, increase the same, bring about changes therein from time to time and prescribe method for its calculation in absence of any bar or restriction---National Bank of Pakistan, Instruction Circular No.228(C) dated 26-12-1977 ('1977 Circular') was based on the Government of Pakistan, Finance Division (Internal Finance Wing), letter No.17(9)-IF.XI/77 dated 31-11-1977 (1977 Notification')---Both the '1997 Circular' and the '1997 Notification' were statutory in nature, and were commitments made on behalf of the Federal Government---National Bank of Pakistan, Instruction Circular No.37/1999 dated 16-06-1999 (1999 Circular'), which reduced pension of respondents, had been issued by the Board of the Bank pursuant to its authority in the nature of management/ superintendence of the affairs of the Bank and/or the policy making power, thus, it did not enjoy the status of a statutory instrument---Said Circular had not been composed/enforced with the prior approval of the Government---Board of the Bank in the garb of its general empowerment of policy making, superintendence and managing affairs of business could not rescind, replace, substitute and/or vitiate statutory instruments i.e. the `1977 Circular' and the '1977 Notification'---Terms and conditions of pension of respondents were governed by the '1977 Notification' and the '1977 Circular'---Appeals were dismissed accordingly.

Respondents were retired officials/officers of the National Bank of Pakistan ("the Bank"). During their service with the Bank, the Federal Government launched a new pension scheme which was circulated by Bank vide Instruction Circular No.228(C) dated 26.12.1977 ("the 1977 Circular). As per Clause 4(b) of the 1977 Circular, the pension of the retired employees of Bank was to be enhanced at the rate of 70% of average emoluments on completion of 30 years qualifying service. Respondents opted for the said Scheme. Said Scheme further mentioned that any change or revision in rates/scales of pension or gratuity that may thereafter be made by the Federal Government shall also apply to the officers/executives of the Bank. Subsequently in the year 1999, the Management of the Bank issued another Instruction Circular No.37/1999 dated 16.06.1999 ("the 1999 Circular") whereby the pension was reduced to almost 33% as against 70% and basic pay was increased. Respondents were aggrieved of the decrease in their pension. Issues to be decided in the present case were whether the '1977 Circular' was a statutory instrument, having backing of law, or merely executive instrument issued by the Federal Government; and whether the '1999 Circular' issued by the Board of Directors of the Bank could repeal and override the '1977 Circular'?

The '1977 Circular' was issued in pursuance to the Government of Pakistan, Finance Division (Internal Finance Wing), letter No.17(9)-IF.XI/77 dated 31-11-1977 ("the 1977 Notification"), which in turn was issued under section 20 of the Banks (Nationalization) Act, 1974. The '1977 Notification' and the '1977 Circular' were, thus, statutory in nature on all accounts and by every attribute and were also efficacious, effective and complementary to the Banks (Nationalization) Act, 1974. Further, only the Federal Government was authorized to change or revise the said formula for grant of pension to the officers/executives of the Bank. The '1977 Notification' and/or the '1977 Circular' had not been expressly set aside or repealed by any other instrument of the Government till date. The '1977 Notification' was the legislative command of the Government under the delegated powers to make rules and sovereign commitment, and in absence of repeal of the '1977 Notification' and the '1977 Circular', the provisions of both said instruments shall prevail and anything inconsistent thereto, even through any other non-statutory instrument in respect of pension shall be subservient to them and had to give way.

Provisions of '1977 Notification' and the '1977 Circular' were (sovereign) commitments made on behalf of the Federal Government and could not be lightly disregarded nor deliberately ignored to shatter the implicit faith and confidence of the respondents, upon which said provisions were applicable.

Dewan Salman Fibre (Pvt.) Ltd. v. Federation of Pakistan and others 2015 PTD 2304 ref.

Respondents were entitled to the same pension as was announced by the Government through the '1977 Circular' and the Board of Directors of the Bank was bound to follow such announcement of the Government, rather than reducing the same through their own order.

Rasheed Baig and others v. Zarai Taraqiati Bank Limited 2013 PLC (C.S.) 1444 and Muhammad Ilyas Khokhar and 24 others v. Federation of Pakistan and others 2006 SCMR 1240 ref.

The '1999 Circular', whereby pension of respondents was reduced, had not been issued as per the mandate of law, particularly section 20 of the Banks (Nationalization) Act, 1974, and inasmuch no notification was issued by the Federal Government, it was neither made by the Federal Government nor published in the official gazette. Hence, the '1999 Circular' had not been composed/enforced with the prior approval of the Government nor subsequent benediction was conferred on it by the Government. The '1999 Circular' had been formulated by the Board of the Bank pursuant to its authority in the nature of management/superintendence of the affairs of the Bank and/or policy making power. Hence, the '1999 Circular', at best could be termed as guidelines or domestic instructions of the Bank for the purpose of highlighting, elucidating or beneficially revamping the service structure of Bank's employees for their advantage. Further, 1999 Circular did not enjoy the status of a statutory instrument, hence the Board of the Bank in the garb of its general empowerment of policy making, superintendence and managing affairs of business could not rescind, replace, substitute and/or vitiate statutory instruments such as the '1977 Circular' and the '1977 Notification'.

Non-statutory rules or mere instructions such as the '1999 Circular' could not repeal, rescind or displace the statutory rules of the '1977 Notification' and the '1977 Circular'. It was clear from the '1999 Circular' that the Board of the Bank had tried to discontinue a legislative instrument (the '1977 Notification') by their own operation. Only the Government had powers to fix an amount of pension, increase the same, bring about changes therein from time to time and prescribe method for its calculation in absence of any bar or restriction.

The '1977 Notification' and the '1977 Circular' were applicable to the rules envisaging the terms and conditions of pension of respondents, because they were not repealed, replaced or annulled. Appeal was dismissed accordingly.

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

---Ss. 11(4), 11(5), 11(10) & 20---Government owned Bank---Powers of the Board---Scope---Any (statutory) instrument issued by the Federal Government in exercise of powers under S.20 of the Banks (Nationalization) Act, 1974 could not be overridden by the Board of the Bank of its own motion through an executive instrument.

(h) Constitution of Pakistan---

----Art. 199---Constitutional petition before the High Court---'Laches' doctrine of---Scope---Rule of laches had been evolved by courts and had to be weighed in each case; it was a discretion vesting in the superior courts and had to be construed accordingly---Decisive factor was whether the person invoking the Constitutional jurisdiction of the High Court had been utterly indolent in agitating his rights and had slept over them, however if he had been raising his voice in any manner and at any forum, he could not be shut out on the plea of laches.

Muhammad Azram v. National Institute of Health and others 2015 PLC (C.S.) 537; Nanik Ram and 3 others v. Jurio Mal and 7 others 2014 YLR 2508 and Muhammad Mustafa v. Syed Azfar Ali and 3 others PLD 2014 Sindh 224 ref.

Khawaja Haris Ahmad, Kh. Muhammad Farooq Mehta, Isaam Bin Haris, Ghulam Subhani and Abid Hussain for Appellant.

Salman Akram Raja, Ch. Muhammad Akhtar, Umar Hayat Khawaja, Adnan Ahmad Khawaja, Sardar Faiz Rasool Khan Jalbani, Ms. Tabinda Islam, Tariq Bashir, Bilal Bashir, Ch. Zulfiqar Ali and Anis Ali Hashmi for Respondents.

2017 P L C (C.S.) 488

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

Dr. ABID ALI

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and 3 others

I.C.A. No.1623 of 2015, decided on 11th January. 2017.

Civil service---

----Contract appointment---Scope---Contract period of employee was not extended and he was terminated from service---Validity--- Employee, after accepting terms and conditions of his contract employment had submitted his joining report---Service of such employee could be terminated without assigning any reason---Employee had no right to claim extension in his contract period as a vested right---Behaviour of employee remained unsatisfactory toward his superior which resulted into his termination---Where employment was on contract, relationship of "Master and Servants" would exist---Constitutional petition would not be maintainable in such matters---Impugned order had been passed in consonance with the spirit of law by the Single Judge of High Court---Intra court appeal was dismissed in limine.

Lt. Col. Rtd. Aamir Rauf v. Federation of Pakistan through Secretary M/o Defence and 3 others 2011 PLC (C.S.) 654 and Nadeem Ahmed v. Pakistan State Oil Company Limited and another 2005 PLC (C.S.) 1447 rel.

Mirza Khalid Mahmood for Appellant.

Ch. Sultan Mehmood, A.A.G.

Dr. Saeed Ahmed Bari, Litigation Officer, L&DD Department.

2017 P L C (C.S) 507

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

ZOHAIB HASSAN----Petitioner

Versus

The INSPECTOR GENERAL OF PRISON and others----Respondents

I.C.A. No.1591 of 2016, heard on 12th January, 2017.

Civil service---

----Appointment against post of Assistant Superintendent Jail---Re-measurement of height of candidate---Concealment of facts---Effect---Appointment letter was issued in favour of petitioner subject to fitness report---Department refused to take joining of petitioner and petitioner filed constitutional petition against such refusal which was disposed of with the direction to the department to decide the application of petitioner---Petitioner was summoned for re-measurement of his height along with record but he filed yet another constitutional petition which was dismissed---Validity---Petitioner had concealed facts which could be taken into consideration---Previous wrong decisions on the basis of said concealment of facts could be curable at belated stage---Petitioner had remained unable to prove his case---Person could not have vested right for a post against which he did not fulfill the requirement/ criteria---No illegality had been pointed out in the impugned order passed by the Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Rai Muhammad Tofail Kharal for Appellant.

Ch. Sultan Mehmood, A.A.G. for Respondents.

2017 P L C (C.S.) 528

[Lahore High Court]

Before Jawad Hassan, J

ISHAQ MASIH----Petitioner

Versus

DISTRICT COORDINATION OFFICER and others----Respondents

Writ Petition No.14672 of 2012, decided on 11th January, 2017.

(a) Civil service---

----One employee challenging the reinstatement order of another employee by the department---Validity---Petitioner employee was not aggrieved of order passed by the department---No Fundamental Right of petitioner employee had been infringed through the impugned order---Petitioner employee had to establish that his legal or Fundamental Right guaranteed under the Constitution had been violated to be an aggrieved person---Petitioner had to prove his locus standi to seek direction for initiation of action against the private respondent under the denial of his legal right if any---Impugned order related to private respondent only which had nothing to do with the petitioner---Petitioner was not an aggrieved person to approach the High Court under Art.199 of the Constitution---Constitutional petition was dismissed in circumstances.

Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223; Montgomery Flour and General Mills Ltd., Montgomery v. Director, Food Purchases, West Pakistan and others PLD 1957 (W.P) Lah. 914; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO To Chief Justice and others 2014 SCMR 122; Hafiz Hamadullah v. Saifullah Khan and others PLD 2007 SC 52 and N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 rel.

(b) Words and phrases---

----'Aggrieved party' and 'aggrieved person'---Distinction.

Judicial Review of Public Action by Mr. Justice (R) Fazal Karim at page 977 Volume 2 rel.

Abdul Hafeez Ansari for Petitioner.

2017 P L C (C.S.) 556

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

SAIF UR REHMAN

Versus

FAISALABAD ELECTRIC SUPPLY COMPANY (FESCO) and others

I.C.A. No.39 of 2016, decided on 9th January, 2017.

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

----Notification No.SOR-IV(S&GAD)-5-16/84 dated 18-04-1984---Appointment---Medical examination---Scope---Petitioner was appointed on contract basis but his service was terminated and post was again advertised---Petitioner, after second advertisement qualified for the appointment and was advised to get medically examined---Petitioner was declared medically unfit and department refused to join him in the service---Contention of petitioner, in intra-court appeal was that he was appointed on the basis of a valid medical certificate and declaring him unfit in the second round for the same post was mala fide---Validity---Employee, under the Rules, was not required to produce fresh medical certificate of fitness in circumstances---Subsequent appointment was subject to the condition that there must not be a break in service of the employee---Petitioner was terminated from service on 06-06-2011 and new employment letter was issued on 07-07-2011 with a break in his service of one month---No illegality was pointed out in the impugned judgment passed by the Single Judge of High Court---Intra-Court appeal of employee was dismissed in circumstances.

2017 P L C (C.S.) 564

[Lahore High Court]

Before Jawad Hassan, J

BILAL AKHTAR and others

Versus

PRESIDENT/CHIEF EXECUTIVE OFFICER and 6 others

Writ Petition No.2929 of 2011, heard on 20th December, 2016 .

Civil service---

----Employees of Pakistan Telecommunication Company Limited retired under voluntary separation scheme sought direction for increase in the benefit of anomaly---Scope---Voluntary separation scheme was optional for the petitioners to accept the same or otherwise---Petitioners having exercised option to retire from service on and from cutoff date, could not be treated at par with the employees who did not exercise such option---Employees were paid emoluments in full and final for the period they worked after they had opted for retirement under voluntary separation scheme they had received benefits accordingly---Terms and conditions of scheme were circulated amongst all the employees---Terms and conditions of scheme were opted by the petitioners/ employees voluntarily without any coercion or duress---Petitioner/ employees after signing and thumb marking acknowledged and accepted the terms and conditions of the scheme---Office letters had specified the amount to be received and same constituted to be full and final amount under voluntary separation scheme--- Petitioners/ employees after accepting the said amount could not turn around and seek additional benefits---Nothing was on record that scheme had been executed by the employees under duress or coercion rather they had received full and final payment after accepting the same voluntarily---Employees were estopped from challenging/questioning the terms of voluntary separation scheme---Constitutional petition was dismissed in circumstances.

Azad Kashmir Government Cooperative Bank Ltd., Muzaffarabad v. Ch. Muhammad Akram 2014 PLC (C.S.) 639; State Bank of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280 and State Bank of Pakistan v. Khaibar Zaman Khan 2004 PLC (C.S.) 1213 rel.

Tahseen Haider Kazmi for Petitioner.

Mirza Amir Beg for Respondents.

2017 P L C (C.S.) 569

[Lahore High Court]

Before Jawad Hassan, J

Dr. KUMAIL ABBAS RIZVI

Versus

UNIVERSITY OF PUNJAB and others

Writ Petition No.34140 of 2015, decided on 20th December, 2016.

(a) Constitution of Pakistan---

----Arts. 9 & 14(1)---Inviolability of right to life and dignity of man---Scope---Civil service---Termination from service without reasons---Infringement of dignity of a person---Every termination order must carry reasons and this was equally applicable to a case of termination of service simpliciter---To withhold reasons for termination of a civil servant generated a host of adverse assumptions against his character 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.

Petitioner, who was appointed as a lecturer, applied for two-years ex-Pakistan study leave (without pay) to resume his duties on a Government scholarship for Masters leading to PHD studies. Said application of the Petitioner was approved. Subsequently, the petitioner came back to Pakistan and tendered his resignation to the Vice-Chancellor which was forwarded to the Additional Registrar, but instead of accepting his resignation he received a termination letter on account of absence from duty and was removed from service.

Petitioner moved his resignation on 01-08-2011. Resignation application was officially received on 19-08-2011 and then forwarded to the concerned Registrar. Said application was not decided and was kept aside, without any reason. University authorities without any legal justification, and for no fault on part of petitioner declared him as absent from duty since 06-08-2011 and terminated his lien from the post of the lecturer from the said date. University authorities were at fault for not accepting the resignation on time. Petitioner was a qualified person, and admittedly his performance was exceptionally good, but his future has been stigmatized for no fault on his part. Termination letter consisted of only two lines and had been passed without giving detailed reasons for terminating petitioner's services. Petitioner had a right to be treated with dignity by the University authorities under Article 14 of the Constitution, and his termination from service lowered his dignity in the public life.

Every termination order must carry reasons and such principle was equally applicable to the case of termination simpliciter. There was no plausible explanation for 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 Article 14 of the Constitution.

Act of the University authorities not only stigmatized the honour and prestige of the petitioner, but had also defamed him in the estimation of society. Dignity of the petitioner guaranteed under Article 14 of Constitution, had been reduced to a farce by terminating his services on account of absence, when he already had submitted his resignation, which was not accepted without any fault on behalf of the petitioner. Once the petitioner had tendered his resignation, the University authorities were bound to decide his application without delay and with reasons, within reasonable time.

Actions of University authorities were blatant violation of Fundamental Rights of the petitioner, as enshrined in Articles 9 and 14 of the Constitution, to enjoy the inviolability of right to life and dignity of man.

High Court directed University authorities to accept resignation of the petitioner in accordance with relevant laws and rules, and his termination order was set-aside. Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man---Scope---Right to dignity was one of the cardinal principles of law and most valuable right, which had to be observed in every civilized society and more particularly in an Islamic country because human values were to be guarded and protected---Dignity of man was not only provided by Constitution, but under Islam, great value had been attached to dignity of man---Human dignity, honour and respect was more important than physical comforts and necessities.

Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; University of Pretoria v. Tommie Meyer Films (Edms) Bpk (1979) 1 SA 441(A), Jean Frederic Ponoo v. Attorney-General [2010] SCCC 4 and Bashir Ahmad and another v. Maqsood Ahmad and another 2010 PCr.LJ 1824 ref.

(c) Constitution of Pakistan---

----Arts. 9 & 14---Inviolability of right to life and dignity of man---Scope---Right to live was not confined to mere living but it meant meaningful life, which could be enjoyed with dignity and without defamation---No attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace another person, thereby diminishing, decreasing and degrading the dignity, respect, reputation and value of life should be allowed to go with the impunity

(d) Civil service---

----No one should suffer due to the acts (faults) of the Government or its departments.

(e) Constitution of Pakistan---

----Arts. 9 & 14---Inviolability of right to life and dignity of man---Scope---Under Arts.9 & 14 of the Constitution, the courts had to safeguard and preserve the life and dignity of the citizens and protect them from serious and hazardous risks so that they could live a happy and meaningful life.

Mrs. Rabbiya Bajwa for Petitioner.

Ch. Aamir Mahmood, Legal Advisor University of Punjab.

2017 P L C (C.S.) 583

[Lahore High Court]

Before Jawad Hassan, J

Professor Dr. ZAFAR IQBAL CHAUDHRY

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.1319 of 2017, decided on 19th January, 2017.

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

----S. 6---Suspension of employee---Scope---Employee against whom action was proposed to be initiated could be placed under suspension if in the opinion of competent authority it was necessary or expedient---Impugned order for suspension of employee, in the present case, was passed after constituting a committee and thorough investigation was made---Constitutional petition was not maintainable against suspension order due to bar contained under Art.212 of the Constitution---Order of suspension being not a penalty would not violate any legal right vested in the suspension order---Employee had other remedies under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Constitutional petition being premature was dismissed in limine.

Muhammad Amin Mughal v. Secretary Local Government and Rural Development Department/Chairman Punjab Local Government Board, Government of the Punjab, Civil Secreariat, Lahore and 4 others 2002 PLC (C.S.) 816; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Tahir Ashraf Durrani v. The Chairman, Central Board of Revenue, Islamabad and 3 others 2004 PLC (C.S.) 1550; The Divisional Superintendent, Pakistan Railways, Lahore v. Muhammad Halim through Legal Representatives and others PLD 2000 SC 55 rel.

Mushtaq Ahmad Mohal for Petitioner.

2017 P L C (C.S.) 597

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

KAMRAN MARTIN

Versus

Mst. SIERA BIBI and 4 others

Intra Court Appeal No.28 of 2016, heard on 16th January, 2017.

(a) Civil service---

----Appointment of Sub-Inspector Police (BPS-14)---Candidate failed in interview and challenged the appointment/recruitment orders passed in favour of another candidate---Constitutional petition of candidate was allowed by the Single Judge of High Court---Validity---Petitioner for initiation of proceedings under Art.199 of the Constitution should have a locus standi; he was not aggrieved of any order, act or proceedings done or taken against her by the authorities---Recommendations of appointment were only between the private respondents and authorities which had nothing to do with the petitioner---No document/order of authorities was on record to show that petitioner had been aggrieved of the act/proceedings of authorities---Single Judge had resolved factual controversy which could not be decided without recording of evidence---Constitutional petition was not maintainable where factual controversy was involved---Impugned judgment of Single Judge being not sustainable was set aside---Intra court appeal was allowed in circumstances

Yousaf Haroon and others v. Punjab Public Service Commission, Agha Khan/Davis Road, Lahore through Secretary and others PLD 2001 SC 1012 ref.

Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223; Montgomery Flour and General Mills Ltd., Montgomery v. Director, Food Purchases, West Pakistan and others PLD 1957 (W.P) Lah. 914; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 and Fida Hussain and another v. Mst. Saiqa and others 2011 SCMR 1990 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy could not be resolved while exercising constitutional jurisdiction.

M. Mehmood Chaudhry for Appellant.

Tahir Bashir with Respondent No.1.

Sultan Mahmood, Addl. A.G. on behalf of Respondents Nos.2 to 5.

2017 P L C (C.S.) 607

[Lahore High Court]

Before Jawad Hassan, J

Mst. SHAFQAT PARVEEN

Versus

The COMMISSIONER, PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION (PESSI) and 3 others

Writ Petition No.29500 of 2016, heard on 24th January, 2017.

Civil service---

----Advertisement for appointment---Change of nomenclature---Scope---Petitioner was appointed as Physiotherapist but nomenclature of the same was changed as Nursing Sister and was appointed as such---Application of petition for appointment as Physiotherapist was kept pending---Validity---Appointing department was competent forum to make regulations and decide affairs for the smooth running of the Institution---Creation of post was made after adopting all legal process for the recruitment of the said post through Selection Board of the department which was approved by the Government---Appointment against the post in question was made on merits, in a transparent manner on the recommendation of Selection Board---Petitioner had no vested right to be appointed on the seat against which she did not fulfill the basic qualification---Department could not be restrained from appointing other person on merit and as per the requirements---Said other person had higher qualification in the relevant field, who was given preference as per advertisement whereas petitioner who was claiming better qualification than the other person was found to be lacking of any additional requisite qualification---Petitioner, therefore, could not be appointed by the Selection Board---Petitioner who on one hand had applied for the vacant post on the basis of advertisement but on the other hand had challenged the validity of said advertisement could not be allowed to blow hot and cold at the same time---Application of petitioner for change of designation as Physiotherapist was duly considered and dismissed by the competent authority---Petitioner's application for the post of Physiotherapist was still pending before the department---Constitutional petition being pre-mature, was dismissed.

Saima v. Government of Balochistan through Secretary Education Department and another 2014 PLC (C.S.) 579 and Government of Punjab through Secretary S&GAD, Lahore and others v. Zafar Maqbool Khan and others 2012 SCMR 686 ref.

Muhammad Gul v. Government of Balochistan through Secretary Technical and Higher Education, Quetta and 2 others 2016 PLC (C.S.) 34 and Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Javed and others 2015 SCMR 269 rel.

Pir Khaliq Shah for Petitioner.

Ashfaq Ahmad Kharral, Asstt. A.G., Dr. Awais Gohar, Dir (Health Services) and Ayaz Farooq, Dy. Dir. (Legal) for Respondents.

2017 P L C (C.S.) 613

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

GOVERNMENT OF PUNJAB and others

Versus

WAQAS ASHRAF

I.C.A. No.886 of 2009, decided on 12th January, 2017.

Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 33---Administrator Market Committee---Removal from office---Petitioner was removed from office of Administrator Market Committee and District Officer Agriculture (Extension) was nominated as Administrator---Constitutional petition filed by the petitioner was allowed by Single Judge of High Court---Validity---Funds of Market Committee were frozen when petitioner was appointed as Administrator and same could only be utilized or released with the approval of the Government---Notification for appointment of petitioner was an interim arrangement till the constitution of Market Committee---Constitutional petition was not maintainable as petitioner did not have any vested right on the basis of which he could claim his entitlement to hold office of Administrator---Government, in pursuance of policy and in the public interest had removed all Administrators who were private persons and brought the office of Administrative under the control of Agricultural Department---Impugned judgment passed by the Single Judge was set aside---Intra court appeal was allowed in circumstances.

Mian Tajammal Hussain and 7 others v. Province of Punjab through Secretary, Agriculture Department 1990 MLD 570 ref.

Ch. Faisal Zafar for Appellant.

Ch. Sultan Mahmood, AAG with Irshad Ali, Litigation Officer, Agricultural Department.

2017 P L C (C.S.) 630

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD YOUNIS

Versus

The SUPERINTENDING ENGINEER and others

Writ Petition No.39771 of 2016, decided on 20th December, 2016.

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

----R. 17-A--- Constitution of Pakistan, Art.199--- Constitutional petition---Maintainability---Contract appointment---Regularization of service---Scope---Petitioner employee was appointed on contract basis in place of his father who, on account of ailment, retired from service---Service of employee was terminated due to his absence from duty---Validity---Petitioner employee was appointed on contract basis under R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Employee after accepting the terms and conditions of his contract employment submitted his joining report---Petitioner as per employment contract had no right to claim regularization of his service under any circumstances---Such employee could be terminated without assigning any reason---Petitioner remained absent from duty for a considerable period of time, he had violated the terms and conditions of his service---When employment was on contract, it would be a relationship of "master and servant"---Constitutional petition would not be maintainable in such matters---If employee on contract was aggrieved of his termination, the only remedy was claim of damages---No direction could be issued to force the unwilling employer to keep the employee in service---Impugned order had been passed by the Competent Authority after hearing the petitioner---No illegality had been committed while turning down departmental appeal of the petitioner---Constitutional petition was dismissed in limine.

Lt. Col. Rtd. Aamir Rauf v. Federation of Pakistan through Secretary M/o Defence and 3 others 2011 PLC (C.S.) 654 and Nadeem Ahmed v. Pakistan State Oil Company Limited and another 2005 PLC (C.S.) 1447 rel.

Suhail Shafiq for Petitioner.

2017 P L C (C.S.) 643

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Mst. SHAHNAZ BANO

Versus

CHAIRMAN WAPDA and 2 others

Writ Petition No.6395 of 2014, heard on 2nd December, 2015.

(a) Civil service---

----Withholding of pensionary benefits due to pendency of departmental proceedings---Scope---Employee had died while in service and his pensionary benefits were withheld due to inquiry pending against him---Validity---Employee had been facing inquiries during lifetime which could not be concluded till his death---Cases pending against the deceased employee had been closed by the competent authority---Department had not released 20% family pension to the legal heir of the deceased employee despite closing of cases against him---Department had no authority to withhold pensionary benefits of the deceased employee---Act of department had resulted in causing financial hardship to the family members of deceased employee which was declared illegal and unlawful---Department was directed to release the remaining 20% family pension and other dues/arrears/benefits of the deceased employee immediately---Petitioner had been denied her lawful right for a pretty long period of more than 9 years---Such attitude of department was highly condemnable and responsible officers/officials were liable to be burdened with heavy costs--- Department was directed to pay Rs.1,50,000/- as compensation for causing unnecessary delay in releasing the balance of pension in accordance with law---Amount of compensation should be paid through Deputy Registrar (Judl.) within one month and if same was not paid then it would be recovered as arrears of land revenue.

Sami-ur-Rehman v. Chief Secretary, Government of Sindh and 2 others 1983 PLC (C.S.) 832; Parveen Javaid v. Chairman WAPDA and 5 others 2011 PLC (C.S.) 1527; The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P. Communications and Works Department, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514 and Haji Muhammad Ismail Memon Advocate Complaint's case PLD 2007 SC 35 rel.

(b) Civil service---

----Pension, withholding of---Scope---Pension could not be withheld one year after retirement of a civil servant.

(c) Civil service---

----Departmental proceedings must be completed before the retirement of employee.

(d) Civil service---

----Employee could not be penalized for any action which was subject matter of an inquiry and was not completed before his retirement.

Syed Sajjad Haider Naqvi for Petitioner.

Mian Muhammad Javaid for Respondent.

2017 P L C (C.S.) 685

[Lahore High Court]

Before Abid Aziz Sheikh, J

NAZAR MUHAMMAD WARAICH and 7 others

Versus

ZONAL HEAD, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, SIALKOT and another

Writ Petitions Nos.12525 of 2009, 25089, 25036, 25075, 25038, 25037 of 2010 and 13738 of 2013, heard on 18th November, 2015.

Sacked Employees (Reinstatement) Ordinance (XXIII of 2009)---

----S. 3---Sacked Employees (Reinstatement) Act (XX of 2010), S.4---Constitution of Pakistan, Art.25---Sacked employees---Reinstatement---Discrimination---Petitioners were Area Managers of State Life Insurance Corporation, who were terminated from service in years, 1997 and 1998---Petitioners sought their reinstatement under the provisions of Sacked Employees (Reinstatement) Ordinance, 2009---Validity---Sales representatives, sales officers and sales managers were not employees of the Corporation against salary but their earning was based upon percentage payable to them proportionate to number of policies and clients they brought to the Insurance Corporation---Post of Area Manager was an employment against monthly salary with the Corporation against which any person was directly appointed by Corporation which could be based on his past performance and not by way of promotion from Sales Manager to Area Manager like other promotions in service---Petitioners were not promoted but appointed as Area Managers---State Life Insurance Corporation in compliance of Sacked Employees (Reinstatement) Ordinance, 2009, issued publication in newspapers to reinstate 36 contract employees terminated during the period specified in Sacked Employees (Reinstatement) Ordinance, 2009---Petitioners were discriminated under Art.25 of the Constitution who were entitled to the benefit of S.3 of Sacked Employees (Reinstatement) Ordinance, 2009 and S.4 of Sacked Employees (Reinstatement) Act, 2010--- High Court directed the Corporation to process applications of petitioners and give them benefit of the law---Constitutional petition was allowed under circumstances.

Mazullah Khan v. Zonal Head State Life Insurance Corporation, Peshawar and others 2008 SCMR 617 ref.

Muhammad Nawaz Abbasi v. Federation of Pakistan and others 2012 PLC (C.S.) 1037; Hidayatullah v. Federation of Pakistan and others 2011 PLC (C.S.) 1299; Waqar Alam and others v. Secretary Establishment Division and others 2013 PLC (C.S.) 12 and Javed Hussain Langha and others v. Government of Pakistan and others 2014 PLC (C.S.) 507 rel.

Hafiz Tariq Naseem, Rao Abdul Jabbar Khan and Ch. Shaukat Ali Javed for Petitioners.

Syed Ibrar Hussain Naqvi for Respondents.

2017 P L C (C.S.) 703

[Lahore High Court]

Before Mujahid Mustaqeem Ahmed, J

Mst. YASMEEN AKHTAR

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence

Writ Petition No.2163 of 2012, heard on 13th December, 2016.

Pension Regulations, 2010---

----R. 100(a)(2) & (b) (4)---Constitution of Pakistan, Art.9---Special Family Pension---Petitioner's son during service in Army embraced Shahadat---After the widow of Shaheed soldier got married, petitioner (mother of Sahaheed son) claimed to be entitled to 100% Special Family Pension benefits---Validity---Special Family Pension claim of petitioner (mother) was refused wrongly mala fidely and without any valid basis, in violation of Pension Rules and she had been discriminated and not equally treated under law by the authorities---Such Rules were framed for prompt and adequate pensionary benefits to the families of martyred army personnel non-commissioned officers to acknowledge service of bold/courageous "Jawans" embracing `Shahadat' for motherland, to boost morale of members of Armed Forces to combat against all internal and external enemies and terrorism of all sorts, to share their grieves, compensate their legal heirs / dependents to enable them to live dignified/independent life---High Court declared the order passed by authorities without lawful authority and of no legal effect as right of mother of "Shaheed" to live a respectable life (guaranteed under Art.9 of the Constitution) was blatantly refused---Petitioner (mother) was entitled to get 100% Special Family Pension benefits---Constitutional petition was allowed in circumstances.

Lieutenant Colonel Abdul Ghaffar Khan Babar and Lieutenant Colonel Khalid Mehmood Abbasi v. Federation of Pakistan C.Ps.Nos.1231 and 1232 of 2010; C.As. Nos.173 of 2012 and 323 to 335 of 2014, decided on 07.12.2015 ref.

Muhammad Akram for Petitioner.

Mrs. Kanz-us-Saadat Siddique, Standing Counsel for Respondents.

2017 P L C (C.S.) 715

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

MUHAMMAD ASLAM

Versus

CHAIRMAN, PAKISTAN EINGINEERING COUNCIL and 2 others

Intra Court Appeal No.1496 of 2016, decided on 24th January, 2017.

Civil service---

----Employee of Pakistan Engineering Council---Non-statutory rules---Effect---Constitutional petition of employee was dismissed by Single Judge of High Court being not maintainable on the ground that Pakistan Engineering Council had no statutory Rules---Validity---Rules under which the terms and conditions of employee's services were being regularized were non-statutory---Impugned order had been passed in consonance with the spirit of law---No illegality had been pointed out in the impugned order passed by the Single Judge---Intra court appeal was dismissed in circumstances.

Shaukat Ali v. Managing, Director Ktwma/dco, Kasur and 2 others 2015 PLC (C.S.) 782 rel.

Asmat Kamal Khan and Chaudhry Ibrahim for Appellant.

Mian Muhammad Waseem for Respondents.

2017 P L C (C.S.) 727

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

JAN MUHAMMAD

Versus

NATIONAL BANK OF PAKISTAN and others

I.C.A. No.695 of 2010, heard on 6th February, 2016.

Civil service---

----Bank employee---Retirement---Pension, calculation of---Contention of employee was that he was discriminated while calculating his pension---Validity---Person against whom employee had claimed discrimination was promoted earlier in time than the petitioner---Petitioner was promoted on 06-09-2005 and thereafter retired the very next day without doing any work after promotion---No case for discrimination had been made out--- Intra court appeal was dismissed in circumstances.

Ch. Aitzaz Ahsan for Appellant

Umer Abdullah along with Mehmood Akhtar, SVP/Wing Head and Ghulam Shabbir, Vice-President for Respondents.

2017 P L C (C.S.) 730

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

MOHSIN SHAHZAD and another

Versus

The SECRETARY, FOOD DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and 4 others

Writ Petition No.21792 of 2014, heard on 22nd October, 2015.

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

----R. 6---Punjab Civil Servants Act (VIII of 1974), S.2(2)---Contract Appointment Policy, 2004---Advertisement for appointment on permanent basis---Issuance of appointment letter on contract basis---Public functionaries---Exercise of power---Discretion---Advertisement was made for appointment of Assistant Accounts Officer (BS-16) on permanent basis and recommendations were also sent for the same, however, appointment letter was issued on contract basis---Validity---Procedural requirements had been fulfilled in the case of petitioners---Lawful right had accrued in favour of petitioners---No justification existed for issuance of appointment letter against the post on contract basis---No policy could override the provisions of law---No provision existed for making appointment against civil posts on contract basis in the Province---Impugned action of the authorities was not sustainable in the eye of law---Public power must be exercised reasonably and honestly---Public functionaries were bound to treat the cases of employees/subordinates fairly, justly and without arbitrariness---Act of authorities being discriminatory was illegal---Authorities was directed to issue revised/fresh order against the post on regular basis with effect from appointment of petitioners and grant all consequences service benefits from the said date---Constitutional petition was allowed in circumstances.

Rukhsar Ali and 11 others v. Government of N.-W.F.P. through Secretary Education, Peshawar and 3 others 2003 PLC (C.S.) 1453; Government of N.-W.F.P. through Secretary Education and others v. Rukhsar Ali and 24 others 2005 SCMR 22; Messrs Shaheen Cotton v. Federation of Pakistan PLD 2011 Lah. 120; Messrs Al-Raham Travels v. Ministry of Religious Affairs, Hajj 2011 SCMR 1621; Niaz Muhammad v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad 2008 PTD 1517; Mst. Riffat Siddique v. District Co-ordination Officer and others 2015 PLC (C.S.) 279; Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi 2009 SCMR 605; Tariq Aziz-ud-Din and others' case 2010 SCMR 1301; Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82 and Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others PLD 2011 SC 22 rel.

(b) Public functionaries---

----Public functionaries were bound to treat the cases of employees/ subordinates fairly, justly and without arbitrariness. [

Mahmood Ahmad Qazi for Petitioner.

Muhammad Ejaz, Asstt. Advocate General along with M. Asad S.O. (ESH) on behalf of Respondent No.1.

2017 P L C (C.S.) 737

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

S. ZAFAR ALI SHAH

Versus

ADDITIONAL REGISTRAR OF COMPANIES and another

I.C.A. No.1 of 2017, decided on 6th February, 2017

Constitution of Pakistan---

----Art. 199---Constitutional petition---Official Liquidator---Dispensing with service---Scope---Petitioner was relieved of his duties as Official Liquidator on the basis of allegations by the auction purchaser---Validity---Petitioner had filed reply to the application denying all the allegations leveled therein---Intra-Court appeal was pre-mature without waiting for the decision of said application which was still pending adjudication---Petitioner could establish his case before the Company Bench where he would be afforded opportunity of hearing---Petitioner could not be allowed to bypass the said forum---Intra court appeal being not maintainable was dismissed in limine.

2017 P L C (C.S.) 743

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

Chaudhry MOHAMMAD TAZEEM

Versus

CHAIRMAN, STATE LIFE INSURANCE and others

I.C.A. No.1168 of 2015, decided on 14th February, 2017.

Civil service---

----Petitioner employee resigned from service on medical ground---Employee sought pensionary benefits on the ground that his resignation was accepted without recommendations of Medical Board---Constitutional petition filed by the employee was dismissed being not maintainable---Validity---Petitioner had already availed an alternate remedy to get the same relief by filing civil suit---Constitutional petition was not competent before the High Court in circumstances---Constitutional petition was hit by laches as petitioner had approached High Court in the year 2012 against his grievance arising in the year 1989---Intra court appeal was dismissed in limine.

Civil Aviation Authority v. Zulfiqar Ali 2016 SCMR 183 rel.

2017 P L C (C.S.) 749

[Lahore High Court]

Before Jawad Hassan, J

Khawaja WAJID ALI

Versus

DISTRICT COORDINATION OFFICER and another

Writ Petition No.37951 of 2016, decided on 7th February, 2017.

Civil service---

----Suspension---Scope---Petitioner employee had been suspended by the department and no final order had been passed against him---Suspension was not punishment---Suspension of civil servant during the course of his service would mean that no work was to be taken from him during the period of suspension---Suspension was only a temporary measure wherein employee was entitled to receive his full emoluments---Service Tribunals had been constituted having exclusive jurisdiction in the matter to look into and decide the question with regard to terms and conditions of service of a civil servant---Employee had an alternate efficacious remedy by approaching the departmental appellate authority and then the Service Tribunal for redressal of his grievance---Constitutional jurisdiction of High Court was barred in circumstances---Constitutional petition was dismissed being not maintainable.

Mushtaq Hussain v. Government of the Punjab through Secretary, Education and 2 others 2014 PLC (C.S.) 602; Raja Talat Mahmood v. Ismat Ehtishanul Haq 1999 SCMR 2215 and Haji Muhammad Rahim and others v. Mst. Surayya Rahim 1999 CLC 1392 ref.

Government of N.W.F.P. v. I.A. Sherwani PLD 1994 SC 72; 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; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Khalil ur Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750 and Dr. Ghazanfarullah and 2 others v. Secretary Health, Government of Punjab, Lahore and 6 others 2010 PLC (C.S.) 51 rel.

Dr. Ehsan-ul-Haq Khan for Petitioner.

2017 P L C (C.S) 752

[Lahore High Court]

Before Syed Mansoor Ali Shah, C J

MUHAMMAD YOUSAF and another

Versus

CHAIRMAN, FEDERAL PUBLIC SERVICE COMMISSION and 4 others

Writ Petition No.7572 of 2016, heard on 11th January, 2017.

