PLCCS 2018 Judgments

2018 P L C (C.S.) 41

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J. and Sadaqat Hussain Raja, J

IMRAN KHURSHID AWAN and others

Versus

GOVERNMENT OF AZAD JAMMU AND KASHMIR through Chief Secretary and others

W.Ps. Nos.633 of 2016 and 332 of 2017, decided on 20th July, 2017.

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

----Ss. 4 & 7---Azad Jammu and Kashmir Employees Service Associations (Registration and Regulation) Act, 2016, Ss.22, 2(x), 7(2), 9 & 17---Vires of Ss.2(x), 7(2) & 17 of Azad Jammu and Kashmir Employees Service Associations (Registration and Regulation) Act, 2016---Ban on Civil Servants Associations---Words 'subject to any reasonable restrictions imposed by the law'---Scope---Government imposed ban on Civil Servants Associations with regard to strike, lock-out, go-slow and re-registration of the unions/associations---Validity---High Court observed that government employees could not be allowed to claim that they could take the society at ransom by going on strike, lock-out and go-slow---Employees even if there was injustice to some extent had to resort to the machinery provided under different statutory provisions for redressal of their grievances---Prohibiting strike, lock-out and go-slow under Ss.2(x), 7(2) & 17 of Azad Jammu and Kashmir Employees Service Associations (Registration and Regulation) Act, 2016 were not against basic provisions of S.4(7) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Public functionaries were to maintain office discipline in the public interest and safeguard legal and legitimate interests of their subordinates---Writ petition was dismissed holding "C".

Syed Imdad Ali Shah and 59 others v. Azad Government and 8 others 2003 PLC (C.S.) 1537; Hussain Ahmed Islahi v. Azad Government and 2 others 2009 SCR 116 and Abdul Razzak Khan Lodhi and 14 others v. Sindh Labour Appellate Tribunal, Karachi and 2 others 1993 PLC 308 ref.

Kameshwar Prasad and others v. State of Bihar and another AIR 1942 SC 1166; T.K. Rangarajan v. Government of Tamil Nado and others AIR 2003 (sic) 3032; Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 and Muhammad Afzal and others v. Mushtarka Mulazmin Action Committee and others 1999 PLC (C.S.) 1116 rel.

Mushtaq Ahmed Janjua and Sheikh Mushtaq Ahmed for Petitioners.

2018 P L C (C.S.) 197

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

Prof. Dr. ADNAN MEHRAJ

Versus

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

W.P. No.569 of 2017, decided on 8th July, 2017.

Azad Jammu and Kashmir Medical Colleges (Governing Body) Act (XVIII of 2014)---

----S. 7(5)---Appointment of Principal Medical College without constitution of Executive Committee by the Governing Body of the College---Scope---Contention of petitioner was that Executive Committee for recruitment of Principal was competent to command the person for appointment as Principal and his appointment was illegal---Validity---Petitioner was Surgeon and Professor in Azad Jammu and Kashmir Medical College for clinical medical whereas the other person was Ph.D. in Pharmacology related to basic sciences---Senior Professor in Medical Sciences could be appointed as Principal/Dean of the Medical College---Principal of the Medical College could be appointed by the institution or by the Government according to the rules---Said person had neither been appointed by the institution nor rules had been framed for appointment of Principal of the Medical College---Government had not delegated its powers to Executive Committee which recommended the said person---Impugned notification had been issued on the recommendation of Executive Committee of the College which had lost its sanctity---Governing Body of the Medical College had authority to constitute Executive Committee on advice of the concerned Principal---Executive Committee had not been assigned with the powers of recruitment of Principal of the Medical College in the present case---Executive Committee had ceased to exist after coming into force of Azad Jammu and Kashmir Medical Colleges (Governing Body) Act, 2014 and was not authorized by law to appoint the said person or any other person as Principal of the Medical College---Appointment of the person as the Principal of the Medical College was without lawful authority---Impugned notification was set aside and authorities were directed to complete the process of selection of the Principal of the Medical College in accordance with law---Writ petition was allowed in circumstances.

2016 SCR 15 and 2013 SCR 134 ref.

Raja Muhammad Hanif Khan for Petitioner.

2018 P L C (C.S.) 237

[High Court (AJ&K)]

Before Mohamnmad Sheraz Kiani, J

ZAHEER AHMED CHAUDHARY

Versus

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

Writ Petition No.381 of 2016, decided on 3rd January, 2017.

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

----Ss. 2(b) & 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 47(2)---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.32(2)---Writ petition---Maintainability---Petitioner, who was appointed as Chairman, Azad Jammu and Kashmir Board of Intermediate and Secondary Education, had sought wiping out and extinguishing the impugned notification as had been passed in violation of Deputation Policy, Azad Jammu and Kashmir Board Act, 1986---Matter involved in the petition pertained to the terms and conditions of service of the petitioner for which the proper forum was Service Tribunal---Person serving in any department of Azad Jammu and Kashmir, would be termed as "civil servant", even on deputation and any dispute regarding terms and conditions of service would be determined by the Service Tribunal---Petitioner, being a permanent employee of the Education Department of Azad Jammu and Kashmir, could not be excluded from the definition of a "civil servant" of the Azad Jammu and Kashmir---Jurisdiction of High Court was barred under S.47(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Petitioner had alternate remedy of filing appeal before Service Tribunal against final order passed by the department---Writ petition, in presence of alternate remedy, being not maintainable, was dismissed, in circumstances.

2014 SCR 466; 2016 SCR 1045; 2015 SCR 393; Ejaz Ahmed Awan's case 1999 PLC (C.S.) 1439 and Muhammad Tariq Amin and 3 others v. Muhammad Hussain and 3 others 1999 PLC (C.S.) 941 ref.

Khalid Rashid Chaudhary for Petitioner.

2018 P L C (C.S.) 809

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J. and Azhar Saleem Babar, J

SANAM YAQOOB

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR Through its Chief Secretary and 2 others

Writ Petition No.2814 of 2016, decided on 13th April, 2018.

Neelum Valley Development Board Act (IV of 1999)---

----S. 10--- Neelum Valley Development Board---Petitioner was appointed as Research and Planning Officer (BPS-17) on the direction of Prime Minister subject to approval of Neelum Valley Development Board---Contention of petitioner was that Neelum Valley Development Board had not issued formal regular appointment order---Validity---Neelum Valley Development Board was the only competent authority to appoint officers, servants, experts and consultants for performance of its functions---Appointment of petitioner was not made in accordance with provision of S. 10 of Neelum Valley Development Board Act, 1999 rather the same was made by the Chairman of the said Board upon the direction of Prime Minister subject to approval of the Board---Neelum Valley Development Board had not approved the said appointment---Unlawful order of Prime Minister could not be directed to be enforced through discretionary relief of writ jurisdiction---Appointment of petitioner was made without advertisement of post, merit and recommendation of selection authority---Statutory rules were also not framed by the Neelum Valley Development Board for the post in question---Writ petition was dismissed in circumstances.

Fuad Asadullah Khan v. Federation of Pakistan through Secretary Establishment and others 2009 SCMR 412; Muhammad Shoaib and 2 others v. Government of N.W.F.P. through the Collector, D.I. Khan and others 2005 SCMR 85; Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others 2004 SCR 298; Ijaz Mustafa Samtio, Advocate v. Government of Sindh and others 2002 PLC (C.S.) 117 and Administrator, District Council, Larkana and another v. Ghulab Khan and 5 others 2001 SCMR 1320 ref.

Major Muhammad Aftab Ahmed (Retired.) v. Azad Jammu and Kashmir Government 1992 SCR 307; Zareena Kausar v. Divisional Director Schools and 3 others 2014 SCR 878; Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others 2012 PLC (C.S.) 772; Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339; Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others 2012 PLC (C.S.) 524; Muhammad Ashfaq Khan and 2 others v. AJ&K Government and 4 others 2003 SCR 260, Sardar Farooq Ahmad Khan and 2 others v. Azad Government and 3 others 2001 YLR 666 and Sajida Maqsood v. Deputy Commissioner/Collector District Muzaffarabad and others 2013 MLD 520 rel.

Haider Rasheed Mughal for Petitioner.

2018 P L C (C.S.) 1075

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J

MUHAMMAD JAVED IQBAL KHAN

Versus

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

Writ Petition No.1504 of 2010, decided on 24th March, 2018.

(a) Civil service---

----Appointment---Waiting list---Scope---Petitioner was appointed on ad-hoc basis whereafter post in question was advertised by the Public Service Commission---Public Service Commission issued waiting list and candidates lower in merit list to the petitioner were appointed---Contention of petitioner was that, in circumstances he was entitled for regular appointment against the post in question---Validity---Petitioner-employee possessed the requisite qualification; was appointed on ad-hoc basis and still holding the said post---Candidates who were lower in merit in the waiting list had been appointed against the quota of specific District as per direction issued by the High Court---Petitioner being topper in the waiting list against the quota of concerned district was entitled to be appointed against post in question---Petitioner was holding the post which was not requisitioned by the Public Service Commission---Authorities were directed to regularize/confirm the petitioner against the post in question on the basis of waiting list issued by the Public Service Commission---Writ petition was allowed in circumstances.

Sikandar Azam v. Azad Govt. and 3 others 2009 SCR 91; Azad Government of the State of J&K & others v. Haji Summandar Khan and others 1995 MLD 1350 and Azad Govt. and 3 others v. Mrs. Jamshed Naqvi and 2 others 2014 SCR 13 ref.

(b) Pleadings---

----Parties could not go beyond their pleadings.

Azad Government and others v. Qamar-uz-Zaman Khan Niazi, 1993 SCR 9; Muhammad Hussain v. Abdul Majid and others 1993 SCR 319 and Sheikh Javed Iqbal v. Muhammad Bashir and 5 others 2010 PLC (C.S.) 1264 rel.

Raja Muhammad Hanif Khan for Petitioner.

Syed Serosh Gillani, Legal Advisor of Electricity Department for Respondents Nos.1 to 4.

2018 P L C (C.S.) 1098

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

Qazi ZAIN-UL-ABADEEN

Versus

UNIVERSITY OF AZAD JAMMU AND KASHMIR through Vice Chancellor Chehlla Campus Muzaffarabad and 4 others

Writ Petition No.952 of 2017, decided on 21st May, 2018.

Civil service---

----Appointment against the post of Lecturer (Mathematics)---Requisite qualification being Master Degree (Foreign) or M. Phil/MS (Pakistan) or equivalent degree (18 years) in the relevant field from University/institution recognized by Higher Education Commission and no third division in the academic career---Additional marks for holding distinction in the required degree---Procedure---Words "for required degree/certificate"---Scope---Subsequent withdrawal of condition---Effect---Contention of petitioner was that respondent had been awarded five marks for her distinction without any justification as she did not have distinction of Gold Medal in her M. Phil degree---Validity---Five marks of distinction were to be awarded "for required degree/certificate"---Respondent had a Gold Medal in her M.Sc. (Mathematics) but had no such distinction in her M. Phil degree---Words "for degree/certificate" would indicate the qualification required for appointment which was M. Phil---Respondent was not entitled to five marks for her distinction of 'Gold Medal' as she did not have distinction in degree of M. Phil---University had deleted the words "for required degree/certificate" from the assessment proforma---Said condition had been deleted from the date of inception---Such effort had been made to benefit the respondent---University had issued person specific notification indicating mala fide on its part---Matter of petitioner was to be dealt in accordance with the law prevailing at the time of advertising the post in question---Subsequent withdrawal of any condition could not snatch a right accrued to the candidate---Notification for withdrawal of condition was ineffective on the rights of petitioner---Selection Board had clarified that respondent was not awarded five marks for her distinction/Gold Medal---Petitioner was on top of the merit list for the post in question---University was directed to act in accordance with recommendations of Selection Board by deleting five marks of distinction awarded to the respondent---Writ petition was allowed accordingly.

2003 SCR 351; 2014 SCR 1 and 2006 SCR 396 ref.

Petitioner in person along with Raja Muhammad Hanif Khan for Petitioner.

Amjad Hameed Siddique for Respondent No.5.

2018 P L C (C.S.) 73

[Islamabad High Court]

Before Athar Minallah and Mohsin Akhtar Kayani, JJ

The CHAIRPERSON, NATIONAL COMMISSION FOR HUMAN DEVELOPMENT and others

Versus

ABDUL JABBAR MEMON and others

I.C.A. No.78 of 2017, decided on 13th June, 2017.

National Commission for Human Development Ordinance (XXIX of 2002)---

----Ss. 3, 5 & 7---National Commission for Human Development Employees Service Rules, 2006, Rr.14 & 29.02(1)(b)---Civil service---Seniority---Petitioners were employees of National Commission for Human Development and had assailed order dated 21-11-2016 whereby five other officials were given additional charge of respective posts---Petitioners contended that giving of additional charge had indirectly affected and prejudiced their rights in context of seniority and future prospects of promotion---Single Judge of High Court allowed petition and set aside notification dated 21-11-2016---Validity---National Commission for Human Development Employees Service Rules, 2006 were non-statutory rules---Giving additional charge of the post was not barred under National Commission for Human Development Ordinance, 2002 read with National Commission for Human Development Employees Service Rules, 2006, therefore, notification in question was not issued in violation of National Commission for Human Development Employees Service Rules, 2006---Provision of R.14 of National Commission for Human Development Employees Service Rules, 2006 was not attracted in case of giving additional charge of a post---Order assailed by petitioner through Constitutional petition had no effect of prejudicing their rights relating to seniority or promotion---Petitioners were not 'aggrieved' for purposes of Art.199 of the Constitution---Right of appeal was not available under National Commission for Human Development Employees Service Rules, 2006 against notification dated 21-11-2016 as it was not issued by a supervisory officer---Constitutional petition filed by petitioners was not maintainable and was devoid of merits--- Division Bench of High Court set aside order passed by Single Judge of High Court---Intra court appeal was allowed in circumstances.

Case-law referred.

S.A. Mahmood Khan Saddozai for Appellants.

Raja Saif ur Rehman for Respondents.

2018 P L C (C.S.) 186

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Mst. SAIMA MALIK

Versus

MINISTRY OF CAPITAL ADMINISTRATION AND DEVELOPMENT and another

W.P. No.4634 of 2016, decided on 23rd August, 2017.

Civil service---

----Daily wages employees---Regularization of service---Discrimination--- Reasonable classification---Requirements---Petitioner-employee was one of over a thousand employees whose services had been regularized---Notification qua regularization of service of employee had been issued but she was being prevented from working as a regular employee---Petitioner-employee after notification of regularization of service had completed her probation period---Employee was not seeking regularization of her service but wanted to be posted against the vacant post having already been regularized---Said notification of regularization had not been withdrawn or rescinded by the department---Employees whose services had been regularized continued to perform their function as regular employees---Petitioner being similarly placed could not be treated with a different yardstick---Reasonable classification must be based on an intelligible differentia which could distinguish individual or one group of persons from another group in a particular set of circumstances---Reasonable classification must be founded on reasonable basis and must have rational nexus to the object sought to be achieved by such classification---Regularization of some daily wages employees and denial of the same to other similarly placed employees was a cause for discrimination---Authorities could not discriminate the petitioner from other employees who had been regularized---State should have good sense of acting strictly in accordance with Art.25 of the Constitution and eliminate all forms of discrimination unless they were based on reasonable classification-Authorities were directed to implement the notification of regularization of service of employee and post her against a permanent available post---Constitutional petition was allowed in circumstances.

Muhammad Aftab Alam Rana and Hafiz Mazhar Maikan for Petitioner.

Afnan Karim Kundi, Additional Attorney-General, and Ms. Sitwat Jahangir, Assistant Attorney-General along with Masood ul Hameed Malik Deputy Director (Legal) CADD for Respondents.

2018 P L C (C.S.) 228

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

JAVED IQBAL and another

Versus

FEDERATION OF PAKISTAN through Secretary, Planning and Development Division and others

W.P. No.2008 of 2016, decided on 21st August, 2017.

(a) Minimum Wages for Unskilled Workers Ordinance (XX of 1969)---

----Preamble---Constitution of Pakistan, Arts.3, 9 & 25-A---Civil service---Teachers of Basic Education Community Schools seeking direction for fixation of monthly salary as equal to the minimum wages fixed by the Government---Fundamental Right to Life and Right to Education---Scope---Contention of employees was that they were being paid only Rs.5,000/- per month as salary---Validity---No one would willingly provide services for another for less than the minimum wage especially when he knew that under the law he was entitled to get minimum wage from his employer---When a person provided labour or service to another against remuneration which was less than the minimum wage, he was acting under the force of some compulsion which deprived him to work though he was paid less than what he was entitled under the law to receive---Person would accept a salary less than a minimum wage when he was in no position to bargain with the employer---Every person who had provided labour or service to another was entitled at least to the minimum wage---If anything less than the minimum wage was paid then he could complain of violation of his Fundamental Right---When State employed people for doing work or providing services like home based imparting for training and education to students in villages then it must find adequate funds for such projects---Paying a meager amount or less than the notified minimum wage to teachers of Basic Education Community Schools would impede and retard the obligation of State under Art.25-A of the Constitution---Right to education should be treated as a Right to Life---State was bound to provide educational facilities at all level to its citizens---Right to Education was a Fundamental Right---Payment of salary less than the minimum wage to the petitioners was in violation of Art.3 of the Constitution---Government was directed to pay at least an amount equivalent to the minimum wage fixed or notified from time to time---Constitutional petition was allowed accordingly.

Fiaqat Hussain v. Federation of Pakistan PLD 2012 SC 224; PLD 2011 SC 37; 2013 SCMR 728; Shehla Zia v. WAPDA PLD 1994 SC 693; Arshad Mehmood v. Government of Punjab PLD 2005 SC 193; Adeel-ur-Rehman v. Federation of Pakistan and others 2005 SCMR 1 and Syeda Shazia Irshad Bokhari v. Government of Punjab PLD 2005 Lah. 428 rel.

(b) Constitution of Pakistan---

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

(c) Constitution of Pakistan---

----Art. 9---No one should be deprived of life or liberty save in accordance with law.

(d) Constitution of Pakistan---

----Art. 9--- ' Life ' ---Meaning

Muhammad Aslam Bhangoo for Petitioners.

Afnan Karim Kundi, Additional Attorney-General and Ms. Sitwat Jahangir, Assistant Attorney-General for Respondents.

2018 P L C (C.S.) 257

[Islamabad High Court]

Before Shaukat Aziz Siddiqui and Muhammad Anwar Khan Kasi, JJ

MOHAMMAD ASHRAF and another

Versus

MOHAMMAD ASGHAR ZARDARI and others

Intra Court Appeal No.62 of 2008, decided on 29th May, 2012.