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

----Ss. 7-A & 10---Rules for Competitive Examination (CSS) 2014, R.9(ii)---United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011---Constitution of Pakistan, Arts. 14, 25 & 199---Civil Service---Recruitment---Federal Public Service Commission---Allocation of occupational groups---Disabled persons---Reasonable classification---Accommodation for disabled persons---Inviolability of dignity of man---Equality of citizens---Constitutional petition---Petitioners, who were visually impaired, impugned the legality and constitutionality of R. 9(ii) of the Rules for Competitive Examination (CSS), 2014, whereby being disabled (visually impaired), they could only compete in the competitive examination against four occupational groups, and were excluded from the rest---Validity---Petitioners, if they were not visually impaired, were entitled to allocation in a occupational group of their choice in the open merit quota reserved for Punjab---Rule 9(ii) of the Rules for Competitive Examination (CSS), 2014 allowed a person with disability to be considered for FSP if he/she fell within the 7.5% quota on all-Pakistan basis but was not allowed to be considered against open merit in the Provincial quota; and to allow person with disabilities one category of merit based quota but deny the same person another category of merit quota was outright discriminatory and neither the Constitution nor the Federal Public Service Commission Ordinance, 1977 or the Civil Servants Act, 1973 permitted such a classification---Rule 9(ii) of the Rules For Competitive Examination (CSS), 2014 was therefore devoid of any reasonable classification and discriminatory, offending Art.25 of the Constitution, and furthermore, also underrated a person with disabilities, by hurting his/her self esteem and dignity and thereby offended Art.14 of the Constitution---High Court observed that contention that sedentary posts were only available in the four occupational groups mentioned in R. 9(ii) of the Rules for Competitive Examination (CSS), 2014 was not borne out from any record or statutory instrument and lacked rationale---Rules framed under S.7-A of the Federal Public Service Commission Ordinance, 1977 were supposed to deal with, among other things, internal governance, and the Rules under S. 10 of the said Ordinance were to be framed to carry out the purpose of the Federal Public Service Commission Ordinance, 1977, which was to conduct tests and examination for recruitment---Any rule framed under said S. 10 could only elaborate and provide further details regarding conducting of tests and examinations and could not transgress the mandate of the Federal Public Service Commission Ordinance, 1977 and could not set restriction and thresholds for any class of candidates to enter civil service, which in the present case was disabled persons---High Court observed that R.9(ii) of the Rules for Competitive Examination (CSS), 2014 framed under Ss.7-A and 10 of the Federal Public Service Commission Ordinance, 1977, transgressed the scope of the Federal Public Service Commission Ordinance, 1977 and was ultra vires to the same---High Court further held that being in violation of Arts.14 and 25 of the Constitution, R.9(ii) of the Rules for Competitive Examination (CSS), 2014 was unconstitutional and was accordingly struck down---High Court further observed that the Federal Government was free to formulate a more inclusive recruitment policy keeping in view the observations of the High Court, the Constitution and United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011 and after thoroughly assessing the possibility of providing reasonable accommodation to disabled persons---Constitutional petitions were allowed, accordingly.

Moving from the margins-Mainstreaming persons with disabilities in Pakistan (A custom research report produced for the British Council, August, 2014). rel.

(b) Constitution of Pakistan--

----Arts. 9, 2A, 14, 25, 8, 4 & Preamble---United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011---Nature of Fundamental Rights under the Constitution---Fundamental Rights in the context of persons with disabilities---Constitutional protections for disabled persons---Constitutional values of universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms---Concept of "reasonable accommodation" for disabled persons---Nature of "human dignity"---Legitimate interests of a person with disabilities---Constitutional nexus with the United Nations Convention On The Rights Of Persons With Disabilities, Ratified by Pakistan in 2011---Obligations of the State with regard to disabled persons, in the context of recruitment to civil service, extensively discussed.

Aharon Barack-Human Dignity-The Constitutional Value and the Constitutional Rights. Cambridge 2015, pp.85, 86 & 144; Pakistan Tobacoo Co. Ltd. and others v. Government of N.W.F.P. through Secretary Law and others PLD 2002 SC 460; Reference No.01/2012 (Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 PLD 2013 SC 279;Moving from the margins-Mainstreaming persons with disabilities in Pakistan; Collins English Dictionary-Complete and Unabridged, 12th Edn. 2014 Harper Collins Publishers, quoted at URL http://www.thefreedictionary.com/disabled; Word Health Organization. (2016) Disabilities, Retrieved on December 19, 2016 from http:///www/who.int/topics/disablities/en/; Jeeja Ghosh and another v. Union of India and others AIR 2016 SC 2392;Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1 and Assistive Technology for Visually Impaired and Blind Peole. Marion A Hersch, Michael A Johnson. Springer, P.670 rel.

(c) Words and phrases---

----"Disability"---Meaning of---Nature and concept of the word "disability"---Disability meant lacking one or more physical powers, such as the ability to walk or to coordinate one's movements, as from the effects of a disease or accident, or through mental impairment---Disabled person is a person who on account of injury, disease or congenital deformity, was handicapped from undertaking any gainful profession or employment in order to earn his livelihood and included a person who was blind, deaf, physically handicapped or mentally retarded---Per United Nations Convention On The Rights Of Persons With Disabilities, persons with disabilities include those who had long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others---Disability was an evolving concept and resulted from the interaction between persons with impairments and the attitudinal and environmental barriers that hindered their full and effective participation in society on an equal basis with others---"Disabilities" was an umbrella term, covering impairments, activity limitations, and participation restrictions---Impairment was a problem in body function or structure; an activity limitation was a difficulty encountered by an individual in executing a task or action; while a participation restriction was a problem experienced by an individual in involvement in life situations---"Disability" was not just a health problem but also was a complex phenomenon, reflecting the interaction between features of a person's body and features of the society in which he or she lived.

Collins English Dictionary-Complete and Unabridged, 12th Edn. 2014 (c) Harper Collins Publishers, quoted at URL http://www.thefreedictionary.com/disabled and Word Health Organization. (2016) Disabilities, Retrieved on December 19, 2016 from http:///www.who.int/topics/disablities/en/; rel.

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

----Ss. 7-A, 10 & Preamble---Conduct of Business of Federal Public Service Commission---Rules framed under Ss. 7-A & 10 of the Federal Public Service Commission Ordinance, 1977---Scope---Rules under S.7-A of the Federal Public Service Commission Ordinance, 1977 were supposed to deal with the internal governance and business of the Federal Public Service Commission in order to effectively achieve its main purpose under the Federal Public Service Commission Ordinance, 1977 which was to conduct tests and examinations and advise the President when required----Rules under S.10 of the Federal Public Service Commission Ordinance 1977, on the other hand, were to be framed to carry out the purposes of the Federal Public Service Commission Ordinance, 1977 and any Rule framed under said section could only elaborate and provide further details regarding how to conduct tests and examinations---Such Rules could not transgress the mandate of the Federal Public Service Commission Ordinance, 1977 and could not proceed to set restrictions and thresholds for any class of candidates to enter the civil service---Federal Government under S.10 of the Federal Public Service Commission Ordinance 1977 could only further the purposes of the Federal Public Service Commission Ordinance, 1977 and no more, and S.7 of the same lay down the purpose of the Ordinance and nowhere did it empower the Federal Public Service Commission to set new qualifications or impose restrictions on any class of candidates.

Petitioners represented by:

Sardar Faiz Rasool Jabani, Rana Moazzam Siddique, Yousaf Naseem Chandio, Usman Nawab and Dildar Hussain, Advocates along with Petitioners in person.

Respondents represented by:

Nasar Ahmad, Deputy Attorney General of Pakistan.

Ms. Hina Hafeezullah Ishaque, Standing Counsel for Pakistan.

Nasir Saeed Akhtar Warriach, D.S., Establishment Division.

Haroon Rashid, Assistant Director, FPSC, Islamabad.

Ms. Riffat Butt, Deputy Legal Advisor, Ministry of Foreign Affairs.

Ms. Iqra Ashraf, Assistant Director, Ministry of Foreign Affairs.

Research assistance by:

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

2017 P L C (C.S.) 850

[Lahore High Court]

Before Abid Aziz Sheikh and Faisal Zaman Khan, JJ

UMAR HAYAT KHAWAJA

Versus

NATIONAL BANK OF PAKISTAN through President and 3 others

Intra-Court Appeals Nos.415, 481 and 478 of 2014 in W.P. Nos.1991, 30394 and 33107 of 2012, heard on 23rd February, 2017.

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

----Rr. 90 & 94---Circular No.57/99 dated 29-07-1999---Bank employee---Encashment of privilege leaves---Past and closed transaction---Laches, principle of---Applicability---Bank had issued circular to the effect that encashment of privilege leave would only be granted to a maximum of 180 days at the time of retirement subject to availability---Petitioner employee sought direction for encashment of unutilized frozen privilege leaves in the light of said circular---Contention of the Bank was that petitioner employee after retirement had received the total retirement benefits inclusive of encashment of 180 days privilege leave---Validity---Petitioner employee having availed the benefit of circular (got encashment of 180 days), could not be allowed to re-agitate a past and closed transaction---Petitioner had not challenged the alleged circular within reasonable time---Constitutional petition was hit by the principle of laches---Employee was not entitled to any other relief---No illegality or irregularity was pointed out in the findings recorded by the Single Judge of High Court---Intra court appeal was dismissed in circumstances.

State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Dr. Muhammad Tahir ul Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD 2013 SC 413 and Capt. (Retd.) Mukhtar Ahmed Shaikh v Federal Government of Pakistan 2013 PLC CS 380 rel.

Umar Hayat Khawaja for Appellant (in I.C.As. Nos.415 and 478 of 2014)

Shahid Mehmood Aleem for Appellant (in I.C.A. No.481 of 2014).

Ch. M. Ashraf and Umar Abdullah for Respondent-Bank.

2017 P L C (C.S.) 856

[Lahore High Court]

Before Jawad Hassan, J

NISAR AHMAD

Versus

SECRETARY TO THE GOVERNMENT OF PUNJAB and others

Writ Petition No.39741 of 2016, decided on 27th February, 2017.

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

----S. 16---Allegations of inefficiency, negligence, corruption, misconduct and misuse of powers---Dismissal from service---Departmental appeal, non-filing of---Effect---Petitioner employee had not preferred any appeal against the impugned order before the competent authority/appellate authority prior to invoking the constitutional jurisdiction---Right of appeal had been provided to the petitioner employee under S.16 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Impugned order was passed on 23-11-2016 and constitutional petition was filed on 19-12-2016---Constitutional petition had been filed within 30 days as provided under S.16 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Date of filing of constitutional petition within time was to be reckoned as date of departmental appeal of petitioner and should be treated as departmental appeal for all practical purposes---Certified copy of constitutional petition along with annexures was sent to the department by the High Court to treat the same as departmental appeal of employee and decide the same in accordance with law and pass speaking and reasoned order after providing proper hearing to all the concerned---Constitutional petition was disposed of in circumstances.

Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Khalid Zahir Akhtar v. Federation of Pakistan through Secretary Ministry of Defence PLD 2016 Lah. 545; Safdar Ali Nasir v. Chairman TEVTA 2016 PLC (C.S.) 497; 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 ref.

Muhammad Akram v. DCO, Rahim Yar Khan 2017 SCMR 56 rel.

Ch. Imran Arshad Naro and Muhammad Naveed Shaheen for Petitioner.

2017 P L C (C.S.) 862

[Lahore High Court]

Before Abid Aziz Sheikh and Jawad Hassan, JJ

ABDUL MANAN

Versus

PROVINCIAL POLICE OFFICER and 2 others

Intra-Court Appeal No.238 of 2017, decided on 28th February, 2017.

Civil service---

----Appointment of constable in police department---Petitioner candidate was declined selection on the ground that he was found involved in a criminal case---Candidate had not mentioned in the application form that he was involved in a criminal case, which was concealment of fact---Misstatement on the part of candidate before entering into service had shaken the credibility of his character and disentitled him from any relief---No illegality was pointed out in the impugned order---Intra-court appeal was dismissed in limine in circumstances.

Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560 and Mst. Azra Parveen v. Pakistan Cricket Board through Chief Executive and 2 others 2005 YLR 1469 rel.

2017 P L C (C.S.) 870

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD FAROOQ ZULFIQAR

Versus

The PRESIDENT NATIONAL BANK OF PAKISTAN and others

Writ Petition No.37847 of 2016, decided on 10th February, 2017.

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

----Rr. 39 & 40---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Bank employee---Allegation of misconduct---Dismissal from service---National Bank of Pakistan (Staff) Rules, 1973 were statutory in nature and petitioner/employee was governed by the said Rules---Petitioner/employee had right to file an application for review or appeal under R.40(1) of National Bank of Pakistan (Staff) Rules, 1973 after dismissal from service before the Central Board of the Bank---Rule 40 of National Bank of Pakistan (Staff) Rules, 1973 did not state that the appeal/review could only be filed if disciplinary proceedings had been initiated under the said Rules, rather it provided a right to every aggrieved employee to approach the competent authority for his grievance---Petitioner had neither availed such remedy nor had filed appeal or review against impugned order---Petitioner could only invoke the constitutional jurisdiction of High Court if impugned memorandum of dismissal was ex facie unlawful and/or if the Authority passing order had no jurisdiction to pass such order---Petitioner had alternate remedy to approach the Central Board of the Bank for appeal or review---Finding of fact recorded by the Disciplinary Committee could not be disturbed in constitutional jurisdiction---Impugned decision had been taken by the Bank without mentioning the provision of law or rules---Employee could not be reinstated under constitution without dilating upon the question of facts involved in the case---Constitutional petition was converted into appeal and was sent to the competent authority being the Central Board of the Bank for redressal of grievance of employee within eight weeks---Constitutional petition was disposed of accordingly.

Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; The Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Mrs. Anisa Rehman v. PIA and others 1994 SCMR 2232; Province of Sindh through Secretary Education Government of Sindh, Karachi and others Miss Saima Ban and others 2003 SCMR 1126; Town Committee Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452; Messrs Phoenix Mills Ltd. Karachi and others v. City District Government Karachi and others PLD 2003 Kar. 83; Muslim Abad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135; Sheikh Muhammad Sadiq v. Ilahi Bakhsh and 2 others 2006 SCMR 12 and Col Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Party seeking constitutional remedy must have clear right---High Court could not resolve question of facts while exercising constitutional jurisdiction---Constitutional jurisdiction of High Court could only be invoked if impugned order was ex facie unlawful and/or if the authority passing order had no jurisdiction to pass such order.

Town Committee Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452; Messrs Phoenix Mills Ltd. Karachi and others v. City District Government Karachi and others PLD 2003 Kar 83 and Muslim Abad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135 rel.

Mahmood Ahmed Qazi for Petitioner.

Zahid Aslam Khan and Muhammad Ammar for Respondents.

2017 P L C (C.S.) 890

[Lahore High Court]

Before Shahid Mubeen, J

ANSAR KHAN

Versus

SECRETARY COMMERCE GOVERNMENT OF PAKISTAN and 4 others

Writ Petition No.18152 of 2016, decided on 18th January, 2017.

(a) Civil service---

----Promotion---Petitioner-employee was held not fit for promotion on the basis of his performance---Validity---Impugned order had been issued on the basis of cogent reasons by the competent authority---Mala fide had been attributed to the department which could only be resolved by recording of evidence which was not the domain of High Court under constitutional jurisdiction---Petitioner-employee had concealed the material fact from the Court due to which he was not entitled for any discretionary relief---Promotion was not a vested right of employee however to be considered for promotion was the inalienable right---Constitutional petition was not maintainable which was dismissed in circumstances.

Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Ms. Shabnam Irshad Ahmed and others v. Muhammad Muneer Malik and others 2016 SCMR 2017; Kamran Hanif v. Bilqees Bano and others 2010 YLR 1665; Messrs Trade Lines through Managing Partner and others 2002 CLD 1776; Lahore Development Authority through Director General LDA. Lahore v. Mst. Shamim Akhtar and another 2003 MLD 1543; Zafar Ullah Baloch v. Government of Balochistan and others 2002 SCMR 1056; Muhammad Afzal Khan v. Government of Punjab through Secretary to Government of the Punjab C&W Department and another 2009 PLC (C.S.) 40; Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 and The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan PLD 1960 SC 81 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact could not be determined while exercising constitutional jurisdiction by High Court.

Ch. Imran Raza Chadhar for Petitioner.

2017 P L C (C.S.) 896

[Lahore High Court]

Before Abid Aziz Sheikh and Faisal Zaman Khan, JJ

MUHAMMAD ALAMGIR

Versus

NATIONAL BANK OF PAKISTAN through Regional Head Sialkot and 3 others

I.C.As. Nos.444 in W.P. No.9361 and 445 in W.P. No.9362 of 2012, heard on 22nd February, 2017.

National Bank of Pakistan Promotion Policy, 2008---

----Bank employee seeking promotion after their retirement---Scope---Bank on 29-04-2008 approved its Promotion Policy, 2008 giving promotion to the regular employees of Bank from clerical to officer Grade-III staff and up to Executive Vice President Cadre w.e.f. 01-01-2008---Employees claimed promotion under the said Promotion Policy notwithstanding the fact that they already stood retired before the said policy---Validity---Nothing was on record that Promotion Policy would also apply to retired employees---Promotion Policy, 2008 was only applicable to employees in service---Intention of the competent authority was that the notification was applicable to only of those employees who were in service and not yet retired---Retired employees were of different class from the employees in service---Any benefit granted by the employer to employees in service retrospectively could not be extended to retired employees automatically unless it was specifically granted to retired employees---Benefit of promotion had not been expressly given retrospectively to retired employees in the Promotion Policy, 2008---Notification for time scale promotion being beneficial could be applied retrospectively, however, unless express intention was shown to benefit retired employees the said notification could not be given retrospective effect for their benefit---Petitioners employees could not as of right claim promotion after retirement unless through some express notification or policy such benefit had been extended to them---Impugned order passed by Single Judge of High Court was well reasoned and based on correct interpretation of law---Intra-court appeal was dismissed in circumstances.

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; Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan, Islamabad and others PLD 2008 SC 395 and Muhammad Aslam Sultan v. Federation of Pakistan and others 2006 SCMR 1465 rel.

Faiz Jalbani and Umar Hayat Khawaja for Appellant.

Umar Abdullah for Respondents.

2017 P L C (C.S.) 900

[Lahore High Court]

Before Jawad Hassan, J

KAMRAN AHMAD

Versus

CHIEF EXECUTIVE GEPCO. and others

Writ Petition No.40855 of 2016, decided on 10th February, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Employer and employee--- Non-statutory rules--- Effect--- Petitioner employee challenged the proceedings of promotion by the employee Company and sought consideration of his promotion---Validity---Promotion of petitioner employee being not governed by statutory rules, could not be enforced through constitutional jurisdiction of High Court---Constitutional petition was dismissed in circumstances.

Muhammad Munawar Jang Sher Qadri v. Government of the Punjab and 3 others 2013 PLC (C.S.) 96 and Pakistan International Airline and others v. Tanveer ur Rehman and others PLD 2010 SC 676 ref.

Kamran Ahmad v. WAPDA and others 2014 PLC (C.S.) 332; Nabi Bakhsh Khan Khoso v. Branch Manager, National Bank of Pakistan 2000 SCMR 1017; Muhammad Rauf Patwari v. District Collector/DCO, Toba Tek Singh 2014 PLC (C.S.) 386 and Frontier Construction Co. Private Limited v. Bahauddin Zakariya University, Multan Vice-Chancellor 2006 MLD 978 rel.

Raja Ahmed Nawaz for Petitioner.

Aurangzeb Mirza for Respondent/GEPCO.

2017 P L C (C.S.) 923

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

PAKISTAN INTERNATIONAL AIRLINE and others

Versus

NOREEN NAZ BUTT

Intra-Court Appeal No.608 of 2009, decided on 24th January, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition--- Maintainability--- Master and servant---Contract appointment--- Termination from service--- Non-statutory rules--- Effect--- Alternate remedy--- Scope--- Constitutional petition filed by the employee was accepted and she was ordered to be reinstated in service---Validity---Contract of petitioner employee was not extended and she was not allowed to continue duty with effect from 01-01-2005---Said order exclusively fell within the domain of terms and conditions of service of an employee---Employer Corporation had no statutory rules---Relationship between the Corporation and employee was that of "master and servant"---Constitutional petition in such like cases was not maintainable---Petitioner employee had alternate remedy against the impugned order passed by the Corporation before the appropriate forum---Where alternate and efficacious remedy was available to the Employee, extraordinary jurisdiction under Art.199 of the Constitution could not be invoked---Intra-court appeal was allowed in circumstances.

George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 532 and Ms. Zeba Mumtaz v. First Women Bank Ltd. and others PLD 1999 SC 1106 ref.

Pakistan International Airline Corporation and others v. Tanveer ur Rehman and others PLD 2010 SC 676 and Hassan Mehmood v. Habib Bank Limited through President and 4 others 2016 PLC (C.S.) 315 rel.

Umer Sharif for Appellants.

Asmat Kamal Khan for Respondent.

2017 P L C (C.S.) 940

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

MUBASHAR MAJEED

Versus

PROVINCE OF PUNJAB and 3 others

Intra Court Appeal No.638 of 2014, decided on 7th February, 2017.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Contract appointment---Extension of contract---Scope---Termination of contract employee---Scope---Single Judge of High Court had disposed of constitutional petition with the observation that termination of petitioner on the basis of allegations contained in the show cause notice was illegal and his termination would be considered termination simpliciter---Validity---Contract of petitioner employee stood completed on 09-02-2011---Petitioner employee could not claim extension of the contract as a matter of right rather it was prerogative of competent authority either to dispense with services of such employee or continue with the same by extending the contract---Petitioner was a contract employee and was governed by the principle of "master and servant"---Petitioner employee did not have any vested right to seek extension of the contract---Constitutional petition in such like cases was not maintainable---No stigma remained on the petitioner employee---Intra court appeal was dismissed in circumstances.

Federation of Pakistan through Secretary Law Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120 and Ameer Solangi v. WAPDA 2016 SCMR 46 rel.

Appellant in person.

Sultan Mahmood, Assistant Advocate-General for Respondents.

2017 P L C (C.S.) 943

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

IRAM SHAHADI

Versus

PRINCIPAL SCHOOL OF NURSING MAYO HOSPITAL, LAHORE and others

I.C.A. No.1342 of 2016, decided on 2nd February, 2017.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Show-cause notice, issuance of--- Petitioner employee was heard and recommendations had been forwarded to the competent authority---No adverse findings against the employee were available on record---Employee on the apprehension of coercive action against her filed constitutional petition---High Court in constitutional jurisdiction could not act upon mere apprehension---No substantive right of employee had been infringed and only show cause notice had been issued---Constitutional petition was not maintainable in circumstances---Intra court appeal was dismissed accordingly.

Deputy Commissioner of Income Tax/Wealth Tax, Faisalabad and others v. Messrs Punjab Beverage Company (Pvt.) Ltd. 2007 PTD 1347 rel.

Ch. Muhammad Arshad for Appellant.

2017 P L C (C.S.) 965

[Lahore High Court]

Before Jawad Hassan, J

ZAWAR HUSSAIN

Versus

DIRECTOR-GENERAL LIVESTOCK AND DAIRY DEVELOPMENT and another

Writ Petition No.10627 of 2013, heard on 14th December, 2016.

(a) Civil service---

----Adjustment of an employee against the vacant post---Withdrawal of---Departmental policy---Jurisdiction of High Court to interfere in policy matters of a department---Scope---Employee, a Baildar was adjusted against the vacant post of Guard but same was withdrawn by the department---Validity---Permanent cadre of the employee had not been changed rather only adjustment against vacant post was made---If order of adjustment had been withdrawn by the department then employee could not claim his adjustment as permanent posting on the said seat---Job description of the employee as Baildar was different to that of Guard---Employee was appointed against a post keeping in view his qualification and expertise---Post of employee was job specific and non-transferable---Adjustment orders of the employee were issued against service rules and departmental policy---Employee had accepted terms and conditions of his service and the rules and regulations of the department---Employee was bound to obey the orders issued in accordance with the rules and regulations by the department---Department/competent authority could rescind its order at any time in line with the policy/rules and regulations of the same---Employee had failed to point out any mala fide with regard to issuance of impugned order---High Court had to confine itself to the question of legality and could not substitute its decision for that of the decision maker---Judicial restraint was exercised by the High Court from forcing the department to commit act which was neither authorized by specific law nor contemplated by a specific executive policy---Interference of High Court in such functions of government would amount to encroach upon the policy decision of government and disturb the concept of independent and good governance---Courts could not compel the executive to adopt a particular course---High Court only had the power to interpret law and had no jurisdiction to take the role of policy maker in the garb of interpretation---Where policy decision of government was not ultra vires the law and was reasoned, rational and reasonable, High Court could not set aside and displace such decision---Judicial quest in administrative matters was to find the right balance between administrative discretion to decide the matters---Employee appointed/ engaged on contract/part time/substitute basis had no vested right to claim for being absorbed/appointed on regular/permanent basis---Status of employee could not be changed unless regularized by adopting the procedure/method as such---Employee had not pointed out any act of discrimination, mala fide, arbitrariness or favoritism while passing the impugned order by the department---Department had powers and jurisdiction to regulate affairs in accordance with law and policy---Constitutional petition was dismissed in circumstances.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Suhail Shafi v. Government of Punjab and others 2005 PLC (C.S.) 1; Rashid Ali v. Secretary Industries and others PLD 2014 Lah. 173; Landirenzo Pakistan (Pvt.) Ltd. v. Federation of Pakistan and 6 others 2013 PTD 658; Junaid and another v. Federation of Pakistan and others 2012 CLC 1962 and Asad Aziz v. Bahauddin Zakaria University and 2 others 2009 YLR 370 rel.

(b) Civil service---

----Ad hoc appointment---Scope---Ad hoc appointment did not confer on an appointee any right or interest to continuous appointment, seniority or promotion and service of such an appointee could be dispensed with at any moment under policy guidelines of the Authority.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not determine whether a particular policy or decision taken in the fulfillment of such policy was fair---High Court was only concerned with the manner in which such decision had been taken---Interference with the decision-making process was warranted where it was vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it was actuated by mala fides---Where a decision and/or recommendation of government/competent authority was not in accordance with law or suffered from mala fide or same was arbitrary, irrational and unreasonable, High Court could direct the State/Government to act in accordance with law.

Ramana Dayaram Shetty v. International Airport Authority of India AIR 1979 SC 1628; Tata Cellular v. Union of India AIR 1996 SC 11; Raunaq International Ltd. v. I.V.R. Construction Ltd. AIR 1999 SC 393; Air India Ltd. v. Cochin International Airport Ltd. AIR 2000 SC 801 and Sajid Mehmood Raja and another v. Federation of Pakistan and others 2013 PLC (C.S.) 864 rel.

M. Abdus Sattar Chughtai for Petitioner.

Muhammad Iftikhar ur Rasheed, A.A.G. Muhammad Farooq, Admn Officer, L&DD. Department, Azhar Hussain, Assistant and Muhammad Ajmal, AD for Respondents.

2017 P L C (C.S.) 981

[Lahore High Court]

Before Syed Mansoor Ali Shah, CJ

TALIB HUSSAIN

Versus

PRINCIPAL SECRETARY TO CHIEF MINISTER and others

Writ Petition No.40732 of 2016, heard on 16th March, 2017.

Civil Protection and Welfare Bureau (Appointment and Conditions of Service) Rules, 2010---

----R. 3 & Sched.---Punjab Destitute and Neglected Children Act (XVIII of 2004), Ss.13, 6 & 49---Constitution of Pakistan Art.199---Constitutional petition---Civil Service---Recruitment---Director-General of the Punjab Child Protection and Welfare Bureau---Additional charge---Scope---Petitioner impugned appointment of respondent on additional charge as the Director-General of the Provincial Child Protection and Welfare Bureau on the ground that the same was done in contravention of Child Protection and Welfare Bureau (Appointment and Conditions of Service) Rules, 2010---Validity---Appointment of Director-General of the Bureau was provided for in the Schedule to Child Protection and Welfare Bureau (Appointment and Conditions of Service) Rules, 2010, which clearly stated that an officer from DMG/Ex-PCS/PSSS/PMS could be posted on the same, and the Punjab Destitute and Neglected Children Act, 2004 or Rules framed thereunder, did not provide for appointment of Director-General on "additional charge"---Appointment of respondent was therefore made without lawful authority and respondent was directed to relinquish the post forthwith---Constitutional petition was allowed, accordingly.

Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 and Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 rel.

Sheraz Zaka for Petitioner.

Nasar Ahmad, Deputy Attorney General for Pakistan.

Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan.

Anwaar Hussain and Ahmad Hassan Khan, Assistant Advocates General, Punjab.

Muhammad Mumaz, Child Protection Officer (Legal).

Ms. Saba, Child Protection Officer (Legal) and Hafiz Arshad Mehmood, Law Officer, S&GAD (Regulations Wing).

Zawar Hussain, Section Officer (Dev.) Home Department.

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

2017 P L C (C.S.) 1009

[Lahore High Court]

Before Jawad Hassan, J

DISTRICT EDUCATION OFFICER and 2 others

Versus

ZAHID MEHMOOD and another

Writ Petition No.21973 of 2012, decided on 9th March, 2017.

(a) Constitution of Pakistan---

----Arts. 212, 175(2) & 199---Punjab Civil Courts Ordinance (II of 1962), S.7---Service Tribunals Act (LXX of 1973), Preamble---Industrial Relations Act (X of 2012), Preamble---Constitutional petition---Civil service---District Judge/Chairman Human Rights Commission---Cognizance of service matter---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Employee was terminated from service against which petition was moved before District Judge/Chairman Human Rights Commission who ordered for his restoration---Validity---Power for restoration of employee was not transformed into law by the legislature to the District Judge/Chairman Human Rights Commission---District Judge was not vested with any authority to pass any order in that capacity---Constitution had set an absolute bar and had given exclusive jurisdiction to administrative Courts and tribunals to adjudicate matters with regard to terms and conditions of persons in service of Pakistan---District Judge functioning as Chairman Human Rights Commission could not assume its jurisdiction on service/labour matters---General jurisdiction of civil courts had been barred where a special law had been promulgated and a forum had been created by it---Civil servants had to invoke jurisdiction of Labour Court where they could not seek remedy from a Service Tribunal if their cases were covered by definition of "workman" and were employed in any industry or commercial establishment---No person was liable to do which the law did not require him to do---District Judge had not acted in accordance with law by assuming the jurisdiction of which he was not bestowed---Impugned order of District Judge to reinstate the employee was illegal and void---Entire exercise by the District Judge while passing the impugned order was illegal and without jurisdiction---Order passed by the District Judge was set aside---Employee would be free to approach competent forum of law for redressal of his grievance in accordance with law---Constitutional petition was allowed in circumstances.

Muhammad Afzal Warraich and others v. Muhammad Ramzan and others PLD 2016 Lah. 85 and Dr. Farrah Atta v. District and Sessions Judge/Chairman, Human Rights, Bhakkar and 3 others 2007 PLC (C.S) 1303 ref.

Director City Circle GEPCO Ltd. and others v. Shahid Mir and others PLD 2013 SC 406; 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; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Provincial Police Officer (I.G.P.), Peshawar v. Farid Ullah Khan 2013 PLC (C.S.) 1413; Umar Khan v. Government of N.W.F.P. 1997 PLC (C.S.) 746; Muhammad Javed v. Karachi Electric Supply Corporation Limited 1997 PLC (C.S.) 1220; Faisal Sultan v. E.D.O. (Education) and others 2011 PLC (C.S.) 419; Azizullah Memon v. Province of Sindh and another 2007 SCMR 229; Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others 2009 SCMR 339; Sharafat v. Additional Sessions Judge/Justice of Peace 2015 PCr.LJ 1758 and Abdul Fatah Bhutto v. Election Commission of Pakistan through Secretary 2014 CLC 639 rel.

(b) Constitution of Pakistan---

----Art. 4---Every individual (including educational institution) had the right to be dealt with in accordance with law.

Faisal Sultan v. E.D.O. (Education) and others 2011 PLC (C.S.) 419 rel.

(c) Administration of justice---

----Where procedure had been provided for doing a thing in a particular manner, same should be done in that manner alone and not in any other way or it should not be done at all otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal---No person was liable to do which the law did not require him to do.

Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission 2016 PLC (C.S.) 1184; Falak Niaz v. Amal Din 2016 YLR 2047; Sabz Ali Khan v. Inspector General of Police, KPK 2016 YLR 1279; Cantonment Board Clifton v. Sultan Ahmed Siddiqui 2016 CLC 919; and Federation of Pakistan v. Asad Javed PLD 2016 Isl. 53 rel.

Ashfaq Ahmad Kharral, Assistant Advocate-General for Petitioners.

Sultan Ahmad and Ms. Sadia Malik, Assistant Attorney-General on Court's call for Respondent No.1.

2017 P L C (C.S.) 1070

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

MUHAMMAD ZAHEER HUSSAIN

Versus

The RECRUITMENT COMMITTEE and another

I.C.As. Nos.391, 392 and 393 of 2016, decided on 25th January, 2017.

Civil service---

----Advertisement for appointment---Relaxation in upper age limit---Requirements---Exceptional circumstances---Scope---Petitioners applied for relaxation of upper age limit much later after the cutoff date given in the advertisement---Relaxation in upper age limit could be given upto five years as per policies of the Government---Candidate seeking relaxation of upper age limit must have appended a separate application giving reason for relaxation which they failed---Petitioners were not entitled to seek relaxation of upper age limit in circumstances---No exceptional circumstances had been established nor any illegality had been pointed out in the impugned order passed by the Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Government of Punjab through Secretary (S&GAD), Lahore and another v. Zafar Maqbool Khan and others 2012 SCMR 686 distinguished.

Deputy Director Social Welfare v. Mohammad Laique 2004 PLC (C.S.) 595 rel.

Manzoor Hussain Dogar for Appellant.

2017 P L C (C.S.) 1076

[Lahore High Court]

Before Shujaat Ali Khan, J

Dr. MUHAMMAD ASIF

Versus

PRESIDENT ZARAI TARAQIATI BANK LTD.

Writ Petition No.7715 of 2014, decided on 1st March, 2017.

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

----Ss. 3 & 5---Allegation of negligence, inefficiency, misconduct and embezzlement---Departmental proceedings---Acquittal by Court under National Accountability Ordinance, 1999---Petitioner sought his reinstatement in service on the ground that he was acquitted of the charge of embezzlement by Court under National Accountability Ordinance, 1999---Validity---Acquittal from National Accountability Bureau Reference did not make any difference as judicial trial could not be treated as substitute of departmental proceedings---Petitioner was indicted in National Accountability Bureau Reference on account of embezzlement whereas charge sheet showed that departmentally he was proceeded against on account of negligence, inefficiency and misconduct---If petitioner was dismissed on account of his involvement in criminal case then he would have been well within his rights to claim reinstatement in service after acquittal from that case---Subject of both the matters was different and decision of one had no bearing on the other---Constitutional petition was dismissed in circumstances.

Mian Ghulam Sarwar Samija v. Divisional Superintendent, Pakistan Railways, Multan 2013 SCMR 714 and Superintending Engineer GEPCO, Sialkot v. Muhammad Yousaf 2007 SCMR 537 distinguished.

Nazir Ahmed v. Capital City Police Officer, Lahore and another 2011 SCMR 484 ref.

Khalid Aziz and another v. Government of the Punjab and others 2017 SCMR 21; Sami Ullah v. Inspector-General of Police and others 2006 SCMR 554 and Executive Engineer and others v. Zaid Sharif 2005 SCMR 824 rel.

Shahid Mehmood Aleem for Petitioner.

2017 P L C (C.S.) 1085

[Lahore High Court (Multan Bench)]

Before Shahid Mubeen, J

Malik MUHAMMAD HASHIM AWAN and another

Versus

CHIEF SECRETARY GVERNMENT OF PUNJAB, LAHORE and 3 others

Writ Petition No.5309 of 2010, decided on 23rd February, 2016.

(a) Constitution of Pakistan---

----Art 199---Civil service---Constitutional petition---Maintainability---Non-statutory rules---Scope---Constitutional petition would not be competent when there were no statutory rules---Department of employee had no statutory rules---Constitutional petition was not maintainable which was dismissed in circumstances.

M.H. Mirza v. Federation of Pakistan through Secretary Cabinet Division Government of Pakistan, Islamabad and 2 others 1994 SCMR 1024; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Syed Nazir Gillani v. Pakistan Red Crescent Society and another 2014 SCMR 982 and Pakistan Defence Officer's Housing Authority v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707 rel.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Constitutional jurisdiction of High Court---Scope---High Court could not interfere in policy matters unless policy was arbitrary.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 rel.

(c) Notification---

----Notification would operate only prospectively and not retrospectively.

Commissioner of Sales Tax (West), Karachi v. v. Messrs Kruddsons Ltd. PLD 1974 SC 180 and Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan 1992 SCMR 1652 rel.

Muhammad Khan Ghauri for Petitioners.

Mudassar Shahzad-ud-Din for Respondent.

2017 P L C (C.S.) 1093

[Lahore High Court]

Before Mirza Viqas Rauf, J

Ch. BASHARAT ALI

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED and another

Writ Petitions Nos.19546, 10605, 10674, 15431, 16362 of 2012 and 27099, 4981 of 2011, heard on 16th November, 2015.

(a) Constitution of Pakistan---

----Art 199-- Constitutional petition--- Maintainability--- In case of service being regulated by statutory rules, Constitutional petition is maintainable.

Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484 and Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6 rel.

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

----Constitution of Pakistan, Art.10-A---Termination of service---Condemned unheard---Non-compliance of rules---Petitioners were employees of Pakistan Telecommunication Company Limited and their services were terminated---Validity---Petitioners were proceeded under the law which was not applicable to them and they were thrown out of service with one stroke of pen without even affording any opportunity of hearing---Such act of authorities even offended fundamental rights guaranteed in terms of Art.10-A of the Constitution---Proceedings culminated into dismissal of service were result of excess of authority and had no backing of law---High Court declared proceedings under Pakistan Telecommunication Company Limited Service Regulations, 1996, and terminating services of petitioners, without lawful authority and of no legal effect and petitioners were deemed to be in service---Constitutional petition was allowed in circumstances.

Masood Ahmad Bhatti v. Federation of Pakistan through Secretary, M/O. Information Technology and Telecommunication and others 20l2 SCMR 152; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Messrs Al-Mahmudia (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others PLD 2007 SC 79; Mirza Mehboob Baig and others v. Deputy Settlement Commissioner (Land) and others 2002 MLD 1512; Tajammal Hussain Shah v. Mst. Taj Aslam 1989 CLC 662; Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708; Muhammad Tariq Badr v. National Bank of Pakistan and others 2013 SCMR 314 and Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others v. Muhammad Arif and others 2015 SCMR 1472 ref.

Baleeg-uz-Zaman Ch. for Petitioner.

Shahid Anwar Bajwa, Mirza Aamer Bajwa, Tahir Mehmood for Respondent along with Muzaffar Iqbal, Manager (Legal) on behalf of PTCL.

2017 P L C (C.S.) 1123

[Lahore High Court]

Before Ali Baqar Najafi, J

SHAFIQUE AHMAD

Versus

MINISTER FOR LAW and others

Writ Petition No.34703 of 2016, decided on 1st March, 2017.

Punjab Privatization Board Act (IV of 2010)---

----Ss. 6(k) & 14---Recruitment by an autonomous body---Appointment of legal advisor by Punjab Privatization Board---Nature of recommendations of autonomous bodies---Objective criteria for appointment/recruitment---Scope---Petitioner impugned appointment of respondent as legal advisor to the Punjab Privatization Board on the ground, inter alia, that per recommendations made by the Punjab Privatization Board, petitioner was part of the top-3 candidates, and the respondent was on serial number 10 of the said list---Contention of Provincial Government was that recommendations of the Punjab Privatization Board, which was an autonomous body, were not binding upon it---Validity---Policy letter of the Provincial Governmental set procedure for appointment of legal advisors and under the same, an autonomous body was to forward recommendations for appointment of legal advisor and such recommendations were to be received and considered by a Selection Committee comprising of five members, including a representative of the autonomous body and the Provincial Government shall appoint the applicant recommended by the Committee---Minutes of the meeting for appointment of legal advisor, in the present case, revealed that member of the Punjab Privatization Board gave his consent to ignore recommendations sent by the Board---Word "shall be considered" in the Policy Letter of the Provincial Government had a binding effect for the purpose of consideration and not appointment, which meant that if someone below in numbers on merit list was considered suitable, some well-founded reasons in support of such suitability should be given---In the present case, it was not mentioned whether representative of the Punjab Privatization Board ever actively participated/consented in the process---High Court observed that in all such appointments, an objective criteria was to be followed---Appointment of respondent to the post of Legal Advisor to the respondent Punjab Privatization Board was set aside with the direction to the Committee to consider the merit-wise names recommended by the Punjab Privatization Board and select the suitable candidate after giving reasons and applying an objective criteria---Constitutional petition was allowed, accordingly.