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

----S. 27(5-A)---Capital Development Authority Employees Service Regulation, 1992, Part-B---Method of appointment---Degree-holder and diploma holder---Appellants were sub-engineers having diploma of associate engineers and they were promoted to Deputy Directors and Single Judge of High Court set aside promotion--- Validity--- Under Capital Development Authority Employees Service Regulations, 1992, Part B (as amended) no person would be appointed as engineer/ Assistant Director /Director unless registered as engineer or professional engineer with Pakistan Engineering Council---Such provision was aimed at getting services of qualified engineers for better efficiency and high standard of service to meet challenges of present days difficulties or engineering problems in odd situations---Engineers not registered with Pakistan Engineering Council could not be appointed against post of engineers/Assistant Directors/Directors in Capital Development Authority---Any gain based on illegal orders could not be declared legal and authority making such order could also unmake it if it was not in conformity with established principles of rule and law---Law could not be stretched in aid of illegal orders which could always be and must be rectified at earliest--- Division Bench of High Court declined to interfere in conclusion drawn by Single Judge of High Court as same was based on facts and law points---Intra-court appeal was dismissed in circumstances.

Fida Hussain v. Secretary, Kashmir Affairs and Northern Affairs Division PLD 1995 SC 701 ref

PLD 1973 SC 236; 1998 SCMR 516 and 1986 SCMR 1071 rel.

Abdur Rahim Bhatti for Appellant (in C.M No.701/2009).

Dr. Muhammad Azam Khan Chaudhary for Appellants.

Zulfiqar Khalid Maluka for Applicant (in C.M No.863/2011 and 3137/2008).

Hafiz Arfat Ahmad for Respondents Nos.1 and 2.

Muhammad Akram Sheikh (ASC) and Barrister Sajeel Sheryar Swati for Respondents Nos.3 and 4.

Haseeb Muhammad Chauhdary for Respondents Nos.5 and 6.

Zafar Minhas, Manager, Legal P.E.C, Respondent No.7.

2018 P L C (C.S.) 325

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Athar Minallah, JJ

Ch. MOHAMMAD NAWAZ and another

Versus

The FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION and others

I.C.A. No.188 of 2015, decided on 31st July, 2017.

(a) Civil service---

----Allotment of plot to civil servant, cancellation of---Opportunity of hearing---Natural justice principles of---Applicability---Scope---Allotment of plot in favour of petitioner-employee was cancelled on the ground that he was not holding BPS-20 position on regular basis but due to move over---Validity--Petitioner-employee applied for a category-I plot representing himself to be in BPS-20 on regular basis at the time of his retirement---Petitioner was employed as Project Manager in BPS-20 until his retirement---Petitioner-employee paid cost of the plot and gifted the same to his son---No opportunity of hearing was given to the employee before cancelling allotment of the suit plot---Petitioner was not issued show-cause notice to determine whether or not he was a BPS-20 officer on regular basis at the time of retirement---Employee was a BPS-20 officer but relevant record was not produced before the Housing Foundation---Housing Foundation should have associated the employee in verification process before cancelation of allotment of suit plot---Foundation cancelled allotment of plot more than seven years after its allotment and after receiving full payment therefor---Move-over could not be considered as a promotion to a post in a higher pay scale---Employee had a right, to be associated while carrying out the verification process to determine whether he was an employee in BPS-20 on the basis of promotion or move-over---Foundation could not have carried out such process behind the back of petitioner-employee---Lack of bona fides existed on record in the present case---Right of personal hearing to a person against whom an adverse order was to be made had been equated with a Fundamental Right---Adverse order made without affording an opportunity of personal hearing was to be treated as a void order---If principles of natural justice were violated with regard to any decision, said decision would be 'no decision' in the eye of law---Principles of natural justice would apply to all judicial and non-judicial proceedings---No show-cause notice was issued by the Foundation to the employee nor was the petitioner afforded an opportunity of hearing prior to cancellation of allotment, such decision was liable to be declared as void and coram non judice---Impugned order passed by the Housing Foundation was set aside---Intra Court appeal was allowed in circumstances.

[Case-law referred]

(b) Civil service---

----"Promotion" and "move-over"---Distinction---Move-over was simply an extension in an employee's pay scale---Move-over from one scale to another did not amount to promotion but it was awarded to an incumbent after reaching the maximum of his substantive scale; it could not be equated with promotion; move-over was a financial aid to an employee who otherwise fulfilled the qualification for a higher grade but could not be promoted for want of a vacancy or a post.

Muhammad Rafique v. Management Director (WAPDA) 1995 SCMR 1549 and Tanvir Ahmad v. Chief Secretary, Government of Punjab 2004 SCMR 647 rel.

(c) Maxim---

----"Audi alteram partem"---Scope---Maxim originates from Islamic Principles of Justice; its violation vitiates even the most solemn proceedings.

Taimoor Aslam Khan for Appellants.

Javaid Iqbal Wains for Respondents Nos.1 to 3.

Tariq Mehmood Mirza for Respondent No.5.

2018 P L C (C.S.) 344

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD HUSSAIN

Versus

ESTATE OFFICE and others

Civil Revision No.310 of 2016, decided on 7th March, 2017.

(a) Accommodation Allocation Rules, 2002---

----Rr. 15 (1) (2), 28, 4(1), 6 & 25---Civil Servants Act (LXXI of 1973), S.25---Federal Government Land and Buildings (Recovery of Possession) Ordinance (LVI of 1965), Preamble---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for declaration---Employee of Capital Development Authority---Allotment of official accommodation from the pool of Estate Office---Procedure---Official accommodation was allotted to the mother of plaintiff-employee who retired from Islamabad Capital Territory Police---Plaintiff-employee applied for allotment of said accommodation to the Estate Office on family transfer basis---Plaintiff-employee filed suit for declaration but plaint was rejected on the ground that he was not entitled for allotment of suit accommodation which was in the pool of Estate Office---Validity---Suit accommodation was not in the pool of Capital Development Authority but in the pool of Estate Office---Estate Office had not exchanged suit accommodation with any accommodation provided by the Capital Development Authority---Serving spouse or children living with a federal government servant/allottee might be allotted the same accommodation if he was eligible and otherwise entitled for accommodation within six months of the retirement of allottee---Amendment in Accommodation Allocation Rules, 2002 could be brought about by the President by exercising powers conferred under S.25 of Civil Servants Act, 1973---Time period fixed in R.15 of Accommodation Allocation Rules, 2002 without such amendment could not be condoned by the competent authority---Federal Government could not issue direction which had the effect of amending, varying, undoing, relaxing, altering, modifying or changing the substantive provisions of Accommodation Allocation Rules, 2002---Estate Office could not place its accommodation at the pool of any other department except Ministry of Foreign Affairs and Inter Services Intelligence---Plaintiff-employee could not be extended the benefits of R.15(2) of Accommodation Allocation Rules, 2002 as suit accommodation had not been placed in the poll of Capital Development Authority---Plaintiff being employee of Capital Development Authority was not entitled to government accommodation from the poll of Estate Office---Plaintiff could not deprive the persons who had been waiting for years in the general waiting list maintained by Estate Office---Plaintiff-employee could apply Capital Development Authority for allotment of accommodation from its own poll---Any allotment in derogation of R.4(1) of Accommodation Allocation Rules, 2002 would not have any legal foundation---Two wrongs did not make a right---Allottee on retirement or expiry of contract period could retain accommodation for a period not exceeding six months---Period of six months had expired and plaintiff-employee was occupying the accommodation in question without valid allotment---Estate Office could eject occupants from government owned accommodation---Government servant should be liable to criminal proceedings for being in illegal occupation of government accommodation---Plaintiff-employee should hand over the suit accommodation to the Estate Office at the earliest---Authorities were bound to take steps to evict unauthorized occupants form the government accommodation---Laxity on the part of public functionaries would render them liable to be proceeded against in accordance with law---No jurisdictional infirmity was found in the orders passed by the Courts below---Revision was dismissed in circumstances.

Federation of Pakistan through Secretary Ministry of Housing and Works and another v. Abrar Ahmed and others 2010 SCMR 1537; Adnan Qureshi v. Capital Development Authority 2015 PLC (C.S.) 1030 and Muhammad Afsar v. Malik Muhammad Farooq 2012 SCMR 274 rel.

(b) Constitution of Pakistan---

----Arts. 189 & 190---Judgments of Supreme Court were binding on each and every organ of the State.

Khurram Mehmood Qureshi for Petitioner.

Sitwat Jehangir Asstt. Attorney-General, Mumtaz Khan, Joint Estate Officer, Miraj Khan, Section Officer, Ministry of Housing and Works, Islamabad for Respondents

2018 P L C (C.S.) 519

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

MUHAMMAD ZUBAIR and others

Versus

NATIONAL COMMAND AUTHORITY and others

Writ Petition No.3198 of 2013, decided on 14th November, 2016.

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

----Ss. 7 & 9---Constitution of Pakistan, Arts.3, 4, 9, 10-A & 25---General Clauses Act (X of 1897), S.24-A---Employees of National Command Authority---Promotion---Security clearance---Maxim 'Nemo firut repente turpissimus' (No one becomes dishonest all of a sudden)---Scope---Audi alteram partem, principle of---Applicability---Fundamental Rights---Contention of petitioner/ employees was that no adverse entry or remarks had ever been recorded against them but they had not been promoted---Validity---Organization should have framed criteria so that no one could hold any opinion at his own rather there must be a yardstick to calculate the concept of integrity, relationship of family members, financial background, involvement of individual in any matter of moral turpitude, misconduct, crime, general repute among family members, relative and neighbours---Authority was not free in its opinion rather it had to conclude its findings on the basis of some guidelines and principles which were based upon reasonableness, fairness and for the advancement of the purposes of strategic organization---No one could become dishonest all of a sudden---Nothing was on record that petitioners/employees were dishonest or any issue of integrity had been reported against them---Petitioners/employees had not been confronted with any report, material or document where the question of integrity or security had been breached---Principle of natural justice (audi alteram partem) had been violated which was sufficient to vitiate the whole proceedings---Concept of security clearance based upon intelligence reports could be used in the cases of promotion of the officers but principles of fairness and reasonableness was foundation of all the system of Government---Constitution guaranteed the equal protection of law, elimination of exploitation and safeguards against any kind of discrimination---National Command Authority Act, 2010 could not supersede the concept of Fundamental Right---Any material which came in the way of promotion of petitioners/employees collected by the intelligence agencies had to be confronted through some internal mechanism if same was not confidential in its nature---If such material was confidential and it would affect the working of such kind of strategic organization then Authority should follow a procedure to dis-engage the services of such officials---Authority could not exercise its powers in an unbridled manner without disclosing the reasons and factors under the garb of term 'security clearance'---Nothing was on record which could be used against the petitioners/employees while denying the right of promotion---Reason put forward by the authority under the garb of term 'security clearance' was not sustainable in the eye of law---Junior officers of the organization had been promoted to the next higher grade without considering the promotion of petitioners/employees---Petitioners/employees were entitled for the relief of promotion since their junior colleagues had been promoted---Employees were declared to be entitled for promotion in their appropriate grades with effect from the date their juniors had been promoted with all consequential benefits---Constitutional petition was allowed in circumstances.