Secretary, Ministry of Law, Parliamentary Affairs and Human Rights, Government of Punjab and others PLD 2011 SC 7 and Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 distinguished.

Ghulam Hassan M. Paryani v. Karachi Port Trust and 4 others 1992 MLD 1128 rel.

Petitioner in person.

Hamayun Rasheed for Respondent No.2.

Muhammad Shakil for Respondent No.3.

2017 P L C (C.S.) 1137

[Lahore High Curt]

Before Syed Mansoor Ali Shah, CJ

MUHAMMAD AHMAD SAMDANI

Versus

GOVERNMENT OF PUNJAB and others

W.P. No.9938 of 2017, heard on 14th June, 2017.

Civil service---

----Recruitment for public posts---Petitioner impugned appointment of respondent as Project Director against advertisement of the said post by Punjab Environmental Protection Agency---Contention of the petitioner, inter alia, was that the said appointment and process of recruitment was not transparent and tainted with mala fide---Validity---Allegations that respondent was removed by High Court in an earlier Constitutional petition was not relevant as the said removal was not due to any personal disqualification of the respondent and had no bearing on his present appointment---Contention that there was a pending inquiry into the respondent before National Accountability Bureau was also not relevant as pendency of an inquiry was not a disqualification---Petitioner himself did not hold the requisite qualification for the post as he did not hold a degree from a foreign university, hence, petitioner himself had no right to the post of the Project Director---Nothing therefore existed on record to establish that the process of appointment in any way was tainted or tailored to promote the case of respondent and allegations of petitioner were not substantiated by the record, hence appointment of respondent Project Director from the existing record did not appear to be illegal or based on mala fide---Constitutional petition was dismissed, in circumstances.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; and Engr. Ghazanfar Ali Khan and others v. F.O.P. and others PLD 2014 Lah. 375 ref.

Muhammad Azhar Siddique and Muhammad Rizwan Gujjar for Petitioner.

Anwar Hussain and Ahmad Hasan Khan, Additional Advocates General, Punjab.

Hafiz Muhammad Saleem for Respondent No.12.

Muhammad Nawaz Manik, Director (Law), Environment Protection Department, Punjab.

Mian Ejaz Majeed, Deputy Director (L&E) Environmental Protection Agency, Punjab, Lahore.

Date of hearing: 14th June, 2017.

JUDGMENNT

SYED MANSOOR ALI SHAH, C.J.--- Brief facts of the case are that Environmental Protection Agency, Punjab ("EPA") advertised certain posts including the post of Project Director for a scheme launched for the EPA under the name and title of "Capacity Building of EPA Punjab for Enforcement of Environment Standards in Punjab including Combined Effluent Treatment Plants (CETPs) and Industrial Estates (IEs) under J&C Program". It is submitted that petitioner applied for the said post, however, was not selected. Grievance of the petitioner is that process adopted for the appointment of Project Director was not transparent and as a consequence tainted with mala fide.

1. Learned counsel for the petitioner has argued that the entire recruitment process has been tailored to accommodate respondent No.12 as a Project Director so that he can maintain control over the Environment Protection Department. He submits that this is evident from the fact that initially the advertisement describes the age of Project Director as 35-55 years and in the corrigendum advertised on 04.02.2017 the age limit of the Project Director has been enhanced to 35-58 years. He further contends that respondent No.12 has already been removed by this Court as Director General of EPA vide judgment dated 26.10.2016 passed in Writ Petition No.27033/2016. He adds that respondent No.12 is also under probe by the National Accountability Bureau ("NAB"). He has also referred to letter issued by the Federation of Pakistan, Chambers of Commerce and Industry dated 28.11.2016 highlighting that respondent No.12 is involved in corruption and, therefore, must not be appointed in the Environment Department.

2. Referring to the process adopted for the appointment of the Project Director, learned counsel submits that the list of ineligible candidates prepared by the respondent department shows that certain candidates were not considered because some of their documents were missing e.g., lack of domicile, experience certificate or academic degrees. He submits that no opportunity was granted to the candidates to supply the said documents and the entire process has been hurriedly carried out just to give advantage to respondent No.12.

3. Even though the petitioner has not raised this point in his pleadings, he submits that the entire Project is a burden on the public exchequer because it is not required. He submits that at best in pursuance to order of this Court dated 20.10.2016 passed in W.P. No.12016/2014, EPA undertook to upgrade the Central Laboratory, at the cost of Rs.158.483 million but the Project does not provide for improvement of the Central Laboratory, EPA, hence, the Project has no useful purpose. In support of his contention he has placed reliance on Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) and Engr. Ghazanfar Ali Khan and others v. F.O.P. and others (PLD 2014 Lahore 375).

4. Mr Anwaar Hussain, Additional Advocate General Punjab along with Chief (Environment), P&D Department has referred to PC-II of the Project titled: "Capacity Building of EPA Punjab for Enforcement of Environment Standards in Punjab including Combined Effluent Treatment Plants (CETPs) and Industrial Estates (IEs) under J&C Program" which has been prepared with total cost of Rs.295.331 million with the gestation period from 2016-2018. He submits that the Project has two main objectives:

(a) To identify gaps so as to restructure and build capacity of EPA, etc.

(b) Establishment of Environmental Monitoring Center by operationalization of laboratories of EPA.

He submits that in the wake of order passed by this Court dated 20.10.2016 in W.P. No.12016/2014 special emphasis has been laid on the upgradation of the Central Laboratory. He referred to the portion of PC-II under item 6 i.e., Description, Justification and Technical Parameters, to point out that the human resource at the enhanced Central Laboratory EPD shall be enhanced and its equipment repaired and upgraded. Referring to the total allocation of fund for the purpose of upgrading/improving the Central Laboratory, it is submitted that a total Rs.113.42 million is to be spent on the infrastructure and Rs.44.986 million is to be spent on the human resource with a total sum of Rs.158.485 million allocated for the Central Laboratory, as undertaken before this Court in the earlier case.

1. Referring to the process adopted in appointing the Project Director, learned Law Officer submits that description of the age and its eligibility criteria has been clearly spelled out in PC-II which describes the age to be 35-58 years. He submits that after approval of PC-II, advertisement was issued on 25.12.2016, however, because it described the wrong age, the corrigendum was issued on 04.02.2017, therefore, the age limit had already been provided in PC-II and was not changed later on as argued by the learned counsel for the petitioner.

2. He submits that a total of 23 applications were received for the post of Project Director out of which 21 candidates were declared ineligible and only two candidates were short listed for interview including respondent No.12. He submits that the second candidate did not come for the interview, as a result, respondent No.12 was appointed as Project Director who meets all the qualificational requirements given in the advertisement.

3. Reasons and details of the candidates who were declared ineligible have also been placed on the record. Perusal of the document reveals that the said candidates could not be considered because they could not supply the relevant documents i.e., domicile, experience certificate, copies of the degrees, etc. It is submitted that list of eligible/ineligible candidates was uploaded on the website on 05.03.2017 and were given three days to meet the objections but no one came forward. He submits that even today, except the petitioner, who was not appointed because he does not hold a foreign degree as per advertisement, no other candidate has approached this Court raising any grievance regarding the process adopted for the appointment of Project Director.

4. Learned Law Officer submits that he has serious objection regarding the bona fide of the instant petition. In this regard he submits that the petitioner who is a permanent employee of TEVTA since 1988 and is presently working as Instructor Mechanical (BS-17) in Govt. College of Technology Railway Road, Lahore. It is submitted that inspite of holding a government office he is privately carrying out business in the name and style of "Here Associates" and has referred to certain documents to show that he undertakes private work against consideration and also describes himself as "Dr. M.A. Samdani" when he does not hold a doctorate degree. Learned Law Officer has referred to Rule 16 of the Punjab Government Servants (Conduct) Rules, 1966 to submit that no government servant is allowed to engage in any trade or undertake any employment or work other than his official duties. He submits that in the present case the petitioner has violated the said rule and is liable to disciplinary action.

5. Learned counsel for respondent No.12 submits that the process for appointment has been transparent and respondent No.12 fully meets the qualificational requirements of the post and, therefore, has been rightly selected as Project Director.

6. I have heard the parties and perused the record.

7. Main thrust of the petition is that petitioner has been deprived from being appointed as the Project Director. It is further contended that process of appointment is not transparent and based on mala fide. I have gone through the record of the case in detail including PC-II of the Project, as narrated above.

8. A total of 23 candidates applied for the post out of which 21 were declared ineligible due to reasons mentioned above and only two candidates were short listed including respondent No.12. Second candidate did not turn up for interview, therefore, respondent No.12 was selected for the post.

9. There are allegations that respondent No.12 was removed by this Court in an earlier writ petition and that an inquiry against him is pending in NAB. As far as the writ is concerned, he was removed because his appointment did not meet the requirement of Environment Protection Department Services Rules, 1997 which required that a Director General, EPA be appointed from amongst APUG/PMC officers and as respondent No.12 was not from the said service, he was removed as Director General. Hence, removal order dated 26.10.2016 passed in W.P. No.27033/2016 was not due to any personal disqualification and has no bearing on his present appointment. As far as the pending inquiry before NAB is concerned, it is trite law that pendency of an inquiry is not a disqualification. As to the submission that the candidates were not given time to make up the deficiency in supplying their testimonial by allowing them extra time, it has been submitted by the learned Law Officer that three days were given to the candidates to meet the deficiency but they failed to do so. As far as the petitioner is concerned, he does not hold the requisite qualification for the post. He does not hold a degree from a foreign university which is the requirement for the post, hence, as far as the petitioner is concerned, he has no right to the post of the Project Director.

2017 P L C (C.S.) 1200

[Lahore High Court]

Before Syed Mansoor Ali Shah, C J

HASSAN SHAHJEHAN

Versus

FPSC through Chairman and others

Writ Petitions Nos.28579 and 23578 of 2016, decided on 13th June, 2017.

(a) Constitution of Pakistan---

----Arts. 199, 201, 202, & 203---Interpretation of Constitutional construct of the Judicature---Exercise of Constitutional jurisdiction of High Court under Art.199 of the Constitution---Nature of the Constitutional jurisdiction of High Court vis-à-vis Provincial character of the High Court---Relief granted by the High Court while exercising its Constitutional jurisdiction could not go beyond the Provincial boundary and affect any other Province, area or its peoples---Concept and contours of the territorial jurisdiction of High Court under Art.199 of the Constitution, expounded.

Constitutional terms like "High Court for each Province" "within the territorial jurisdiction of the Court" and "all courts subordinate to it" construct a High Court, which has a provincial character. The term "within the territorial jurisdiction of the Court" ubiquitously recurs throughout Article 199 emphasizing the territorial limitation on the jurisdiction of a High Court. The term "All courts subordinate to it" repeated in Articles 201, 202 and 203 place the Provincial High Court atop a provincial pyramidical hierarchy of courts. Constitutional architecture of a Provincial High Court provides that while it enjoys judicial power to examine all laws or actions of the federal, provincial and local governments or authorities, it can only do so if the cause of action arises or the respondent government or authority is located or if the impugned act or order affects a person within the territorial jurisdiction of this Court i.e., within the Province. As a corollary, the relief granted or the writ issued by the High Court also remains within the territorial jurisdiction of this Court and can only benefit or affect a person within the territorial jurisdiction of the Court. The relief cannot go beyond the Provincial boundary and affect any other Province or Area or its people. So for example, if a federal law or federal notification is struck down by Lahore High Court, it is struck down for the Province of Punjab or in other words the federal law or the federal notification is no more applicable to the Province of Punjab but otherwise remains valid for all the other Provinces or Areas. Unless of course the Federation or the federal authority complying with the judgment of the Lahore High Court, make necessary amends or withdraw the law or the notification. Which of course would then be open to challenge by the other Provinces or Areas or their people, if they so decide. The other eventuality is that the Federation or the federal authority may or may not enforce the said law or notification in other Provinces, as a matter of administrative decision and instead challenge the judgment of the Lahore High Court before the apex Court of the country. These are the operational repercussions and effects of a judgment, setting aside a federal law or federal notification or decision. However, on a purely constitutional and legal plane, the federal law or federal notification remains in existence for the rest of the country but for the Province of Punjab. This is further fortified by the fact that in case the same federal law or federal notification is challenged in any other Province or Area, the High Court concerned is not bound by the decision of the Lahore High Court and can declare the same federal law or federal notification to be valid law (Reference Article 201 of the Constitution). Therefore, under the Constitution, while the High Courts can judicially examine and strike down a federal law or federal notification, infact, the said federal law or notification is made non-applicable to the extent of the Province unless the matter is finally decided by the Supreme Court of Pakistan or else if the Federation or the federal authority decide to withdraw or amend the law on their own, in compliance of the judgment.

What does "Within the territorial jurisdiction of this Court" mean? Relying on the constitutional jurisprudence developed over the years and the provincial constitutional architecture of a High Court, writ cannot be issued by High Court against any person which is located geographically outside the territorial limits of the Province, having no physical or legal presence within the Province.

If the order or action of the Government or Authority (federal or provincial), present within the Province, affect the rights of a person within the Province, writ can be issued against the said Government or Authority (irrespective of its federal character) and relief given to the aggrieved person located within the Province.

Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874; Asghar Hussain v. The Election Commission Pakistan PLD 1968 SC 387; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869; The Oxford Handbook of Indian Constitution, edited by Sujit Choudhry Madhav Khosla and Pratap Bhanu Mehta, Oxford University Press  2016 Federal Scheme Chapter 25 and Guy Regimbald and Dwight Newman-The Law of the Canadian Constitution (Lexis Nexis) p.97-98 rel.

(b) Constitution of Pakistan

----Art. 199---Constitutional jurisdiction of High Court---Nature of territorial jurisdiction of the High Court under Art.199 of the Constitution---Scope---Per developed Constitutional jurisprudence and the Provincial Constitutional architecture of a High Court, a writ could not be issued by a High Court against any person who was located geographically outside the territorial limits of the Province, having no physical or legal presence within such Province---If an impugned order or action of the Government or Authority (Federal or Provincial), present within a Province, affected the rights of a person within such Province, a writ could be issued against the said Government or Authority (irrespective of its federal character) and relief given to the aggrieved person located within the said Province.

Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874; Asghar Hussain v. The Election Commission Pakistan PLD 1968 SC 387; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758 and Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 rel.

(c) Constitution of Pakistan---

----Preamble, Part VII [Arts.175 to 212] & Part V [Arts. 141 to 159]---Interpretation of the Constitution---Federal nature of the Constitution---Concept of "Federalism"/"Federal Principle" generally, and under the Constitution of Pakistan---Federalism/federal principle in the context of the Judicature---Vertical sharing of jurisdiction between the Supreme Court and the High Courts---Concept of Judicial federalism with emphasis on its effect on the territorial jurisdiction of High Courts elucidated.

The commonly accepted features of a federal constitution are: (i) existence of two levels of government; a general government for the whole country and two or more regional governments for different regions within that country; (ii) distribution of competence or power - legislature, executive, judicial, and financial --- between the general and the regional governments; (iii) supremacy of the constitution --- that is, the foregoing arrangements are not only incorporated in the Constitution but they are also beyond the reach of either governments to the extent that neither of them can unilaterally change nor breach them; (iv) dispute resolution mechanism for determining the competence of the two governments for exercising any power or for performing any function. Federalism is in fact the basis of the division of powers...The principle of Federalism is a central organizational theme of the Constitution and represents a political and legal response to underlying social and political realities... A federal system of government allows different provinces to pursue specific policies tailored to the particular concerns and interests of residents in that province. The Principle of Federalism also enables provinces to enact specific statues to pursue specific collective goals, and may promote different cultures and linguistic minorities within a specific province or areas. At the same time federalism allows citizens to construct and achieve goals on a national scale through a Federal Government acting within the limits of its jurisdiction. Consequently, federalism is key to enable citizens to participate in different collectivities and to pursue objectives at local, provincial and national levels.

Federalism or Federal Principle under Constitution of Pakistan envisages independent federating units with autonomous legislature, executive and judiciary. Chapter 1 of Part V of the Constitution provides for distribution of legislative power between the Federation and the Provinces. Chapter 2 of the same Part deals with distribution of executive power between the Federation and the Provinces. Chapters 1 to 3 of Part-VII deal with Judicature and the vertical sharing of jurisdiction between the Supreme Court of Pakistan and the High Courts, as well as, the horizontal jurisdictional limits between the High Courts. The Constitution provides a separate High Court for each Province and a Supreme Court of Pakistan with an overarching jurisdiction with an overlapping power with the High Court under Article 184(3) of the Constitution. The provincial jurisdictional limits, delineating judicial power between co-ordinate High Courts on the basis of territory and the vertical overlap of judicial power under Article 184(3) between the High Court and the Supreme Court of Pakistan is judicial federalism. Every Provincial High Court and the High Court of the Islamabad Capital Territory has its own jurisdictional space. Any order passed by a High Court is, therefore, effective in the Province and has merely a non-binding persuasive value in other Provinces. Province is a federating unit and has its own legislature, executive and judiciary. Similarly, within the Province, the provincial High Court also functions on the same Federal Principle and exercises judicial power within the limited provincial jurisdictional space or within the Islamabad Capital Territory.

The Oxford Handbook of Indian Constitution. edited by Sujit Choudhry Madhav Khosla and Pratap Bhanu Mehta, Oxford University Press  2016 Federal Scheme- Chapter 25 and Guy Regimbald and Dwight Newman- The Law of the Canadian Constitution (Lexis Nexis) p.97-98 rel.

(d) Forum non conveniens, doctrine of---

----Principle, concept and scope---Principle of forum non conveniens was a discretionary power, which allowed Courts to dismiss a case where another court or forum was much better suited to hear the same---Such dismissal did not prevent a plaintiff from re-filing his or her case in a more appropriate forum and said doctrine also allowed a Court with jurisdiction over a case to dismiss the same on ground that convenience of the parties and interest of justice would be better served if said case was brought in a court having proper jurisdiction at another venue---Doctrine of forum non conveniens i.e. that some other forum was more appropriate in the sense that the same was more suitable for the ends of justice---Court may decline to exercise jurisdiction, after giving consideration to the interests of the parties and the requirements of justice, on ground that a case could be suitably tried only in another court---Basic principle was that a court was satisfied that there was some other available forum, having competent jurisdiction, which was the appropriate forum for the trial of the action (meaning such a forum in which the case may be tried more suitably for the interests of all the parties and the ends of justice).

https://www.law.cornell.edu/wex/forum_non_conveniens; https://www.merriam-webster.com/legal/forum%20non%20conveniens; Dicey and Morris on The Conflict of Laws, thirteenth Edition, Volumel, London Sweet and Maxwell 2000 and The Conflict of Laws, Seventh Edition, South Asian Edition 2010 rel.

(e) Constitution of Pakistan---

----Arts. 199, 184(3) & 27---Constitutional jurisdiction of High Court---Civil Service---Safeguard against discrimination in services---Federal Principle of the Constitution---Exercise of Constitutional jurisdiction by High Court under Art.199 of the Constitution, where relief sought would affect other Provinces---Application of the doctrine of "forum non conveniens" in the exercise of the Constitutional jurisdiction of High Court---Scope---Petitioner challenged the Constitutionality of geographical allocation of quota amongst Provinces in the national Competitive Examination of the Central Superior Services ("CSS"), inter alia, on the ground that the same violated Art.27 of the Constitution--- Validity--- High Court under its Constitutional jurisdiction enjoyed power to sit in judgment over quota allocated to Punjab, and its power under Art.199 of the Constitution was "subject to the Constitution" and would remain subject to the Federal Principle of the Constitution---In the present case, quota in question was inter-linked and combined with the quotas of other Provinces and any interference by the High Court would affect national allocation of quota in other Provinces and areas---Relief, in such respect, could not be granted to a person in Punjab without depriving the allocation of quota of the people of other Provinces, therefore, such a relief or writ issued by High Court would amount to travelling beyond the territorial limits of the Province and would offend the federal principle and the core value of the Constitution---Application of the principle of 'forum non conveniens" meant that the present case could only be resolved by the Supreme Court---His Lordship observed that if the quota was struck down by High Court, it would not only abolish the Punjab quota but also the quota of other Provinces for the purposes of CSS Examination and such interference would be Constitutionally inappropriate and impermissible---High Court while declining to exercise its Constitutional jurisdiction, left the parties to approach the Supreme Court of Pakistan for the redressal of their grievance---Constitutional petition was dismissed, in circumstances.

Ahmad Yar Chohan v. Federal Public Service Commission and 2 others 1998 MLD 1832; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869; K.B. Threads (Pvt.) Limited through Chief Executive and others v. Zila Nazim, Lahore (Amir Mehmood) and others PLD 2004 Lah. 376 and High Court Bar Association and others v. Government of Balochistan through Secretary, Home and Tribal Affairs Department and 6 others PLD 2013 Bal. 75 ref.

Kh. Isaam Bin Harris and Khalid Ishaq for Petitioner (in W.P. No.28579 of 2016).

Mushtaq Ahmad Mohal and Afrasiab Mohal for Petitioner (in connected writ petition).

Respondents by:

Nasar Ahmad, Deputy Attorney General for Pakistan.

Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan.

Anwar Hussain, Additional Advocate General Punjab.

Amanullah Kanrani, Advocate General Balochistan.

Syed Ali Raza, Advocate General, Azad Jammu and Kashmir.

Malik Akhtar Hussain Awan, AAG, Azad Jammu and Kashmir.

Rafey Altaf and Saad Rasool amici curiae.

Assisted by

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

2017 P L C (C.S.) 1238

[Lahore High Court (Multan Bench)]

Before Abid Aziz Sheikh and Jawad Hassan, JJ

Mst. HUMERA RASHEED

Versus

EXECUTIVE DISTRICT OFFICER (HEALTH) and 8 others

I.C.A.No.13 of 2016, decided on 17th May, 2017.

Civil service---

----District Recruitment Committee did not appoint the petitioner---Petitioner stood at serial No.76 of the merit list---Petitioner had not challenged the incorrectness of merit list or otherwise---Appointment was not a vested right of an employee rather competent authority was the best judge of necessary features of recruitment process and qualification---Court was to refrain from substituting its opinion qua the selection by the Recruitment Committee when there was no element of mala fide---Petitioner had failed to establish any element of mala fide on the part of department or any political influence for not appointing her---High Court could not rescue the petitioner under its constitutional jurisdiction against a vacant post for which she had not been held to be eligible---No illegality or perversity had been pointed out in the impugned order passed by the Single Judge of High Court---Intra court appeal was dismissed in circumstances.

Shaukat Ali v. Chairman Punjab Local Government Board 1999 PLC (C.S.) 637 and Ghulam Murtaza v. Province of Sindh 2008 PLC (C.S.) 598 rel.

Ch. Abdul Ghani and Khalid Masood Ghanni for Appellant.

2017 P L C (C.S.) 1294

[Lahore High Court]

Before Shujaat Ali Khan, J

Dr. MUHAMMAD ARSHAD

Versus

GOVERNMENT OF PUNJAB through Secretary Education (Schools) and 2 others

Writ Petition No.11813 of 2012, decided on 19th December, 2016.

(a) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Scope---"Merit" and "eligibility"---Distinguished---When appointment/posting of a person is challenged in respect of merit against a particular post, the same cannot be treated as in the nature of quo warranto, however, when eligibility of a person to hold a particular post is challenged, the said embargo does not impede the way of a person to approach the High Court.

(b) Government Central Model School, Lower Mall, Lahore, Regulations, 2014---

----Regln. 21(b)---Contract appointment---Appointee crossing upper-age limit---Effect---Petitioner assailed contract appointment of respondent as Principal of Central Model School---Validity---Competent authority failed to find out any suitable candidate against post of Principal, from the entire Province---If such practice was allowed to be followed, nobody would like to retire from government service---Posting of respondent as Principal on additional charge basis and then his appointment on contract basis and further extension of his contract in violation of stipulation of maximum age limit was inconsistent with the norms of social justice---Respondent was appointed without adopting due procedure especially when he had already crossed upper-age limit---Appointment of respondent could not be validated by High Court in exercise of Constitutional jurisdiction vested under Art.199 of the Constitution--- High Court declared appointment of respondent against the post of Principal on contract basis, as illegal and directed the authorities to ensure fresh appointment, against post in question, in terms of relevant rules---Constitutional petition was allowed in circumstances.

Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 961; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Human Rights Cases Nos.57701-P, 577I9-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; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; M. Ashraf Azeem v. Federal Government of Pakistan and others 2013 PLC (C.S.) 1147; Dr. Hafiz Muhammad Bashir and others v. International Islamic University, Islamabad and others 2013 PLC (C.S.) 191; Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6; Muhammad Shahid Akram v. Government of the Punjab through Chief Secretary and 3 others 2016 PLC (C.S.) 1335; Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97 and Suo Motu Case No.24 of 2010 2011 SCMR 582 ref.

(c) Administration of justice---

----Doing of an act---Principle---When law has required an act to be done in a particular way, the same cannot be deviated. [

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Junaid Jabbar Khan for Petitioner.

Rana Shamshad Khan, Additional Advocate General for Respondent No.1 with Ms. Asia Butt Law Officer.

Muhammad Siddique Awan for Respondent No.2.

2017 P L C (C.S.) 1325

[Lahore]

Before Muhammad Qasim Khan, J

SHAUKAT ALI HAYAT

Versus

GOVERNMENT OF PUNJAB through Secretary Education and 3 others

W.P. No.3637 of 2015, decided on 10th April, 2015.

Civil service---

----Recruitment--- Equality of citizens--- Safeguard against discrimination in services---Representation of women in services---Age relaxation for women candidates---Constitutionality---Petitioner challenged constitutionality of advertisement for posts of educators which provided five years age relaxation for all candidates and three years further for female candidates---Petitioner contended that the additional age relaxation given to women was violative of fundamental rights guaranteed by Arts. 25 & 27 of the Constitution under which no citizen otherwise qualified for appointment in service should be discriminated and all citizens were equal and there should be no discrimination on basis of sex---Article 25(3) of the Constitution provided that the State was competent to make any special provisions for protection of women and children, but the authorities under garb of such protection were giving preference to female candidates over male---Held that condition imposed in advertisement was not meant to infringe any of the Constitutional guarantees to men, rather the same was a step towards protection and encouragement of deprived limb/women of society---Constitutional petition was dismissed in circumstances.

Nazar Elahi v. Government of Punjab and others 2013 CLC 1457 rel.

Ch. Zulfiqar Ali for Petitioner.

2017 P L C (C.S.) 1342

[Lahore High Court]

Before Shujaat Ali Khan, J

MUDASSAR HASSAN RANA and 3 others

Versus

The FEDERAL GOVERNMENT through Secretary Defence, Islamabad and 11 others

Writ Petition No.14338 of 2011 and 7086, 7135, 7165, 7167 and 7168 of 2014, decided on 8th February, 2017.

(a) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Maintainability---Promotion---Requirements---Employees of Pakistan International Airlines Corporation---Promotion on the basis of higher qualification---Discrimination--- Reasonable classification--- Respondents were promoted on the basis of degrees of MBA/MPA/MAS---Contention of petitioners was that requisite 'No objection certificate from employer was not obtained by the respondents before getting admission in the Institution for taking degrees in question---Validity---Two different promotion channels viz one on the basis of seniority-cum-fitness along with minimum qualification and other on the basis of MBA/MPA/MAS degrees was being followed in the Corporation---Authority had introduced a reasonable classification amongst the employees who were holding MBA/MPA/MAS degrees---When classification was reasonable, same could not be challenged in constitutional jurisdiction of High Court while pressing into service the principle of discrimination---Incentives for the persons having MBA/MPA/MAS degrees had been introduced in the Corporation through amendments---Petitioners had not challenged the basic policy but the subsequent amendments therein---High Court under the constitutional jurisdiction could not undo a policy framed by the competent authority unless same was against any Fundamental Right or provision of a legislative piece---Competent authority had introduced policies for better output from its subordinates with regard to nature and requirements of the duties of a post---Completion of MBA/MPA/MAS degrees by the respondents, without prior permission of authority, could only be considered as procedural flaw for which competent authority could proceed but same could not be used to shatter the credibility of degree---Promotion against a particular post could not be claimed as a matter of right rather competent authority reserved the right to adjudge the eligibility of a person for promotion by formulating a policy---Petitioners did not possess MBA/MPA/MAS degrees and they could not claim promotion on the analogy of respondents---Degrees of respondents had already been validated by Higher Education Commission---Federal Investigation Agency could not be allowed to re-open the matter under the garb of complaint with regard to said degrees---Continuation of proceedings before Federal Investigation Agency would amount to double jeopardy---Investigation Agency had no justification to proceed with the complaint in circumstances---Petitioners were serving-employees of the Corporation and they had challenged the promotion policy issued by the department---Terms and conditions of employees of Pakistan International Airlines Corporation were governed by non-statutory Rules---Constitutional petition, in circumstances was not maintainable---Proceedings pending before Federal Investigation Agency were ordered to be quashed---Constitutional petition was dismissed in circumstances.

Saleem Ullah Khan v. Shahid Hamid and another 2011 SCMR 788; Pakistan International Airline Corporation and others v. Tanweer-Ur-Rehman and others PLD 2010 SC 676; Syed Noorul Hasan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others 1987 SCMR 598; Muhammad Amin Bhatti v. Inspector General of Punjab Police 2011 PLC (C.S.) 535; Malik Mazharul Haq and another v. Chairman, Pakistan International Airlines Corporation, Islamabad and 3 others 2010 PLC (C.S.) 1472; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Khawaja Muhammad Hussain Khateeb v. Additional Sessions Judge, Sialkot and 7 others PLD 2016 Lah. 522; Muhammad Arshad Rafique v. Government of Pakistan through Secretary and 4 others 2016 PLC (C.S.) 952; Hassan Mehmood v. Habib Bank Limited through President and 4 others 2016 PLC (C.S.) 315; Riaz Gul and others v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and others 2016 PLC (C.S.) 350; Muhammad Anwar Ansari v. Chief Election Commissioner, Islamabad through Secretary Election Commission of Pakistan and 5 others 2011 YLR 2810 ref.

Khalid Hassan Khan v. Pakistan International Air Lines through Director of Marketing and 2 others 2013 YLR 847; Munir Akhtar Awan and others v. Khalid Mansoor and others 2010 YLR 3144; Government of the Punjab through Chief Secretary and others v. Ch. Abdul Sattar Hans and 29 others 2015 SCMR 915; Secretary Economic Affairs Division Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122;, Mst. Mehrun Nisa v. Zainulabidin and 5 others 1995 SCMR 1139; Haji Muhammad Latif v. Farman Ali and another 1990 SCMR 1299 and PIA Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545 rel.

(b) Constitution of Pakistan---

----Art. 199---Quo-warranto, writ of---Scope---Writ of quo warranto was not maintainable on behalf of a person whose personal interest was involved.

Muhammad Shahid Akram v. Government of the Punjab through Chief Secretary and 3 others 2016 PLC (C.S.) 1335 and Barrister Sardar Muhammad v. Federation of Pakistan and others 2013 PLC (C.S.) 625 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Any act of executive aiming at discrimination amongst similarly placed persons was amenable to constitutional jurisdiction of High Court.

Government of the Punjab through Chief Secretary and others v. Ch. Abdul Sattar Hans and 29 others 2015 SCMR 915 and Secretary Economic Affairs Division Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 rel.

(d) Civil service---

----Promotion---Promotion against a particular post could not be claimed as a matter of right rather competent authority reserved right to adjudge the eligibility of a person for promotion by formulating a policy.

Javed Sultan Chaudhary for Petitioners (in this petition).

Naveed Ahmad Khawaja for Petitioners (in W.Ps. Nos.7086, 7135, 7165, 7167 and 7168 of 2014.).

Muhammad Mehmood Khan, D.A.G. Mian Muhammad Tariq Hassan for PIA.

Naveed Ahmad Khawaja for Respondents Nos.6 to 10 (in this petition).

Javed Sultan Chaudhary for private Respondents (in connected Petitions).

2017 P L C (C.S.) 1361

[Lahore High Court]

Before Ayesha A. Malik, J

SIRAJ-UR-REHMAN JASRA

Versus

GOVERNMENT OF PUNJAB and others

W.Ps. Nos.66724 and 69026 of 2017, heard on 25th September, 2017.

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

----R. 18(2)---Constitution of Pakistan, Art.199---Recruitment---Recruitment on basis of written examination---Criteria---Eligibility---Cut-off date for determining age---Scope---Petitioners impugned incorporation of a cut-off date for determining age of candidates in an advertisement for recruitment to certain posts issued by Punjab Public Service Commission ("PPSC")---Contention of petitioners, inter alia, was that the cut-off date of 01.01.2017 was arbitrary and discriminatory and no such date had been prescribed in the past and other advertisements issued by the Commission---Validity---Despite the fact that R.18(2) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 provided for requirement of determining age with cut off date of 1st January, the same was not previously followed by the Commission---Petitioners could not be burdened with discriminatory treatment on account of an established practice of the Commission and the Policy Directive implementing the cut-off date of 1st January, was introduced for the first time and was never made public nor announced before the recruitment process, and therefore petitioners and other applicants were not aware of the same---High Court directed, that as a one-time exemption, in order to ensure that the petitioners were not prejudiced in any manner, that they be allowed to compete for the said posts and the cut-off date of 0.1.01.2017 for determining age would not apply---Constitutional petitions were allowed accordingly.

Saif ur Rehman Jasra for Petitioner.

Anwar Hussain, Addl. A.G. with Imran Sajjad, Law Officer, PPD.

Mian Ghulam Shabbir Thaheem Law Officer, PPSC.

2017 P L C (C.S.) 1400

[Lahore High Court]

Before Shujaat Ali Khan, J

ABDUL HAQ and 37 others

Versus

The FEDERATION OF PAKISTAN through Secretary, Commerce Division, Islamabad and 3 others

W.P. No.12840 of 2009, decided on 8th February, 2017.

(a) Life Insurance (Nationalization) Order (10 of 1972)---

----Arts. 49 & 25---Rules of Business, 1973, Sched. II---Constitution of Pakistan, Arts.199 & 25---Constitutional petition---Maintainability---Vested right---Scope---Retired employees of State Life Insurance Corporation, seeking medical facility equal to serving employees of the Corporation---Equal treatment---Reasonable classification---Terms and conditions of service of employees of Corporation---Scope---Aggrieved person could invoke constitutional jurisdiction of High Court in the wake of infringement of a vested right---No condition existed in Life Insurance (Nationalization) Order, 1972 that the terms and conditions of employees of nationalized insurance corporations/companies should be identical---Petitioners could not quote the perks and privileges of retired employees of other nationalized corporations/companies in their support as all those corporations enjoyed full-fledged autonomy with regard to terms and conditions of their serving/retired employees including medical facility---Person serving/retired of an autonomous institution could not claim perks and privileges equal to serving/retired employees of another autonomous body---Protection of equal treatment was not available to the petitioners as same was confined to similarly placed persons---Reasonable classification on the basis of an intelligible differentia could not be declared as illegal or unlawful---Retired employees of the Corporation and those serving, could not be treated alike in view of distinction with regard to regulations governing their terms and conditions---Medical facility to the retired officers of the Corporation had been enhanced from one basic pay to three basic pays in addition to increasing the heads against which said amount could be utilized by retired officers/executives of the Corporation---Grievance of petitioners that no medical facility was available to the officers/executives of the Corporation, therefore, did not exist--- Corporation was competent to make rules and regulations including those governing terms and conditions of service of its employees with previous approval of Federal Government---Competent authority had power to decide qua the terms and conditions of service of serving/retired employees---No supervisory role had been given to the Commerce Division to compel any of nationalized corporations/ companies to introduce incentives to their serving/retired employees---Claim of petitioners was not supported by any law---Constitutional petition was dismissed in circumstances---Corporation could enhance permissible medical facility to its retirees.

Muhammad Shahzad Malik v. Muhammad Suhail and another 2010 SCMR 1825 and State Life Insurance Corporation of Pakistan and others v. Syed Hassan Ali Shah and others 2010 SCMR 1381 ref.

Abdul Khalique v. Federation of Pakistan through Secretary Board of Investment and 4 others 2016 PLC (C.S.) 530; Federation of Pakistan v. Sultan Ahmad Shams and 17 others 2014 SCMR 570; Government of the Punjab through Chief Secretary and others v. Ch. Abdul Sattar Hans and 29 others 2015 SCMR 915 and Secretary Economic Affairs Division Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---"Vested right"---Connotation---Aggrieved person could invoke constitutional jurisdiction of High Court in the wake of infringment of his "vested right".

Merriam Webster's Dctionary of Law; Advanced Law Lexicon 4th Edition; Biswas Encyclopedic Law Dictionary (Third Edition, 2008); Webster's Third New International Dictionary; Black's Law Dictionary and Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and others PLD 1969 SC 599 ref.

(c) Vested right---

----Connotation.

Merriam Webster's Dictionary of Law; Advanced Law Lexicon 4th Edition; Biswas Encyclopedic Law Dictionary (Third Edition, 2008); Webster's Third New International Dictionary; Black's Law Dictionary and Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and others PLD 1969 SC 599 rel.

Malik Ghulam Rasool for Petitioners.

Jahanzeb Akhtar Bharwana and Syed Waqar Hussain Naqvi for State Life Insurance Corporation.

Muhammad Mahmood Khan, Deputy Attorney General on behalf of Federation of Pakistan.

2017 P L C (C.S.) 62

[Peshawar High Court]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

ATTA ULLAH and 12 others

Versus

CHIEF SECRETARY, KHYBER PAKHTUNKHWA and others

Writ Petitions Nos.2905 of 2009 2941, 2967, 2968, 3016, 3025, 3053, 3189, 3251, 3292 of 2009, 496, 556, 664 1256, 1662, 1685, 1696, 2176, 2230, 2501, 2696, 2728 of 2010 and 206, 355, 435 and 877 of 2011, decided on 26th January, 2015.

(a) Khyber Pakhtunkhwa Employees' (Regulation of Services) Act (XVI of 2009)---

----Preamble---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R.3(2)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Civil service---Appointments on open merit basis instead of promotion from serving employees---Statute, challenge to---Beneficial and remedial legislation---Terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution---Promotion---Vested right---Plea of petitioners who were serving employees, was that they had the required qualification and experience, but had been ignored due to direct appointments in the department through Public Service Commission; that initial appointments (of private respondents) and their regularization under Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009 were illegal and based on mala fide---Validity---Government had right and prerogative to withdraw some posts already advertised at any stage from Public Service Commission---Government had regularized the "duly qualified persons" who were appointed on contract under contract policy---Said contract policy was never challenged by any one and same remained in practice till the commencement of Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009---Nothing was on record that any one of the regularized employee was not qualified for the post against he was regularized---No objection was made at the time of appointment of regularized employees---Appointments on temporary and contract basis could not be turned down subsequently---Authorities committed lapses with regard to appointment of private respondents and at this belated stage Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009 had been promulgated---Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009 was not applicable to the education department only rather all the employees of government recruited on contract basis till 2008 or till commencement of said Act had been regularized---Employees of other departments who had been regularized were not party to the present constitutional petition---Majority of employees getting the benefit of Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009 might have become overage---Impugned statute was curative in nature---Employees (petitioners) had no vested right to be appointed to any particular post even the advertised one---Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009 had not effected vested right of anyone---High Court had no jurisdiction to entertain constitutional petition challenging the vires of Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009---Act, Rules or Notification affecting the terms and conditions of service could not be challenged through constitutional petition---Rule 3(2) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 had authorized the department to lay down method of appointment, qualification and other conditions applicable to the post---Provincial Assembly had passed Khyber Pakhtunkhwa Employees (Regulation of Services) Act, 2009 which could not be quashed or declared illegal at this stage---Promotion was not a vested right---When any law, rule or instruction with regard to promotion was violated, it would become vested right---Petitioners could not claim promotion as a vested right but those who fall within the promotion zone did have the right to be considered for promotion---High Court had jurisdiction to interfere when valid and proper rules for promotion had not been given effect---Public power should be exercised in a fair, reasonable and transparent manner in accordance with law---Any transgression from such principles was liable to be restrained by the courts---Senior, honest and competent civil servant should be promoted to a higher position or to be considered for promotion---Promotion could only be denied for good, proper and valid reasons---Petitioners should have been considered for promotion in accordance with promotion rules in field---Public authorities should discharge their functions with transparency so that no person who was eligible and entitle to hold such post was excluded from the purpose of selection and was not deprived of his any right---Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009 had effected in-service employees who were in promotion zone---High Court directed the department to implement the promotion Rules in field---If quota for promotion was reserved for in-service employees then same be filled in on promotion basis---Khyber Pakhtunkhwa Employees' (Regulation of Services) Act, 2009 was not unconstitutional---Department was directed to fill up all the posts as per quota on promotion basis till the backlog was washed out, till then there would be complete ban on fresh recruitments---Constitutional petition was disposed of accordingly.

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

(b) Administration of justice---

----Object of courts of law was to dispense and foster justice and to right the wrong ones which could not be achieved unless justice done was undone and unless courts had stepped in and refused to perpetuate what was patently unjust, unfair and unlawful.

(c) Interpretation of statutes---

----Beneficial legislation---Purpose and meaning.

N.S. Bindra Interpretation of Statute by N.S. Bindra Tenth Edition rel.

(d) Interpretation of statutes---

----Remedial legislation---Purpose and meaning.

Interpretation of Statute by Justice Antonin Scalia of U.S. Supreme Court rel.

Ghulam Nabi Khan for Petitioners.

Sardar Ali Raza and Waqar Ahmad Khan, A.A.G. for Respondents.

2017 P L C (C.S.) 246

[Peshawar High Court]

Before Waqar Ahmad Seth and Rooh-ul-Amin Khan, JJ

TAJAMMUL KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others

Writ Petition No.3599-P of 2014, decided on 10th December, 2014.

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

----Rr. 17 & 19---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Civil service---Compulsory retirement from service---Appeal---Limitation---Remedy for redressal of grievance of civil servant---Petitioners being police officers were proceeded against under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 and were compulsorily retired from service---Contention of petitioners was that Service Tribunal was not functional and matter was urgent---Validity---Petitioners were proceeded under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011, thus could not be treated out of said Rules---Departmental appeals of petitioners were pending before the appellate authority and 90 days had not elapsed, therefore proceedings before any other forum were pre-mature---Appellate authority could uphold the order of penalty and reject the appeal; set aside the order and exonerate the accused or modified the order or reduce the penalty within 60 days---If delinquent officer was not communicated the decision in appeal then he had the right to file an appeal before the Service Tribunal---Petitioners were supposed to file appeals under R.19 of Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011, in case there was some emergency or urgency then they might approach the High Court on the point of Service Tribunal being not functional---No exceptional or extraordinary circumstances existed to entertain constitutional petition of ex-officers of police department charged for an offence against the society, state and morals---Grievances agitated by the petitioners in the present constitutional petition would fall within the domain of Service Tribunal---Petitioners were supposed to approach the said Tribunal by filing service appeal firstly and that too after the expiry of 60/90 days i.e. period provided to the departmental appellate authority and thereafter they could approach High Court by showing good cause coupled with emergency or urgency in the matter---Petitioners were no more in service and there was no urgency as if at all their grievances were redressed then they would be reinstated with back benefits---Time provided under special law or statute could not be allowed to curtail in the constitutional jurisdiction---Constitutional petitions were dismissed in circumstances.

PLD 2014 SC 232 and 2014 PLC (C.S.) 884 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Time provided under special law or statute could not be allowed to be curtailed by an order under constitutional jurisdiction.

2017 P L C (C.S.) 560

[Peshawar High Court]

Before Waqar Ahmad Seth and Irshad Qaiser, JJ

SHAKEEL AHMAD

Versus

ADMINISTRATION DEPARTMENT through Secretary and 3 others

Writ Petition No.2414-P of 2013, decided on 7th April, 2015.

Civil service---

----Allotment of residential accommodation---Petitioner had asked for issuance of an appropriate writ directing the respondent to hand over vacant possession of the house allotted to him---Contention of respondent was that her daughter was entitled to the accommodation in question after his retirement---Validity---Rules for allotment of residential accommodation were beneficial and remedial in nature which could not be equated with the law of inheritance---When daughter of respondent was married she was then dependent of her husband and not of her father irrespective of the fact whether she was residing with her father or not---Respondent had retired from service and grace period of three months had also expired---Petitioner being new allottee was entitled for possession of the house already allotted to him---Respondent was directed by High Court to vacate the house already allotted to the petitioner and handover the same to him in accordance with Residential Accommodation Policy and Rules formulated therefor irrespective of any stay order granted by any court of law---Constitutional petition was accepted, in circumstances.

Jamil Khan for Petitioner.

Tariq Yousafzai and Rab Nawaz Khan, A.A.G. for Respondents.

2017 P L C (C.S.) 587

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

JAWAD ALI and others

Versus

SUPERINTENDENT JAIL and others

Writ Petition No.516 of 2015, decided on 19th March, 2015.

(a) Civil service---

----Cancellation of appointment orders--- Scope--- Natural justice, principles of--- Applicability--- Locus poenitentiae, principle of---Applicability---Petitioners were posted on their respective places of duties, however after 19/20 days their appointment orders were cancelled---Validity---Petitioners were appointed on merit basis and after performing duties for about 19/20 days they were terminated---Competent Authority for appointment of jail warder was Superintendent who had defended the appointment orders---Impugned cancellation order had been issued on the directive of superior officer---Public functionaries were bound to discharge their functions in accordance with law otherwise action contrary to law would not be sustainable and authority would expose itself for disciplinary action---Appointments of the petitioners had been cancelled in complete negation of the rules and law---Appointing authority was wrong in having blindly obeyed an illegal command---Every person discharging the functions with regard to the rights of the people was bound to do justice, act fairly, justly and in accordance with law---If a person holding a public office had proceeded in violation of law or his acts and conduct amounted to misuse of his official authority, he should be made responsible to law and should be proceeded against for an appropriate action by his superior---Tenets of public service had not only been violated by the public officials but also by political office holders in the present case---Any order affecting the rights of a person had to be made in accordance with the principles of natural justice---Order taking away the rights of a person without complying with the principles of natural justice had been held to be illegal---Person would acquire right to hold the post when after selection an appointment order was issued and for cancelling such appointment giving of notice was a normal rule---Petitioners had been posted at their respective places of duties in pursuance of the appointment order and decisive step had been taken in the case---Power of rescinding the appointment order was available to the government until the decisive step was taken---Government was not vested with the authority to withdraw or rescind an order if same had taken legal effect and created certain legal rights in favour of an individual---Orders of appointment passed by the government could neither be revoked nor withdrawn under the principle of locus poenitentiae---Department had cancelled appointment order in infancy by by-passing all the relevant statutes---Cancellation order of the employees passed by the authority was not in conformity with the terms of statute---Law did not authorize any authority to cancel an appointment order and remove employees from service without any reason---Constitutional jurisdiction of High Court could be invoked if the action on the part of authorities was found coram non judice, without jurisdiction or mala fide---Appointments of petitioners were made by the competent authority by following the prescribed procedure---Petitioners were having no nexus with the mode of selection process and they could not be blamed or punished for the laxities of the government---Impugned order was without lawful authority, without jurisdiction and of no legal effect which was set aside---Constitutional petition was accepted in circumstances.

Chief Secretary, Government of the Punjab and others v. Malik Asif Hayat 2011 SCMR 1220; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1299; Doctor Akhtar Hussain Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 and District Coordination Officer, District Dir Lower and others v. Rozi Khan and others 2009 SCMR 663 rel.

(b) Locus poenitentiae, principle of---

----Applicability---Scope---Government was not vested with the authority to withdraw or rescind an order if same had taken legal effect and created certain legal rights in favour of an individual.

(c) Public functionaries---

----Public functionaries were bound to discharge their functions in accordance with law.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court could be invoked if action on the part of authorities was found coram non judice, without jurisdiction or mala fide---If an adequate remedy provided by law was less convenient, beneficial and effective then jurisdiction of High Court could be invoked.

Muhammad Ijaz Khan Sabi for Petitioners.

Syed Qaiser Ali Shah, A.A.G. along with Masud-ur-Rehman, Superintendent HQ Jail Peshawar for Respondents.

2017 P L C (C.S.) 615

[Peshawar High Court]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

Dr. IKRAMULLAH KHAN

Versus

KHYBER PAKHTUNKHWA, AGRICULTURAL UNIVERSITY, PESHAWAR through Vice-Chancellor and 7 others

Writ Petition No.1012-P of 2014, decided on 4th February, 2015.

(a) Civil service---

----Advertisement for the post of Associate Professor---Requisite qualification being Doctor of Philosophy in the field of the Weed Science---Experience, counting of---Allegation of bias of one Member of Selection Board---Effect---Contention of petitioner was that respondents lacked qualification in the relevant discipline being not equipped with degree in the Weed Science and one member of Selection Board was biased against him---Validity---Degree for Doctor of Philosophy of respondents had been conferred by the university in the field of Agriculture Science but the same had been clarified by the concerned universities that incumbents had completed their thesis in the Weed Science---Respondents had completed their studies of Doctor of Philosophy in the field of the Weed Science---Appearance of word "Agricultural Science" did not exclude the research and thesis of the respondents manifestly done in the Weed Science specialty---Reference to "Agricultural Science" on the title of the degree would not be sufficient to exclude the respondents from the competition for the subject post---Respondents were in possession of degree of Doctor of Philosophy in the relevant field (Weed Science) from the universities duly recognized by the Higher Education Commission---For the purpose of experience it was not necessary that a person must have been serving against a post on regular basis---If a person was teaching in a university, particularly at post-Graduate level, without taking any remuneration, it could not be said that he having gained and acquired experience without any wages and he was not entitled for its benefits---Experience acquired in any manner could not be taken away from a person merely because he had not been paid any remuneration or pay for the same---Respondents were teaching the Weed Science in Agricultural University and they had more than the requisite experience of teaching---Counting of experience gained during private/government job would depend upon the nature of experience which was to be decided by the University Scrutiny Committee and Selection Board---High Court, under its constitutional jurisdiction, could not substitute opinion of the Selection Board on mere allegation of bias of one of the Member of the said Board---Allegation of mala fide on the part of Chairman of Weed Science Department had properly been addressed by the respondents---Chairman of Department of Weed Science was statutory member and his membership to the Selection Board could not be controverted on the mere allegation of bias---No measuring apparatus existed with the High Court to determine whether petitioner was deferred and was not recommended for appointment for the sole reason of his allegation against one of the member of Selection Board---University authorities had carried the entire process of appointment in transparent manner and properly assessed the credentials and experience of the candidate in accordance with the terms enumerated in the advertisement of the post---High Court while exercising constitutional jurisdiction could not sit as a court of appeal over the decisions of statutory bodies---Constitutional petition was dismissed, in circumstances.

Dr. Mir Alam Jan v. Dr. Muhammad Shehzad 2008 SCMR 960; Asif Mehmood Chughtai, Advocate and 17 others v. Government of the Punjab through Chief Secretary and others 2000 SCMR 966; Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157 and Arshad Ali Tabbasum v. The Registrar, Lahore High Court, Lahore 2015 SCMR 112 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil service---Appointment---High Court under its constitutional jurisdiction could not substitute opinion of the Selection Board.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court while exercising constitutional jurisdiction could not sit as a court of appeal over the decisions of statutory bodies.

(d) Words and phrases---

----"Experience"---Meaning.

Wikipedia (Free Encyclopedia rel.

Khushdil Khan for Petitioner.

Khalid Khan and Muhammad Isa Khan for Respondents Nos.1 to 5.

Saqib Raza for Respondent No.6.

Jehanzeb Meshsud for Respondents Nos.7 and 8.

2017 P L C (C.S.) 738

[Peshawar High Court]

Before Nisar Hussain Khan and Qaiser Rashid, JJ

SAEED MUHAMMAD ZAI

Versus

The SECRETARY, GOVERNMENT OF KHYBER PAKHTUNKHWA, LABOUR DEPARTMENT and 4 others

Writ Petition No.1280-P of 2013, decided on 12th November, 2015.

(a) Civil service---

----Employee-petitioner being Social Security Officer---Promotion---Supersession of employee-petitioner due to average grading/ performance---Scope---Fitness---Determination of---Contention of employee-petitioner was that he was eligible for promotion but he had not been promoted---Validity---Respondent had been promoted to the post of Deputy Director (Administration) by superseding the petitioner---Rule and method for promotion for the said post was seniority-cum-fitness from amongst the Social Security Officers having at least five years service---Both the petitioner and respondent were performing their duties as Social Security Officers having five years service at their credit---Employee-petitioner was senior to respondent---Average grading could not be considered as adverse report unless so treated and conveyed to the civil servant---Fitness could not be determined on mathematical formula---Fitness was though an important element in consideration of promotion but it would precede with seniority---Senior officer should be considered for promotion on priority basis---Nothing was on record as to why junior officer was promoted by superseding the petitioner---Competent authority should give reasons while superseding the employee---Impugned action of the department was not based on sound principles of reasonableness, Openness, justice and fair play which was struck down by High Court---Mater was remitted to the Departmental Selection Board to re-consider the promotion case of the parties afresh and decide the same in accordance with law and rules with speaking order giving reasons---Department was directed to decide the matter within a period of two months---Constitutional petition was disposed of accordingly.

Pakistan Broadcasting Corporation through D.G.H.Q. Islamabad and another v. Nasiruddin 1997 SCMR 1303 and Province of the Punjab through Chief Secretary, Punjab, Lahore and another v. Sardar Noor Illahi Khan Leghari and another 1992 SCMR 1427 rel.

(b) Civil service---

----Average grading could not be considered as adverse report unless so treated and conveyed to the civil servant.

(c) Civil service---

----Promotion---Fitness---Though fitness was an important element in consideration of promotion but it would precede with seniority.

(d) Civil service---

----Supersession---Scope---Supersession would tantamount to penalty.

(e) Discretion---

----Exercise of---Principle---Discretion should be exercised honestly, fairly, judicially and in accordance with law and rules.

Muhammad Asif Yousafzai for Petitioner.

Muhammad Akhtar Hussain for Respondents.

2017 P L C (C.S.) 860

[Peshawar High Court (Abbottabad Bench)]

Before Abdul Latif Khan and Malik Manzoor Hussain, JJ

MUHAMMAD ASIF MEHMOOD

Versus

DIRECTORATE OF HEALTH KPK through Director General Health Department and 4 others

Writ Petition No.98-A of 2015, decided on 6th February, 2015.

Civil service---

---- Plea of petitioner was that he was entitled to the employment on the strength of donation of land by his father for construction of Basic Health Unit Hospital which was denied to him and respondent was appointed---Validity---Respondent was appointed as Chowkidar on temporary basis without pension and gratuity on the recommendation of District Selection Committee---Agreement in question between donor of land and authorities seemed to be perpetuity for all times to come, generation after generation and other person if eligible to be appointed---Offer of post as against donation of land would amount to sale of office which was unlawful---No case for interference was made out in favour of petitioner---Constitutional petition was dismissed in circumstances.

Hamid Ullah and 9 others v. Head Mistress Government Girls School Chokara District Karak 1997 SCMR 855 rel.

Sardar Muhammad Akmal for Petitioner.

Nemo for Respondent.

2017 P L C (C.S.) 905

[Peshawar High Court]

Before Yahya Afridi and Muhammad Daud Khan, JJ

IRFAN AMAN YOUSAFZAI and 3 others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and 3 others

Writ Petition No.68-P of 2015 with I.R., decided on 14th April, 2015.

(a) Civil service---

----Promotion, prospects of---Terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Express bar had been imposed on the jurisdiction of High Court to entertain any matter with regard to terms and conditions of service of a civil servant---High Court had no authority to determine the challenge made to rules or notifications which would adversely affect the prospects of promotion of civil servant even if the same were challenged on the ground of infringing the fundamental rights of the civil servants or same were based on mala fide of department of the Government---Such bar was effective to the extent of only those cases to which the jurisdiction of Service Tribunal had been extended---Jurisdiction of High Court to entertain and decide matters which were expressly excluded from the jurisdiction of Service Tribunal had not been barred under Art.212 of the Constitution---Jurisdiction of Service Tribunal would be alive and that of High Court would be barred with regard to issues being expressly provided under the Civil Servants Act, 1973---Ouster of jurisdiction of High Court would only come into play and be effective when Service Tribunal had jurisdiction to entertain the said matter---Service Tribunal was competent to entertain and decide cases wherein vires of service rules or notification had been challenged on the touchstone of being violative of fundamental rights of the civil servants and mala fide of the Executive to frame such rules---Jurisdiction of High Court was barred to entertain the present constitutional petition as same was with regard to terms and conditions of service of petitioners for which exclusive jurisdiction would vest with the Service Tribunal---Constitutional petition was dismissed, in circumstances.

Pervaiz Aslam's case 1999 SCMR 784; Muhammad Asghar's case 2012 PLC (C.S) 142; Ms. Ayesha Bashir Wani's case 2012 PLC (C.S.) 31; Muhammad Azam's case 2012 PLC (C.S.) 1104; Khalid Mahmood's case 2013 PLC (C.S.) 1286; Tariq Azizuddin's case 2010 SCMR 1301 and Watan Party's case PLD 2012 SC 292 ref.

Samina Mehsood's case PLD 2005 SC 831=2005 PLC (C.S.) 1335; Javed Iqbal's case PLD 1993 SC 375; Syed Mehmood Akhtar Naqvi's case; PLD 2013 SC 195 and Contempt proceedings against Chief Secretary Sindh 2013 SCMR 1752 distinguished.

I.A. Sharwani's case 1991 SCMR 1041; Iqan Ahmed Khurram's case PLD 1980 SC 153; Khalid Mahmood Watto's case 1998 SCMR 2280; Peer Muhammad's case 2007 SCMR 54; Government of the Punjab's case PLD 2004 SC 317; National Assembly Secretariat's case 2015 SCMR 253 and Engineer Musharaf Shah's case 2015 PLC (C.S) 215 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court had power to check excesses of the Executive, jealously guard the fundamental rights of persons under the Constitution and to ensure that all persons were treated fairly, equitably and in accordance with law.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition before the Supreme Court---Scope---Civil servants could challenge the vires of any legislative or subordinate instrument which would raise a question of public importance before the Supreme Court.

Sikandar Rashid for Petitioner.

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

2017 P L C (C.S.) 926

[Peshawar High Court (Mingora Bench)]

Before Syed Afsar Shah and Haider Ali Khan, JJ

INAMULLAH

Versus

GOVERNMENT OF KPK through Chief Secretary and 3 others

W.P.No.480-M of 2014, decided on 25th June, 2015.

(a) Civil service---

----Advertisement for appointment of constable in Police Department---Conviction in criminal case---Bar for appointment in government service---Scope---Right to life---Appointment of petitioner as constable in Police Department was refused on the ground that he was previously convicted under S.13 of Pakistan Arms Ordinance, 1965---Validity---Appointment to superior positions had been barred for the persons who were convicted in cases which fell into one of moral turpitude, of scandalizing the Judiciary and Armed Forces, undermining the ideology and security of Pakistan and other offences of the like nature---Case of petitioner did not fall in any of such categories---Petitioner was not involved in any case of moral turpitude and he had been recommended for appointment on merit---Petitioner had been convicted for possessing 12 bore live cartridges ten in number and he was sentenced to pay Rs.100/- as fine---Appointing authority had taken harsh view in the case of petitioner---Lifelong ban against government appointment would offend fundamental right to life of petitioner---Petitioner had confessed his guilt in criminal case just to avoid court proceedings---Petitioner should not be kept debarred for ever to enter upon government service---Authority had not acted in accordance with law while refusing appointment of petitioner as constable on such reason alone---Department was directed to appoint the petitioner forthwith against the post he applied for---Constitutional petition was accepted in circumstances.

(b) Civil service---

----Appointment to superior positions had been barred for the persons who were convicted in cases which fell into one of moral turpitude, of scandalizing the Judiciary and Armed Forces, undermining the ideology and security of Pakistan and other offences of the like nature.

Barrister Dr. Adnan Khan for Petitioner.

Sabir Shah, A.A.G. for Respondents.

2017 P L C (C.S.) 1128

[Peshawar High Court]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

MUHAMMAD ISRAR, ASI and 138 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.3113-P of 2015, decided on 24th November, 2015.

(a) Civil service---

----Promotion---Cancellation of---Police Policy Board---Void order---Effect--- Locus poenitentiae, principle of--- Applicability--- Vested right---Scope---Petitioners-employees were promoted by the Departmental Promotion Committee to the rank of officiating Sub-Inspectors (Police) and notification to such effect was issued---Police Policy Board cancelled the promotion of petitioners-employee on the ground that such posts were with regard to traffic wardens---Validity---Petitioners-employees being fit, competent and eligible for promotion were duly considered and promoted as officiating Sub-Inspectors (Police) by the Departmental Promotion Committee---Police Policy Board did not figure in the Administration Authority of police department---Impugned orders/directions of Police Policy Board were void ab initio as same were not issued on the direction and on behalf of competent authority or lawful authority---Departmental Promotion Committee was competent for the purpose of promotion and said authority had powers to rescind/withdraw or cancel the same---Where rules, regulations and policy had been framed for regulating promotion then any breach or deviation from the same for mala fide reason or due to arbitrary act of the authority would entitle an aggrieved employee to challenge the same in the court of law---Posts against which some of the petitioners-employees were promoted were inter-transferable---Reason given for withdrawal/cancellation of promotion was not legal or lawful---Principle of locus poenitentiae could be invoked by the competent authority till the time the decisive stage was not reached---Orders for promotion of petitioners-employees had been conveyed and acted upon---Valuable right had accrued to the petitioners-employees and they could not be deprived of vested right by the Authority---High Court directed that Petitioners-employees should be deemed to be promoted from the date of their promotion order---Constitutional petition was allowed in circumstances.

PLD 1997 SC 351; 1990 SCMR 1238; 2015 SCMR 253; 2002 SCMR 549; 2002 PLC (C.S.) 244 and 2013 SCMR 1752 ref.

PLD 2003 SC 175; Collector of Custom Valuation and another v. Karachi Bulk Storage and Terminals Ltd. 2007 SCMR 1357; Farzand Raza Naqvi and 5 others v. Muhammad Din and others 2004 SCMR 400 and Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 rel.

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

----S. 4---Appeal before Service Tribunal---Condition---Appeal and representation could lie only against an order passed by a "Departmental Authority" with regard to any of the terms and conditions of service.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Where order had been passed by an authority whose existence was doubtful along with powers and functions not explained anywhere, then availability of adequate remedy would not be an absolute bar against the exercise of constitutional jurisdiction of High Court---High Court could exercise constitutional jurisdiction where competency of authority was in question.

(d) Locus poenitentiae, principle of---

----Applicability---Scope---Principle of locus poenitentiae could be invoked by the competent authority till the time the decisive stage was not reached.

(e) Words and phrases---

----"Void"---Meaning.

Corpus Juris Secundum Vol. 92 PP-1021-1024; Chief Settlement Commissioner v. Raja Muhammad Fazil Khan PLJ 1975 SC 15; Moulana Atta ur Rehman v. Al-Hajj Sardar Umer Farooq and others PLD 2008 SC 663 and Mustafa Lakhani v. Pakistan Defence Officer Housing Authority, Karachi 2008 SCMR 661 rel.

Ijaz Anwar for Petitioners.

Farooq Adam, A.A.G. for Respondents.

2017 P L C (C.S.) 1283

[Peshawar High Court]

Before Qaisar Rashid Khan and Amanullah Khan Kaini, JJ

KIRAN AYUB TANOLI, ADVOCATE

Versus

REGISTRAR PESHAWAR HIGH COURT PESHAWAR and another

Writ Petition No.931-P of 2015, decided on 8th October, 2015.

(a) Khyber Pakhtunkhwa Judicial Service Rules, 2001---

----R. 7(b)---Constitution of Pakistan, Art.199(5)--- Constitutional petition--- Maintainability--- Advertisement for appointment of Additional District and Sessions Judges---Condition of five vakalatnamas per year for the last five years---Scope---"Practicing advocate"---Scope---High Court advertised posts of Additional District and Sessions Judges for which condition of five vakalatnamas per year for the last five years was added---Contention of petitioner was that said condition of five vakalatnamas per year for the last five years was against Fundamental Right---Validity---Petitioner had not brought on record even copy of a single vakalatnama to prove that she remained a practicing advocate during the last five years---Petitioner had even failed to produce any joint vakalatnama or any list of cases conducted by her jointly---Lawyers community of the entire Province had not only hailed the said condition but had also deemed it to be in the interest of lawyers and in turn the judiciary---Said condition of five vakalatnamas per year for the last five years was not in violation of Fundamental Rights of the petitioner---Said condition would minimize the concept of non-practicing advocates or absenteeism from the legal profession---Department had right to enhance qualification and standard for recruitment and promotion in order to maintain efficiency in service---Non-judicial or administrative orders of High Court had been protected under Art.199(5) of the Constitution---Constitutional petition was dismissed in limine.

Muhammad Nadeem Arif and others v. Inspector General of Police Punjab, Lahore and others 2010 PLC (C.S.) 924; Tahmasub Faraz Tayyab and 13 others v. Vice-Chancellor, University of Health Sciences, Lahore and 3 others PLD 2005 Lah. 261; Lt. Col. Nafis-ud-Din Ansari v. Qazi Habibullah and others PLD 1989 Lah. 26; M. Adil Hayat Khan v. Government of Sindh and others PLD 2002 Kar. 131; Abdul Aziz and another v. Government of Khyber Pakhtunkhwa through Chief Secretary and 3 others 2015 PLC (C.S.) 958; Zafar Javed and 6 others v. Executive District Officer (Revenue) Okara and 2 others 2015 PLC (C.S.) 442 and Federal Public Service Commission and others v. Altaf Hussain and others 2015 PLC (C.S.) 1130 distinguished.

Government of NWFP Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1524; Muhammad Iqbal and others v. Lahore High Court through registrar and others 2010 SCMR 632 and Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another 2011 SCMR 1864 rel.

(b) Khyber Pakhtunkhwa Judicial Service Rules, 2001---

----R. 7(b)---'Practicing advocate'---Meaning.

Merriam-Webster Dictionary; Dictionary; Law Dictionary Featuring Black's Law Dictionary and Free Online Legal Dictionary 2nd Ed. rel.

(c) Constitution of Pakistan---

----Art. 199(5)---Non-judicial or administrative order passed by the High Court--- Scope--- Non - judicial or administrative orders of High Court had been protected under Art.199(5) of the Constitution.

(d) Civil service---

----Department had right to enhance qualification and standard for recruitment and promotion in order to maintain efficiency in service.

Fawad Saleh for Petitioner.

Ikhtiar Khan Incharge NJPIC and Imranullah, Assistant Legal Draftsman for Respondent No.1.

2017 P L C (C.S.) 177

[Punjab Subordinate Judiciary Service Tribunal]

Before Mehmood Maqbool Bajwa, Chairman and Shahid Waheed, Member

MUHAMMAD ANAYET GONDAL

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

S.A. No.11 of 2012 and C.M. No.1 of 2015, heard on 11th September, 2015.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 6---Civil Procedure Code (V of 1908), S.151---Judicial officer---Reinstatement by Service Tribunal---Execution petition for release of salaries and allowances i.e. back benefits---Contention of department was that the claim of back benefits of the applicant would be decided by the Authority after getting recommendations from the "Hearing Officer"---Validity---Service Tribunal had set aside the notification of dismissal of applicant due to certain infirmities in the procedure---Applicant had been reinstated in service without passing any order with regard to grant of back benefits---Back benefits were not granted to the applicant in circumstances---Applicant had not been acquitted of the charges but he was reinstated into service on technical ground---Applicant could not claim that he was entitled to the back benefits on his reinstatement into service---No direction for release of salaries, allowances and increments could be issued in the present case---Execution petition was dismissed in circumstances.

Syed Kamaluddin Ahmad v. Federal Service Tribunal and others 1992 SCMR 1348 rel.

Applicant in person.

Zubda Tul Hussain along with Taimoor Ali, Assistant Registrar Legislation and Litigation for Respondent.

2017 P L C (C.S.) 74

[Balochistan High Court (Sibi Bench)]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J

SAIN DAD KHAN

Versus

GENERAL MANAGER HR AND ADMN. (NTDC) WAPDA, LAHORE and 4 others

C.P. No.(s)111 of 2016, decided on 25th August, 2016.

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

----R. 12-A---Alteration in date of birth---Date of birth once recorded at the time of joining of government service shall be final and thereafter no alteration in the same was permissible---In the present case, petitioner instead of assailing order determining his date of birth raised the question at the verge of his retirement after 26 years of joining of his service---Constitutional petition was dismissed.

(b) Pakistan WAPDA Employees (Date of Birth) Rules, 1994---

----R. 6(c)---Work charge employee converted as regular employee---Scope---Rule 6(c) of Pakistan WAPDA Employees (Date of Birth) Rules, 1994 provided for alteration of date of birth related to clerical error and applicable to those employees who were employed initially as work charge and were later converted to regular employees of WAPDA on or after July, 1994.

(c) Pakistan WAPDA Employees (Date of Birth) Rules, 1994---

----R. 3---Documents required for confirmation of date of birth---Claim for alteration of date of birth---Documents for confirmation of date of birth, the year of birth or the age of employees of WAPDA were matriculation certificate, school leaving certificate or municipal birth certificate---In the present case, petitioner had claimed alteration of date of birth on the basis of matriculation certificate, CNIC and local certificate---Rule 3 of Pakistan WAPDA Employees (Date of Birth) Rules, 1994 was inapplicable to the present case as petitioner was appointed prior to 1994---Petitioner sought declaration for rectification/correction of his date of birth after 26 years of joining service which matter had already been decided by competent committee of department which had attained finality---Constitutional petition also suffered from laches and was dismissed accordingly.

Ahmed Khan Dehpal v. Government of Balochistan and others 2013 SCMR 759 and Professor Dr. Muhammad Aslam Baloch v. Government of Balochistan through Secretary, Health Department and others 2014 SCMR 1723 rel.

Ahsan Rafiq Rana for Petitioner.

Nemo for Respondents.

2017 P L C (C.S.) 81

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J

MUNAWAR HASSAN

Versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and 3 others

C.P. No.289 of 2016, decided on 25th August, 2016.

Civil service---

----Appointment--- Advertisement for appointments--- Candidates participating in written test and interview---Cancellation of recommendations and conducting of fresh test and interview ---Locus poenitentiae, principle of---Applicability---Equal treatment--Scope---Petitioners had participated in the test and interview but the department did not announce the result and decided to cancel the recommendations and conduct fresh test and interview---Validity---No irregularity and illegality was found in the constitution of Recruitment Committee---Process of test and interview was fair and transparent and merit list did not suffer from any illegality, impropriety and invalidity---Recommendations were based on merit and did not suffer from political inclination, motivation and consideration---Recommendation by the validly constituted Recruitment Committee deserved weight and regard---Fresh test and interview would cause financial loss to national exchequer---Candidates who had been recommended for appointment were justified to expect for the fruit of their labour---Undisputed merit list had created a vested right which required to be given due weight and regard---Proposed annulment of undisputed merit list and nullification of valid recommendations without legal and plausible justification was based on mala fide---Competent authority in matter of appointment could not act at his wish, whim and sweet will---Discretion must be exercised carefully, cautiously, fairly and justly---Proposal of fresh test and interview by the department was not based on any legal basis nor there was any rational and wisdom behind such suggestion---Only one candidate had filed the present constitutional petition but all equals must be treated equally and similarly---High Court being custodian of Constitution should ensure that State did not fail performing its constitutional obligation---Chief Secretary was directed to take notice of such facts and should not allow any individual official to play mischief with the fate, future and fundamental rights of citizens---Proposal of department to conduct fresh test and interview had no legal effect and significance---Competent authority was directed to finalize the process of appointment in the wake of recommendations of Recruitment Committee within one month observing legal formalities, if any---Recommended persons be appointed/posted at the earliest and infrastructure should be provided and required funds must be allocated and made available---Constitutional petition was allowed in circumstances.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2012 SC 132; State Bank of Pakistan v. Mumtaz Sultana 2010 SCMR 421; Muhammad Nawaz v. Managing Director, Small Business Finance Corporation 2009 SCMR 187 and Fiaqat Hussain and others v. Federation of Pakistan PLD 2012 SC 224 rel.

Adnan Ejaz for Petitioner.

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

2017 P L C (C.S.) 275

[Balochistan High Court (Sibi Bench)]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

MUHAMMAD HUSSAIN

Versus

The SECRETARY, GOVERNMENT OF BALOCHISTAN and 3 others

Constitutional Petition No.(S)111 of 2015, decided on 25th October, 2016.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Laches, principle of---Applicability---Civil service---Appointment in place of deceased civil servant---Scope---Father of petitioner died in the year 1996 and at that time petitioner was of tender age---Respondent was appointed in the year 1998---Petitioner had not challenged the competence of appointment of respondent but asserted that he had preferential right---Constitutional petition was filed after lapse of 18 years which suffered from laches---Question of laches in filing constitutional petition could not be ignored subject to facts and circumstances of each case---High Court could refuse to exercise its discretion considering the conduct of the parties and change in situation---Bar of limitation would operate as a legal bar for grant of remedy whereas laches would operate as bar under equity---No explanation had been put forth by the petitioner to explain the inordinate delay of 18 years in moving the petition before the High Court---Constitutional petition was liable to be dismissed on the ground of laches---Petitioner had claimed that service of respondent be terminated and he be appointed on his place---Respondent had served for 18 years and order of his appointment had taken legal effect---Certain legal right had been created in favour of respondent and same could not be withdrawn through constitutional petition which had been filed after 18 years of unexplained delay---Constitutional petition was dismissed in circumstances.

PLD 2007 SC 472; 1994 SCMR 1024; 1972 SCMR 201 and Chief Secretary Government of Punjab v. Malik Asif Hayat 2011 SCMR 1220 rel.

Muhammad Iqbal Marghzani for Petitioner.

Naseer Ahmed Bangulzai, Addl. A.G. for Respondents Nos.1 to 3.

Muhammad Nasir Mari for Respondent No.4.

2017 P L C (C.S.) 491

[Balochistan High Court]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

ABDUL GHAFOOR

Versus

PROVINCE OF BALOCHISTAN through Chief Secretary and 3 others

C.P. No.1139 of 2015, decided on 26th May, 2016.

(a) Balochistan Civil Servants Deputation Policy, 2012---

----R. 21(d)---Balochistan Government Rules of Business, 2012, Rr.2(d), 4, 6 & 8(g)---Employee of stateowned Pakistan Telecommunication Company---Transfer of employee to Local Government and Rural Development Department on deputation---Discrimination---Direction of Minister for transfer on deputation---Scope---Contention of petitioner was that impugned deputation and posting of respondent was against the Deputation Policy, 2012---Validity---Employees of Telecommunication Company were not civil servants any more---Respondent was not a civil servant and his transfer by way of deputation was contrary to law---Each Province was autonomous under the Constitution to make its own laws particularly for civil services---Rules framed by Federal Government and respective Provincial Government could not be acted upon to make out a case of discrimination---Government had to remain with its own law, Rules and Regulations to be followed---If no suitable person was available to a post in a department then it might be filled in the public interest through deputation by way of transfer in consultation with the appointing authority---Deputation could be necessitated only in the public interest/exigency of service---Minister had no authority to demand deputation or transfer of a particular employee on his whims---Secretary of the department was to assist the Minister and when the Minister's order appeared to involve a departure from laws, regulations or government policy then he should resubmit the case to the Minister inviting his attention to the rules, regulations or government policy---Secretary was bound to follow policy, guidelines and directions adhering to the Constitution, Law and Rules of Business---Deputation of respondent had been dealt with in violation and contrary to the Deputation Policy, 2012 and was not based on public interest or any exigency of service but was of the whims of the Minister---Impugned notification of appointment of respondent on deputation could neither be justified nor sustained which was declared without lawful authority having no legal effect---Authorities were directed to make regular appointment/promotion to the post in question in accordance with law---Constitutional petition was allowed in circumstances.

PLD 2011 SC 132 and 2012 SCMR 152 ref.

2013 SCMR 1752; 2013 SCMR 304; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Syed Mazar Abbas Jaffery v. Secretary to the Government of Punjab and another 2006 SCMR 606 and Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 rel.

(b) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Scope.

Sub-clause 1(b) (i) (ii) of Article 199 of the Constitution is an exceptional, which provides that quo warranto is a remedy, whereby; the Court inquire into the legality of the claim and to consider, as to whether the incumbent is holding his post in accordance with law or otherwise. High Court in exercise of its Constitutional jurisdiction is competent to inquire from a person holding a public office, as to under what authority of law, he claims to that office. Quo warranto also offered a judicial remedy in respect of appointment made to a public office against the law and to protect a citizen from being deprived of public office, to which he had a right. For the purpose of invoking such writ jurisdiction, any person informing the Court is not required to show his locus standi. Any person can move to the High Court to challenge the un-authorized occupation of a public office.

Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720 rel.

Zafar Alam Mandokhail for Petitioner.

Khursheed Anwar Khosa for Respondent No.4.

Shaihaq Baloch, Asstt. A.G. for Official Respondents.

2017 P L C (C.S.) 1102

[Balochistan High Court (Sibi Bench)]

Before Nazeer Ahmed Langove and Muhammad Hashim Khan Kakar, JJ

MIAN KHAN

Versus

INSPECTOR GENERAL POLICE BALOCHISTAN and 2 others

C.P. No.(S)219 of 2016, decided on 9th January, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Judgment of Service Tribunal, implementation of---Scope---Service Tribunal being a Civil Court for the purpose of deciding appeal had all the powers of Civil Court including those required to implement its judgment as provided under the provisions of Civil Procedure Code, 1908---Employee had an alternate, speedy and efficacious remedy for enforcement of judgment of Service Tribunal---Employee could approach the proper forum if desired---Constitutional petition was dismissed in circumstances.

Ahmed 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 Minsitry 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; Mohammad Hashim Khan v. Province of Balochistan PLD 1976 Quetta 59; Iftikhar Ahmed 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.

Petitioner in person.

Abdul Latif Kakar, Asstt. A.G. for the State.

2017 P L C (C.S.) 1222

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ

TARIQ HUSSAIN and others

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Education Department and 2 others

Constitutional Petition No.179 of 2016, decided on 3rd April, 2017.

(a) Revised Leave Rules, 1980---

----R. 10---Balochistan Text Book Board Ordinance (XI of 1977), Ss.9, 4, 19 & 18---Balochistan Text Book Board Employees Service Regulation, 1988, Regln 12(2)(b)---Constitution of Pakistan, Art.199---Constitutional petition--- Maintainability--- Civil service---Employees of Balochistan Text Book Board---Leave encashment, refund of---Scope---Petitioners-employees were allowed leave encashment by the competent authority but departmental accounts committee directed them to refund the same---Validity---Rule 10, Revised Leave Rules, 1978 was applicable only in case of retirement on attaining age of superannuation and not otherwise---Employees, while in service were allowed the facility of leave encashment by the Board of Directors---No such Board of Directors existed in Balochistan Text Book Board Ordinance, 1977, only there was an Advisory Council---No power to frame rules and regulations was available either with the Chairman or Advisory Council rather it was the Board empowered for the purpose of S.19 of Balochistan Text Book Board Ordinance, 1977---Decision for refund of Leave encashment amount was without the mandate of law and of no legal effect---Text Book Board was empowered to frame its own rules but in absence rules framed by the Government would have the application on the service of employees of the Board---Text Book Board was required to follow the rules framed by the Government but it was not done in the present case---Present matter being with regard to service of employees, Constitutional jurisdiction could only be exercised in exceptional circumstances and where effective and alternate remedy was not availed---Petitioners-employees were required to file representation to the Authority next above the Authority which issued the impugned order---Employees had not availed the said remedy and no special circumstances existed to exercise constitutional jurisdiction of High Court---Constitutional petition was dismissed being not maintainable.

Mushtaq Ahmed v. Secretary, M/O Defence through Chief of Air and Army Staff PLD 2007 SC 405 and Anwar Paverz v. Board of Intermediate and Secondary Education, Abbottabad 2005 SCMR 1603 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court could only be exercised in absence of effective and alternate remedy.