Baber Sattar v. Federation of Pakistan 2016 CLD 134; Muhammad Zafeer Abbasi v. Government of Pakistan 2003 CLC 503; Ahmed Saeed Siddiqui v. Pakistan through Secretary Establishment 2015 PLC (C.S.) 923; Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed Manika and others 2015 SCMR 1006; Muhammad Akbar Khan Hoti v. Federation of Pakistan 2006 PLC (C.S) 619; Sameen Asghar v. Federation of Pakistan 2016 PLC (C.S.) 725; Abdul Wadood Khan v. Secretary, Establishment Division 2009 PLC (C.S.) 348; Muhammad Ashraf v. Government of Pakistan 2007 PLC (C.S.) 669; High Court Bar Association, Bahawalpur v. Federation of Pakistan and others PLD 2015 Lah. 317 and Chief Secretary, Sindh v. Riaz Ahmed Massan and another 2016 SCMR 1784 rel.

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

----S. 9---'Security clearance'---Meaning.

(c) Maxim---

----"Nemo firut repente turpissimus"---Connotation.

(d) Maxim---

----"Audi alteram partem"---Scope.

Abdur Rehman Siddiqui for Petitioners.

Barrister Waqas Aziz Qureshi for Respondent No.1.

Mustafa Shakir Hussain Manager (Legal) NESCOM for Respondent No.2.

2018 P L C (C.S.) 619

[Islamabad High Court]

Before Athar Minallah, J

Ms. SHAGUFTA HASHMAT and others

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division and others

W.P. No.2117 of 2016, decided on 1st November, 2017.

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

----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. III--- Contract employees---Regularization in service---Policy issued by the Federal Government to regularize contract employees ("Regularization policy")---Scope---Regularization policy could not be inconsistent with primary legislation, such as the Civil Servants Act, 1973---Federal Government was not empowered to bypass or render statutory provisions redundant by way of a regularization policy---Likewise, a delegated legislation, such as the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 would prevail to the extent of conflict with a regularization policy---Policy of the Federal Government had to be interpreted in conformity with the statutory provisions or delegated legislation made there under.

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

----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. III---Constitution of Pakistan, Arts. 25 & 27---Appointment in service---Principles stated.

Following are the settled principles with regard to appointment in service; in government departments and statutory organisations;

(i) The posts in government departments and statutory organizations ought to be filled within reasonable time by following the procedure prescribed under the relevant law;

(iii) Appointments of any nature, whether initial or ad hoc, permanent or temporary, if made in violation of the principles of competitive transparency, inter alia, without inviting applications from the public, was in violation of the Constitution and, therefore, void.

(iv) Appointment to a post in the public sector made in a non-transparent and discriminatory manner offended the Fundamental Rights guaranteed under Articles 25 and 27 of the Constitution.

(v) Selecting a qualified, eligible and most deserving person was a sacred trust which was to be discharged honestly and fairly in a just and transparent manner and in the best interest of the public.

Dr Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Syed Mubashir Raza Jaffri and others v. Employees Old Age Benefits Institution (EOBI) through President of Board, Board of Trustees and others 2014 SCMR 949; Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission and others 2017 SCMR 637; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Government of N.W.F.P. through Secretary Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287; Mushtaq Ahmed Mohal v. Lahore High Court 1997 SCMR 1043; Obaidullah v. Habibullah PLD 1997 SC 835 and Abdul Rashid v. Riazuddin 1995 SCMR 999 ref.

(c) Civil service---

----Contract/temporary employees---Regularization in service---Conduct of employer--- Where a person was qualified to hold a post and fulfilled all other conditions prescribed under the law, then a right may accrue to be considered for permanent appointment if the temporary appointment of the person had continued for a considerable length of time and the conduct of the employer had created an impression in the mind of such a person that he may be retained on a regular basis.

(d) Constitution of Pakistan---

---Arts. 25 & 199---Constitutional jurisdiction of the High Court---Illegality---Plea of discrimination---Illegality could not be pleaded as a ground for discrimination, nor could it be allowed to be perpetuated while exercising powers under Art.199 of the Constitution.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Legitimate expectation, doctrine of---Scope---Question of legitimate expectation could not be adjudicated while exercising jurisdiction under Art.199 of the Constitution since it involved disputed questions of fact.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Contract/temporary employee---Regularization in service---Question as to whether or not the conduct of an employer had created an impression in the mind of the employee that the former intended to retain him on a regular basis was definitely a question of fact and not justiciable while exercising powers under Art.199 of the Constitution.

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

----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 11 & Pt. III---Constitution of Pakistan, Art.25---Contract/ contingent/ daily wage employees---Regularization in service---Regularization policy issued by the Federal Government---High Court observed that most of the petitioners, who were contract/temporary teachers in government educational institutions, were appointed without observing the principles of transparency and that too on a daily wage basis or honourary basis; that salaries of teachers were being paid from a student fund, which was a gross violation of Art.25A of the Constitution, and that it was a sacred trust to be discharged by the competent authorities to ensure that no person was appointed illegally or in a non-transparent manner, so that every student had access to the best amongst the best of the teachers---High Court issued direction with regard to regularization of contract/contingent/daily wage employees.

High Court issued the following directions with regard to regularization of contract/contingent/daily wage employees;

(i) The case of each petitioner (contract/contingent/daily wage employee) shall be considered and decided by the relevant competent authority;

(ii) The appointments of petitioners, which were made without advertising the posts and observing the principles of competitive transparency, were illegal, void and tantamount to misconduct on the part of the appointing authority. Petitioners who were appointed as teachers, without advertisement and without following principles of competitive transparency had been serving for a considerable time. The failure of Federal Government was obvious in taking timely measures. The Federal Government, therefore, owed a duty of care towards such petitioners as well. It would, therefore, be just and proper for the Federal Government to consider and take appropriate decisions in accordance with law relating to the fate of such petitioners. The Federal Government may, inter alia, consult the Federal Public Service Commission in this regard because the petitioners fell in the category of pay scale 16 and above. Before taking any adverse action against such petitioners (teachers), they shall be afforded reasonable opportunity of hearing;

(iii) It was the duty of the department and the Federal Government to pay salaries to the teachers employed in public schools or colleges from the approved budget rather than burdening the students, which was a serious violation.

(iv) The cases of those petitioners who were appointed through a transparent recruitment process and were seeking regularization against the posts in pay scale 1 to 15, described in section 5 of the Civil Servants Act, 1973, shall be scrutinized by the respective departments in the light of the "Regularization Policy"[Office Memorandum No F.53/1/2008-SP dated 11-05-2017 issued by Cabinet Secretariat, Establishment Division, Government of Pakistan]. The cases of the eligible employees shall be placed before the Departmental Selection Committee, as required under Rule 11 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The latter, having regard to the said Rules, shall give its recommendation in each case. The petitioners in pay scale 16 and above or equivalent shall apply directly to the Federal Public Service Commission, strictly in accordance with clause (ii) of the "Regularization Policy".

(v) In the case of petitioners who were employees of entities established under a special statute wherein the Federal Government had a control, administrative or financial, their cases shall be scrutinized and placed before the competent authority for its decision, having regard to the "Regularization Policy".

(vi) In the case of juridical persons incorporated under the relevant laws, the cases of the petitioners who were its employees shall be placed before the respective Board for a decision, inter alia, having regard to the "Regularization Policy".

Muhammad Shoaib Shaheen, Abdul Rahim Bhatti, Hafiz S.A. Rehman, G.M. Chaudhry, Hafiz Munawar Iqbal, Muhammad Nauman Munir Paracha, Ashfaq Ahmed Khan, Ch. Tanveer Akhtar, Raja Muhammad Khan, Misbahullah Khan, Haroon ur Rashid, Ali Nawaz Kharal, Muhammad Umair Baloch, Ashfaq Ahmed Khan, Kazi Sheharyar Iqbal, Zill e Huma, Ahmed Abdul Rafey, Ishtiaq Ahmed Raja, Shafiq ur Rehman Dab, Faisal Bin Khurshid, Ch. Manzoor Khamboh, Khawaja Aurangzaib Alamgir, Muhammad Asif Gondal, Matloob Hussain Malik, Ali Murad Baloch, Waqar Ahmed, Rana Samreen Akhtar, Muhammad Ramzan Khan, Ch. Muhammad Ashraf Gujjar, Ishtiaq Ahmed Rana, Muhammad Aftab Alam Rana, Zia Ul Haq Kiyani, Ch. Saifullah Warriach, Muhammad Sajjad Bangash, Ahsan Hameed Dogar, Mehr Muhammd Bakhsh, Hafiz Ali Asghar, Safeer Khadim, Hafiz Ahmed Rashid, Muhammad Waqas Malik, Ibrar Hussain, Muhammad Anwar Mughal, Muhammad Aslam Chaudhry, Ishtiaq Ahmed Cheema, Muhammad Umar, Anar Khan Gondal, Muhammad Kashif Tabassam, Muhammad Usman Khan, Muhammad Afzal Khan Jadoon, Syed Sadaqat Ali, Arshad Mehmood and Hafiz Mazhar Maiken for Petitioners.