Talat Waheed for Petitioners.

Muhammad Akram Shah and Zahoor Ahmed Baloch, Assistant Advocate General for Respondent No.2.

2017 P L C (C.S.) 1273

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Abdullah Baloch, J

RAB NAWAZ and 4 others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others

C.P. No.152 of 2014, decided on 13th March, 2017.

Constitution of Pakistan---

--Arts. 199 & 212---Constitutional petition---Maintainability---Alternate remedy---Civil service---Terms and conditions of service---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Policy decision of Government could not be challenged in constitutional jurisdiction on the plea of hardship---Employees had been provided employment on certain terms and conditions which pertained to their service---Constitutional jurisdiction could not be exercised in view of bar contained in Art.212 of the Constitution---Employees had alternate remedy for redressal of their grievance---Constitutional petition was dismissed in circumstances.

Syed Hassan Askar v. Province of Punjab PLC 2016 (C.S.) 459 and Government of Pakistan v. Jamshed Hussain Cheema 2016 SCMR 442 rel.

Kamran Murtaza for Petitioners.

Zahoor Ahmed Baloch, Asst. A.G. for Respondents.

2017 P L C (C.S.) 1471

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

MUHAMMAD JAN and 3 others

Versus

The GOVERNMENT OF BALOCHISTAN through Chief Secretary and another

C.P. No.744 of 2014, decided on 11th May, 2017.

Civil service---

----Contract employee---Vacancy, availability of---Regularization of service---Petitioners had been working as contract employees for the past more than ten years and instead of regularizing their services, authorities advertised the post for fresh appointments---Validity---Petitioners had been serving in their respective positions for the last about more than ten years, though on contract basis, yet the nature of their jobs were permanent---Petitioners had been performing their functions/duties to the entire satisfaction of their employer and further that throughout the whole period, their services were required and they remained useful and beneficial to the department---Re-advertisement of the posts was indicative of the fact that the services were needed as long the department existed---No allegation of any misconduct or incompetence against the petitioners---Petitioners had right to continue against the same posts, besides availability of regular posts and creation of additional posts---High Court directed the authorities to regularize services of petitioners without back benefits in accordance with law---Petition was allowed accordingly.

Province of Punjab v. Ahmed Hussain 2013 SCMR 1547; Ejaz Akbar Kasi v. Ministry of Information and Broadcasting PLD 2011 SC 22 and Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas 2003 PLC (C.S.) 796 rel.

Manzoor Ahmed Rehmani for Petitioners.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondents.

2017 P L C (C.S.) 331

[Service Tribunal (AJ&K)]

Before Ameerullah Khan Mughal, Senior Member

ABDUL QAYYUM AWAN

Versus

DIRECTOR GENERAL ANTI-CORRUPTION and others

Application for partial suspension of the impugned Notification dated 18.5.2016, decided on 9th September, 2016.

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

----Ss. 17 & 22---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4---Refund of salary and other benefits drawn by the civil servant beyond the age of superannuation for which he worked---Civil servant had assailed the notifications through which, civil servant was retired from service with the direction that the salary and other benefits received by him after date of his retirement, would be deducted from his pension---Civil servant after a period of 42 years applied for correction of his date of birth entered in the service record, as per Identity Card and matriculation certificate---Application filed by the civil servant, having been turned down by the department, he filed appeal before the Service Tribunal, which was accepted---Judgment of the Service Tribunal was set aside by the Supreme Court---Departmental authority, after the judgment of the Supreme Court retired the civil servant and ordered for recovery of the salary and emoluments received by him after date of his retirement i.e. about 9 months---Civil servant, after his retirement, had rendered extra/additional service for certain period on account of litigation before the judicial forums---Salary drawn during such period, could not be recovered from the civil servant, such period could be considered as "on contract"---No justification existed for recovery of salary drawn by the civil servant for the period he had performed his duties---Impugned notification was suspended to the extent of recovery of amount drawn by the civil servant after date of his retirement from his pension, till the final disposal of the appeal.

PLD 1992 SC 207; 2000 PLC (C.S.) 480; 2001 PLC (C.S.) 1092; Azad Government and others v. Mrs. Jamshed Naqvi and others 2014 SCR 13; M. Younas Tahir and others v. Shaukat Aziz and others PLD 2012 SC (AJ&K) 42 and PLD 2009 SC 889 ref.

Shahid Ali Awan and Kokab Saleem for Appellant.

2017 P L C (C.S.) 214

[Punjab Service Tribunal]

Before Khalid Mahmood Ramay, Member-II

NAVEED SHAH

Versus

CITY POLICE OFFICER, FAISALABAD and 2 others

Appeal No.746 of 2016, decided on 20th October, 2016.

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

----Ss. 4(1)(b)(vi) & 19---Dismissal from service---Punishment, reduction in---Employee was police/constable, who was posted as Muharrar, was dismissed from service despite that Enquiry Officers had recommended minor penalty---One drug paddler was arrested red-handed, but was released without any legal action against him on direction of Police Inspector---Allegations against employee was that he being a Muharrar, did not inform the Incharge about release of accused from the lock-up---Competent authority though had the power to differ with the recommendation of Enquiry Officer, but said powers were not discretionary, rather subject to assigning valid reasons---No reason was assigned by the punishing authority to disagree with recommendation of the Enquiry Officer---Punishing authority was legally bound to formulate his opinion on the basis of solid evidence available on record and give reasons for differing with the recommendations made in the enquiry report---No such requirements were fulfilled---If the punishing authority was not in agreement with the recommendation of Enquiry Officer, a de novo enquiry should have been ordered; pointing out the differences and lacunae in the previous enquiry; but that was not done, which resulted into serious miscarriage of justice---Prima facie, the matter of arrest and release of accused was between the A.S.I. and Inspector---Charge against the employee being contributory in nature, was not sustainable---Service tribunal accepting the appeal of the employee modified the punishment in the manner that penalty of dismissal from service, was converted into forfeiture of approved service for one year---Employee was reinstated into service---Intervening period during which employee remained out of job was treated as leave of the kind due.

2006 SCMR 60 rel.

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

----S. 4---Penalty/punishment---Philosophy---Philosophy of punishment was based on the concept of retribution, which could be either through the method of deterrence or reformative---Extreme penalty, in service matter, for a minor act depriving a person from right of earning would defeat the reformatory concept of punishment---Punishing a subordinate in a harsh manner, always would create lack of interest, which could discourage him to prove himself an efficient and hard working officer/official---Service Tribunal reduced the quantum of penalty so that nature of punishment could be transformed reformatory to some extent and efforts of the employee could be appreciated and dispensation of justice was ensured---Employee was guilty of not informing the seniors and for that act penalty awarded to the employee was unjustified and did not commensurate with the nature of charges allegedly attributed against the employee particularly when three Enquiry Officers recommended minor penalty for the employee.

Malik Muhammad Akhtar Awan for Appellant.

Sardar Muhammad Ahmad, District Attorney and Atta Mahmood, ASI for Respondents.

2017 P L C (C.S.) 42

[Sindh Service Tribunal (Karachi)]

Before Justice (R) Mujeebullah Siddiqui, Chairman and Ameer Faisal, Member-I

MUHAMMAD ASIF and others

Versus

GOVERNMENT OF SINDH through Secretary Finance Department and Information Technology Department, Sindh and 4 others

Appeals Nos.1319 to 1342 of 2015, decided on 30th December, 2015.

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

----R. 9-A---Removal from Service (Special Powers) Sindh Ordinance (IX of 2000), S.3(e)---Surplus employees of a defunct department---Non-payment of salaries---Employees had been appointed on regular basis after completion of all the codal formalities by the competent authority---Appellants were required to be dealt with in accordance with law if there was any wrong on their part---Salary of any government servant could not be withheld without recourse to law---Appointment orders of the appellants were intact and same should continue to remain in force until altered or amended by the competent authority---If any appointment order was bogus or fake or had been issued/ obtained by fraudulent means maneuvering or in violation of law then it should not confer any right, title or status on the holder of such appointment order---If an appointment order had been made on regular basis by the competent authority by observing codal formalities then same could not be nullified and holders of such appointment order could not be deprived of their right, title and status of a civil servant---Government had failed to deal with the appellants in accordance with law by not providing the funds---Government was directed to place the services of appellants in surplus pool and they might be absorbed and posted in accordance with R.9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Finance department should make necessary arrangement and provide funds for payment of salaries to the appellants---If department had any reservation with regard to the legality of appointment of appellants then it would be at liberty to initiate proceedings in accordance with the provisions contained in Removal from Service (Special Powers) Sindh Ordinance, 2000 but after their absorption/adjustment and payment of their arrears and salaries and back benefits---Appeals were allowed in circumstances.

(b) Constitution of Pakistan---

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

(c) Fraud---

----Fraud would vitiate even a most sacrosanct act from its very inception.

Mehta Naresh Nath Kohli for Appellants.

S. Kamil Shah, A.A.-G., Sindh for Respondents.

Date of hearing: 15th December, 2015.

JUDGMENNT

JUSTICE (R) MUJEEBULLAH SIDDIQUI, CHAIRMAN.--- All the above 24 appeals arise out of same set of facts and same point of law has been agitated, therefore, all the appeals are disposed of by this single consolidated judgment.

1. With the consent of learned counsel for the appellant and the learned AAG, Appeal No.1319/2015, Muhammad Asif Dayo v. Government of Sindh and others is treated as leading appeal and the facts are taken from the said appeal.

2. According to the facts contained in the memos. of appeal the appellants were appointed against the posts of Data Entry Operator, Accountant, Senior Clerk, Junior Clerk, Driver and Naib Qasid by the Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo in the year 2010. All of them joined their duties in the office of Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo. Their service books were prepared and they were regularly receiving their salaries through online system. Subsequently, Sindh Local Government Ordinance, 2001 was repealed. However, the appellants continued to work at their posting place and received salaries upto October, 2012. Thereafter, their salaries were stopped by the District Accounts Officer, Ghotki at Mirpur Mathelo. They approached the respondents for release of their salaries but to no avail. It is contended that after the enforcement of Sindh Local Government Ordinance, 2001 several departments were constituted including Information Technology Department in different Districts of Sindh. After abolishment of Sindh Local Government Ordinance, 2001 in the year 2011 the Commissionerate system was revived and all the appellants along with other employees were put at the disposal of Commissioner, Sukkur Division. However, they have produced copy of letter dated 18.02.2012 written by Section Officer (B&E-IX), Finance Department, Government of Sindh addressed to all the Deputy Commissioners in Sindh which is reproduced below:

"No.FD(B&E-IX)I-2/ 2012

Government of Sindh

Finance Department

Karachi dated the 18th February, 2012

To, The Deputy Commissioner's in Sindh (All)

SUBJECT:- PAYMENT OF SALARY AND NON SALARY OF DEFUNCT EXECUTIVE DISTRICT OFFICER INFORMATION TECHNOLOGY (FINANCE AND PLANNING) AND COMMUNITY DEVELOPMENT DEPARTMENT FROM THE FUND CENTER OF CONCERNED DEPUTY COMMISSIONERS.

I am directed to refer to the subject noted above and to state that competent authority has decided that all the bills of Salary and Non Salary, components including outstanding liabilities of the defunct Executive District Officer (Information Technology) Executive District Officer (Finance and Planning) and Executive District Officer (Community Development Department) etc. may be managed/met out from the funds already released to concerned Deputy Commissioners in Sindh and then approach this department through final list of Excess and Surrenders for the shortfall, if any through Services General Administration and Coordination Department Government of Sindh, under respective object element.

(MUBARAK HUSSAIN)

SECTION OFFICER (B&E-IX)

FOR SECRETARY TO GOVT. OF SINDH"

1. Thereafter on 13.12.2012 Additional Deputy Commissioner-II, Ghotki at Mirpur Mathelo wrote a letter to the Chief Officer District Council District Ghotki at Mirpur Mathelo which reads as follows:-

"OFFICE OF THE

DEPUTY COMMISSIONER

GHOTKI @ MIRPUR MATHELO

To, The Chief Officer

District Council

District Ghotki at Mirpur Mathelo

Subject: REPATRIATION TO THE PARENT DEPARTMENT.

This is to bring in your kind notice that the officer/official of office of defunct Executive District Officer (Information Technology) have become surplus after abolition of SLGO, 2001. The office of the Deputy Commissioner has currently no budgetary provision/sanctioned strength to provide them salaries. As per advise of Finance Department Govt. of Sindh, a total of 26 employees working in the office of EDO (I.T) having their date of appointment after year 2001 are being placed at the disposal of your good office payment of salaries and for further necessary action as per law please.

(Mehtab Waseem Azhar)

Additional Deputy Commissioner-II"

1. Prior to that the Project Director, Introduction of Information Technology in District Administration wrote a letter to the Executive District Officer (Information Technology) District Government Ghotki on 05.10.2011 stating that the Information Technology Department, Government of Sindh has already handed-over the Hardware, MIS, Human Resources and Website provided under the Project, "Introduction of IT in District Administration" to the District Government Ghotki. It was further stated that Government of Sindh invested a big amount on the infrastructure including the expenditure for the capacity of building of the project staff. It was further recommended that District Government Ghotki should continue the same staff for future implementation and execution of MIS applications. It was further stated that the continuation of project staff is in the interest of public because Sindh Government has invested in their capacity building and District Government is already satisfied with their progress. On 10.12.2011 the Finance Department intimated the Deputy Commissioner District Ghotki that budget for the month of November, 2011 during Financial Year 2011-12 by way of re-appropriation of funds from the lumpsum provision kept under the head of account "SC21045 (045) Grands and Subventions-01-General Public Service-014-Transfers-0141-Transfers (Inter-Governmental)-014102-To District Government-KA-4735-Grants to Local Bodies in Sindh-A05023-To District Government-5-Local Government (District Govts. TMAs/UAs) and will be debitable under the head of account "SC21001- Organ of State (Ex. Law Depts and others)-019120-Others (Information Technology Department)" during the current financial year 2011-12. On 23.11.2011 the Finance Department wrote a letter to the Administrative Secretary/ Principal Accounting Officer, Government of Sindh Information Technology Department which reads as follows:-

"No.F.D(B&E-IX)I-I/ 2011-12

Government of Sindh

Finance Department

Karachi dated the 23rd November, 2011

To, The Administrative Secretary/

Principal Accounting Officer, Government of Sindh, Information Technology Department, Karachi.

Subject: COMMUNICATION OF BUDGET ESTIMATES 2011-12 OF REVIVAL OF COMMISSIONERATE SYSTEM.

I am directed to refer to the captioned subject.

Consequent to the revival of Commissionerate System, Finance Department agrees to release funds amounting to Rs.12,970,100/- (Rupees Twelve million nine hundred seventy thousand only) being one month salary/Non Salary Expenditure for the month of November 2011 of devolved information Technology offices for further disbursement, during the current financial year 2011-12, details thereof are at (Annexure-I).

1. It may be clarified that all the Cost Centers/DDOs as they existed under repealed SLGO, 2001 have been allocated provisionally for transition phase and adjustment of posts, allocations and cost centers. The Administrative Department will submit their comprehensive proposal under revived set-up.

2. The Expenditure of Rs.12,970,100/- has been sanctioned by way of re-appropriation of funds from the lump-sum provision of Rs.135,171,078,000/- kept under the Head of Account "SC21045(045) Grants and Subventions 01 General Public Service-014-Transfers-0141- Transfers (Inter Governmental)-014102-To District Government-KA4735- Grants to Local Bodies in Sindh-A05023-To District Government-5- Local Government (District Govts. TMAs/UAs)" and will be debitable under the head of account "SC21001-Organ of State (Ex. Law Deptt. and others)-019120-other (Information Technology Department)" during the current financial year 2011-12.

3. Administrative Department must ensure that post-wise details of Employees Related Expenditure, object wise details of Operating Expenses and other relevant expenditure of all Information Technology Department Offices which come under the jurisdiction of respective DDOs may be sent to this Department of maintaining proper record.

4. Administrative Department is requested to communicate the details of descriptions/DDOs/Operating Officers for Cost Center created in the budget of defunct District/Local Government, with respect to their subordinate Organization/Offices at Division, District, Taluka level at the earliest to avert any communication gaps.

5. Administrative Department may also carry out an exercise for rationalizing the sanctioned strength for each office/ Establishment/Cost Center with an objective to maintain/retain manageable number of Funds/Cost Center without adversely affecting the best practices of financial management.

6. Preferably one cost center may be identified/allocated for each establishment/office/DDO/Function and the strength of officers and staff may be incorporated therein so that entire process is streamlined in budget for next financial year.

7. The other terms and conditions/ policy decision communicated in this Department's letter of even number dated July 5, 2011 and the instructions issued from time to time, shall however remain the same and should be adhered to.

Section Officer (B&E-IX,)

For Secretary to Govt. of Sindh"

1. The appellants approached the Chief Officer District Council Ghotki at Mirpur Mathelo but he refused to accept the appellants by saying that they were appointed in IT Department and they will not be accepted. The appellants then approached Deputy Commissioner Ghotki at Mirpur Mathelo who requested the Secretary Finance for release of funds. The problem was not resolved and, therefore, the appellants filed petition before the High Court of Sindh Bench at Sukkur being C.P. No.D-106/2013. The petition was allowed by Hon'ble High Court Bench at Sukkur vide judgment dated 05.11.2014. The Hon'ble Judges of the High Court took notice of the directives of the Chief Minister Sindh which were issued to the Secretary, Services and General Administration Department, Government of Sindh. The Chief Minister had ordered that the appellants should be adjusted as they were regular employees. The Hon'ble High Court held that all the appellants were appointed after completing all the formalities. The Hon'ble High Court further held that the stopping of salaries of the appellants was violative of their fundamental right as they were willing to work at any other department if their services have become surplus. The respondents and the Finance Department, Government of Sindh were directed to release the salaries of the appellants.

2. The Government of Sindh preferred appeal before the Hon'ble Supreme Court. It was contended before the Hon'ble Supreme Court that the appointments were made by the then EDO (IT), Asghar Mujahid Mahar, who was not from IT Department and on promotion has been appointed as Assistant Professor in the Education Department. It was further contended that SNE was held in 2005 and 2006 but the posts were abolished before the appointment of the respondents. It was informed to the Hon'ble Supreme Court that no action was taken against the then EDO (IT). The Hon'ble Supreme Court observed as follows:-

"it is strange that the officers by abusing their authority make appointment in such manner which the law does not permit and the government files appeals without initiating departmental proceeding against such officers."

The Hon'ble Supreme Court directed the competent authority to initiate departmental proceedings against the then EDO (IT) for prima facie misusing or abusing his authority in appointing the respondents, which has resulted loss to the Public Exchequer and the government through Advocate General/Additional Advocate General shall report back the outcome of the proposed departmental proceedings for the perusal of Hon'ble Judges of Supreme Court in Chambers. The learned counsel for the appellants submitted before the Hon'ble Supreme Court that they were still working and were transferred in 2012 on their becoming surplus employees to the office of Deputy Commissioner. The Hon'ble Supreme Court ultimately held that the High Court had no jurisdiction to adjudicate the issue pertaining to the terms and conditions of civil servants in view of bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the Hon'ble Supreme Court converting the petition into appeal set aside the judgment of High Court of Sindh, Sukkur Bench and remanded the case to the Sindh Service Tribunal treating the Constitution Petition of the appellant as departmental appeal and the comments of the department as order of the departmental appeal. It was directed that the Service Tribunal may record the findings inter alia on the issue of appointment of appellants or otherwise and decide the matter in accordance with law.

1. A common petition was filed before the High Court against which appeal was preferred before Supreme Court. In service matters, appeals are required to be filed individually and separately, therefore, the appellants were directed to file separate memo of appeals which has been done. It is stated in the grounds that all the appellants were appointed as permanent employees and they received their salaries uptil October, 2012. Thereafter, they have been running from pillar to post but to no avail except the correspondence between the officials. It is submitted that all the appellants are permanent employees and are still in job and therefore, they are entitled to release of their salaries. It is alleged that the Chief Minister of Sindh passed order dated 12.09.2013 directing that the appellants may be adjusted which is reproduced below:-

CHIEF MINISTER'S SECRETARIAT, SINDH KARACHI

No.SO(IMP-IV)/CMS/PA/1-07/2013

Karachi dated 12th September, 2013

The Secretary (Services)

Services General Administration and

Coordination Department Governments of Sindh, Karachi.

Subject: LIST OF REGULAR STAFF O/O THE DEFUNCT EXECUTIVE DISTRICT OFFICER (IT) GHOTKI AT MIRPUR MATHELO.

I am direct to forward herewith a copy of list of employees (in original) received from employees of the Defunct Executive District Officer (IT). Ghotki at Mirpur Mathelo on the subject noted above. The Honourable Chief Minister Sindh has been pleased to pass the following directives/ orders on the same.

It is said that they are regular Employees

They must be adjusted and report

Sd/-

Chief Minister, Sindh

Dated 08.09.2013

Further necessary action may please be taken in light of the above directives as per rules/policy, under intimation to this secretariat at the earliest.

Sd/-

(MUHAMMAD ANWAR-UL-HAQ)

Additional Secretary (IMP)"

1. The appellants have referred to two letters written by Deputy Commissioner, Ghotki at Mirpur Mathelo to the Secretary Finance Department dated 21.05.2013 and 04.06.2013 wherein it is stated that 26 employees of defunct EDO (IT), Ghotki at Mirpur Mathelo were appointed by the EDO (IT) Ghotki on regular basis after fulfillment of all codal formalities and were working against the sanctioned posts since October, 2010. It is further stated that the said posts were sanctioned by Secretary, Finance Department vide letter dated 13.05.2005. It is further stated in the letter that salaries of said employees of the defunct Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo have been stopped by the District Accounts Officer, Ghotki since 01.11.2012 due to non release of funds. It is further stated in the letters that the Finance Secretary issued a letter to all Deputy Commissioners according to which the payment of salaries to employees of all defunct EDOs may be met out from the head of accounts of concerned Deputy Commissioner vide letter dated 18.02.2012. It was further requested that the budget/funds may be released under salary component as per demand to the fund center of Deputy Commissioner Ghotki for the year 2012-13 so that the pending bills/liabilities of salaries may be cleared and paid to the employees of defunct EDO (IT) in the best interest of public. In both the letters it was requested that the concerned staff of defunct EDO (IT) Ghotki along with sanctioned posts may be transferred to the Revenue Department Ghotki at the earliest.

2. The appellants have prayed that directions be issued for release of their salaries along with arrears and the respondents may utilize their services in their respective posts and scales.

3. As already observed, the Hon'ble Supreme Court vide order dated 24.07.2015 treated the Constitution Petition filed by the appellant as departmental appeal and the comments by the department as order of the departmental appeals, therefore, now we come to the written statements/comments filed by the respondents.

4. The respondent No.1, Secretary Finance, has stated in the written statement that Finance Department has imposed ban on appointment on contingency basis. However in case of urgency Administrative Departments were advised that if appointment is necessary on contingency basis it should be made against sanctioned posts with the approval of Finance Department. Copies of two letters have been produced. The first letter is dated 10.03.1994 under the subject conversion of work charge/contingent paid establishment into regular establishment. It is stated in the letter that as per directions of Prime Minister of Pakistan issued during her visit to Larkana in January, 1994 all such work charge/contingent paid employees are to be regularized. It is further stated in the letter that with the approval of competent authority, all the departments and officers under which such employees are working are requested to scrutinize all such cases with financial implications for getting the required posts in the budget for regularization of such employees w.e.f. 01.07.1994 by constituting a committee to submit and verify list of eligible workers to Finance Department who fulfilled the following conditions:-

(i) who rendered five years or more than five years continuous service as directed by the Prime Minister and the duties performed by them are of permanent nature.

(ii) who possess valid NIC.

It is further stated in the letter that in future no such work charge/contingent basis appointment shall be made and audit/accounts officers should not entertain bills from ADs in future without specific approval of the Finance Department for each post if required with full justification. In the letter dated 25.09.2013 addressed to all Administrative Secretaries, the Finance Department has drawn attention to the letter dated 10.03.1994 and another letter dated 10.03.2011 regarding appointment of staff on contingency basis whereby Finance Department has imposed ban on appointment on contingency basis. It is further stated in the letter that in order to avoid legal lacuna and un-due financial liabilities, it was again advised that no appointments are made against un-sanctioned posts and against sanctioned posts on contingency basis without specific approval of Finance Department for each post. It is further stated that in this particular case EDO (IT) before offering appointment letter on temporary basis made no correspondence with the Finance Department and the directions/instructions of the Finance Department were not taken into account which make him liable to disciplinary action under the relevant rules. It is further stated that the District Accounts Officer, Ghotki at Mirpur Mathelo has stated in his comments that salaries of petitioners have been drawn upto October, 2012 which was stopped after discussion and verbal advice of Finance Department, Government of Sindh as the budget and sanctioned strength of the EDO (IT) was not provided/approved by the Finance Department during the Financial year 2012-13. It is stated that salary of appellants were managed by the then District Government and no advice was issued from the Finance Department. It is further stated that the Finance Department is nowhere in the picture through out the appointment process and onward. The EDO (IT) made appointments, purely on temporary basis without observing the codal formalities which does not make the appellants entitled for appointment on regular basis. It is further stated that, however, if deemed necessary the matter may be taken up with the Services, General Administration and Coordination Department as the domain of appointment, promotion etc. rests with Services, General Administration and Coordination Department.

1. The Secretary, Information Technology Department, Government of Sindh has stated in his written statement that the Information Technology Department is an administrative department of Government of Sindh at provincial level. The then District Government was a tier of government. The Executive District Officer (Information Technology) of the then District Government was not working under the administrative control of Information Technology Department. The Executive District Officers (Information Technology) of the then District/City Government were working under the administrative control of the then District Coordination Officer. It is further stated that the appointments made by the then Executive District Officer (Information Technology) Ghotki of the then District Government was not concerned with Information Technology Department, Government of Sindh.

2. The respondent Deputy Commissioner, Ghotki at Mirpur Mathelo has stated in his comments that the appellants were appointed by the then Executive District Officer (Information Technology) himself. It is further stated that due to abolition of Local Government System (SEGO, 2001) salaries of the appellants were stopped by the District Accounts Officer. In order to resolve the issue the matter was consulted with Section Officer (B&E-VII) and in the light of his verbal advice the employees of the IT Department with date of appointment before 2001 were referred to their parent administrative department vide letter dated 13.12.2012. This letter is addressed to the Secretary to Government of Sindh, Education and Literacy Department under the subject repatriation to the parent department. It is stated in the letter that the officers/officials of the office of defunct Executive District Officer (Information Technology) have become surplus after abolition of Sindh Local Government Ordinance, 2001 The office of the Deputy Commissioner has currently no budgetary provisions/sanctioned strength to provide their salaries, therefore, two officials of the Education Department working in the office of the defunct Executive District Officer (Information Technology) having their dates of appointment before 2001 are being repatriated to Education Department for absorption and payment of salaries. The two officials are named as Ali Gul Soomro, Assistant appointed on 13.07.1992 and Nazir Ahmed Chejan, Naib-Qasid appointed on 01.07.1989. It appears that they were transferred from the Education Department. It is pertinent to observe that these two officials who were repatriated to their parent department are not included in the list of appellants. It is further stated by the Deputy Commissioner Ghotki that while those with date of appointment after 2001 were referred to Chief Officer, District Council Ghotki at Mirpur Mathelo for absorption and payment of salaries vide letter dated 13.12.2012. In this letter, the Deputy Commissioner has informed the Chief Officer District Council Ghotki that the officers/officials of the office of the defunct Executive District Officer (Information Technology) have become surplus after abolition of Sindh Local Government Ordinance, 2001. The office of the Deputy Commissioner has currently no budgetary provision/sanctioned strength to provide them salaries. As per advice of the Finance Department, Government of Sindh a total of 26 employees in the office of Executive District Officer (Information Technology) having their dates of appointment after 2001 are being placed at his disposal for payment of salaries and for further necessary action as per law. It is further stated that the matter was brought to the notice of Finance Department, Government of Sindh vide letters dated 21.05.2013 and 04.06.2013 requesting for release of funds under the salary component of funds as per demand of the fund center of Deputy Commissioner Ghotki and transfer of concerned staff of Executive District Officer (Information Technology) Ghotki to the Revenue Department along with sanctioned strength posts. It is further stated that the Finance Department referred the matter to Secretary, (Services) SGA&C Department, Government of Sindh vide letter No.FD/ SO(B&E-VII) 10(21)DC-GH/2011-12 (1326). Reference has been made to paras Nos.2, 3, 4, 5 and 6 of the said letter which reads as follows:-

"2. Finance Department issued concurrence of creation of Information Technology Department in all Districts from financial year 2005-06 having strength of Ten (10) officers and twenty eight (28) officials through District S.N.E subject to condition that funds/expenditure will be met out from District Government. These posts were intact on system without filling of posts and were slashed from Financial Year 2010-11 as verified by Incharge PIFRA System-II.

1. After withdrawal /slashed of these post District Administration made appointment from July, 2010 to November 2011 (copy of list furnished by Deputy commissioner enclosed).

2. The recruited employees were paid salary from District Government Budget upto 30-6-2012 which existed from transition period and settlement of employees in the District Administration, as well as District Council. After closure of District fund centers, these employees could not get salary. The Deputy Commissioner, Ghotki has requested for provision of funds and transfer of these post to Board of Revenue.

3. Finance Department observes that EDO(IT) (now defunct) Ghotki made appointments without lawful authority as these posts did not exist and at the time of appointment, District Government stood repealed. Further, standard recruitment rules were not followed as the post of Sr. Clerk is filled in only by promotion rather than through initial recruitment. Similarly Technical qualification was not considered for the post of Data Entry Operator. Besides, Information Department, was not involved in devolution era, therefore these officials stands nowhere as they cannot report to information Technology Department and Information Technology Department has informed that DCO has hired these services without consulting I.T. Department.

4. If Finance Department consider request of Deputy Commissioner Ghotki regarding providing funds and transfer of these posts to Board of Revenue, it would be regularization of irregular act of defunct EDO (I.T), as such SGA&C Department is requested to constitute an enquiry committee to probe in the matter of appointment of I.T. staff in all the Districts without existence of posts and following recruitment rules and submit recommendation to Chief Secretary for final decision."

5. The respondent No.3, District Accounts Officer, Ghotki has stated in the comments that the salaries of the petitioners were drawn upto October, 2012 and were stopped thereafter, in pursuance of discussion and verbal advice of the Finance Department, Government of Sindh as the budget and sanctioned strength of EDO (IT) District Ghotki was not provided/approved by the Finance Department during the financial year 2012-13.

6. The respondent No.4, Chief Officer District Council, District Ghotki has stated that in reply to the Deputy Commissioner's letter dated 13.12.2012 a letter was written to the Secretary, Finance Department, Government of Sindh mentioning that for payment of salaries of 26 employees an amount of Rs.60,00,000/- (Rupees Sixty Lacs) per year was required which was not provided/sanctioned and, therefore, it was not possible for them to pay the salaries without any grant.

7. We have heard Mr. Mehta Naresh Nath Kohli, learned counsel for the appellants and Mr. S. Kamil Shah, learned AAG for the respondents.

8. Mr. Kohli has submitted that the issue involved is very simple but the respondents have unnecessarily confused the entire issue. He has submitted that the Secretary Finance has unnecessarily referred to two letters dated 10.03.1994 and 25.09.2013 which pertain to the appointment on contingency basis, while all the appellants were appointed on regular basis and none of them was appointed on contingency basis which is evident from the perusal of their appointment letters. He has further placed reliance on the advertisement in the Newspaper Daily Yadgar, Sukkur and Daily Pak Sindh, Sukkur. This advertisement was published at the instance of Mr. Asghar Mujahid Mahar, Executive District Officer Ghotki at Mirpur Mathelo and it is nowhere written in the advertisement that the appointments were to be made on contingency basis or work charge basis. He has further submitted that the respondents have concealed the real facts by alleging that there was no sanctioned budget for the post against which the appellants were appointed. He has submitted that when the matter was pending before High Court at Sukkur a rejoinder was filed on the comments of the then respondent No.2 and it was specifically stated that all the posts against which the appellants were appointed were sanctioned post and budget was also released for salaries for the years 2010, 2011 2012. It was further stated in the rejoinder that the Deputy Commissioner Ghotki verified the regular staff of the defunct Executive District Officer (Information Technology) Ghotki and thereafter issued letter to the Finance Department which was counter signed by ADC-II on 12.12.2012 regarding the regular posts of the appellants. It is further stated in the rejoinder dated 22.08.2013 that the Secretary, Finance Department issued letter dated 18.02.2012 to all the Deputy Commissioners in Sindh regarding the release of salaries to the employees of department. It is further stated that all the appellants are still working but salaries are not being paid to them. He has further referred to the comments filed by the Deputy Commissioner Ghotki in the High Court wherein it is clearly stated that due to abolition of Local Government System (SLGO, 2001) the salaries of the appellants were stopped by the District Accounts Officer and in order to resolve the issue the matter was consulted with the Finance Department. The Deputy Commissioner further stated in his comments filed before the High Court that two employees who were appointed before 2001 and were transferred from Education Department to the office of Executive District Officer (Information Technology) Ghotki were repatriated while remaining employees were referred to the Chief Officer District Council Ghotki for absorption and payment of salaries. He has submitted that it has not been stated in any comments that the appointments of the appellants were illegal or unauthorized. He has further argued that it was wrongly stated before the Hon'ble Supreme Court on behalf of provincial government and the Additional Finance Secretary that the posts were abolished before the appointment of the respondents. The correct facts are narrated in the comments filed on behalf of Deputy Commissioner, Ghotki. He has stated in reply to paras Nos.32 and 33 that due to abolition of Local Government System (SLGO, 2001) the salaries of the appellants were stopped by the District Accounts Officer and in order to resolve the issue the Deputy Commissioner repatriated two employees of the Education Department who were posted by transfer and the remaining employees were referred to the then Chief Officer District Council Ghotki at Mirpur Mathelo for absorption and payment of salaries. The learned counsel for the appellant has vehemently argued that if there were no budgetary provisions and the posts were not sanctioned how the appellants were paid their salaries upto October, 2012 as stated in the parawise comments of District Accounts Officer, Ghotki. He has vehemently argued that the correct facts are discovered from the comments filed on behalf of respondents according to which the appellants were appointed by the Executive District Officer (Information Technology) Ghotki under the Sindh Local Government Ordinance, 2001 and were paid salaries upto October, 2012. They were employees of the District Government Ghotki and therefore, after repeal of the Sindh Local Government Ordinance, 2001 in the year 2011 and the revival of commissionerate system the appellants became surplus. This fact is admitted by the Finance Department while referring matter to the Secretary (Services), Government of Sindh to the effect that Finance Department had issued concurrence of creation of Information Technology Department in all Districts from financial year 2005-06 subject to the conditions that the funds and expenditure will be met out from District Government. However, it is wrongly stated that the posts were slashed from the financial year 2010-11 as in the same letter the Finance Department has clearly stated that the recruited employees were paid salaries from District Government budget upto 30.06.2012 while the District Accounts Officer has submitted that salaries were paid to the appellant upto October, 2012. He has submitted that in fact the appellants were employees of the Executive District Officer (Information Technology) Ghotki and with the repeal of Sindh Local Government Ordinance, 2001 in the year 2011 the said office became defunct and the employees were rendered surplus. He has vehemently argued that it was not stated by any respondent in their comments in the High Court which are to be treated as orders of the respondents in pursuance of the order of Hon'ble Supreme Court dated 24.07.2015, that any illegality was committed in the appointment of the appellants. It is admitted fact that all the appellants were appointed on regular basis after completion of all the formalities and they were being paid their salaries without any let or hindrance and, therefore, in the changed circumstances they were required to be dealt with in accordance with rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. He has submitted that none of the respondents have denied that the office of the Executive District Officer (Information Technology) Ghotki was government department and when this department was abolished the appellants were required to be appointed to any post in any government department or office in accordance with rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.

9. The learned AAG has though opposed the appeals but he is not able to deny the contentions of the learned counsel for appellant.

10. After giving very anxious considerations to the entire facts on record it is held that appellants were admittedly appointed on regular basis by the then Executive District Officer (Information Technology) Ghotki after completion of all the codal formalities. All the appellants were performing their duties and were getting their salaries upto October, 2012. On account of repeal of the Sindh Local Government Ordinance, 2001 and abolition of the department and the posts, they were rendered surplus. It is evident from the comments of the Deputy Commissioner Ghotki who has stated in reply to paras Nos.32 and 33 of the petition that he referred the appellants to the Chief Officer District Council Ghotki at Mirpur Mathelo for absorption and payment of salary. Thus it is admitted fact that the appellants were required to be absorbed but the procedure adopted by the Deputy Commissioner was not in accordance with the law. The appellants were required to be treated in accordance with the provisions contained in rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 which reads as follows:-

"9-A. Notwithstanding anything contained in these rules, a person who has been rendered surplus, on account of abolition of a post he was holding in any office or department of the Government or, any autonomous body or, on account of permanently taking over the admission of such autonomous body wholly or partially by the Government, may be appointed to any post in any Department or office of the Government, provided that--

(i) such persons possesses each qualifications as are laid down under rule 3(2), for appointment to such post;

(ii) such person shall be appointed to a post of equivalent or comparable Basic Scale and if such post is not available, then to a post of lower Basic Scale;

(iii) seniority of such person in the new cadre shall be reckoned from the date of appointment in that cadre; and

(iv) previous service, if not pensionable, shall not count for pension and gratuity unless Government directs otherwise."

1. The Deputy Commissioner, Ghotki has further requested to the Secretary, Finance Department vide his letters dated 21.05.2013 and 04.06.2013 that all the appellants were appointed on regular basis after fulfillment of all codal formalities and were working against sanctioned posts since October, 2010 and the said posts were sanctioned by the Finance Department. It was further stated that the salaries of the appellants were stopped by the District Accounts Officer, Ghotki from 01.11.2012 due to non-release of funds. The Deputy Commissioner also referred the letters of the Finance Department to all the Deputy Commissioners for payment of salaries to employees of all defunct EDOs and to meet out from the head of accounts of concerned Deputy Commissioner vide letter dated 18.02.2012. The Deputy Commissioner further requested to the Finance Department that the budget/funds may kindly be released under the salary component as per demand to the fund centre of Deputy Commissioner, Ghotki for the year 2012-13 so that the pending bills/liabilities of salaries may be cleared/paid to all the employees of defunct EDOs. The Deputy Commissioner further requested that the staff of EDO (IT) Ghotki along with sanctioned strength may be transferred to the Revenue Department Ghotki at the earliest. We find that the sole reason for stopping the salary of the appellants was that no funds were available with the Deputy Commissioner after abolition of the office of Executive District Officer (Information Technology) Ghotki.

2. We have considered the contents of the letter written by Finance Department to the Secretary (Services) wherein it is written that the posts were created in the Information Technology Department in all districts with the concurrence of Finance Department and that on account of non-filling of the post they were slashed from the Financial Year 2010-11. It is admitted position that all the appellants were appointed in the year 2010-11. It merely means that the appellants were being paid salary not from the budget of Information Technology Department but from the budget of District Government upto 30.06.2012 which existed for transition period and settlement of employees in the District Administration as well as District Council. The Finance Department itself has written that after closure of District fund centers the employees could not get salaries. It is stated in the letter of Finance Department that the appointments were made without lawful authority as these posts did not exist and at the time of appointment District Government stood repealed. This fact is incorrect as the appellants were appointed in the year 2010 and the Sindh Local Government Ordinance, 2001 was repealed in the year 2011. The letter of the Finance Department referred to in the comments of the Deputy Commissioner, Ghotki further contains that standard recruitment rules were not followed as the post of Senior Clerk is filled in only by promotion rather than through initial recruitment. Similarly Technical qualification was not considered for the post of Data Entry Operator. The Finance Department has ignored the fact that the Information Technology Department in the District was a newly created department, therefore, there was no question of filling any post by promotion. A perusal of the advertisement shows that the requirement for Data Entry Operator was possessing Bachelor Degree in second class and one (01) year Diploma in Information Technology from recognized university/institution having 1 year experience in Computer Operator. It is further contended in the letter of Finance Department addressed to the Secretary (Services) that Information Technology Department was not involved in devolution era, therefore, these officials stand nowhere as they cannot report to Information Technology Department and Information Technology Department has informed that DCO had hired these services without consulting Information Technology Department. This merely shows that with the abolition of office of Executive District Officer (Information Technology) Ghotki the appellants have been rendered surplus and are required to be dealt with in accordance with rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Although no illegality has been brought on record in the appointment of appellants, however, if there is any illegality it cannot be eliminated by committing another bigger illegality. If there is any illegality/irregularity it has to be dealt with in accordance with the law prevailing for the time being in force. The appellants are admitted to have been appointed on regular basis after completion of all the codal formalities but if there is any wrong, the appellants are required to be dealt with in accordance with the law, as it is provided in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 that to enjoy the protection of law and to be treated in accordance with the law is the inalienable right of every citizen, wherever he may be, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law. It is provided in section 3(e) of the Removal from Service (Special Powers) Sindh Ordinance, 2000 that if in the opinion of the competent authority a person in government service is found to have been appointed on extraneous grounds in violation of law and the relevant rules, the competent authority, after inquiry by an inquiry officer or the inquiry committee appointed under section 5, may, notwithstanding anything contained in any other law or the terms and conditions of service of such person by order in writing dismiss or remove such person from service, compulsorily retire from service, or reduce him to lower post or pay scale, or recover from pay/pension any other amount payable to him, the whole or a part of any pecuniary loss caused to the organization in which he was employed or impose one or more minor penalties as prescribed in the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. Without recourse to law the salary of any government servant cannot be with held.

3. It is admitted position that all the appellants were appointed on regular basis prior to the repeal of the Sindh Local Government Ordinance, 2001 w.e.f. 15.07.2011. It was provided in section 4 of the above repealing Act as follows:-

"Notwithstanding the repeal of the Sindh Local Government Ordinance, 2001 (Ordinance No.XXVII of 2001), all orders made (including rules, bye-laws, regulations and notifications and other legal instruments), proceedings taken, appointments made, acts done by any authority or any person, which were made, taken or done, or purported to have been made, taken or done thereunder, between the sixth day of August, 2001 and the date on which this Act comes into force (both days inclusive), shall continue to remain in force, until altered, repealed or amended by the Chief Minister or any authority or officer, authorized by him."

1. By virtue of the above provision all the appointment orders of the appellants are intact and shall continue to remain in force, until altered or amended by the Chief Minister or any authority or officer authorized by him. It is to be read with the order of Chief Minister dated 08.09.2013 to the effect that the appellants who are regular employees must be adjusted.

2. If any appointment order is bogus or fake or has been issued/obtained by fraudulent means, maneuvering or in violation of law it shall not confer any right, title or status on the holder of such appointment order for the simple reason that a fraud vitiates even a most sacrosanct act from its very inception. However, if an appointment order has been made on regular basis, by competent authority on completion of all the codal formalities as it appears to have been done in the case of appellants, such appointment cannot be nullified and the holders of such appointment orders cannot be deprived of their right, title and status of a civil servant conferred on them by mere stoppage of salary for the reason that in the facts and circumstances of this case the Finance Department or the Services and General Administration Department failed to deal with the appellants in accordance with the law and by not providing the funds. Under the terms and conditions of service of the appellants flowing from their regular appointment orders read with the provisions contained in rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 the appellants are entitled to be treated in accordance with the provisions contained in rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.

3. For the foregoing reasons, all the above appeals are allowed in the following terms:-

4. It is held that all the appellants were appointed by the competent authority, the Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo on regular basis.

5. They were paid their salaries upto October, 2012 against the sanctioned posts.

2017 P L C (C.S.) 203

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, CJ and Sh. Azmat Saeed, J

FEDERATION OF PAKISTAN through Secretary, Ministry of Foreign Affairs, Islamabad and others

Versus

ALI NASEEM and others

Civil Appeals Nos.6 and 724 of 2016, decided on 11th July, 2016.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 27-4-2015 passed in Appeal No.842(R)CS of 2009 and dated 10-6-2015 passed in Appeal No.799(R)CS of 2014)

Civil Servants Act (LXXI of 1973)---

----S. 2(1)(b)(ii)---Service Tribunals Act (LXX of 1973), Ss. 2(a) & 4---Financial Management at Missions Abroad, Vol. II, Chapt. IX, Cl. 9.1---Persons locally employed by Pakistani Missions Abroad---Temporary/contract employment---Such persons may be holding a civil post in connection with the affairs of the Federation, but they were not employed on regular basis through the usual procedure as prescribed for the appointment of civil servants under the Civil Servants Act, 1973 and the Rules framed thereunder---Such persons were appointed locally by the Heads of the Missions of Pakistan abroad purportedly in exercise of the powers conferred upon them by the instructions contained in Financial Management at Missions Abroad---Such instructions only permitted appointment of local staff on contract basis---Hence persons locally employed by Pakistani Missions Abroad were appointed on contract basis and were not civil servants---Such persons were not entitled to invoke the jurisdiction of the Federal Service Tribunal.

Respondents were locally employed by Pakistani Missions Abroad. Services of respondents were terminated. After rejection of departmental appeals filed by the respondents, both separately invoked the jurisdiction of the Federal Service Tribunal. Question was as to whether respondents were civil servants and hence could invoke jurisdiction of the Federal Service Tribunal. Respondents belonged to a specific category of employees of the Federation engaged and appointed locally in the Pakistani Missions abroad. Respondents may be holding a civil post in connection with the affairs of the Federation, but they were not employed on regular basis through the usual procedure as prescribed for the appointment of civil servants under the Civil Servants Act, 1973 and the Rules framed thereunder. They were not appointed through the Public Service Commission or the Selection Boards nor thereafter transferred to the Pakistani Diplomatic Missions. Such appointees were from a separate category of employees recruited locally by the Heads of the Missions functioning outside Pakistan.

Instructions found in Financial Management at Missions Abroad, Volume. II, Chapter IX, Clause 9.1 revealed that the recruitment of local staff by the Heads of Missions was only to be effected through employment contracts. The Heads of Missions did not appear to be authorized to recruit any local staff otherwise than on contract.

Documents relating to appointment of respondents indicated that the same were in consonance with the instructions contained in Financial Management at Missions abroad. The respondents had been employed locally through a contract of employment, containing a termination clause, which was generally alien to the terms and conditions of service of civil servants regularly appointed.

Respondents were appointed on contract basis. Hence, in view of section 2(1)(b)(ii) of the Civil Servants Act, 1973, the respondents were not civil servants, therefore, in view of section 4 read with section 2(1) of the Service Tribunals Act, 1973, they were not entitled to invoke the jurisdiction of the Federal Service Tribunal.

Nayyab Hassan Gardezi, Standing Counsel, Raja Abdul Ghafoor, Advocate-on-Record and Fayyaz Ahmed, AD (Legal) for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents (in C.A. No. 6 of 2016).

Mahmood A. Sheikh, Advocate-on-Record for Respondents (in C.A. No.724 of 2016).

2017 P L C (C.S) 266

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Dost Muhammad Khan and Tariq Parvez, JJ

KHAN TOTI and others

Versus

GOVERNMENT OF NWFP through Secretary Finance and others

Civil Petition No.2167 of 2014, decided on 16th March, 2016.

(On appeal from the judgment dated 22-9-2014 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R. No.1141-P of 2007)

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

----S. 3(2)---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), Ss. 2(a) & 3(2)---Staff of District judiciary---Moharars, Readers and Examiners---Not "civil servants"---Not amenable to jurisdiction of the Provincial Service Tribunal---Ministerial or menial staff of the District Judiciary could not be made subject to jurisdiction of the Provincial Service Tribunal, holding them civil servants as the same would amount to reverse all the efforts made so far in securing independence and separation of the judiciary from the executive.

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

----Preamble---Constitution of Pakistan, Art. 25---Staff of District judiciary---Moharars, Readers and Examiners---Discrimination---Notification issued by Provincial Government extending financial and other benefits of service to all the employees/civil servants in BPS-5, 6, 7 and 9---Provincial Finance department also extending same financial benefits to Moharars, Readers and Examiners attached to district judiciary---Objection by Accountant General---Validity---Moharars, Readers and Examiners attached to the District Judiciary were holding similar grades/BPS scales like senior and junior clerks serving in the executive department, therefore they were entitled to the same benefit like others--- Objection of the Accountant General in such circumstances was thus of no legal effect as it would be hit by the prohibition (against discrimination) contained in Art. 25 of the Constitution---Appeal was allowed accordingly with the direction that all benefits accrued to the staff of district judiciary shall be returned to them within two months.

Syed Safdar Hussain, Advocate Supreme Court for Petitioners.

Waqar Ahmed Khan, Additional A.-G. Khyber Pakhtunkhwa.

Syed Nayyab Hassan Gardezi, Advocate Supreme Court Standing Counsel for Attorney General for the Federation.

2017 P L C (C.S.) 279

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Mushir Alam, JJ

ADDITIONAL INSPECTOR-GENERAL OF POLICE KARACHI and another---Appellants

Versus

MUHAMMAD ISMAIL LASHARI and another---Respondents

Civil Appeals Nos.95-K and 96-K of 2016, decided on 1st September, 2016.

(On appeal from judgment dated 7-4-2016 of the Sindh Service Tribunal, Karachi, passed in Appeals Nos. 1660 and 1661 of 2015)

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

----Ss. 2(a), 2(c), 3(1)(b) & 9---Police Rules, 1934, Rr. 12.1, 16.1 & 16.2---Sindh Police (Efficiency and Discipline) Rules, 1988---Continued misconduct by 'Inspector' and Sub-Inspector' of police---'Disciplinary proceedings' and 'dismissal from service'---Competent authority---Scope---'Disciplinary proceedings' were initiated against delinquent 'Inspector' and Sub-Inspector' by the Deputy Inspector General of Police (DIG), who also ordered their dismissal from service---Legality---Service profiles of the Inspector revealed that he was awarded 22 major punishments during his service and he was also awarded minor penalties several times---Furthermore, he did not file any departmental appeals against many of the said penalties, which were the outcome of serious charges---Similarly service record of the Sub-Inspector showed that he was awarded major penalties 6 times during his service against which he did not file any appeal and only contested one major punishment---Rule 16.2 of the Police Rules, 1934 specifically provided that an order for dismissal may be passed on the basis of cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service---Consistent misconduct of the Inspector and Sub-Inspector reflected in their service profiles squarely fell under R. 16.2, Police Rules, 1934---Rule 12.1 of said Rules described the DIG Police as appointing authority of an Inspector, and R. 16.1 conferred powers on the DIG to award major punishment of dismissal from service of an Inspector---Moreover, the Sindh Police (Efficiency and Disciplinary) Rules, 1988, conferred powers on DIG to award major punishment of dismissal from service to a police officer of the rank of Inspector---Competent authority under the Removal from Service (Special Powers) Sindh Ordinance, 2000 was the Chief Minister, who in the present case had delegated his authority by way of two notifications issued in terms of S. 9 of the said Ordinance---Reading of said two notifications together, along with the powers of appointment under Rr.12.1 & 16.2 of Police Rules, 1934 showed that the Deputy Inspector General of Police (DIG) being the appointing authority of an 'Inspector' was competent to issue show cause notices to the delinquent 'Inspector' and 'Sub-Inspector' under the Removal from Service (Special Powers) Sindh Ordinance, 2000---Deputy Inspector General of Police (DIG) was also competent to pass dismissal order against the 'Inspector' and 'Sub-Inspector'---Supreme Court observed that if police officials with record as that of the delinquent Inspector and Sub-Inspector were allowed to continue in service, it would not only damage the image of police force, but would also encourage social evils in the society, which the police force was required to eliminate.

(b) Police Rules, 1934---

----R. 16.2---Constitution of Pakistan, Art. 13(a)---Rule 16.2 of the Police Rules, 1934, vires of---Protection against double punishment---Scope---Continued misconduct---Dismissal from service---Continued misconduct of police official resulted in him being awarded minor/major punishments during his career/service, and ultimately on basis of such record he was dismissed from service---Contention of dismissed police official that he had already been penalized departmentally for acts of misconduct during his service, and that he could not be dismissed from service and punished again on the basis of such adverse entries recorded in his service record in view of Art. 13 of the Constitution---Validity---Concept of Art. 13(a) of the Constitution was completely distinct from the wisdom behind R. 16.2 of the Police Rules, 1934---Wisdom behind Art. 13(a) of the Constitution was to provide protection to a person who was tried and convicted from being vexed again in the same offence, whereas, concept of R. 16.2 of the Police Rules, 1934 was completely different whereby the penalty of dismissal from service of a police officer was awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service---Such penalty had further been qualified by the language of Rule 16.2 to the length of service---In terms of R. 16.2 cumulative effect of the penalties which the competent authority recorded in the service record of the police officers, could be examined to measure whether such police officer was fit to continue in the police service---Rule 16.2 of the Police Rules, 1934 was independent and had been introduced to ensure discipline within the police service and also to keep a strict check on the conduct of the police officer; it enabled a constant watchful-eye on the police officer by examining their dossier at any point of time and if the competent authority reached the conclusion that the police officer had indulged in acts of misconduct, which proved incorrigibility and rendered him completely unfit for service, the competent Authority could award the penalty of dismissal from service---Rule 16.2 of the Police Rules, 1934 was not violative of Art.13(a) of the Constitution.

Adnan Karim, Additional A.-G. Sindh, Ghulam Sarwar Jamali, DIG (Admn.), Ghulam Sabbir Memon, AIG (Legal) and Naeem Shaikh, AIG for Appellants.

M. Shoaib Shaheen, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondents.

2017 P L C (C.S) 307

[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.134-P OF 2013

(On appeal against the judgment dated 24-03-2011 passed by the Peshawar High Court, Peshawar, in Review Petition No.103/2009 in W.P. No.59/2009)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secy. Agriculture and others

Versus

ADNANULLAH

CIVIL APPEAL NO.135-P OF 2013

(On appeal against the judgment dated 22-09-2011 passed by the Peshawar High Court, Peshawar, in Writ Petition No.2170/2011)

CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Versus

AMIR HUSSAIN and others

CIVIL APPEAL NO.136-P OF 2013

(On appeal against the judgment dated 07-03-2012 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1897/2011)

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Versus

MUHAMMAD YOUNAS and others

CIVIL APPEAL NO.137-P OF 2013

(On appeal against the judgment dated 13-03-2012 passed by the Peshawar High Court, Abbottabad Bench, in Writ Petition No.200-A/2012)

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Versus

ATTAULLAH KHAN and others

CIVIL APPEAL NO.138-P OF 2013

(On appeal against the judgment dated 20-06-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.P. No.189-M/2012)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secy. Agriculture Livestock Peshawar and others

Versus

MUHAMMAD AYUB KHAN

CIVIL APPEAL NO.52-P OF 2015

(On appeal against the judgment dated 5-12-2012 passed by the Peshawar High Court, Peshawar in Writ Petition No.3087/2011)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Versus

QALBE ABBAS and another

CIVIL APPEAL NO.1-P/2013

(On appeal against the judgment dated 10-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in Writ Petition No.2474/2011)

DISTRICT OFFICER COMMUNITY DEVELOPMENT DEPARTMENT (SOCIAL WELFARE) and others

Versus

GHANI REHMAN and others

CIVIL APPEAL NO.133-P OF 2013

(On appeal against the judgment dated 17-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, in Writ Petition No.2001/2009)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Livestock and others

Versus

IFTIKHAR HUSSAIN and others

CIVIL APPEAL NO.113-P OF 2013

(On appeal against the judgment dated 17-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, in Writ Petition No.2380/2009)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary I.T., Peshawar and others

Versus

MUHAMMAD AZHAR and others

CIVIL APPEAL NO.231 OF 2015

(On appeal against the judgment dated 24-04-2014 passed by the Peshawar High Court, D.I.Khan Bench, in Writ Petition No.37-D/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secy. Agriculture, Livestock, Peshawar and another

Versus

SAFDAR ZAMAN and others

CIVIL APPEAL NO.232 OF 2015

(On appeal against the judgment dated 24-04-2014 passed by the Peshawar High Court, D.I. Khan Bench, in Writ Petition No.97-D/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secy. Agriculture, Livestock, Peshawar and another

Versus

INNAYATULLAH and others

CIVIL PETITION NO.600-P OF 2013

(On appeal against the judgment dated 06-06-2012 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1818/2011)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. and others

Versus

NOMAN ADIL and others

CIVIL PETITION NO.496-P OF 2014

(On appeal against the judgment dated 26-06-2014 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1730-P/2014)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Peshawar and others

Versus

MUHAMMAD NADEEM JAN and others

CIVIL PETITION NO.34-P OF 2015

(On appeal against the judgment dated 23-09-2014 passed by the Peshawar High Court, Peshawar, in Writ Petition No.141-P/2014)

DEAN, PAKISTAN INSTITUTE OF COMMUNITY OPHTHALMOLOGY (PICO), HMC and another

Versus

MUHAMMAD IMRAN and others

CIVIL PETITION NO.526-P OF 2013

(On appeal against the judgment dated 12.3.2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.376-P/12)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Peshawar and others

Versus

Mst. SAFIA

CIVIL PETITION NO.527-P OF 2013

(On appeal against the judgment dated 12.3.2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.377-P/2012)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

Mst. REHAB KHATTAK

CIVIL PETITION NO.528-P OF 2013

(On appeal against the judgment dated 12-03-2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.378-P/2012)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

FAISAL KHAN

CIVIL PETITION NO.28-P OF 2014

(On appeal against the judgment dated 19-09-2013 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, in Writ Petition No.4335-P/2010)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

RAHIMULLAH and others

CIVIL PETITION NO.214-P OF 2014

(On appeal against the judgment dated 30-01-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2131-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

Mst. FAUZIA AZIZ

CIVIL PETITION NO.621-P OF 2015

(On appeal against the judgment dated 08-10-2015 passed by the Peshawar High Court, Abbottabad Bench, in Writ Petition No.55-A/2015)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

Mst. MALIKA HIJAB CHISHTI

CIVIL PETITION NO.368-P OF 2014

(On appeal against the judgment dated 01-04-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.351-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

IMTIAZ KHAN

CIVIL PETITION NO.369-P OF 2014

(On appeal against the judgment dated 01-04-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.352-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

WAQAR AHMED

CIVIL PETITION NO.370-P OF 2014

(On appeal against the judgment dated 1-4-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.353-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

Mst. NAFEESA BIBI

CIVIL PETITION NO.371-P OF 2014

(On appeal against the judgment dated 1-4-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2454-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

Mst. NAIMA

CIVIL PETITION NO.619-P OF 2014

(On appeal against the judgment dated 18-09-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2428-P/2013)

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secy. Peshawar and others

Versus

MUHAMMAD AZAM and others

Civil Appeals Nos. 134-P, 135-P, 136-P, 137-P, 138-P, 1-P, 133-P, 113-P of 2013, 52-P, 231, 232 of 2015, Civil Petitions Nos. 600-P, 526-P, 527-P, 528-P of 2013, 496-P, 28-P, 214-P, 368-P, 369-P, 370-P, 371-P, 619-P of 2014, 34-P and 621-P of 2015, decided on 24th February, 2016.

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

----S. 19(2)---Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009), S. 3---Constitution of Pakistan, Art. 25---Project employees---Contract appointment---Regularization in service---Discrimination---Section 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 provided for the regularization of employees who were appointed either on contract basis or ad hoc basis and were holding contract appointments on 31st December, 2008 or till the commencement of the Act---Admittedly the project/contract employees, in the present case, fulfilled such criteria---Projects were brought under the regular Provincial Budget Schemes and the Chief Minister had given approval for operating the projects on permanent basis---Status of project employees ended once their services were transferred to the different attached Government departments---Provincial Government could not adopt a policy of cherry picking to regularize the employees of certain projects while terminating the services of other similarly placed employees.

Respondents were appointed on various posts on contract basis, and their contract was extended from time to time. Summary was prepared for the Provincial Chief Minister, for creation of regular vacancies, recommending that eligible temporary/contract employees who, at that time, were working on different projects may be accommodated against regular posts on the basis of seniority. Chief Minister approved the proposed summary. Services of the respondents were, however, not regularized. Contention of respondents was that other employees placed in similar posts had been granted relief of regularization, therefore, they were also entitled to the same treatment.

Cases of the respondents squarely fell within the ambit of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 and their services were mandated to be regulated by the provisions of the said Act. Section 3 of the said Act clearly provided for the regularization of employees who were appointed either on contract basis or ad hoc basis and were holding contract appointments on 31st December, 2008 or till the commencement of the Act. Admittedly, the respondents were appointed on one year contract basis, which period was extended from time to time and they were holding their respective posts on the cut-off date provided in section 3 of the Act.

Respondents were appointed on contract basis on different project posts but the projects were funded by the Provincial Government by allocating regular Provincial Budget prior to the promulgation of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009. Almost all the projects were brought under the regular Provincial Budget Schemes by the Provincial Government and summaries were approved by the Chief Minster for operating the projects on permanent basis.

Record further revealed that the respondents were appointed on contract basis and were in employment/service for several years and projects on which they were appointed had also been taken on the regular budget of the Government, therefore, their status as project employees had ended once their services were transferred to the different attached Government departments, in terms of section 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009. Provincial Government was also obliged to treat the respondents at par, as it could not adopt a policy of cherry picking to regularize the employees of certain projects while terminating the services of other similarly placed employees.

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa, Syed Masood Shah, SO Litigation, Hafiz Attaul Memeen, SO. Litigation (Fin), Muhammad Khalid, AD (Litigation) and Abdul Hadi, SO (Litigation) for Appellants (in C.A. No.134-P of 2013).

Imtiaz Ali, Advocate Supreme Court for Respondents (in C.A.No.134-P of 2013).

Ghulam Nabi Khan, Advocate Supreme Court for Respondents Nos. 186, 188 and 191 (in C.A. No.134-P of 2013).

Ayub Khan, Advocate Supreme Court for Respondents (in C.M.A. No.496-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.135-P of 2013).

Hafiz S. A. Rehman, Senior Advocate Supreme Court and Imtiaz Ali, Advocate Supreme Court for Respondents (in C.A. No.135-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.136-P of 2013).

Hafiz S. A. Rehman, Senior Advocate Supreme Court and Imtiaz Ali, Advocate Supreme Court for Respondents (in C.A. No.136-P of 2013)

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.137-P of 2013).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos. 2 to 6 (in C.A. No.137-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.138-P of 2013).

Nemo for Respondents (in C.A. No.138-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.52-P of 2013).

Respondent No.1 in person (Absent) (in C.A. No.52-P of 2013).

Nemo for Respondent No.2. (in C.A. No.52-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.1-P of 2013).

Ghulam Nabi Khan, Advocate Supreme Court and Khushdil Khan, Advocate Supreme Court for Respondents Nos.1-4, 7, 8 and 10-13 (in C.A. No.1-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.133-P of 2013).

Ghulam Nabi Khan, Advocate Supreme Court for Respondents Nos.1-3, 5 and 7 (in C.A. No.133-P of 2013).

Nemo for Respondents Nos.4, 8, 9 and 10 (in C.A. No.133-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.113-P of 2013).

Ghulam Nabi Khan, Advocate Supreme Court for Respondents (in C.A. No.113-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.231-P of 2015).

Shoaib Shaheen, Advocate Supreme Court for Respondents Nos.1 - 3 (in C.A. No.231-P of 2015).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Appellants (in C.A. No.232-P of 2015).

Shoaib Shaheen, Advocate Supreme Court for Respondent No.1 (in C.A. No.232-P of 2015).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Petitioners (in C.P. No.600-P of 2014).

Mst. Sadia Rehim, Respondent (in person) (in C.P. No.600-P of 2014).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa and Noor Afzal, Director, Population Welfare Department for Petitioners (in C.P. No.496-P of 2014).

Khushdil Khan, Advocate Supreme Court for Respondents (in C.P. No.496-P of 2014).

Shakeel Ahmed, Advocate Supreme Court for Petitioners (in C.P. No.34-P of 2014).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.P. No.34-P of 2014).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Petitioners (in C.Ps. Nos.526 to 528-P of 2013).

Ijaz Anwar, Advocate Supreme Court for Respondents (in C.Ps. Nos.526 to 528-P of 2013).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Petitioners (in C.P. No.28-P of 2014).

Ghulam Nabi Khan, Advocate Supreme Court and Khushdil Khan, Advocate Supreme Court for Respondents (in C.P.No.28-P of 2014).

Waqar Ahmed Khan, Additional AG Khyber Pakhtunkhwa for Petitioners (in C.Ps. Nos.214-P, 368-371-P, 619-P of 2014 and 621-P of 2015).

Nemo for Respondents (in C.Ps. Nos.214-P, 368-371-P, 619-P of 2014 and 621-P of 2015).

2017 P L C (C.S) 373

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB, COMMUNICATION AND WORKS DEPARTMENT, LAHORE and others

Versus

MUHAMMAD KHALID USMANI and others

Civil Appeals Nos. 420-L, 421-L and 423-L to 425-L of 2009, decided on 11th August, 2016.

(Against judgment dated 26.01.2009 of Punjab Service Tribunal, Lahore, passed in Appeals Nos.2246, 2294, 2230, 2231, 2232 and 2219 of 2008)

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

----R. 13---Punjab Civil Servants Act (VIII of 1974), S. 2(2)---Promotion on 'officiating basis'---Assistant Engineers promoted to Executive Engineers on 'officiating basis' despite the availability of regular vacancies---Executive Engineers serving on 'officiating basis' for more than a decade, but subsequently reverted to their original ranks of Assistant Engineers on the alleged basis of incomplete service records and pending inquiries---Legality---All respondents met the minimum qualification and experience required for promotion from Assistant Engineers to Executive Engineers on the date on which they were promoted on 'officiating basis'---Rule 13(i) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 provided that an appointment by promotion 'on officiating basis' could be made against posts which fell vacant as a result of the circumstances mentioned in the said Rule---Posts of Executive Engineer against which the respondents were promoted had not fallen vacant as a result of any of the situations mentioned in R. 13(i), and in fact respondents were promoted against regular vacancies/posts which had been available in the ordinary course of events---Respondents had served as Executive Engineers for many years; two of them for 21 years each and the two others for 12 years each---Respondents were promoted against regular posts on the basis of recommendations of a duly convened Departmental Promotion Committee (DPC), as such, they did not require recommendations of the subsequent Departmental Promotional Committees for the "regularization" of their promotion---Alleged inquiries pending against the respondents and their incomplete ACRs related to the period of their service when they had already been promoted to regular posts of Executive Engineers---Once the respondents had been promoted as Executive Engineers after fulfilment of all legal and procedural requirements, subsequent inquiries and incomplete service record became irrelevant and could not be used to revert them to their initial posts---Such matters may possibly be taken into consideration while processing their cases for further promotion from Executive Engineers to Superintending Engineers, but could not be used to furnish basis for reversion to the posts of Assistant Engineers after they had served as Executive Engineers for extended periods of time---Reversion of the respondents, in such circumstances, appeared to be unjust, unfair and inequitable besides being unlawful---Promotions of the respondents as Executive Engineers had a permanent character notwithstanding the prefix 'on officiating basis' which in the facts and circumstances of the present case was redundant---Service Tribunal was correct in finding that all the respondents were deemed to have been promoted as Executive Engineers on regular basis with effect from the respective dates on which they were promoted 'on officiating basis' with all consequential benefits, and that the condition of on 'officiating basis' contained in promotion orders of all the respondents should stand deleted---Appeal was dismissed accordingly.

Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 ref.

Muhammad Asif Chatha v. Chief Secretary, Government of Punjab 2015 SCMR 165 distinguished.

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

----R. 13---Promotion on 'officiating basis'---Scope---Concept of officiating promotion of a civil servant in terms of R. 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was a stopgap arrangement where posts became available in circumstances specified in R. 13(i) and persons eligible for regular promotion were not available---For such reason R. 13(iii) provided that an officiating promotion shall not confer any right of promotion on regular basis and shall be liable to be terminated as soon as a person became available for promotion on regular basis.

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

----R. 13---Promotion on 'officiating basis'---Civil servants serving on 'officiating positions' for long periods---Legality and propriety---Keeping civil servants on officiating positions for long periods was clearly violative of the law and the rules---Promotion on an 'officiating basis' should be resorted to only in the circumstances visualized in R.13(i) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Promotion on 'officiating basis' was a purely temporary and stopgap arrangement for a limited period---Such a stopgap arrangement in no circumstance should be allowed to continue for years on end---Supreme Court directed that it would be just and fair if a timeframe of two years was followed in case of promotion on 'officiating basis', unless there were extraordinary circumstances necessitating extension of such period further for a limited duration, and such extraordinary circumstances must be reduced in writing by the competent authority directing such extension; that such extensions could not be undertaken in a routine and thoughtless manner and could only be made where circumstances spelt out in R. 13 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 were in existence; that if the law provided a specified period of probation for appointments against regular posts, a free hand should not be given to Government Departments to undertake promotions on officiating basis for unlimited and unspecified periods---Supreme Court observed that the practice of officiating promotion, ad hoc promotion/ appointment or temporary appointment etc. was used by Government Departments to keep civil servants under their influence by hanging the proverbial sword of Damocles over their heads (of promotion 'on officiating basis' liable to reversion); that this was a constant source of insecurity, uncertainty and anxiety for the concerned civil servants for motives which were all too obvious, and that such practice must be seriously discouraged and stopped in the interest of transparency, certainty and predictability, which were hallmarks of a system of good governance.

Sarwar Ali Khan v. Chief Secretary to Government of Sindh 1994 PLC (C.S.) 411; Punjab Workers' Welfare Board v. Mehr Din 2007 SCMR 13; Federation of Pakistan v. Amir Zaman Shinwari 2008 SCMR 1138; Government of Punjab v. Sameena Parveen 2009 SCMR 1; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Federation of Pakistan v. Rais Khan 1993 SCMR 609; Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 and Pakistan Railways v. Zafarullah 1997 SCMR 1730 ref.

M. Arif Raja, Additional A.-G., Punjab for Appellants.

Abid Hassan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Respondents (in C.As. Nos.420, 421, 423 and 424 of 2009).

Respondent in person (in C.A. No. 425 of 2009).

2017 P L C (C.S.) 397

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Umar Ata Bandial and Maqbool Baqar, JJ

ZARAI TARAQIATI BANK LTD.

Versus

MUHAMMAD ASIM RAFIQUE and others

Civil Appeals Nos. 1255 and 1256 of 2012, decided on 30th June, 2016.

(Against judgment dated 11-9-2012 of the Lahore High Court, Multan Bench passed in ICAs Nos.104 and 105 of 2011)

Civil service---

----Zarai Taraqiati Bank---Regularization in service---Advertisement for post of "Management Trainee Officer" of Bank---Successful candidates offered contract job as 'trainees' instead of advertised 'regular posts'---Legality---Bank had no mandate to conduct training for any individual other than its employees---Entire process commencing with the advertisement in newspaper and ending with the final selection and posting of the respondents, was a process of appointment to the post of officer and out of a large number of successful candidates, only 30 were inducted, as there were only such number of vacancies, however, the Bank instead of issuing appointment letters to the respondents made them sign contracts, which were clearly in conflict with the bank's promise of job to the eligible and selected candidates---Respondents were posted at various places in the Bank as 'trainees' but were, entrusted duties and functions as were discharged and performed by officers of the Bank---Not confirming/regularizing services of respondents would be unfair---Fresh recruitment by the Bank in place of the respondents was also against the interest of the Bank as the same would be an expensive exercise in terms of time, money and effort---Respondents since their induction had been performing their job satisfactorily, and were acclimatized with the working of the Bank---Signing of contracts by respondents, could not be allowed to be used as an obstructive instrument in their way of confirmation/regularization, especially because of the non-equilibrium between the bargaining position of the respondents and the Bank---Appeal was dismissed accordingly.

Bank placed advertisement in a newspaper for the post of "Management Trainee Officer". Respondents applied, passed the written test and were selected after their interviews, however, instead of issuing appointment letters, the Bank offered them a contract for on the job training as "Management Trainee", for a period of two years. Instead of the word 'salary' word 'stipend' was used for their payment. Contract further provided that the same would not constitute employee/employer relationship between the trainee and the Bank; that training could be extended beyond the original period of two years, and that the training did not offer any guarantee of regular employment in the Bank. Upon expiry of their contracts after the prescribed period of two years, the contract of respondents were extended for a period of about seven months. However, neither was the employment of the respondents regularized nor were their contracts extended thereafter, and the Bank instead advertised vacancies for appointment in place of the respondents.

Applications that were invited by the Bank and made by the respondents were, "to fill the positions of MTOs for operations of the Bank in Finance and Accounts" and to catch the attention of the prospective candidates the phrase "Career for Management Trainee Officers" was printed on the top of the advertisement in bold letters. Further the offer/advertisement also promised "payment of competitive remuneration". In response to the advertisement, the appellant-Bank received 8392 applications which were short listed to 1942. The candidates were further short listed for written test and thus 231 candidates were put to such test. Candidate securing 45% and above marks in the test were to be considered eligible for interview, however, keeping in view the vacancy position, only 30 candidates were called for interview conducted by the Designated Committee. On the recommendations of the Committee, the competent authority decided that the respondents may be considered for selection in the Head Office and the fields, and after that they may be preferred for posting in concerned zone with high merit. Trainees were to be accepted for on job training, initially for a period of two years and were to be considered for regular appointment on expiry of the contract period upon satisfactory performance and availability of vacancies and further that in case any management trainee failed to join, the next candidate with high merit may be offered the position for posting. Respondents were also required to furnish medical fitness certificate issued by the authorized medical practitioners.

Entire process commencing with the advertisement in newspaper and ending with the final selection and posting of the respondents, was a process of appointment to the post of officer and out of a large number of successful candidates, only 30 were inducted, as there were only such number of vacancies, however, the Bank instead of issuing appointment letters to the respondents made them sign contracts, which were clearly in conflict with the bank's promise of job to the eligible and selected candidates.

Respondents were posted in different branches of the Bank as Grade-II Officers, and as managers also. They were assigned the functions such as of sanctioning of loan, negotiating financial facility with the customers, evaluating securities, and recovery of the finance granted to the customers, and thus were functioning and discharging their duties with powers and authority as could have been done by any other officer/employee of the said grade in the Bank.

Bank had not claimed that there has been any complaint or dissatisfaction regarding the performance of the respondents. On the contrary, their performance had admittedly been satisfactory, and they had admittedly worked sincerely. Good performance of the respondents and their utility was also evident from the fact that upon expiry of the initial period their contracts were extended for a further term of about seven months.

Bank has had no mandate to conduct training for any individual other than its employees. Bank's claim that the respondents were selected merely for training and not for employment was in conflict with, rather beyond its mandate.

In the facts and circumstances of the present case, it was unfair to not confirm services of respondents. It was also against the interest of the bank to indulge in a fresh exercise of recruitment in place of the respondents which by itself shall be an expensive exercise both in terms of time, money and effort and so would be the ensuing training. Respondents had since their induction been performing their job satisfactorily, they had been trained by and for the Bank and had become familiar and acclimatized with the working and atmosphere of the Bank.

As regards the signing of the contract by the respondents, in a situation where the respondents after having been selected for a promised post, were offered a contract instead, and there being no equilibrium between the bargaining position of the respondents and the Bank, and keeping in view the rate of unemployment in the country, the respondents had no option but to sign the contract in order to avoid further disappointments and frustration by exposing themselves to unemployment. Signing of contracts by respondents, therefore, could not be allowed to be used as an obstructive instrument in their way of confirmation/regularization. Appeal was dismissed accordingly.

Mian Muhammad Hanif, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Muhammad Suleman Bhatti, Advocate Supreme Court for Respondents.

2017 P L C (C.S) 414

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Khilji Arif Hussain, JJ

PROVINCE OF SINDH through Chief Secretary and others---Petitioners

Versus

IMRAN BADAR---Respondent

Civil Petition No.582-K of 2016, decided on 26th August, 2016.

(Against the judgment dated 28.6.2016 passed by High Court of Sindh, Circuit Court Larkana in Constitutional Petition No.D-438 of 2016)

Civil Service (Executive Branch) Rules, 1964---

----R. 5(1) [as amended by Notification dated 02-02-1999]---Recruitment Management Regulation, 2006---Sindh Public Service Commission Combined Competitive Examination---Grace marks, award of---Legality---Sindh Public Service Commission was not vested with any authority to award grace marks---Authority of Sindh Public Service Commission to grant grace marks to the deserving candidate was deleted vide a Notification dated 2-2-1999---Furthermore regulation 0743 of Recruitment Management Regulation, 2006, which provided for qualifying/passing criteria in the 'Combined Competitive Examination', specifically forbade concession of grace marks---Supreme Court observed that deletion of provision for grant of grace marks by Sindh Public Service Commission as contained in the Civil Service (Executive Branch) Rules, 1964 through amending notification dated 2-2-1999, was a positive step in furtherance of good governance aiming towards raising and increasing merits and high standard of professional competence of civil servants.

N.W.F.P. Public Service Commission v. Muhammad Arif and others 2011 SCMR 848 ref.

Adnan Karim, Additional A.-G. for Petitioners.

Athar Abbas Solangi, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

2017 P L C (C.S) 428

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Amir Hani Muslim and Iqbal Hameedur Rahman, JJ

QAYYUM KHAN

Versus

DIVISIONAL FOREST OFFICER, MARDAN and others

Civil Appeal No. 1428 of 2015, decided on 25th February, 2016.

(On appeal against the judgment dated 15-9-2015 passed by the Peshawar High Court Peshawar, in R.P. No.32-P of 2014 in W.P. No.2547-P of 2012)

Civil service---

----Project employee--- Contract appointment--- Regularization in service---Discrimination---Appellant was appointed as Wildlife Watcher (BS-05) in a project on contract basis---During the contract period of the appellant, the project was taken over by the Provincial Government, which converted the contract posts of Wildlife Watchers into permanent posts---Appellant, however, was not considered for appointment on permanent basis and his services were terminated---Legality---Appellant was appointed on contract basis after completion of all the requisite codal formalities---Appellant was not allowed to continue after the change of hands of the project---Provincial Government by cherry picking, appointed some other person in place of the appellant---Appellant was discriminated against and was entitled to continue the job with the employees who were similarly placed and were allowed induction on regular basis---Supreme Court directed that appellant shall be reinstated in service from the date of his termination and was entitled to the back benefits for the period he had worked with the project of the Provincial Government , and that the service of the appellant for the intervening period i.e. from the date of his termination till the date of his reinstatement shall be counted towards his pensionary benefits---Appeal was allowed accordingly.

Government of Khyber Pakhtunkhwa through Secretary, Agriculture v. Adnanullah and others Civil Appeal No.134-P of 2013 ref.

Raja Muhammad Asghar Khan, Advocate Supreme Court for Appellant.

Waqar Ahmed Khan, Additional A.-G. for Respondents Nos.1 to 4.

Respondent No.5 in person.

2017 P L C (C.S.) 648

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

CONTROLLER OF MILITARY ACCOUNTS (RC) EDUCATION CELL, RAWALPINDI

Versus

MUHAMMAD ZAFAR, ASSISTANT PROFESSOR and another

Civil Petition No.1958 of 2006, decided on 19th January, 2017.

(On appeal against the judgment dated 31.03.2016 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1891(R)SC/2015)

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

----S. 11-A--- Pay protection, entitlement to--- Scope--- Ad hoc appointment---Where a civil servant was declared surplus pursuant to any government decision, then he was to be accommodated to a post carrying equal pay scale---Where equal post was not available then he could be appointed to a lower post but the pay which he was drawing in the higher post shall remain protected---Such benefit could not be denied to an employee merely because previously he was holding a post on ad hoc basis.

(b) Civil service---

----Ad hoc appointment---Ad hoc employee in government service was also to be treated as civil servant.

Muhammad Sarfraz v. Government of Punjab 2001 PLC (C.S.) 1224 ref.

Sajid Ilyas Bhatti, DAG and Jaffar Raza Khan, Advocate-on-Record (Absent) for Petitioner.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmed Raza Ch., Advocate-on-Record (Absent) for Respondent No.1.

Mehrban Khan, Admin Officer, FGEI, Dte, Rwp for Respondent No.2.