Qausain Faisal Mufti, Ch. Sageer Ahmed, Rai Azhar Iqbal Kharal, Muhammad Ramzan Khan, Muhammad Riaz Akbar, Raja Zubair Hussain Jarral, Muhammad Nauman Munir Paracha and Sadia Naerean Malik Advocates, Afnan Karim Kundi, Addl. Attorney General Kh. Muhammad Imtiaz, Assistant Attorney General, Munir Ahmed, J.S. Finance Div. Dr. Masood Akhtar Sr. J.S. S. Ahmed Bahar Zaidi, Director FPSC, M. Tahir Iqbal, A.D. FPSC, Muhammad Younas, S.O. Establishment Div. S.M. Rehan Naqvi, A.D. Legal FDE, Zaheer Iqbal, S.O. Cabinet, Khan Hafeez, Dy. Secy. Finance, Khan Zeb, A.D. Law BECS, Kashif Ch. Manger Legal USC and Nadeem Arshad, S.O. Finance for Respondents.

2018 P L C (C.S.) 649

[Islamabad High Court]

Before Athar Minallah, J

NAVEEDA JABEEN

Versus

GOVERNMENT OF PAKISTAN through Ministry of Housing and Works, through Secretary, Islamabad and 3 others

Civil Revision No.138 of 2017, decided on 16th January, 2018.

Accommodation Allocation Rules, 2002---

----Rr. 15(1)(b)(2), 13, 14 & 2(2)(f)---Specific Relief Act (I of 1877), S.42--- Suit for declaration--- Allotment of official accommodation---Conditions---General waiting list---Scope---Official accommodation was allotted to the mother of plaintiff employee, who retired from service---Plaintiff employee applied for allotment of said accommodation and her name was included in the general waiting list---Plaintiff employee filed suit that she was entitled for allotment of official accommodation allotted to her mother---Suit was dismissed concurrently---Validity---Plaintiff employee was married and was not a dependant of her mother who had been allotted the accommodation---Mother of plaintiff employee had retired from service after attaining the age of superannuation---Plaintiff employee had independently applied for allotment of an official accommodation and her name had been included in general waiting list---Plaintiff employee was not yet entitled to allotment of official accommodation as per general waiting list---Rule 15(2) of Accommodation Allocation Rules, 2002 had restricted the allotment of official accommodation to a serving spouses or children living with the allottee---Relative including son or daughter who did not fall within the definition of 'family' had been excluded from being allotted the accommodation under R.15(2) of Accommodation Allocation Rules, 2002---Person claiming a right was required to fulfill all the conditions prescribed for allotment of an official accommodation under Accommodation Allocation Rules, 2002---Plaintiff employee was neither dependant on the allottee i.e. her mother nor had become entitled for allotment on the basis of general waiting list---No illegality had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in circumstances.

Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad and another v. Abrar Ahmed and others 2010 SCMR 1537; Ahmed Yar v. Rajab Khan and 5 others 1999 YLR 698 and Noor Elahi v. Chairman WAPDA and 6 others 1996 SCMR 1536 ref.

Muhammad Afsar v. Muhammad Farooq 2012 SCMR 274 rel.

Khurram Mahmood Qureshi for Petitioners

Israr Ul Haq, Assistant Attorney General and Mumtaz Khan, Joint Estate Officer for Respondents.

2018 P L C (C.S.) 822

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

RASHID AMEER

Versus

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

W.P. No.1631 of 2017 decided on 29th December, 2017.

(a) Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993---

----R. 3---Federal Government Establishment Office Memorandum dated 24-06-2010---Appointment of Assistant Sub-Inspector (Police)---Petitioner employee, being police constable was over age by four years one month and ten days sought relaxation in upper age limit---Contention of department was that recruitment process had already been completed and selected candidates were getting training---Application filed by the employee for relaxation in age limit was dismissed by the Authority---Validity---Ten years age relaxation was permissible to a person who was working in the government department and had completed two years continuous service on the closing date of receipt of application---Petitioner employee was twenty nine years old at the time of advertisement for the post in question---Authority was directed to issue direction to the relevant department to include the name of petitioner employee for his participation in the recruitment process but it was not done---Employee could not be deprived form his valuable right which had accrued in his favour through Office memorandum of the Establishment Division---Islamabad Police being under the administrative control of Ministry of Interior was bound to follow the law with regard to age relaxation---Authority had not extended the benefit of relaxation in age to the employee which was contrary to law---Process of recruitment in which petitioner employee was not granted relaxation in age by ignoring R.3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division was in violation of the rules---Depriving the petitioner to apply for the post in question ignoring the relevant Rules was violation of Art.4 of the Constitution---Petitioner employee was declared to be eligible to apply for the post in question on the basis of relaxation in age by ten years as he was serving in the Police as constable since his appointment i.e. 10-07-2007---Impugned order passed by the department was set aside---High Court could change the relief under Art.199 of the Constituion in the changed circumstances---Authority were directed to reinitiate recruitment process for the post in question only to the extent of petitioner employee wherein he should apply and appear in written test and other tests which were taken by the Recruitment Committee in the case of previously selected candidates---Recruitment process was to be completed on merit within thirty days---If petitioner successfully completed all the stages of recruitment process, he should be appointed and sent for training where already selected candidates were getting---Inspector General of Police was directed to follow Office Memorandum of Establishment Division dated 24-06-2010 with regard to relaxation in age for future recruitments---If any advertisement with regard to recruitment in Islamabad Police was made in violation of said Memorandum as well as R.3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993, same would be illegal---Constitutional petition was allowed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could change the relief in the changed circumstances.

Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad PLD 2011 SC 365 and All Pakistan Textile Mills Association v. FOP PLD 2009 Lah. 494 = 2009 PTD 1298 rel.

Sardar Muhammad Tariq Fareed Gopang for Petitioner.

Arshad Mahmood, Superintendent Establishment Division, Abdul Rauf, Inspector Legal for Respondents Nos.3 and 4.

Ms. Saima Naqvi, State Counsel.

Date of hearing: 21st December, 2017.

JUDGMENT

MOHSIN AKHTAR KAYANI, J.--- Through this writ petition, the petitioner has assailed the order dated 27.04.2017, passed by Inspector General of Police, Islamabad/respondent No.3, whereby application filed by the petitioner for relaxation in age limit to apply for the post of ASI (BPS-11) in Islamabad Police Counter Terrorism Force (CTF) was dismissed on the ground that the petitioner is over aged by 4 years, 1 month and 10 days against the prescribed age limit of 25 years.

1. Brief facts, necessary for disposal of the instant writ petition are that the petitioner is a constable in Islamabad Police and performing his duties since 10.07.2007. Father of the petitioner died during his service on 03.11.2011 as DSP in Sindh Police, Karachi. Respondent No.4 published vacancies for the post of ASI and the petitioner in order to apply for the said post moved an application to Inspector General of Police/Islamabad/respondent No.3 on 18.04.2017 for relaxation in age, however, the application of the petitioner was turned down vide impugned order dated 27.04.2017 on the ground that requisite age for the post of ASI is 25 years, whereas petitioner is over aged by 4 years, 1 month and 10 days.

2. Learned counsel for the petitioner has contended that order of rejection of the application filed by the petitioner is against the rules, whereas Establishment Division vide office memorandum dated 24.06.2010 gave clarification regarding general relaxation in upper age limit, which is also applicable to Islamabad Capital Territory Police but respondent No.3 did not consider the said office memorandum, which is misconduct on part of respondent No.3. Learned counsel for the petitioner further argued that the petitioner being already in service is entitled for age relaxation as per office memorandum of Establishment Division; that Establishment Division/respondent No.2 in its report submitted before this Court regarding age relaxation has also acknowledged that office memorandum dated 24.06.2010 provides 05 years general age relaxation to all citizens of Pakistan and 10 years to those employees, who have completed 02 years continuous government service on the closing date for receipt of application.

3. Conversely, Inspector Legal, Islamabad Police argued that office memorandum dated 24.06.2010 is not applicable to Islamabad Police and the advertisement published for the recruitment of ASI was duly approved by the Establishment Division through Ministry of Interior, Islamabad but the Establishment Division did not refer any such office memorandum at that time. He further argued that if relaxation in age limit is allowed, it will open Pandora box; that recruitment process of ASI (CTF) has already been completed and selected candidates are getting training in Hangu Police College since 25.11.2017. He further argued that petitioner will be given chance in the next recruitment process for the post of ASI subject to his clearance the rules.

4. I have heard the arguments and gone through the record.

5. From perusal of the record, it has been observed that respondent No.3 made advertisement in different newspapers inviting applications from suitable Pakistani Nationals for the post of ASI in Counter Terrorism Force, Islamabad, Capital Territory Police [(CTF(ICT Police)] and as a result whereof, the petitioner being a constable in ICT. Police filed an application before Inspector. General of Police, Islamabad/respondent No.3 for relaxation in age limit to apply for the said post, which was turned down vide impugned order/letter dated 27.04.2017 mainly on the ground that petitioner is over aged by 4 years, 1 month and 10 days, whereas prescribed age limit for the post of ASI is 25 years and no relaxation in age is admissible as per advertisement. The application submitted by the petitioner before respondent No.3 is reproduced as under:-

1. The above referred application was forwarded to respondent No.3 by Superintendent of Police Headquarters, Islamabad on 18.04.2017. Respondent No.3 while deciding the same did not considered the law referred in the application in its true perspective.

2. It has been observed from the record that Establishment Division vide S.R.O.No.1079(I)/93 in pursuance of rule 12 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1993, made rules under the title Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993, whereby relaxation in the recruitment rules was provided in respect of different candidates. Rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 is reproduced as under:---

"(3) Maximum age limit as prescribed in the recruitment rules shall be relaxed in respect of the candidates mentioned in column (2) below to the extent mentioned against each under column (3):-

| | | | | --- | --- | --- | | Sl. No. | Category of candidates | Age relaxation admissible | | 1 | 2 | 3 | | (i) | (a) Candidates belonging to Scheduled Castes Buddhist Community, recognized tribes of the Tribal Areas, Azad Kashmir and Northern Areas for all posts under the Federal Government. | 3 years | | | (b) Candidates belonging to Sindh (R) and Balochistan for posts in BPS-15 and below under the Federal Government. | 3 years | | (ii) | Released or retired Officers/personnel of the Armed Forces of Pakistan. | 15 years or the number of years actually served in the Armed Forces of Pakistan, whichever is less. | | (iii) | Government servants who have completed 2 years continuous Government service on the closing date for receipt of applications. | 10 years, upto the age of 55 years | | (iv) | Disabled persons for appointment to posts in BPS-15 and below. | 10 years | | (v) | Widows, son or daughter of a deceased civil servant who dies during service | 5 years |

1. Besides the above referred rule, vide office memorandum of Establishment Division dated 24.06.2010 clarification regarding general relaxation of 5 years in upper age limit prescribed in Rules was made and this very fact has been admitted by respondent No.2/Establishment Division in its report submitted before this Court in the instant writ petition. Relevant paragraphs of the above referred office memorandum are reproduced as under:--

"2. In light of the recommendations of the Senate Standing Committee, the Ministries/Divisions/Departments are advised that hence-forth, the concession of 5 years general relaxation in upper age limit shall be clubbed with the maximum age limit of the post in their advertisements. In case usual upper age limit of the posts in various Basic Pay Scales is as in column (2) below:---

| | | | | | --- | --- | --- | --- | | Basic Pay scale | Age limit | General age Relaxation | Maximum age limit | | (1) | (2) | (3) | (4) | | 1-15 | 25 years | +5 years | 30 years | | 16 | 28 years | +5 years | 33 years | | 17 | 30 years | +5 years | 35 years | | 18 | 35years | +5 years | 40 years | | 19 | 40 years | +5 years | 45 years | | 20 | 45 years | +5 years | 50 years | | 21 | 50 years | +5 years | 55 years |

1. The Ministries/Divisions are further advised that the following relaxation in upper age limit available to the category of candidates specified below (to the extent mentioned against each) should be clearly mentioned in their advertisements for vacant posts:-

| | | | | --- | --- | --- | | Sl. No. | Category of candidates | Age relaxation admissible | | 1 | 2 | 3 | | (i) | (a) Candidates belonging to Scheduled Castes Buddhist Community, recognized tribes of the Tribal Areas, Azad Kashmir and Northern Areas for all pots under the Federal Government | 3 years | | | (b) Candidates belonging to Sindh (R) and Balochistan for posts in BPS-15 and below under the Federal Government. | 3 years | | (ii) | Released or retired Officers/personnel of the Armed Forces of Pakistan. | 15 years or the number of years actually served in the Armed Forces of Pakistan, whichever is less. | | (iii) | Government servants who have completed 2 years continuous Government service on the closing date for receipt of applications. | 10 years, upto the age of 55 years | | (iv) | Disabled persons for appointment to posts in BPS-15 and below. | 10 years | | (v) | Widows, son or daughter of a deceased civil servant who dies-during service | 5 years |

Note: Where a candidate is entitled to age relaxation under more than one categories specified above, he shall be allowed relaxation in age only in one category.

1. In addition to above, the President/Prime Minister may, on extreme compassionate grounds, grant age relaxation to an individual candidate for a period not exceeding three years.

2. Further, where the Ministries/Divisions/Departments have recently advertised various posts and the candidates have appeared in written test but their interviews are yet to be held i.e. their selection process is not over, the said posts may be re-advertised for additional applications with clear rule position about age limit and age relaxations as at paras.2 and 3 above.

3. The above referred rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010 clearly establish that any person, who is working in the government department and has completed two years continuous service on the closing date of receipt of the application, 10 years age relaxation is permissible to him, whereas at the time advertisement for the post of ASI, the petitioner was 29 years old but his request for relaxation in age to apply for the post of ASI was turned down by respondent No.3.

4. The stance taken by Islamabad Police Department in its report/reply to the writ petition is based upon advertisement, wherein age limit was mentioned 18 to 25 years for both categories along with other pre-requisite.

5. In the light of office memorandum of Establishment Division dated 24.06.2010, an order was passed in C.M No.01/2017 on 21.06.2017, whereby the IG of Islamabad Police was directed to issue direction to the relevant authorities to include the name of the petitioner for his participation in the recruitment process but surprisingly respondent No.3 did not bother to obey the said order. The conduct of the police official is highly disregarded to the Court's orders.

6. Islamabad Police also acknowledged passing of order dated 21.06.2017 in C.M No.01/2017 in its report/reply to the writ petition, however, Islamabad Police took the stance that all the selected candidates have joined the Hangu Police College for training on 25.11.2017 and it is not possible for them to accommodate the petitioner at this stage.

7. The petitioner cannot be deprived from his valuable right, which has accrued in his favour through office memorandum of Establishment Division dated 24.06.2010.

8. Moreover, clause 5 of the said office memorandum further strengthen case of the petitioner that if the advertised posts are under the process of selection and interviews have not yet been taken, the said post will be re-advertised for additional application with clear rule position about age limit and age relaxations, therefore, it can safely be concluded that Islamabad Police being under the Administrative control of Ministry of Interior was under obligation to follow the law regarding age relaxation in stricto sensu and despite rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010, respondent No.3 did not extend the benefit of relaxation in age to the petitioner, which is contrary to the law.

9. Keeping in view the background and law on the subject referred above, this Court is of the considered view that the process of recruitment of ASI, in which the petitioner was not granted relaxation in age by ignoring rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010, Islamabad Police Department has deprived the petitioner to apply for the post of ASI in clear cut violation of the rules. Depriving the petitioner to apply for the post of ASI by ignoring the relevant rules is also violation of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 which guarantees equal protection of law.

10. For the foregoing reasons, instant writ petition is accepted and the petitioner is declared to be eligible to apply for the post of ASI on the basis of relaxation in age by 10 years as he is serving in Islamabad Police as constable since his appointment i.e. 10.07.2007, therefore, impugned order dated 27.04.2017 is hereby set aside and instant writ petition is allowed.

11. As per report/reply of Islamabad Police Department the recruitment process has been completed and selected candidates have joined their training on 25.11.2017, therefore, at this stage, if this Court set asides the entire recruitment process, it will affect the other selected candidates, who have already earned their legitimate right after due process of law and they should not be suffered for the wrong of respondent No.3, who did not bother to follow the rules, law and even order of this Court. While relying upon the judgments PLD 2011 SC 365 (Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad and PLD 2009 Lah. 494=2009 PTD 1298 (All Pakistan Textile Mills Association v. FOP), whereby the relief can be molded in the changed circumstances, respondents Nos.3 and 4 are directed to reinitiate recruitment process for the post of ASI (BPS-11) in Islamabad Police (CTF) only to the extent of petitioner, wherein the petitioner shall apply and participate in written test, physical test or any other test, which were taken by the Recruitment Committee in the cases of previously selected candidates. This recruitment process shall be completed on merits within 30 days from the date of announcement of this judgment under intimation to this Court through learned Registrar. If the petitioner successfully completes all the stages of recruitment process, he shall be appointed and sent to training in Hangu Police College, where the already selected candidates are getting training.

12. Inspector General of Police Islamabad/respondent No.3 is directed to strictly follow office memorandum of Establishment Division dated 24.06.2010 regarding relaxation in age in future recruitment and if any advertisement regarding recruitment in Islamabad Police is made in violation of the said office memorandum as well as rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993, the same shall be illegal, hence, Secretary Establishment is directed to convey the said office memorandum to the Secretary Ministry of Interior as well as Chief Commissioner, Islamabad and Inspector General of Police for ready reference and application of the rules regarding relaxation in age.

13. As earlier mentioned in Para 12 of the judgment that order passed in C.M. No.01/2017 on 21.06.2017 was not complied with by respondent No.3 despite the fact that the order was passed in the presence of Abdul Rauf, Inspector Legal, Islamabad Police, Tahir Jamil Ahmed, D.S (R-II) Establishment Division and M. Waqar, P.A (R.6) Establishment Division, therefore, office is directed to issue notice to the Inspector General of Police and Assistant Inspector General Police (Establishment), i.e. respondents Nos.3 and 4 to explain, their position as to why the petitioner was not allowed to participate in the recruitment process and contempt of Court proceedings may not be initiated against them for wilful defiance of this Court's order dated 21.06.2017. The Inspector General of Police shall submit detailed report comprising of recruitment process, stages, dates of recruitment and after fixing the responsibility of the delinquent police official who has not complied with the Court order.

14. The replies of above mentioned persons shall reach to this Court within 15 days from the date of announcement of this judgment, whereafter office shall register this case as criminal original and place before this Court on 25.01.2018 for further proceedings.

ZC/2/Isl. Petition allowed.