2017 P L C (C.S.) 652

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Sh. Azmat Saeed, JJ

SUO MOTU ACTION REGARDING ELIGIBILITY OF CHAIRMAN AND MEMBERS OF SINDH PUBLIC SERVICE COMMISSION AND OTHERS: In the matter of

Suo Motu Case No. 18 of 2016, C.M.As. Nos. 7067, 7587, 8495-8498 of 2016 in S.M.C. No. 18 of 2016 and C.M.A. No. 8198 of 2016 in C.M.A. No. 7067 of 2016 in S.M.C. No. 18 of 2016, decided on 3rd January, 2017.

(Suo Motu Action regarding eligibility of Chairman and Members of Sindh Public Service Commission and others)

Sindh Public Service Commission Act (XI of 1989)---

----S. 3--- Constitution of Pakistan, Arts. 184(3) & 242(1)---Appointment of Chairman and Members of the Sindh Public Service Commission---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ("Commission")---Guidelines for criteria for appointment to the office of Chairman and Members of the Commission laid down by the Supreme Court---Chairman/Members of the Commission, which was a constitutional body, needed to be selected from amongst noble individuals possessing incomparable competence, exalted calibre, unblemished track record, impeccable integrity and unquestionable impartiality---Chairman/ Members should be persons who could be entrusted with the responsibility of selecting the most deserving candidates, who would be holding key positions in the public sector---Discretion of the competent authority in making appointments to the Commission should be structured through rules, which needed to be framed by the Government in terms of S. 10 of the Sindh Public Service Commission Act, 1989 ("the Act")---Said rules needed to be framed in a manner where the selection to the posts of Chairman and Members should be transparent and confined to the persons who enjoyed high standards of integrity and honesty---Said rules should further provide that the proposed appointee had a clean service record without any adverse entry in his P.E.Rs. throughout his career---High-powered permanent committee should examine the service profiles of the Chairman and Members to be selected under S. 3(3) of the Act and the qualifying standards provided therein---Likewise, the high-powered committee should also scrutinize the eminence of the persons in the private sector before their selection as Members in consonance with the terms used in S.3(4) of the Act---Said guidelines should be made the basic criteria for appointment to the office of Chairman and Members of the Commission---Supreme Court directed the Provincial Government to immediately take steps to frame rules under the Act and thereafter appoint the Chairman and Members of the Commission against vacancies---Order accordingly.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 and Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159 ref.

Zameer Hussain Ghumro, AG Sindh and Ghulam Ali Brahmai, Additional Secretary, Services, Sindh for Government of Sindh.

Farooq H. Naek, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Chairman and Members of SPSC.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Saindad Khan Solangi, Ghulam Shabbir Shaikh and Muhammad Hanif Pathan.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants (in C.M.A. No. 7587 of 2016).

Nemo for Respondents (in C.M.As. Nos. 7067, 8495 to 8498 of 2016).

2017 P L C (C.S.) 676

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

MUHAMMAD NAEEM AKHTAR

Versus

MANAGING DIRECTOR WATER AND SANITATION AGENCY LDA, LAHORE and others

Civil Appeal No.328-L of 2009 and C.M.A. No.06-L of 2011, decided on 29th November, 2016.

(On appeal from the judgment of the Lahore High Court, Lahore dated 22.12.2008 passed in W.P. No. 15703 of 2000)

Civil service---

----Inefficiency---Major penalty---Dispensation of regular enquiry---Legality---Fact-finding enquiry did not accuse the appellant personally for committing misappropriation---Allegation against all three accused persons was of inefficiency and misconduct for failing to abide by the departmental rules on storage of scrap stock---Major penalty of reduction in pay to one lower stage in time scale had been imposed on the appellant without an opportunity to demonstrate that the responsibility for the alleged inefficiency was shared and he should not be singled out---Enhancement of penalty to dismissal from service attributed malice and concealment of pilferage to the appellant, which were altogether new charges regarding which a regular inquiry was necessary and could not be dispensed with---Failure by the appellant to object against the dispensation of regular enquiry could not bestow legality/validity upon an administrative action that was deficient in meeting the legal standards of fairness and propriety in disciplinary proceedings---Appellant was apparently punished for misappropriating property of department but without charging him with the same or confronting him with the adverse material sustaining the allegation---Supreme Court observed that it would be lawful, appropriate and fair that a regular enquiry was conducted to the extent of responsibility of the appellant for his alleged misconduct, and if culpable, the lawful penalty that may be imposed on him---Supreme Court set aside the major penalty of dismissal from service imposed on the appellant and remanded his case to the department for holding regular enquiry after giving him full opportunity of representation in accordance with law.

A.D. Naseem, Advocate Supreme Court for Appellant.

Ihsanul Haq Chaudhry, Senior Advocate Supreme Court and Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Respondents Nos.1 - 3.

2017 P L C (C.S) 679

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Maqbool Baqar and Khilji Arif Hussain, JJ

Dr. EHSAN-UL-HAQ KHAN and others

Versus

FEDERATION OF PAKISTAN and others

Civil Appeals Nos.825, 826, 1020 and 1021 of 2015, decided on 30th November, 2016.

(Against judgment dated 12.5.2015 of the Federal Service Tribunal, Islamabad passed in Service Appeals Nos.983(R)CS/15, 984(R)CS/15, 442(P)CS/15)

Civil Servants Act (LXXI of 1973)---

----S. 8(4)---Civil Servants (Seniority) Rules, 1993, R. 3, Proviso (3)---Seniority---Scope---Indolence and delay in challenging seniority list---Respondents and appellant, were selected by Federal Public Service Commission as Veterinary Officers (BS-17) in the year 1990, and were so appointed the same year---Federal Public Service Commission as per merit placed respondents senior to appellant, however, in the seniority list, issued by the department subsequently, the order of seniority was altered and respondents were placed junior to appellant---On the basis of the said seniority list, appellant was promoted to BS-18 in the year 1996---Admittedly, the seniority list, whereby the seniority assigned by Federal Public Service Commission to respondents was altered by ranking appellant senior to respondents, was upon circulation, duly signed by respondents without any protest---Respondents challenged seniority list and promotion of appellant to BS-18 before the Service Tribunal, three years after the appellant had been promoted---Tribunal through its judgment though gave directions to rectify the seniority list but declined to pass any order regarding the promotion of appellant to BS-18---Respondents felt content with the said order and did not pursue their further relief regarding the promotion of appellant to BS-18---During the pendency of respondents' appeal before the Tribunal, two direct inductees were appointed in BS-18, however, neither were they impleaded in the appeal nor was any relief sought against them by respondents---In the examination held for the post to which direct inductees had been appointed, the respondents also participated but failed---Respondents never challenged the appointment of the direct inductees and it was at least about seven years after the said appointment, that respondents sought seniority over direct inductees, also, which in the facts and circumstances of the case, they were not entitled to as direct inductees were appointed in BS-18 about seven years prior to the promotion of respondents in the said cadre, and had in fact failed in their attempt for their appointment along with the direct inductees---In terms of proviso (3) of R. 3 of the Civil Servants (Seniority) Rules, 1993, respondents, being senior to appellant, were, upon promotion to BS-18, entitled to their original seniority but having remained indolent in the matter and not having challenged the change in the seniority list for more than three years, and further having remained satisfied with the judgment of the Service Tribunal and by not challenging the same, had contributed to the creation of an anomalous situation---Furthermore, the Tribunal's judgment, whereby it declined relief of promotion to respondents from the date the appellant was promoted to BS-18, operated as res-judicata in respect of the said issue---Supreme Court directed that the seniority of the respondents, appellant and direct inductees should be assigned in the order of their promotions/appointments in BPS-18---Appeal was disposed of accordingly.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. 825 and 826 of 2015).

Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.A. 1020 of 2015).

Ishtiaq Ahmed Raja, Advocate Supreme Court for Appellants (in C.A. 1021 of 2015).

Syed Nayab Hussain Gardezi, Advocate Supreme Court and Qari Abdul Rasheed, Advocate-on-Record for Respondents Nos. 1 and 2.

2017 P L C (C.S.) 692

[Supreme Court of Pakistan]

Present: Mushir Alam and Umar Ata Bandial, JJ

MUHAMMAD AKRAM

Versus

DCO, RAHIM YAR KHAN and others

Civil Petition No. 2411 of 2014, decided on 17th October, 2016.

(Against the order dated 28.10.2014 passed by Punjab Service Tribunal, Lahore in Appeal No.3093 of 2014)

(a) Administration of justice---

----Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, they can remedy a wrong and suppress a mischief to which a litigant is entitled.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional jurisdiction of the Supreme Court/High Court to convert one type of proceedings into another--¬Scope---No fetters or bar could be placed on the High Court or the Supreme Court to convert and treat one type of proceeding into another and proceed to decide the matter either itself, provided it had jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court, or it may remit the lis to the competent authority/forum or court for decision on merits---Courts do follow the practice of treating and or converting appeal into revisions and vice versa and constitutional petition into appeal or revision and vice versa.

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

----S. 16---Limitation Act (IX of 1908), S.14---Dismissal from service---Appeal filed before wrong forum--¬Limitation---Scope---Employee instead of filing departmental appeal before appellate authority as provided under S. 16 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, filed constitutional petition before the High Court---High Court sent the constitutional petition to the appellate authority and directed to treat the same as " departmental appeal" and "to decide the same on its own merits after hearing the petitioner"---Constitutional petition converted into departmental appeal, was dismissed on merits by the appellate authority, but at the same time it was observed that "that no departmental appeal under S. 16 of the Act, 2006 has ever been filed by the petitioner"---Appeal filed before the Service Tribunal was simply dismissed as barred by time---Legality---Time consumed pursuing remedy before a wrong forum in appropriate cases could always be condoned---Observation of the appellate authority that "that no departmental appeal under S.16 of the Act, 2006 has ever been filed by the petitioner" in the facts and circumstances of the case was uncalled for and could not be approved---Apparently it was observation of the appellate authority, which influenced the Service Tribunal to dismiss the service appeal as barred by time---Once the constitutional petition, which was filed within the period of limitation as provided for the departmental appeal, was treated and remitted by the High Court as departmental appeal, Service Tribunal, had fallen in to error to dismiss the appeal before it on the ground of limitation alone, without adverting to the merits of the case as were attended by the appellate authority---Date of filing of the constitutional petition within time should have been reckoned as date of filing departmental appeal and ought to have been treated as departmental appeal for all practical purposes as ordered by the High Court---Supreme Court directed that appeal before the Service Tribunal, shall be deemed to be pending and should be decided on merits after hearing all the parties concerned---Appeal was allowed accordingly.

Shamsul Haq and others v. Mst. Ghoti and 8 others 1991 SCMR 1135; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Province of Sindh and another v. Muhammad Ilyas and others 2016 SCMR 189 and Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa and 2 others 2015 PLC (C.S.) 215 ref.

Muhammad Bashir Khan, Advocate Supreme Court for Petitioner.

Raja Muhammad Arif, Additional A.-G. and Muhammad Akram, DDEO for Respondents.

2017 P L C (C.S) 697

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

ABDUL HAMEED and others

Versus

SPECIAL SECRETARY EDUCATION, GOVERNMENT OF PUNJAB, LAHORE and others

Civil Appeals Nos.398-L to 405-L of 2010, 179-L to 183-L, 231-L, 424-L and 425-L of 2011, 17 to 23 of 2012 and C.M.As. Nos. 20-L, 41-L of 2011 and 99-L of 2012, decided on 9th March, 2016.

(On appeal against the judgment dated 17-5-2010 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos.1644, 1645/2016, 823, 830, 831/2008, 2691/2009, 2785/2005, 2859/2007, 2561, 2563 to 2566/2006, 987/2010, 2926, 2927/2010, 988/2010, 1786/2008, 3714 to 3717/2010 and 1271/2011).

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

----S. 16---Untrained teachers employed under a Scheme as temporary employees--- Regularization in service--- Entitlement to annual increments for the period before regularization---Appointment letter of the teachers in the present case and the terms and conditions propounded therein specifically mentioned that the service of the candidate would be governed under the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Services of the teachers, in such circumstances, were to be governed under the Punjab Civil Servants Act, 1974---Section 16 of the said Act which dealt with pay would be relevant for the present case---When the salaries of the teachers, which they had received prior to their regularization/ confirmation, were in accordance with law then they were entitled also to the annual increment on the basis of the same---No distinction could be drawn between the untrained and trained teachers---Teachers were entitled to receive full annual increments for the whole period prior to their regularization---Appeals were disposed off accordingly.

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

----S. 16--- Pay--- Ancillary privileges of pay---When a civil servant appointed to a post was entitled to the pay sanctioned for such post, then he would also be entitled to the ancillary privileges of such pay.

Mehmood Ahmed Qazi, Advocate Supreme Court for Appellants (in C.As. Nos.398-L to 402-L of 2010).

Ch. Atta Ullah, Advocate Supreme Court for Appellants (in C.A. No.403-L of 2010).

Khalid Waheed, Additional A.-G. for Appellants (in C.As. Nos.404-L, 405-L/2010, 179-L to 183-L, 231-L, 424-L and 425-L of 2011 and 17-23 of 2012).

Khalid Waheed, Additional A.-G. for Respondents (in C.As. Nos.398-L to 402-L of 2010).

Mian Jaffar Hussain, Advocate Supreme Court for Respondents (in C.A. No.404-L of 2010).

Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Respondents (in C.As. Nos.179-L, 180-L, 182-L of 2011).

Respondents in person (in C.As. Nos.231-L of 2011, 17 and 18 of 2012).

Mian Ghulam Rasool, Advocate Supreme Court for Applicants (in C.M.As. Nos.20-L and 41-L of 2011).

Agha I.A. Imran, Advocate Supreme Court for the Applicants (in C.M.A. No.99-L of 2012).

Nemo for Applicants (in C.M.A. No.144-L of 2012).

2017 P L C (C.S.) 707

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Ejaz Afzal Khan and Mushir Alam, JJ

AMANULAH

Versus

GOVERNMENT OF BALOCHISTAN and 2 others

Civil Petition No. 80-Q of 2010, decided on 25th April, 2014.

(Against the judgment dated 14.4.2010 passed by the Balochistan Service Tribunal Quetta in S.A. No. 21 of 2006)

Balochistan Civil Servants Act (IX of 1974)---

----Ss. 9 & 23---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, R. 7---Balochistan Levies Force (B-1 to B-15) Service Rules, 1990---Constitution of Pakistan, Art. 130(5)---Out of turn promotion---Competent authority/Provincial Chief Minister relaxing promotion Rules to award two stages out of turn promotion---Legality--- Nepotism and favoritism--- Scope--- Section 23 of the Balochistan Civil Servants Act, 1974 did not confer any power on the Provincial Government, which could be exercised through the executive authority of the Province, to relax any promotion Rules framed under the said Act---Section 23 of the Balochistan Civil Servants Act, 1974 did empower the Provincial Government to deal with the case of any civil servant in such manner as may appear to it to be just and proper, but such discretion was not unfettered as it was shackled and controlled by the proviso to S. 23, Balochistan Civil Servants Act, 1974, which provides that where the said Act or any rule was applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by the Act or such rule---Provincial Chief Minister/competent authority not only ordered out of turn promotion of the appellant on purported meritorious service, but also waived off requirement of provisions of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, bypassing the District Promotion Committee---Act of extending favour and conferring benefit of promotion was not only against the fundamental rights of promotion of appellant's peers on merits but, was also a glaring example of nepotism and undue favour, which act was also opposed to Oath of office of the Provincial Chief Minister---Out of turn promotion of appellant on directions of the Provincial Chief Minister could not be sustained---Petition for leave to appeal was dismissed accordingly.

Abdul Malik and others v. Government of Balochistan through Secretary, Home and Tribal Department and others 2013 PLC (C.S.) 736; Abdul Shakoor and others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and others 2004 PLC (C.S.) 208 and Muhammad Sadiq and another v. Federal Service Tribunal, Islamabad and others 2003 PLC (C.S.) 1029 ref.

M. Munir Paracha, Advocate Supreme Court for Petitioner.

Shaiq Baluch, A.A.-G. Balochistan for Respondents Nos. 1 - 2.

Hassan Raza Pasha, Advocate Supreme Court for Respondent No.3.

2017 P L C (C.S.) 712

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

RIZWAN JAVED and others

Versus

SECRETARY AGRICULTURE LIVESTOCK and others

Civil Appeal No. 605 of 2015, decided on 24th February, 2016.

(On appeal against the judgment dated 18-2-2015 Passed by the Peshawar High Court Peshawar, in Writ Petition No. 1961 of 2011)

Civil service---

----Project employees--- Contract appointment--- Regularization in service---Discrimination---Appellants were appointed in the Provincial Agri-Business Coordination Cell in the year 2007 on contract basis---After completion of all the requisite codal formalities, the period of their contract appointments was extended from time to time up to 30-6-2011---Project in question was taken over by the Provincial Government in the year 2011---Appellants were terminated from service after the change of hands of the project---Provincial Government by cherry picking, had appointed different persons in place of the appellants---Appellants were discriminated against with respect to other similarly placed project employees---Supreme Court directed that the appellants shall be reinstated in service from the date of their termination and were also entitled to the back benefits for the period they had worked with the project or the Provincial Government; that the service of the appellants for the intervening period i.e. from the date of their termination till the date of their reinstatement shall be computed towards their pensionary benefits---Appeal was allowed accordingly.

Government of Khyber Pakhtunkhwa through Secretary, Agriculture v. Adnanullah and others 2016 SCMR 1375 ref.

Ijaz Anwar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Waqar Ahmed Khan, Additional A.-G. Khyber Pakhtunkhwa for Respondents.

2017 P L C (C.S.) 717

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

AZHAR HAYAT

Versus

KARACHI PORT TRUST through Chairman and others

Civil Petition No. 261-K of 2016, decided on 16th June, 2016.

(On appeal from the judgment dated 22.03.2016 in C.P. No.D-696 of 2015 passed by the High Court of Sindh, Karachi)

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

----O. XXIII, R. 1(3)--- Constitution of Pakistan, Art. 199---Constitutional petition before High Court withdrawn as not pressed---Subsequent suit on the same subject filed without permission of court---Whether petitioner should be non-suited for not obtaining permission of court to file fresh suit---Petitioner had filed Constitutional petition before the High Court which was "not pressed"---Few days later petitioner filed a suit before the High Court on the same subject matter, which was converted into a Constitutional petition by the court---Held, that petitioner should have been non-suited because O.XXIII, R.1(3), C.P.C stipulated that where the plaintiff withdrew from a suit without being given permission to institute a fresh suit in respect of the same subject-matter or such part of claim, he would be precluded from doing so.

(b) Civil service---

----Permanent absorption of an officer of the Armed Forces into a Government department---Scope---Petitioner, who was a serving naval officer was seconded to Karachi Port Trust ("KPT") as its General Manager (Operations) for a period of three years---Petitioner retired from the Navy during his service in KPT---Whether permanent absorption of petitioner in KPT was permissible---Paragraph 2(a) of No.4/85 of the Joint Services Instructions and Serial No.214, Part V, Chapter 2 of Volume I of the Estacode stipulated that officers may be seconded to a government department for a period of up to three years and only in exceptional circumstances such period could be extended by another year---Paragraph 2(b) of No.4/85 of the Joint Services Instructions, which provided for permanent absorption was not a self-executing provision; as an incumbent had to seek his retirement from his parent service, which in the case of the petitioner was the Navy---Petitioner neither sought early retirement from the Navy nor had retired from the Navy before the due retirement date in order to be considered for permanent absorption in KPT---Since the petitioner did not seek his retirement from the Navy nor was prematurely retired therefrom the question of his permanent absorption in the civil cadre/KPT would not arise--- Notification whereby petitioner was re-employed in KPT stated that he was "re-employed on contract basis", which was not only incompatible but also destructive of the petitioner's contention that he was permanently absorbed in KPT---Further Serial No. 231, Part V, Chapter 2 of Volume I of the Estacode, provided that a 'High Power Selection Board' shall select/induct/ re-employ officers of Armed Forces in civil posts---Petitioner had also failed to show that such a Selection Board had selected him, therefore, his contention that he was properly appointed in KPT, let alone permanently absorbed therein had not been established---Petitioner had been appointed on contract for a specific term and upon expiry of the stipulated term he had no right to claim any further extension, let alone contend that he had been permanently absorbed in KPT---Petition for leave to appeal was dismissed accordingly.

Farrukh Zia Sheikh, Advocate Supreme Court and Abdul Aziz Khan, Advocate-on-Record for Petitioner.

Khalid Javed Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Respondents Nos.1 and 2.

2017 P L C (C.S.) 725

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Umar Ata Bandial, JJ

REGIONAL POLICE OFFICER GUJRANWALA and another

Versus

EJAZ AHMAD and others

Civil Appeal No.184-L of 2013, decided on 26th January, 2016.

(On appeal from judgment dated 20-3-2012 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 110 of 2011).

(a) Civil service---

----Promotion---Out of turn promotion---No civil servant (or police personnel) was entitled to out of turn promotion on account of gallantry award or otherwise.

Contempt Proceedings Against Chief Secretary Sindh 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

(b) Civil service---

----Seniority---Ante-dated seniority to a civil servant---Violation of the law.

Contempt Proceedings Against Chief Secretary Sindh 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

Siraj ul Islam, Additional P.-G. and Rana M. Anwar, S.P. (L) Gujranwala for Appellants.

Aftab Gull, Advocate Supreme Court for Respondent No.1.

Aftab Mustafa, Advocate Supreme Court for Respondent No.7.

M. Arif Gondal, Advocate Supreme Court for Respondents Nos.6, 8, 10, 24, 26, 28, 30, 32-35, 37-39 and 41.

Respondents Nos.4, 13 and 19 in person.

2017 P L C (C.S.) 984

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ

SUO MOTU ACTION REGARDING ELIGIBILITY OF CHAIRMAN AND MEMBERS OF SINDH PUBLIC SERVICE COMMISSION ETC.: In the matter of

Suo Motu Case No. 18 of 2016 and C.M.As. Nos. 7067, 7587, 8198 and 8495 to 8498 of 2016, C.M.As. Nos. 85, 142, 363, 422, 423, 424, 551, 773, 945, 946 and 967 of 2017, decided on 13th March, 2017.

(Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission etc.)

(a) Civil service---

----Efficient civil service system---Significance---Robust and efficient civil service system, allows for smooth governance, whereas a weak and corrupt system disables the government---Without a properly functioning civil service, even the most basic functions and workings of the government become an enormous task.

(b) Constitution of Pakistan---

----Arts. 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), S. 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Nepotism and corruption in selection and appointment process for civil servants---Matter of 'public importance'---Appointments in the civil service had to be made in accordance with the Constitution---Serious challenge to the selection and appointment process was clearly, therefore, a matter of 'public importance'---Suo motu case was disposed of accordingly.

(c) Constitution of Pakistan---

----Arts. 18, 25, 27, 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), S. 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Nepotism and corruption in selection and appointment process for civil servants---Contravention of Fundamental Rights---When through a discriminatory selection process civil servants were selected and appointed, it would infringe Art. 27 of the Constitution which stated that, "No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against"---Article 25 of the Constitution, prescribing the equality of citizens, was another Fundamental Right which was attracted if all those who were tested and interviewed were not treated equally---Present matter also involved the contravention of the Fundamental Right in Art. 18 of the Constitution, which mandates, that, "every citizen shall have the right to enter upon any lawful profession or occupation"---Suo motu case was disposed of accordingly.

(d) Constitution of Pakistan---

----Arts. 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), Ss. 3(2), 4(1) & 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Petitioner filed an application before the Supreme Court alleging that the Chairman and Members of the Commission did not have the requisite qualifications for appointment to their posts, and that they had misused their official positions by indulging in nepotism and corruption and not selecting persons for civil service on the basis of merit---Said application was entertained by the Supreme Court as a petition under Art.184(3) of the Constitution---Plea that petitioner was not personally affected i.e. he was not an 'aggrieved party' or 'aggrieved person', therefore, he could not invoke Constitutional jurisdiction of the Supreme Court---Validity---Sufficient material was available on record to support the allegations that illegalities were committed in the tests and interviews conducted by the Commission, and that the Chairman and Members of the Commission under whose aegis the whole process was conducted were themselves not qualified to hold their posts---Two preconditions stipulated in Art. 184(3) of the Constitution, matter of 'public importance' and of the 'enforcement of Fundamental Rights', were met, therefore, petitioner's application was rightly entertained as a petition under Art. 184(3) of the Constitution---Suo motu case was disposed of accordingly.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Muhammad Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413 and Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 ref.

(e) Constitution of Pakistan---

----Arts. 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), Ss.3(2), 4(1) & 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Illegalities and discrepancies committed by the Commission in conducting written tests and interviews---Supreme Court observed that the Commission and the Government were obliged to ensure complete transparency in the process of selection and appointment of civil servants; that if qualified and competent individuals were appointed their performance and work would be far superior to the inept allowed in through the back door of nepotism and/or corruption; that tax payers were paying dearly to be served by the best, therefore, if the incompetent or the corrupt made it into the civil service, citizens were deprived of their due; that appointments which disregarded merit, perpetuated bad governance, and drained the public exchequer, and such appointments also eroded the credibility of the Commission and the Government; that the performance of the Government was also adversely affected, the consequences of which were borne by the public, and that those given the responsibility to select the best candidates must discharge the trust reposed in them to the best of their ability and without any fear or favour---Suo motu case was disposed of accordingly.

(f) Constitution of Pakistan---

----Arts. 184(3) & 242---Sindh Public Service Commission Act (XI of 1989), Ss.3(2), 4(1) & 7(i)---Suo motu action regarding eligibility of Chairman and Members of Sindh Public Service Commission ('Commission')---Written tests and interviews for advertised posts conducted by the Commission---Supreme Court found large scale illegalities and discrepancies committed by the Commission in conducting written tests and interviews, and held that the results of written tests and interviews were not free, fair or transparent---Directions issued by the Supreme Court in this regard detailed.

Supreme Court found large scale illegalities and discrepancies committed by the Sindh Public Service Commission in conducting written tests and interviews for advertised posts, and issued the following directions;

(1) A person of integrity and competence who met the stipulated qualification for appointment as Chairman of the Commission be appointed in terms of Article 242(1B) of the Constitution within two weeks from the date of the announcement of present judgment;

(2) It should be ensured that all Members of the Commission meet the prescribed qualifications;

(3) Persons of integrity and competence possessing the prescribed qualifications should be appointed to the vacant positions of Members of the Commission within four weeks of the announcement of present judgment;

(4) In view of the large-scale illegalities/discrepancies committed in the written tests and interviews of Combined Competitive Examination 2013 ('CCE-2013') the same were set aside and cancelled, however, the screening tests results were not cancelled/set aside;

(5) Fresh written tests for CCE-2013 for the posts as advertised be held as soon as possible after the appointment of the Chairman and Members of the Commission and after the verification of the credentials of the existing/remaining Members;

(6) Only the 2,813 candidates who had earlier taken the written tests of CCE-2013 for the 182 posts be permitted to take the fresh written tests even if in the meanwhile they had crossed the stipulated upper age, and without requiring payment of any additional fee/charge;

(7) When the papers of the written tests were sent for checking/marking the identity of the candidates must be kept anonymous/secret;

(8) The marks of the written tests and results of interviews should be publicly displayed on the Commission's website, on the notice board in its premises and in one Urdu, English and Sindhi newspaper; disclosure should be made of the marks obtained in each subject as well as the cumulative total against the candidates' roll numbers;

(9) All those who obtained the prescribed minimum pass marks in the written tests must be invited for the interview;

(10) The marks allocated for the interview must be allocated to the interviewers equally, however, to avoid a fraction, the Chairman or in his/her absence, the senior most Member, shall have the higher mark rounded off to avoid a fraction;

(11) The Commission shall keep a separate record of the marks awarded by each interviewer and each interviewer should sign and date the same as well as the combined results;

(12) The written tests, their checking/marking, interviews and display of results be completed as soon as was practicable since the matter pertained to CCE-2013;

(13) Candidates should be selected for all the advertised posts, unless they did not pass the written tests and the interview;

(14) The candidates who were selected by the Commission should be offered appointment by the Government as per applicable law, and if any candidate declined, the candidate who was next on the merit list be offered the same.

(15) In future the Government should provide a list of existing vacancies, which should include a list of posts that may become vacant in the foreseeable future and a list of new posts to the Commission every year and by a specified date. Upon receipt of such lists the Commission should start making arrangements for holding of competitive examinations. For the current year (2017) the said lists should be provided by the Government to the Commission within sixty days, upon receipt whereof the Commission should invite applications from interested individuals by placing advertisements, which should also clearly stipulate the legally mandated reserved seats, including those for women and persons having physical disabilities.

Zameer Hussain Ghumro, A.G. and Sohail Ahmed Qureshi, Additional Secretary, S&GAD, Government of Sindh for Government of Sindh.

Shafi Muhammad Shah, Secretary, Sindh Public Service Commission for Sindh Public Service Commission.

Ms. Asma Jahangir, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicants (in C.M.A. No.142 of 2017).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Applicants (in C.M.A. No. 363 of 2017).

Zulfiqar Khalid Maluka, Advocate Supreme Court and Ahmad Nawaz Chaudhry, Advocate-on-Record for Applicants (in C.M.A. No.7587 of 2016).

Shah Khawar, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Applicants (in C.M.A. No. 967 of 2017).

Muhammad Zulqurnain in person (in C.M.A. No. 8498 of 2016).

Dr. Shah Nawaz Mirani in person (in C.M.A. 424 of 2017).

Asif Ali in person (in C.M.A. No. 945 of 2017).

Masroor Ahmed in person (in C.M.A. No. 946 of 2017).

Nasir Mehmood Mughal, Special Prosecutor NAB.

2017 P L C (C.S.) 1030

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Ejaz Afzal Khan and Mushir Alam JJ

REGIONAL COMMISSIONER INCOME TAX, NORTHERN REGION, ISLAMABAD and another

Versus

Syed MUNAWAR ALI and others

Civil Appeals Nos.101 and 102-P of 2011, decided on 17th February, 2016.

(On appeal from judgment dated 27-4-2010, of the Peshawar High Court, Peshawar, passed in Writ Petitions Nos.205 of 2010 and 33 of 2009)

(a) Civil service---

----"Upgradation" of post---"Promotion"---Issue of upgradation did not form part of terms and conditions of service of civil servants---"Upgradation" of a post was distinct, from "promotion".

(b) Civil service---

----"Upgradation" of post---Pre-conditions---Upgradation of post could not be made to benefit a particular individual in terms of promoting him to a higher post and further providing him with the avenues of lateral appointment or transfer or posting---In order to justify upgradation, the Government was required to establish that the department needed re-structuring, reform or to meet the exigency of service in the public interest---In the absence of such pre-conditions, upgradation was not permissible.

(c) Constitution of Pakistan---

----Arts. 199 & 212(3)---Civil Servants Act (LXXI of 1973), Preamble---'Upgradation' of post, issue of---Could be decided by the High Court in its Constitutional jurisdiction under Art. 199 of the Constitution.

Issue relating to upgradation of civil servants could be decided by High Court in exercise of its constitutional jurisdiction and bar contained under Article 212(3) of the Constitution would not be attracted. Policy of upgradation, notified by the Government, in no way, amended the terms and conditions of service of the civil servant or the Civil Servants Act, 1973 and or the Rules framed thereunder. Service Tribunal had no jurisdiction to entertain any appeal involving the issue of upgradation, as it did not form part of the terms and conditions of service of the civil servants.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Chief Commissioner Inland Revenue and another v. Muhammad Afzal Khan (Civil Appeal No.992 of 2014) ref.

Shahid Raza, Advocate Supreme Court for Appellants (in both appeals).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos.1 - 8 (in C.A. No. 101-P of 2011).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos.1 - 39 (in C.A. No. 102-P of 2011).

2017 P L C (C.S.) 1045

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Sardar Tariq Masood, JJ

ACTION AGAINST ILLEGALITIES, CONTRAVENTIONS AND VIOLATIONS IN APPOINTMENTS WITHIN NAB: In re

Suo Motu Case No. 13 of 2016

(Action against illegalities, contraventions and violations in appointments within NAB)

AND

Civil Misc. Application No. 5811 of 2016

(Application for impleadment of Mirza Sultan M. Saleem and others)

AND

Civil Misc. Application No. 5887 of 2016

(Application by Syed Adil Gillani)

AND

Civil Misc. Application No. 6001 of 2016

(Application of Sr. Shafiq-ur-Rehman son of Sajawal Khan)

AND

Civil Misc. Application No. 6028 of 2016

(Anonymous application regarding illegal appointments in NAB)

AND

Civil Misc. Application No. 6285 of 2016

(Impleadment application by Asad Kharal)

AND

Civil Misc. Application No. 6907 of 2016

(Application by Mirza Sultan M. Saleem)

AND

Civil Misc. Application No. 6980 of 2016

(Impleadment Application by Dr. Shaista Nuzat)

AND

Civil Misc. Application No. 6984 of 2016

(Impleadment Application by Yasir Ali)

AND

Civil Misc. Application No. 7093 of 2016

(Application by Muhammad Arshad Saeed)

AND

Civil Misc. Application No. 7363 of 2016

(Application of Haji Muhammad Tariq Aziz Khokhar)

AND

Civil Petition No. 630-K of 2015

(Abdul Hadi v. NAB and others)

AND

Civil Petition No. 65-Q of 2015

(Mirza Luqman Masud and others v. Chairman NAB and others)

AND

Civil Misc. Application No. 1249 of 2017

(Report by Joint Secretary (D & L), on behalf of Establishment Division)

Suo Motu Case No. 13 of 2016, Civil Miscellaneous Applications Nos. 5811, 5887, 6001, 6028, 6285, 6907, 6980, 6984, 7093, 7363 of 2016 Civil Petitions Nos. 630-K, 65-Q of 2016 and Civil Miscellaneous Application No. 1249 of 2017, decided on 31st March, 2017.

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

----Rr. 1.02, 3.30, 14.01, 14.02 & 14.03---National Accountability Bureau Methods of Appointment and Qualification Rules, 2002, R. 2, proviso (i) & Sched.---Constitution of Pakistan, Art. 184(3)---Suo motu action against illegalities committed in appointments within National Accountability Bureau ('Bureau')---Different positions in the Bureau were to be filled by persons possessing certain minimal academic qualifications and experience as stipulated in the Schedule to National Accountability Bureau Methods of Appointment and Qualification, 2002 ('Appointment and Qualification Criteria, 2002')---Similar, stringent conditions for promotion were mentioned in the National Accountability Bureau Employees Terms and Conditions of Service, 2002 ('Terms of Service, 2002') and 'Appointment and Qualification Criteria, 2002'---Persons who opted for permanent absorption in the Bureau were required to have the academic qualifications and experience provided in the 'Appointment and Qualification Criteria, 2002'---Said prescribed qualifications were also applicable to the appointments made on transfer basis---When a person was to be inducted in the Bureau from another service he must have the requisite qualifications for appointment---Official who had joined the service of the Bureau could not be allowed to obtain the requisite qualifications for his appointment subsequently after joining service---Chairman of the Bureau could only exercise his powers to relax rules only to the extent that a particular provision or condition "caused hardship" and provided it was "just and equitable"---When a person did not have the requisite academic qualification for appointment it could not be construed to "cause hardship", therefore, the question of providing "just and equitable treatment" in terms of R.14.01 of the 'Terms of Service, 2002' would not arise---Besides the Chairman of the Bureau did not have the authority to relax the rules by compromising eligibility and academic qualifications---Persons could not be inducted into the Bureau on the basis of policy of Prime Minister to induct sportspersons into Government departments---National Accountability Ordinance, 1999, 'Terms of Service, 2002' and 'Appointment and Qualification Criteria, 2002' did not vest the Prime Minister with any authority to issue such a sports based policy---Besides pursuant to the said sports policy neither the 'Terms of Service, 2002' nor the 'Appointment and Qualification Criteria, 2002' were amended---Bureau had acknowledged many of the shortcomings and discrepancies in the appointments, inductions and promotions of its officers---Supreme Court directed that a Committee should be formed to examine the issue of officers who lacked the requisite experience at the time of their initial appointment in the Bureau; that officers who had been appointed by way of promotion which was inconsistent with the 'Terms of Service, 2002' and 'Appointment and Qualification Criteria, 2002' should be issued show-cause notices to appear before the Committee, which shall afford such officers an opportunity of hearing and decide their cases; that Director General NAB, (Lahore), Director General NAB, (Balochistan), Director General, NAB (Karachi), and a female officer appointed on basis of sports policy of Prime Minister, were not qualified to hold their respective posts, therefore, they should be de-notified immediately, however, they shall be entitled to all the pensionary benefits to which they were entitled to under the law/rules, and that all the existing vacancies in the Bureau or that may arise in the future pursuant to the Committee's findings shall be filled through the Federal Public Service Commission (FPSC) in the larger public interest, despite the fact that recruitment rules of the Bureau excluded recruitment through the Federal Public Service Commission---Order accordingly.

DCO/Chairman District Recruitment Committee Khanewal v. Kishwar Sultana 2016 PLC 447 distinguished.

Muhammad Akram v. Registrar, Islamabad High Court PLD 2016 SC 961 ref.

Syed Tahir Shahbaz, Secretary, Establishment Division on Court Notice.

Ch. Amir Rehman, Addl. Attorney General for the Federation.

Khawaja Haris Ahmed, Senior Advocate Supreme Court, Waqas Qadeer Dar, PG, NAB and Qamar Zaman, Chairman NAB for the NAB.

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Ms. Aliya Rasheed (in C.M.A. No.7192/16).

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Maj. (R.) Shehzad Saleem and Maj. (R) Shiraz Naeem.

Ahmed Awais, Advocate Supreme Court for Brig. (R) Farooq Nasir.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Rashid Javid Lodhi, Advocate Supreme Court for Maj. (R.) Shabir Ahmed and Syed M. Husnain.

Khawaja Azhar Rashid, Advocate Supreme Court for Ziaullah Toru.

Dr. Muhammad Ali Saif, Advocate Supreme Court for Zahir Shah.

Raja Imran Aziz, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Adnan Shehzad Asghar, Yasir Mehmood, Muhammad Fahad Khan, Karim Bux and Harmoon Bhatti.

Abdur Rehman Siddiqui, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (in C.M.As. Nos.5811 and 6907 of 2016).

Hashmat Ali Habib, Advocate Supreme Court (in C.M.A. No.5887 of 2016).

Shafiq-ur-Rehman in person (in C.M.A. No.6001 of 2016).

Asad Kharal in person (in C.M.A. No.6285 of 2016).

Sardar Muhammad Aslam, Advocate Supreme Court and Dr. Shaista Nuzat in person (in C.M.A. No. 6980 of 2016).

Nemo (in C.M.A. No.6984 of 2016).

Nemo (in C.M.A. No.7093 of 2016).

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.A. No.7363 of 2016).

Muhammad Aslam Chishti, Senior Advocate Supreme Court and Zahoor-ul-Haq Chishti, Advocate Supreme Court (in C.P. No.65-Q of 2015).

Shahid Anwar Bajwa, Advocate Supreme Court (in C.P. No. 630-K of 2015).

Raja Saif-ur-Rehman, Advocate Supreme Court, Muhammad Umer Riaz, Advocate Supreme Court, Riaz H. Rahi, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record and Mir Aurangzaib, Advocate-on-Record/Advocate Supreme Court in attendance.

2017 P L C (C.S) 1073

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

SAIF ULLAH

Versus

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, FAISALABAD and another

Civil Appeal No. 368-L of 2013, decided on 8th March, 2016.

(On appeal from the judgment dated 17-4-2012 passed by the Federal Service Tribunal, Lahore Bench in Appeal No. 25(L)CS/11)

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S. 3---Post Office Manual, Vol. VI, R. 590(3)---Compulsory retirement converted to reinstatement in service with stoppage of five years increments---Postmaster---Allegation of facilitating commission of fraud, cheating by fabrication, dishonesty and embezzlement---Admittedly there was no allegation against the Postmaster of having embezzled any amount and on the contrary, there was admission on the part of his co-accused regarding the said embezzled amount which he had admitted and promised to return in part payments---At most the failure of the Postmaster to get signatures in hand to hand cash book could have been considered to be a lapse on his part falling within the parameter of inefficiency, but it could not be considered to be of fraud, forgery or embezzlement entailing the major penalty of removal from service resulting in his compulsory retirement---Supreme Court converted the punishment of compulsory retirement of the Postmaster to that of stoppage of five years increments following his reinstatement in service, however back benefits were not granted.