2017 P L C (C.S.) 907

[Islamabad High Court]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

SECRETARY, ESTABLISHMENT DIVISION GOVERNMENT OF PAKISTAN

Versus

Dr. MUHAMMAD ARIF and others

Intra-Court Appeals Nos.368, 371 to 377, 379 to 389, 391 to 394, 398 to 411, 413 to 433 of 2015, decided on 8th June, 2016.

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

----Ss. 9 & 25---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7, 8 & 8-A---General Clauses Act (X of 1897), S.24-A---Law Reforms Ordinance (XII of 1972), S.3---Civil service---Promotion---Recommendations of Central Selection Board---Supersession/deferment---Objective criteria for promotion---Office memorandum---Nature---Audi alteram partem, principle of----Applicability---Opinion of members of Central Selection Board---Scope---Adverse remarks in ACR, communication of---Discretionary power---Employees assailed, under constitutional jurisdiction of High Court their supersession which was accepted and Establishment Division was directed to reframe the formula by taking away the overriding effect of marks to be awarded by the Central Selection Board and categorization into A, B & C---Single Judge of High Court directed that assessment should be made on the basis of entire performance and in case any tangible material questioning the integrity of civil servant was available then he might be confronted with the same and thereafter an opinion with regard to deferment or supersession should be made but not on the basis of "hypothesis and reputation in air"---Validity---Office memorandum could not be considered as 'rules' framed under S.25 of Civil Servants Act, 1973---Office memorandum setting out the promotion policy or guidelines for Departmental Promotion Committee could not be termed as primary or delegated legislation---Office memorandum was not clear as to how many out of five marks were to be attributed to the officer's PER, how many to his TER and how many to the 'Opinion of the Board'---Said memorandum was vague and ambiguous and had given unfettered and unbridled discretion to the Central Selection Board---Nothing was on record as to how an officer was assessed by the Central Selection Board with regard to his integrity---Reasons made by the Central Selection Board did not refer any material which caused to conclude that officer lacked honesty---Officer against whom there was nothing adverse in his PER and TER could not without sufficient tangible and convincing material be relegated by the Central Selection Board by giving him less than 3 marks for his integrity---If any of the members of the Central Selection Board disagreed with the positive remarks about integrity of an officer in his annual confidential report then they must specifically record as to why they were not satisfied with the remarks in such reports with specific reference to the material which contradicted the said remarks in the reports---Adverse opinion formed by the members of Central Selection Board had to be based on tangible material---Minutes of meeting and recommendations of Central Selection Board to defer or supersede an officer must make reference to the material which caused them to become doubtful with regard to integrity of such officer---If such material had not at any stage been disclosed to the officer then he must first be confronted with the same---If officer concerned was not confronted with such material/information then it would be a violation of principles of natural justice i.e. audi alteram partem---Violation of said principle would be enough to vitiate even the most solemn proceedings---Audi alteram partem had to be applied in all judicial and non-judicial proceedings notwithstanding that a right of hearing had not been expressly provided by the statute governing the proceedings---Central Selection Board was not to rely upon hearsay, rumors, generalizations or gossip with regard to an officer under consideration for promotion---Member of Central Selection Board could not tell the others that a particular officer was known to him and his integrity or reputation was such that he did not deserve promotion---Material/ information on the basis of which a member of Central Selection Board formed an adverse opinion should be placed before all the other members of the Selection Board so that they could form their respective opinion about integrity or reputation of such an officer---If no such material was made available then officer in question could not be penalized by denying him a recommendation for promotion---If such material/information was available then officer in question must be called and confronted with it before an opinion was formed by the members of said Selection Board---Adverse report in ACR could not be acted upon to deny promotion unless it was communicated to the officer concerned so that he had an opportunity to improve his work and conduct or to explain the circumstances leading to such report---Rush of work could not be an excuse of not giving a meaningful and purposeful attention to each case---If a junior officer was to be promoted and the senior deferred, then a comparative analysis must be carried out between the two or with each of the officer over which a junior was being promoted---Reasons should also be given and communicated to the officer for such deferment/supersession and same should be supported by tangible materials---Such reasons must contain the attributes which were possessed by a junior promoted officer and which the senior deferred or superseded officer were bereft of---Central Selection Board must exercise discretion with open plans, open policy statements, open rules, open findings, open reasons, open precedent and fair and informal procedures---Civil servant could only be deferred/superseded for the reasons set out in the Promotion Policy/Guidelines for Departmental Promotion Committee---If an officer was not promoted on account of some deficiency in his work then he would be entitled to know the detail as to what exactly that deficiency was and which aspect of his work he needed to improve upon---Simply deferring an officer by telling him that his work performance needed to be watched, was not just vague, ambiguous, imprecise and nebulous but unacceptable in the service jurisprudence---Judgment of Single Judge of High Court to the extent of declaring that the formula of awarding of 15 marks at the disposal of Central Selection Board with overriding effect of 5 marks was upheld---Constitutional petitions to the extent of challenging the recommendations of Central Selection Board were dismissed being not maintainable---Impugned judgment to the extent of striking down the office memorandum was set aside---Entire process for deferment/ supersession was declared unlawful---Government was directed to reframe formula by taking away the overriding effect of five marks to be awarded by the Central Selection Board and place the cases of officers for promotion in the next meeting of Central Selection Board---Intra-court appeals were disposed of accordingly.

Orya Maqbool Abbasi's case 2014 SCMR 817; Muhammad Zafeer Abbasi's case 2003 PLC (C.S.) 503; Iram Adnan's case 2012 PLC (C.S.) 1355; Liaqat Ali Chugtai's case PLD 2013 Lah. 413; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Chief Executive Officer, Quetta Electric Supply Company (QESCO) and others v. Rana Shamim Akhtar and another 2010 SCMR 442 and Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore PLD 1973 SC 144 ref.

Fazli Rehmani v. Chief Minister N.-W.F.P. PLD 2008 SC 769; Sajjad Ahmad Javed Bhatti v. Secretary, Establishment, Islamabad 1996 SCMR 628; Secretary to the Government of Punjab v. Abdul Hamid Arif 1991 SCMR 628; Khan Faizullah Khan v. Government of Pakistan PLD 1974 SC 291; Liaqat Ali Chugtai v. Federation of Pakistan PLD 2013 Lah. 413; Muhammad Afzal v. Government of Balochistan 1995 PLC (C.S.) 567; Muhammad Yousaf v. Abdul Rashid 1996 SCMR 1297; Amin Jan v. Director-General, T&T, PLD 1985 Lah. 81; Babar Sattar v. Federation of Pakistan 2016 CLD 134; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268; Secretary, Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Messrs United Bank Limited v. Federation of Pakistan and others 2014 SCMR 856; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary, Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678; Messrs Dewan Salman Fiber Ltd v. Government of N.-W.F.P. through Secretary, Revenue Department, Peshawar and others PLD 2004 SC 441; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan Airlines Corporation Karachi and others 2002 SCMR 1034; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others 1994 SCMR 1299; Makerwal Collieries Ltd and 2 others v. Government of N.-W.F.P and 11 others 1993 SCMR 1140; Raziuddin v. Chairman, Pakistan Airlines Corporation and 2 others PLD 1992 SC 531; Muhammad Zafeer Abbasi v. Government of Pakistan 2003 PLC (C.S.) 503; Ahmed Saeed Siddiqui v. Pakistan through Secretary Establishment 2015 PLC (C.S.) 923; Tariq Aziz-ud-Din’s case 2010 SCMR 1301; Aftab Manika's case 2015 SCMR 1006; Muhammad Akbar Khan Hoti v. Federation of Pakistan 2006 PLC (C.S) 619; Sameen Asghar v. Federation of Pakistan 2010 PLC (C.S.) 725; Muhammad Hanif v. Islamic Republic of Pakistan 2001 YLR 834; Abdul Wadood Khan v. Secretary, Establishment Division 2009 PLC (C.S.) 348; Muhammad Ashraf v. Government of Pakistan 2007 PLC (C.S.) 669; High Court Bar Association Bahawalpur v. Federation of Pakistan PLD 2015 Lah. 317 and Government of Punjab v. S. Tassadaq Hussain Bokhari PLD 1986 SC 162 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Promotion --Recommendations made by Central Selection Board---Constitutional petition against the recommendations simplicitor made by the Central Selection Board was not maintainable.

Aftab Ahmed Manika's case 2015 SCMR 1006 rel.

(c) Words and phrases---

----'Integrity'---Meaning

(d) Maxim---

-----"Nemo firut repente turpissimus"---Meaning.

(e) Maxim---

----“Audi alterm partem”---Applicability---Scope.

Afnan Karim Kundi, Learned Additional Attorney-General for Appellants (in I.C.As.Nos.368, 371, 372, 373, 374, 375, 376, 377, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 391, 392, 393, 394, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432 and 433 of 2015).

Atta Ullah Hakim Kundi for Appellants (in I.C.As. Nos.390 and 412 of 2015).

Asif Khan for Appellants (in I.C.A.No.449/2015).

Zarnab Khattak, Superintendent Establishment Division.

Dr. Kashif, Section Officer, Establishment Division.

Abdur Rehman Siddiqui, and Ch. Asghar Ali for Respondent No.1 (in I.C.As.Nos.368, 379, 382, 390, 400, 403, 406, 408, 409, 412, 417, 425, 427, 429 and 430 of 2015).

Muhammad Aftab Alam Rana for Respondent No.1 (in I.C.As.Nos.391 and 392 of 2015).

Muhammad Shabbir Bhutta for Respondent No.1 (in I.C.As.Nos.368, 372 and 385 of 2015).

Barrister Masroor Shah for Respondent No.1 (in I.C.As. Nos.376, 377, 383, 387, 415 and 433 of 2015).