(b) Civil service---

----Punishment should always commensurate with the guilt proved.

Hafiz Tariq Nasim, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Appellant.

Zikriya Sh., DAG and A.H. Masood, Advocate-on-Record for Respondents.

2017 PLC (C.S.) 1090

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

KHALID AZIZ and another

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Services and General Administration and others

Civil Petitions Nos. 1324-L and 1410-L of 2015, decided on 11th March, 2016.

(Against the judgment dated 20.02.2015 passed by the Punjab Service Tribunal, Lahore in Appeals Nos.3126 and 3671 of 2010)

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

----S. 4(1)(b)(v)---Disciplinary proceedings---Removal from service---Accused stenographer was alleged to have prepared bogus transfer letters for some teachers after taking bribes---Bribe money was allegedly delivered to the accused by the co-accused---Proper disciplinary proceedings had been conducted and after fulfilling all the codal formalities the allegations against the accused and co-accused had been fully proved---As per the statement recorded during the inquiry proceeding all the teachers almost unanimously stated that they gave different amounts to co-accused who further delivered the bribe money to accused for issuing the transfer letters which were found to be bogus---In the presence of such substantial evidence against the accused and co-accused the order for their removal from service was justified---Petition for leave to appeal was dismissed accordingly.

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

----S. 5---Punjab Anti-Corruption Establishment Rules, 1985, R. 7---Civil servant/public official-Criminal proceedings by Anti-Corruption Establishment authorities---Disciplinary proceedings under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Said criminal and disciplinary proceedings could simultaneously proceed independently but the conclusion arrived at by the Anti-Corruption Establishment authorities did not, in any way, override the disciplinary proceedings.

Mian Jaffar Hussain, Advocate Supreme Court for Petitioner (in C.P. No.1324-L of 2015).

Pervaiz Inayat Malik, Advocate Supreme Court for Petitioner (in C.P. No.1410-L of 2015).

Khawar Ikram Bhatti, Additional A.-G. for Respondents (in both cases).

2017 P L C (C.S.) 1187

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Qazi Faez Isa and Ijaz ul Ahsan, JJ

RASHID ALI CHANNA and others

Versus

MUHAMMAD JUNAID FAROOQUI and others

Civil Review Petitions Nos.125, 130, 137 and 138 of 2017, decided on 2nd May, 2017.

(Against judgment dated 13.3.2017 of this Court, passed in Suo Motu Case No. 18 of 2016)

(a) Sindh Public Service Commission Act (XI of 1989)---

----Ss. 4(1) & 7(i)---Constitution of Pakistan, Arts. 188 & 242---Review of judgment of the Supreme Court---Chairman and Members of Sindh Public Service Commission ('Commission'), appointment of---Nepotism and corruption in selection and appointment process for civil servants---Illegalities and discrepancies committed by the Commission in conducting written tests and interviews---On receipt of information that the Chairman and Members of the Commission had been appointed in violation of the law because they lacked the requisite qualifications in terms of the Sindh Public Service Commission Act, 1989, the Supreme Court took cognizance of the matter through the judgment under review---Allegations were also made that the said Chairman and Members of the Commission were indulging in nepotism and corruption by not selecting candidates on the basis of merit but for extraneous considerations---Source of information as long as it was accurate in matters of such nature was inconsequential, and it had not even been alleged that the information which triggered the proceedings in the judgment under review was false or incorrect---On cognizance being taken by the Supreme Court when notices were issued, the Chairman along with five Members of the Commission tendered their resignations---Record of the Commission including the record of the recruitment process undertaken by the Commission was meticulously examined by the Supreme Court, and serious illegalities and discrepancies were found to have been committed in holding examination and announcing results of the written tests and interviews which were elaborately spelt out in the judgment under review---Systematic and well thought out acts and omissions on the part of the Chairman and Members of the Commission were committed to reward a few and deprive many without there being any objective and fair criteria and transparent process in place which could withstand the process of judicial scrutiny and accountability---Supreme Court had found serious flaws in the process of selection which pointed towards lack of transparency to facilitate nepotism and favoritism that could not be condoned or countenanced---Impugned judgment under review had rightly refrained from recording any findings on the basis of the de facto doctrine or discussing the same having come to the conclusion that not only was the legality of appointments of the Chairman and Members of the Commission open to serious question but the mode, manner and procedure adopted by the Commission for selection of recommendees was also illegal, unjust, non-transparent and suspect---In addition, elaborate guidelines had been provided in the judgment under review to ensure fairness, transparency and integrity of the selection process---No error, defect, flaw or other sufficient cause had been pointed out in the judgment under review to set aside the same---Review petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 188---Review of judgment of the Supreme Court---Grounds and scope---Different conclusion possible on basis of facts---Even if on the basis of facts and circumstances brought before the Supreme Court, different conclusion could possibly have been drawn in the judgment under review, the same did not constitute a ground for exercise of review jurisdiction by the Supreme Court---Scope of review was limited to correction of mistakes and errors apparent on the face of the record or for any other sufficient cause.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioners (in C.R.P. No. 125 of 2017).

Ms. Asma Jahangir, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.R.P. No. 130 of 2017).

Sh. Ahsan ud Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.R.P. No. 137 of 2017).

Syed Ali Zafar, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Petitioners (in C.R.P. No. 138 of 2017).

Nemo for Respondents (in all cases).

2017 P L C (C.S.) 1218

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Sh. Azmat Saeed, JJ

Dr. FARHAT ABBAS and others

Versus

Dr. MEHMOOD-UL-HASSAN and others

Civil Appeals Nos. 1525 to 1528 of 2016, decided on 24th October, 2016.

(On appeal from judgment dated 11.11.2015, passed by the Peshawar High Court, Peshawar, in W.Ps. Nos. 2926-P, 3000-P, 2926-P and 3000-P of 2012, respectively)

Regulations for the Appointment of Faculty Professorial Staff/Examiners/Principals/Deans/Administrative Staff in Undergraduate and Postgraduate Medical and Dental Institutions of Pakistan, 2011---

----Regs. 12 & 19---Promotion as Associate Professor of Cardiology---Eligibility---Appellant, who had the qualification of FCPS in Medicine was promoted as Associate Professor of Cardiology---Respondents who had qualification of FCPS in Cardiology challenged promotion of appellant by contending that under the law only those Assistant Professors having FCPS in Cardiology could be considered for appointment as Associate Professor of Cardiology, which qualification was not possessed by appellant---Validity---Accumulative reading of Regulations 12 & 19 of the Regulations for the Appointment of Faculty Professorial Staff/Examiners/Principals/Deans/Administrative Staff in Undergraduate and Postgraduate Medical and Dental Institutions of Pakistan, 2011 showed that academic qualification for post of Associate Professor of Cardiology, included the Level III qualification in the sub-specialities or General FCPS---Regulation 19 of the laid Regulations clearly provided that if a candidate was qualified for the position of Senior Registrar in General Medicine or General Surgery etc and was a holder of FCPS, MD, MS in General Medicine or General Surgery etc. and attained the post of Assistant Professor in a sub-speciality then no preference would be given to a person, who was holding the FCPS in the requisite field, for the purpose of the appointment to further post including that of Associate Professor---Appellant in terms of Regulation 19, held the requisite qualification, as an Assistant Professor of Cardiology with the requisite experience, hence was entitled to be considered for appointment/promotion as Associate Professor of Cardiology---Record also showed that appellant was senior to the respondents---Office order of appellant's promotion as Associate Professor of Cardiology was valid in law and could not be set aside--- Appeal was allowed accordingly.

Abdul Latif Afridi, Advocate Supreme Court and Khalid Anwar Afridi, Advocate Supreme Court for Appellants (in C.As. Nos.1525 and 1526 of 2016).

Shakeel Ahmed, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record (absent) for Appellants (in C.As. Nos.1527 and 1528 of 2016).

Ghulam Nabi Khan, Advocate Supreme Court for Respondent No.1 (in C.As. Nos.1525 and 1526 of 2016).

Nemo for Respondents (in C.As. Nos.1527 and 1528 of 2016).

2017 P L C (C.S.) 1229

[Supreme Court of Pakistan]

Present: Amir Hami Muslim, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

FIDA HUSSAIN SHAH and others

Versus

GOVERNMENT OF SINDH and others

Crl. O.Ps. Nos. 47, 48 and 50 of 2016 in C.R.P. 193 of 2013 and Crl. M.A. No.1822 of 2016, decided on 16th February, 2017.

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

----S. 7(b)(ii)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. II (Rr.7 to 9) & Pt. III (Rr.10 to 12-A)---Civil Servants Act (LXXI of 1973), S. 10---Civil service---Re-allocation/change of Occupational Group of civil servant after initial appointment---Scope---Allocation and re-allocation was the sole domain of the Government and was made under the Federal Public Service Commission Ordinance, 1977, and not under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Change of group or re-allocation could not be considered at par with transfer or horizontal movement made under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Re-allocation to another occupational group was more akin to the 'initial appointment', as provided in Part-III of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, rather than an 'appointment by transfer'.

Syed Maroof Gilani v. Prime Minister of Pakistan 1996 SCMR 1353 ref.

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

----S. 10---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. II (Rr.7 to 9)---Civil service---Posting and transfer---Principles relating to posting and transfer of civil servants listed.

Following are the principles relating to posting and transfer of civil servants:

i. It was within the competence of the authorities to transfer a civil servant from one place or post to another to meet the exigencies of service or administration; provided his terms and conditions of service were not adversely affected;

ii. A civil servant had no vested rights to claim posting or transfer to any particular place of his choice, nor did he have any right to continue to hold a particular post at a particular place;

iii. Transfer and posting of civil servant was limited to the given tenure, or at the pleasure of the competent authorities;

iv. Normally, civil servant was not required to acquire any specialized skill or professional training in order to serve at the new post or place;

v. Seniority and progression of career of a civil servant in terms of promotion and other benefits of the service were not affected by the transfer and he remained pegged to his batch or group to which he was initially appointed after completing the required common and specialized trainings and after passing the required departmental examinations conducted by the Federal Public Service Commission;

vi. Civil servant was posted and transferred routinely in the same grade or scale that he possessed in his service or group; unless the rule required so or allowed so.

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

----S. 7(b)(ii)---Re-allocation/change of Occupational Group of civil servant after initial appointment---Principles relating to re-allocation of a civil servant in a new service/group listed.

Following are the principles relating to re-allocation of a civil servant in a new service/group:

i. A civil servant was appointed in a new service or group by competent authority, and he lost his ties with his pervious group or service, though his previous service may be counted, if the rules permitted;

ii. After joining the new service or group he underwent afresh the required departmental/specialized training, followed by the Final Passing Out Examination (FPOE) conducted by the Federal Public Service Commission;

iii. His inter se seniority was re-fixed with the new group or service he joined, normally on the basis of his merit and results obtained in the FPOE;

iv. His appointment, unlike a 'transfer', was thus irreversible, unless the rules allowed him to retain a lien so that he may revert back to his previous service or group within the lien time;

v. Normally 'reallocation' happened when a civil servant reappeared in the CSS examination and his higher merit allowed him to opt for a different occupational group from the one he belonged to;

vi. Some instances of 'reallocation' of civil servants from one to another group, which had been made under the existing rules by the competent authorities, were fundamentally different from the 'appointment by transfer' as the latter involved absorption of civil servant in a new department as a result of abolition of his earlier department or post or for meeting any other exigency, subject to the given rules;

vii. The nature and consequences, if not the form, of the reallocation to another service or group were the same; the civil servant was re-appointed to the new group or service; his seniority was fixed with the new batch in accordance with his overall merit; he lost his ties with his earlier occupational group except that he may claim benefits of the time of service; he underwent and qualified the required specialized trainings and examinations, including the FPOE; and he may be discharged from the service if he failed to successfully complete his probation/trainings and examination.

Kh. Haris Ahmed, Senior Advocate Supreme Court for Petitioners (in Crl. O. No.47 of 2016).

Ali Zafar, Advocate Supreme Court for Petitioners (in Crl. O. No.48 of 2016).

Ms. Asma Jehangir, Advocate Supreme Court for Petitioners (in Crl. O. No.50 of 2016).

Zameer Hussain Ghumro, AG Sindh and Sarwar Khan, Additional AG Sindh on Court's Call.

2017 P L C (C.S) 1242

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Qazi Faez Isa and Sardar Tariq Masood, JJ

Civil Misc. Applications Nos. 687, 719 and 1551 of 2017

(Interim Reports by AIG Legal for I.G. Punjab, Home Department, Govt. of Punjab and Inspector General of Police, Punjab respectively)

In

Civil Review Petition No. 49 of 2016

AND

Crl. Org. Petition No. 33/2017 in C.R.P. 481/2016 in C.A. No. 184-L/2013

(For non-compliance of the orders dated 26.01.2016 and 30.12.2016 passed by this Court in C.A. No. 184-L/2013 and C.R.P. No.481/16)

KHALID MEHMOOD AFZAL

Versus

MUSHTAQ SUKHERA, IG POLICE and others

AND

Crl. Org. Petition No. 55/2017 in C.R.P. 482/2016 in C.A. No. 184-L/2013

(For non-compliance of the orders dated 26.01.2016 and 30.12.2016 passed by this Court in C.A. No. 184-L/2013 and C.R.P. No.481/16)

Malik MUHAMMAD SABIR

Versus

MUSHTAQ SUKHERA, IG POLICE

AND

Crl. Org. Petition No. 60/2017 in Civil Review Petition No. 83/2016

(For non-compliance of the orders dated 30.12.2016 passed by this Court in C.R.P. No. 83/16)

AWAIS MALIK and others

Versus

MUSHTAQ SUKHERA, IG POLICE and others

AND

Crl. Org. Petition No. 62/2017 in Civil Review Petition No. 89/2016

(For non-compliance of the orders dated 30.12.2016 passed by this Court in C.R.P. No. 89/16)

MUHAMMAD HASEEB

Versus

MUHAMMAD AMIN VANS and others

Civil Misc. Applications Nos. 687, 719 and 1551 of 2017 in Civil Review Petition No. 49 of 2016 and Criminal Org. Petition No. 33/2017 in C.R.P., 481/2016 in C.A. No. 184-L of 2013 and Crl. Org. Petition No. 55/2017 in C.R.P. 482/2016 in C.A. No. 184-L of 2013 and Crl. Org. Petition No. 60/2017 in Civil Review Petition No. 83/2016 and Crl. Org. Petition No. 62/2017 in Civil Review Petition No. 89 of 2016, decided on 29th March, 2017.

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition before High Court filed by police officials claiming "out of turn promotion" on account of gallantry/bravery---Maintainability---Withdrawal of "out of turn promotions"---High Court had no jurisdiction to entertain such a petition under Art. 199 of the Constitution--- Concept of "out of turn promotions" was unconstitutional---Police was a disciplined force and officials/officers employed in the police should not have embarked upon unnecessary litigation of claiming "out of turn promotions"; if, however, any police official had a genuine grievance he should have taken the same before the forums that the law provided instead of initiating proceedings before the High Court under Art. 199 of the Constitution---Provincial Inspector General of Police had considered the judgments of the Supreme Court with regard to the "out of turn promotion" cases and issued notices to all concerned officials and gave them opportunity of hearing, whereafter he passed separate detailed orders in respect of each police official---Supreme Court directed that the report of the Provincial Inspector General should be acted upon and notifications with regard to withdrawing the "out of turn promotions" be immediately issued--- Order accordingly.

Contempt Proceedings against Chief Secretary, Sindh 2013 SCMR 1752; Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Shahid Pervaiz v. Ejaz Ahmed 2017 SCMR 206 ref.

Shakeel-ur-Rehman, AG, Punjab and Barrister Khalid Waheed, Addl. A.-G., Punjab for the Government of Punjab.

Kamran Adil, AIG Legal Police, Punjab for the IG, Punjab.

Khawaja Haris Ahmed, Senior Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record for Appellants/Petitioners (in C.M.As. Nos.457/17, Crl. M.A. 490/17 and Crl. O.P. No.60/17)

Malik Muhammad Qayyum, Senior Advocate Supreme Court, Qusain Faisal Mufti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Applicant (Akhtar Umar Hayat) (in C.M.A. No.1755/17)

Ms. Ayesha Hamid, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in Crl. O.P. Nno.33/17).

Sardar Ashiq Mehmood Khan Sadozai, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in Crl. O.P. Nno.55/17)

Ms. Asma Jehangir, Advocate Supreme Court for Petitioner (in Crl. O.P. No.62/17).

Talat Farooq Sheikh, Advocate Supreme Court and Jameel Ahmed (in person) on Courts Notice (in Crl. M.As.Nos.487-489/17).

2017 P L C (C.S.) 1263

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

Ms. SHABNAM IRSHAD AHMED and others

Versus

MUHAMMAD MUNEER MALIK and others

Civil Petitions for Leave to Appeals Nos. 1221 and 1279 of 2016, decided on 29th July, 2016.

(On appeal from the judgment dated 18.03.2016 in W.P. No.670 of 2015 passed by the Islamabad High Court, Islamabad)

Civil service---

----Government University---Post of Deputy Director 'Production'---Candidate appointed lacking the required experience in the field of 'Production'---Effect---Appointment declared illegal and accordingly set aside---Criteria for appointment to post in question was advertised as "at least 12 years' experience as Programme Manager / Controller of Programmes/Producer in Radio / Television or equivalent post in the audio-visual centres of Education Department or other relevant organization"---Record revealed that candidate appointed had been working in the field of 'Design' which had its own hierarchy and opening for promotion---'Production' was a distinct field which had its own dynamics and determinants---Candidate appointed may have had experience in her respective field of 'Design' which by no stretch of imagination could be termed and treated as experience in the field of 'production'---Certification relied upon by the candidate appointed was more or less subjective as it did not show what it was based on---Even if such certification had some worth it did not show anywhere that candidate appointed had the requisite experience in the field of 'Production', nor any reckoning of whatever had been mentioned therein could stretch her experience to 12 years in the field of 'Production'---As against that the candidates not selected/respondents satisfied the eligibility criteria in terms of qualification as well as experience as they possessed a Master-degree and 12 years' experience in the field of 'Production'---High Court had rightly set aside the appointment and directed the University to proceed with the appointment process for selecting the most capable person from amongst the eligible candidates on the basis of merit---Petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Government post---Criteria for selection to post---Opinion of Selection Board---Constitutional jurisdiction of the High Court---Scope---High Court could not substitute its own view for that of the Board but it could turn down a conclusion based on a wrong arithmetical calculation.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Syed Rifaqat Shah, Advocate-on-Record for Petitioners (in C.P. No.1221 of 2016).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in C.P. No.1279 of 2016).

Respondents Nos.1 and 3 in person.

2017 P L C (C.S.) 1270

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam and Khilji Arif Hussain, JJ

MUHAMMAD RAFI and another

Versus

FEDERATION OF PAKISTAN and others

Civil Appeals Nos. 185-K and 186-K of 2015, decided on 24th August, 2016.

(Against the consolidated judgment dated 13.7.2015 passed by the High Court of Sindh, Karachi in C.Ps. Nos. D-2807 and 3458 of 2013)

(a) Civil Aviation Authority Service Regulations, 2000 [since repealed]---

----Regln. 3.29---Recruitment process, scrapping of---Legality---Appellants applied for the posts advertised by the Civil Aviation Authority ("Authority")---Appellants underwent proper recruitment process and were selected---Appointment letters were issued by the Authority to the appellants which were duly accepted---Subsequently, however, after the issuance of the appointment letters, the Authority scrapped the entire recruitment exercise and order of appointment of the appellants was placed in abeyance on the ground that the recruitment process initiated by the Authority was not transparent---Validity---Authority had no concrete cavil to support its decision of scrapping the appointment process---Where an authority, after complying with the codal formalities, appointed any person, it could not take a somersault after the offer letters were issued and they were accepted---Civil Aviation Authority Service Regulations, 2000 did not suggest that once the offer letter had been issued and accepted, the Authority could scrap the process on the grounds that it was not transparent---Besides, the Authority had taken no action against those who had initiated the allegedly non-transparent recruitment process for appointments of the appellants---Action of the Authority to scrap the appointments of the appellants and/or keep them in abeyance after the offer letters were accepted was contrary to the spirit of the Civil Aviation Authority Service Regulations, 2000---Supreme Court directed that the appellants should be reinstated in service in terms of the offer letters issued to them by the Authority---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Non-statutory service regulations/rules---Constitutional petition before the High Court---Maintainability---Aggrieved person could invoke the constitutional jurisdiction of the High Court against a public authority if he satisfied that the act of the authority was violative of the service regulations even if they were non-statutory.

Pakistan Defence Officer's Housing Authority v. Jawaid Ahmed 2013 SCMR 1707 ref.

M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellants (in both cases).

Sanaullah Noor Ghouri, Advocate Supreme Court for Respondents Nos.2 - 3.

2017 P L C (C.S.) 1280

[Supreme Court of Pakistan]

Present: Faisal Arab and Khilji Arif Hussain, JJ

IQBAL HUSSAIN

Versus

GENERAL MANAGER SOUTHERN TELECOM REGION-II and others

Civil Appeal No.157-K of 2015, decided on 15th August, 2016.

(On appeal against the judgment dated 27.04.2015 passed by the Federal Service Tribunal, Islamabad in Misc. Petition No.36/2015 in Appeal No. 240(K)CE/2004)

Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

----S. 35---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9 [since repealed]---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Employees of Pakistan Telegraph and Telephone Department who were subsequently transferred to Pakistan Telecommunication Corporation (the Corporation) and then to the Pakistan Telecommunication Company Limited (the Company)---Terms and conditions of service---Such employees did not remain civil servants upon their transfer to the Corporation in the first instance and then the Company, however their terms and conditions of service were statutorily protected---For any violation of their terms or conditions of service such employees could invoke the constitutional jurisdiction of the High Court under Art.199 of the Constitution but not that of the Federal Service Tribunal.

PTCL v. Masood Ahmed Bhatti 2016 SCMR 1362 ref.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 distinguished.

Sanaullah Noor Ghouri, Advocate Supreme Court for Appellant.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondents Nos.1-6.

2017 P L C (C.S.) 1292

[Supreme Court of Pakistan]

Present: Iqbal Hameedur Rahman and Umar Ata Bandial, JJ

EXECUTIVE DISTRICT OFFICER (REVENUE) BAHAWALPUR and others

Versus

MUHAMMAD ATTIQUE and another

Civil Appeal No. 316-L of 2009, decided on 21st July, 2016.

(On appeal against the judgment dated 28.04.2008 passed by the Punjab Service Tribunal, Lahore, in Appeal No. 1194 of 2005)

Punjab Land Administration Manual---

----Para. 242---Naib-tehsildar, appointment of---Respondent who was serving as Kanungo was not considered for promotion as Naib-tehsildar as the Departmental Promotion Committee had already reserved name of one of his senior colleagues for promotion as Naib-tehsildar---Legality---Seat of Naib-tehsildar had been illegally reserved by the Departmental Promotion Committee for a senior colleague of respondent, which clearly showed mala fide and favouritism on the part of the competent authority---Service Tribunal had rightly observed that the only reason for which the respondent could not be considered for promotion was that one of the five available posts of Naib-tehsildar had been reserved for his senior colleague; that said colleague was not recommended for promotion on account of pendency of an inquiry against him and so it was the respondent who could have been considered for promotion being the next in seniority---Besides senior colleague of respondent was working against an ex-cadre post out of district, as such was not working in his parent department, therefore, he being posted out of the district was ineligible for promotion---Service Tribunal had rightly given directions to consider respondent for antedated promotion of Naib-tehsildar with effect from the date when the vacancy of Naib-tehsildar had been reserved for his senior-colleague---Appeal was dismissed accordingly.

Malik Abdul Aziz Awan, Additional A.-G. and Rao M. Yusuf Khan, Advocate-on-Record (absent) for Appellants.

Mian Mehmood Hussain, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent No.1.

2017 P L C (C.S.) 1304

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Maqbool Baqar and Ijaz ul Ahsan, JJ

FEDERATION OF PAKISTAN through Secretary, Establishment Division and others

Versus

Dr. MUHAMMAD ARIF and others

Civil Appeals Nos. 2109 to 2139 of 2016 and Civil Petition No. 516 of 2017 and C.M.As. Nos. 5210, 7645 of 2016 in C.A. 2109 of 2016, C.M.A. No. 6094/2016 in C.A. 2136/2016, decided on 13th March, 2017.

(Against the judgment dated 08.06.2016 the Islamabad High Court, Islamabad passed in I.C.As. Nos. 368, 372, 377, 382, 383, 385, 387, 409, 415, 433, 375, 379, 382, 412, 406, 417, 429, 400, 402, 403, 423, 398, 414, 426, 374, 368, 416, 384/2015, C.M.A. 2816/2016 in I.C.A. 384/15 and I.C.A. 411/2015)

Civil Servants Act (LXXI of 1973)---

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 7, 8 & 8-A---Promotion criteria---Award of 15 marks at the disposal of Central Selection Board ("Board") with 5 overriding discretionary marks and placing of civil servants in three different categories for promotion---Recommendations of the Board for deferment/supersession of civil servants---Personal whims and unfettered discretion of Members of the Board---Procedural unfairness and lack of due process---Promotion policy adopted by the Board instead of providing any evaluation structure, left it open for the Board to choose either the service dossier of the officer concerned as a source material for the evaluation of the various essential and crucial attributes of the officer, or just to rely upon the personal knowledge of its members for the said purpose---In relation to the candidate's personality profile it was left exclusively to be evaluated on the basis of the Members' knowledge, without any reference to any record---For an officer to avoid deferment or supersession, it was made essential for a candidate to obtain at least 3 out of the 5 discretionary marks in respect of "integrity/general reputation/perception"---Anomalous situation was created where an officer who may have otherwise, achieved the required threshold on the basis of evaluation of his service record, may still be superseded by the Board on the basis of the opinion harboured or nurtured by a few of its Members, and instead less deserving officer may be recommended, which could result in the degeneration of the civil service, and dissatisfaction and despondency amongst its cadres---Entire promotion process being flawed for want of a well thought out structured objective criteria, and lacking in due process, gave way to arbitrariness, ambiguity and a whimsical approach, inasmuch as the Board drifted from reliance upon the service dossier of the officer, and instead placed reliance on undefined personal opinion, and that too without qualifying it with the necessity of being based on any tangible evidence/material--- Case record showed that some of the petitioners/civil servants achieved the prescribed threshold on the basis of their Performance Evaluation Reports (PERs) and Training Evaluation Reports (TERs), but had been superseded on the basis of knowledge of the Board's Members, but neither any reason was given for ignoring the quantification in the service record, nor the nature and/or source of the so-called knowledge had been disclosed---Such process not only violated the requirement of adequate disclosure, but also offended the principle of fairness, due process and procedural propriety---Even otherwise the Establishment Division had not been able to show any thing adverse against the officers in their respective service dossiers---Case record further showed that in the cases of deferments of certain officers also no plausible explanation or reason had been mentioned---Supreme Court directed that the Establishment Division should place all cases which were laid before the Board through the impugned promotion process, afresh, after withdrawing the overriding effect of five (5) marks assigned for integrity/reputation etc. and removing the deviation of the focus of the Board from the service dossier to the personal knowledge of its Members; that those officers who may have been promoted on the basis of impugned promotion process shall maintain their elevated position/status, however, in the event the officers whose cases for promotion had been deferred or superseded, were through the proposed (new) process recommended for promotion, they shall maintain their seniority vis-a-vis those who were recommended for promotion through the impugned process, and may again be so recommended, so that the seniority of the left out officers and their entitlement to the consequential benefits, including prospects of their future promotion was not adversely affected---Order accordingly.

Orya Maqbool Abbasi's case 2014 SCMR 817 and Iram Adnan's case 2012 PLC (C.S.) 1355 ref.

Afnan Karim Kundi, Additional A.-G. and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos.2109-2118/16).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. No.2119/16).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.As. Nos.2120-2124/16).

Faiz Ahmed A. Jandran, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.As. Nos.2132-2134/16).

Barrister Masroor Shah, Advocate Supreme Court for Appellants (in C.A. No.2136/16).

Appellant in person (in C.As. Nos.2135 and 2137 to 2139 of 2016).

Abdur Rehman Siddiqui, Advocate Supreme Court for Appellants (in C.As. Nos.2125-2131/16).

M. Munir Paracha, Advocate Supreme Court for Petitioners (in C.P. No.516/17 and C.M.A. No.5210/16).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents (in C.As. Nos.2110, 2112, 2116/16).

Syeda B.H. Shah, Advocate Supreme Court for Respondents (in C.A. No.2109/16).

Mehrban Khan, Admin Officer M/o Defence for Respondents Nos.185-187 (in C.A. No.2135/16).

Barrister Masroor Shah, Advocate Supreme Court for Respondents (in C.As. Nos.2111, 2113, 2118/16).

Afnan Karim Kundi, Additional AGP for Official Respondents (in C.As. Nos.2119-2139/16).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Applicants (in C.M.A. No.7645/16).

Imran Fazal, Advocate Supreme Court for Respondents (in C.As. Nos.2121 2129, 2131/16).

Nasir Mehmood Mughal, Spl. Prosecutor NAB for Respondents (in C.As. Nos.2138-2139/16).

2017 P L C (C.S.) 1445

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Mushir Alam, JJ

FEDERAL PUBLIC SERVICE COMMISSION through Secretary

Versus

ANWAR-UL-HAQ (PRIVATE SECRETARY) ISLAMABAD and others

Civil Petition No. 1424 of 2016, decided on 30th September, 2016.

(Against the judgment dated 08.2.2016 passed by Federal Service Tribunal, Islamabad in Appeal No. 194(R)CS/2013)

Civil Servants Act (LXXI of 1973)---

----S. 9(1)---Upgradation of post---Scope and purpose---Upgradation was not a promotion---Upgradation was carried out without necessarily to create posts in the relevant scales of pay---Upgradation was resorted to only for the incumbents of isolated posts, which had no avenues or channel of promotion at all---Upgradation under a scheme was personal to the incumbents of the isolated posts, to address their stagnation and frustration on a particular post for sufficient length of service without any progression or avenue of promotion---Upgradation was carried out under a scheme and or a policy to incentivize, encourage and give financial benefits without creating additional vacancies of higher grade---Upgradation by no standards could be treated and or considered as promotion to a higher grade---Incumbent occupying upgraded post retained their substantive grade.

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

Abdul Rashid Awan, DAG and Muhammad Ashraf, Director, FPSC for Petitioner.

Ghulam Fareed, Advocate Supreme Court for Respondent No.1.

2017 P L C (C.S.) 878

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Maj. (Rtd.) MAJID HUSSAIN, DIRECTOR ESTATE, MIRPUR UNIVERSITY OF SCINCE AND TECHNOLOGY (MUST), MIRPUR and 52 others

Versus

VICE-CHANCELLOR MIRPUR UNIVERSITY OF SCIENCE AND TECHNOLOGY (MUST) MIRPUR and 49 others

Civil Appeal No.18 of 2013, decided on 17th May, 2013.

(On appeal from the judgment of the High Court, dated 2.1.2013 in Writ Petition No.1611 of 2012).

(a) Civil service---

----Contract appointment--- Regularization of service--- Petitioners-employees were appointed on contract basis---Writ petition filed by the employees for regularization of their services was dismissed---Validity---Employees were appointed on contract basis with the condition that their services might be terminated on one month's notice from either side---Constitution had guaranteed the fundamental right of equality before law---Purpose of equality before law in case of appointment against public office could only be achieved through open transparent competitive method of selection on merit---Permanent appointment or regularization as permanent against public office or in civil service or statutory bodies could only be made on the basis of selection on merit---Merit was precondition of advertisement of vacancy---Any person who had been appointed on contract basis could not as of right claim regularization on permanent basis---Residuary powers under R.12 of Establishment (Recruitment) Statutes, 1983 were vested in the authority to meet the specific eventuality in exceptional circumstances---Exception could not be adopted as a general rule---Mere non-filing of counter affidavit could not be treated as a valid reason to frustrate the spirit of law---Affidavits were normally accepted with regard to question of fact which otherwise could not be established from record or other evidence---Even an affidavit could not be given preference over record or the documents---No illegality or infirmity had been pointed out in the impugned judgment passed by the High Court---Appeal was dismissed in circumstances.

Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Muhammad Nasrullah Khan and another v. Federation of Pakistan through Secretary Establishment Division and others 2001 PLC (C.S.) 1168; Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and anther PLD 1990 SC 295; Irfan Anwar Baloch v. Secretary, Ministry of Communications Islamabad and 4 others 1997 PLC (C.S.) 792 and Abdul Razzak v. Chief Minister Sindh, Karachi and others 1993 PLC (C.S.) 692 distinguished.

Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others 2012 PLC (C.S.) 524; 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; Ehtezaz Asgher and others v. Ch. Muhammad Sajawal and 2 others 2012 YLR 1580 and Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339 rel.

(b) Civil service---

----Contractual service---Any person who had been appointed on contract basis could not as of right claim regularization on permanent basis.

(c) Fundamental rights---

----Any law or act of public functionary violative of the constitutionally guaranteed Fundamental Rights was void.

(d) Estoppel---

----No estoppel against law would operate.

(e) Affidavit---

----Affidavit could not be given preference over record or the documents.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Ch. Muhammad Latif, Advocate for Respondents.

2017 P L C (C.S.) 945

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 4 others

Versus

Dr. MUHAMMAD AMIN

Civil Appeal No.26 of 2012, decided on 24th May, 2013.

(On appeal from the judgment of the High Court dated 6-1-2012 in Writ Petition No.159 of 2009).

(a) Mirpur Development Authority Ordinance, 1974---

----S. 6---Chairman Mirpur Development Authority---Appointment on contract basis---Removal from service---Audi alteram partem, principle of---Applicability---Employee was appointed as Chairman Mirpur Development Authority on contract basis for three years but was removed from office before expiry of period mentioned in the terms and conditions of order---High Court declared the employee to be entitled for salary, privileges and other benefits as Chairman Development Authority for the remaining period of his contract---Validity---Appointing Authority had been vested with the powers to remove the Chairman Development Authority before the specified period---Employee had accepted the appointment keeping in mind the basic statutory provisions---Notification of terms and conditions would have to be interpreted while keeping in mind the domain and scope of basic statutory provisions under which the Appointing Authority was vested with the powers of appointment---If any terms and conditions was violative to the basic statutory provision, same be deemed to be ineffective and invalid to the extent of inconsistency with the statutory provision---Employee had not succeeded in making out any legal ground for granting the prayed relief under extraordinary discretionary writ jurisdiction---Employee could hold office only during pleasure of Government---Government was empowered to remove the Chairman Development Authority at any time---Employee had accepted terms and conditions with regard to his removal at any time---Appointment of employee was at the pleasure of Government---Government while removing the employee from office had not violated any provision of law---Order of removal, in the present case, was in accordance with the conditions pre-settled among the parties---When it was established from the record that the party would take a specific stand in defence which was already known and clear then principle of audi alteram partem would not attract---Impugned judgment passed by the High Court was recalled and writ petition was dismissed---Appeal was allowed in circumstances.

Azad Government and others v. Neelum Flour Mills 1992 SCR 381; Azad Government of the State of Jammu and Kashmir through its Chief Secretary, New Secretariat, Mzaffarabad and another 2013 SCR 156; Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283; Muhammad Sharif Khan v. Mirza Fazal Hussain and others 1993 SCR 88; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Tahir Mahmood Khan and 13 others v. Azad Government and 3 others 2008 CLC 1662 and Muhammad Riaz Khan v. Inspector General of Police and 19 others 2010 SCR 131 ref.

Aurangzeb Chaudhry v. Azad Government and 4 others 2003 SCR 463 and Secretary for Prime Minister and 3 others v Muhammad Aslam and 5 others 2000 PLC (C.S.) 155 rel.

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

----S. 44---Writ petition---Maintainability---Writ petition was only competent where there was any violation of law or any statutory provision or celebrated principle of law and justice.

Sardar M.R. Khan, Additional Advocate-General for Appellants.

Khalid Rashid Chaudhry, Advocate for Respondent.

2017 P L C (C.S.) 1457

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

Civil Appeal No.279 of 2014

MUHAMMAD TUFAIL MIR and 6 others

Versus

SECRETARY ELECTRICITY DEPARTMENT, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 12 others

(On appeal from the judgment of the High Court, dated 03.07.2014 in Writ Petition No.1606 of 2012).

Civil Appeal No.286 of 2015

SHOUKAT AZIZ MIR

Versus

MUHAMMAD NAZIR SHEIKH and 26 others

Civil Appeal No.287 of 2015

MUHAMMAD TUFAIL MIR and 10 others

Versus

MUHAMMAD NAZIR SHEIKH and 16 others

(On appeal from the judgment of the Service Tribunal, dated 22.04.2015 in Service Appeals Nos.611, 612, 613, 614 of 2009, 89 and 144 of 2011).

Civil Appeals Nos.279 of 2014, 286 and 287 of 2015, decided on 20th January, 2017.

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

----S. 7---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Rr.10-B & 13---Seniority---Determination of---Officiating promotion---Scope---Service Tribunal ordered for determination of seniority of the relevant cadres diploma holder Sub-Engineer and B. Tech. (Hons) employees of the department according to departmental rules on the basis of their first appointment/induction into service--Validity---Authority could cause seniority list from time to time of the members of service, cadre or grade---Seniority would take place from the date of regular appointment to a post in that grade---Civil servants who were selected for promotion to higher grade in one batch should on their promotion retain their inter se-seniority---Promotion of Sub-Engineer on creation of vacancy of Assistant Engineer should be made while considering the respective dates of obtaining qualification along with the prescribed experience after such qualification---All qualified persons while passing acting/current charge promotion orders should have been considered and if the posts were available then promotion order for regular induction should have been made---Officiating promotion order could be made when post fell vacant as a result of deputation, leave or on current charge basis of the regular incumbent---Qualified civil servant having relevant experience and qualification prescribed for the post might be appointed/promoted but such promotion would not confer any right for regular promotion---All eligible persons were not considered while issuing the promotion orders on current charge basis and officiating basis, only the appellants were considered for such promotion---Judgment passed by the Service Tribunal was legal---Appeal was dismissed in circumstances.

Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafeez Khan and 4 others 2002 PLC (C.S.) 1282; Fida Hussain v. The Secretary Kashmir Affairs and Northern Affairs Division, Islamabad and another PLD 1995 SC 701; Raja Javid Ahmed Khan v. Pervaiz Akhtar Abbasi and 5 others 1998 SCR 278 and Muhammad Ilyas Khan and 6 others v. Sardar Muhammad Hafeez Khan and 3 others 2001 PLC (C.S.) 445 ref.

Syed Subtain Hussain Kazmi and 2 others v. Syed Mumtaz Hussain Kazmi and 5 others 2013 SCR 889 and Muhammad Yaqoob Awan v. Secretary Electricity Department and 3 others 2014 SCR 1 rel.

Abdul Rashid Abbasi, Advocate for Appellant (in Civil Appeal No.279 of 2014).

Raja Akhlaq Hussain Kiyani, Additional Advocate-General for Respondents Nos.1 to 6 (in Civil Appeal No.279 of 2014).

Farooq Hussain Kashmiri, Advocate for Respondents Nos.7 to 10 (in Civil Appeal No.279 of 2014).

Raja Amjad Ali Khan, Advocate for Appellant (in Civil Appeal No.286 of 2015).

Farooq Hussain Kashmiri, Advocate for Respondents Nos.1 to 12 (in Appeal No.286 of 2015).

Raja Akhlaq Hussain Kiyani, Additional Advocate-General for Respondents Nos.25 to 27 (in Civil Appeal No.286 of 2015).

Abdul Rashid and Kh. Attaullah Chak, Advocates for Appellants (in Civil Appeal No.287 of 2015).

Farooq Hussain Kashmiri, Advocate for Respondents Nos.1 to 4 (in Civil Appeal No.287 of 2015).

Raja Akhlaq Hussain Kiyani, Additional Advocate-General for Respondent No.16 (in Civil Appeal No.287 of 2015).