Ahsan Hameed Dogar for Respondent No.1 (in I.C.As. Nos.405, 413 and 419 of 2015).

Ghulam Rasool Bhatti for Respondent No.1 (in I.C.As. Nos.380, 407 and 424 of 2015).

Sardar Taimoor Aslam for Respondent No.1 (in I.C.As. Nos.381 and 411 of 2015).

Fayyaz Ahmed Jandran for Respondent No.1 (in I.C.As. Nos.398, 414 and 426 of 2015).

Tariq Mehmood for Respondent No.1 (in I.C.A.No.399/2015).

Saeed Khursheed Ahmed for Respondent No.1 (in I.C.As.Nos.368, 375 and 402 of 2015), Aziz Nishtar and Hassan Mehmood for Respondent No.1 (in I.C.As.Nos.373 and 386 of 2015).

Mansoor Beg for Respondent No.1 (in I.C.As.Nos.388 and 423 of 2015).

Moazzam Ali for Respondent No.1 (in I.C.A.No.374/2015).

Asif Khan for Respondent No.3 (in I.C.A.No.371/2015).

Ahmad Junaid and Zaafir Khan for Respondent No.1 (in I.C.As.Nos.371 and 449 of 2015).

Rai Azhar Iqbal Kharal for M/o Railway (in I.C.As. Nos.393, 407 and 424 of 2015).

Respondent No.1 (Muhammad Akram Khan) in-person (in I.C.A.No.392/2015).

Respondent No.1 (Badar Zaman) in-person in (I.C.A.No.384/2015).

Farooq Amin Qureshi, Respondent No.1 (in I.C.A. No.422/2015).

Mohsin Raza Gondal, Deputy Director, for Respondents Nos.3 and 4.

Respondents (Ghulam Haider and Zafar Iqbal Qadir), in-person (in I.C.As. Nos.389 and 410 of 2015, respectively).

Raja Zubair Hussain Jarral for Respondent No.3/Ministry of Defense (in I.C.A.No.374/2015).

Mrs. Naziran Malik for Respondent (in I.C.As. Nos.368 and 427 of 2015).

Hafiz Mazher Maiken for Respondent No.5 (in I.C.A. No.424/2015).

Dates of hearing: 11th, 27th, 28th January, 3rd, 4th, 8th, 10th, 16th, 17th, 18th, 22nd, 23rd, 24th, 25th, 29th, February, 1st, 7th, 8th, 9th, 10th, 15th, 16th, 21st, 28th March and 4th April, 2016.

JUDGMENT

MIANGUL HASSAN AURANGZEB, J.--- Through this common judgment, we propose to dispose of the Intra Court Appeals listed in Schedule-I to this judgment. Most of these appeals have been instituted by the Federation of Pakistan, against the composite judgment dated 27.07.2015, rendered by the learned Single Bench of this Court, whereby the writ petitions, listed in Schedule-II to this judgment, were disposed of.

1. The writ petitioners were/are all civil servants and aspirants for promotion from Basic Pay Scale-20 (“BPS-20”) to BPS-21. These petitioners were primarily aggrieved by the recommendations made by the Central Selection Board ("CSB") to the Prime Minister of the Islamic Republic of Pakistan ("the Prime Minister") not to promote them - they were either recommended to be superseded or deferred. The prayer clause of Writ petition No.2033/2015 titled, “Dr. Muhammad Arif v. Federation of Pakistan” is reproduced herein below:-

"In view of the above, it is most respectfully prayed that an appropriate writ may kindly be issued by this Honourable Court:-

(a) To set aside impugned 5 marks contained under the so-called structured formula/OM dated 10.02.2014 and the recommendations regarding deferment of the Petitioner by declaring as illegal and unlawful because the officers of other Groups have been promoted with lower quantification.

(b) The official Respondents may kindly be directed to consider the Petitioner for promotion to BS-20 with effect from the date of occurring of BS-20 vacancy with all consequential benefits.

(c) Any other relief deemed appropriate under the circumstances of the case may also be granted."

1. Only a handful of the petitioners had assailed the 'Objective Assessment Form' annexed to the Office Memorandum (“O.M.”) No.F.1/1/2012-CP-2, dated 10.02.2014, issued by the Establishment Division, Government of Pakistan. The said Objective Assessment Form set out the criteria for the allocation of the fifteen (15) discretionary marks to be given by the CSB to each candidate for promotion. Out of these fifteen (15) marks, upto 5 marks could be given to the officer under consideration for promotion for his “Integrity/General Reputation/Perception” on the basis of his Performance Evaluation Reports (“PERs”), Training Evaluation Reports (“TERs”) and the Opinion of the CSB. An officer getting less than three (3) out of five (5) marks could be deferred or superseded by the CSB at their discretion but with reasons to be recorded in writing.

2. The learned Single Judge-in-Chambers, vide short order dated 27.07.2015, allowed the said writ petitions. The said short order was followed by detailed reasons. For ease of reference the said short order is reproduced herein below:-

"For the reasons to be recorded later on instant writ petition as well as connected Writ Petitions Nos.1359, 1383, 1401, 1415, 1416, 1418, 1426, 1429, 1432, 1439, 1440, 1446, 1447, 1451, 1453, 1454, 1462, 1464, 1466, 1472, 1484, 1496, 1501, 1503, 1504, 1505, 1506, 1507, 1509, 1511, 1518, 1523, 1524, 1540, 1542, 1561, 1562, 1564, 1565, 1566, 1568, 1583, 1588, 1589, 1607, 1612, 1657, 1756, 1955, 1961, 2033, 2058, 2095, 2137 of 2015, 3656 of 2014 and 1855 of 2013 are allowed by declaring that formula of award of 15 marks at the disposal of CSB with overriding effect of 05 marks and thereby placing the civil servants in categories A, B & C is against the dictums laid down by the Hon'ble Supreme Court in the case of Orya Maqbool Abbasi reported as 2014 SCMR 817 and Judgment passed by this Court in Iram Adnan's case reported as 2012 PLC (C.S.) 1355, on the basis of which purportedly new policy was framed. The discretion of award of marks by the CSB cannot bring the ACRs/TERs evaluation into naught and CSB can only grant marks out of 15 at its discretion and marks of quantification to be added in making recommendations for promotion. The entire process carried out by CSB on the basis of formula introduced through Policy of 2012 resulting into deferment/supersession of petitioners is declared as illegal, without jurisdiction, in violation of law laid down by the Superior Courts and offensive to the accrued valuable rights of civil servants.”

1. The learned Single Judge-in-Chambers also directed the Establishment Division to reframe the formula by taking away the overriding effect of the marks to be awarded by the CSB and categorization into A, B & C and place the cases before the CSB in the light of the judgments of the Superior Courts within one month. It was also directed that the assessment should be made on the basis of the entire performance and in case any tangible material questioning the integrity of the civil servant is available, he may be confronted with the same, and thereafter, an opinion regarding deferment or supersession could be made but not on the basis of "hypothesis and reputation in air”.

2. Through several Intra-Court Appeals (“ICAs”), under Section 3(2) of the Law Reforms Ordinance, 1972, the Secretary, Establishment Division, Government of Pakistan, challenged the said short order dated 27.07.2015. Alongwith the ICAs, the appellants also filed applications for the suspension of the said order dated 27.07.2015. Vide interim order dated 02.09.2015, the learned Division Bench of this Court directed status quo to be maintained until the next date of hearing. Ever since then a meeting of the CSB has not taken place.

3. The learned Additional Attorney-General (“A.A-G”), on behalf of the Federation, submitted that the writ petitions instituted by the civil servants aspiring to be promoted to BPS-21, were all against the 'recommendations' of the CSB; that none of the petitioners waited for the decision of the competent authority/the Prime Minister regarding their promotion; that the recommendations of the CSB to supersede some of the writ petitioners had not been approved by the Prime Minister. All the recommendations for supersession were converted into deferments, and the recommendations of longer deferments were converted into shorter deferments by the Prime Minister. Therefore, the petitioners had no cause to invoke the jurisdiction of the Hon'ble High Court under Article 199 of the Constitution against the recommendations of the CSB, which were no longer in the field.

4. The objections to the maintainability of the writ petitions raised by the learned A.A-G before the learned Single Bench were reiterated in the appellate proceedings. These objections, which have been set out in paragraph 21 of the impugned judgment are for ease of reference reproduced herein below:-

"21. Learned Additional Attorney General next contended that in view of foregoing factual position the following are the implications for maintainability of the writ petitions:

(a) Petitions not challenging the competent authority's order/decision are not maintainable since the order holding field has neither been appended therewith nor assailed therein to begin with. Admittedly, none of the petitioners have sought amendment to their petitions or prayer clauses therewith to pose challenge to the order/decision of the competent authority, nor have they placed the impugned order on record. All oral arguments addressed at the bar on behalf of the petitioners were also solely targeted at and challenging the merits of CSB's recommendations, which has now become a sheer academic exercise. In their present form, the petitions failing to challenge the competent authority's order/decision are not maintainable.

(b) Petitions challenging the CSB's recommendations which are no more holding field - having not been approved by the competent authority and having been nullified by the competent authority's order/decision of deferment for a short period till September, 2015 -- are not maintainable as they have become infructuous.

(c) Even otherwise mere recommendations by the CSB do not afford an actionable cause to the petitioners whereby they could be considered "aggrieved" within the contemplation of the Article 199(1)(a) of the Constitution. Recommendations alone do not constitute an adverse order unless approved by the competent authority and resulting in passing of an adverse order as envisaged to be passed and communicated to the concerned civil servant under paragraph 9 of the Promotion Policy of 2007 (revised till date). Reliance is placed on 1995 SCMR 876.

(d) That the superior Courts have been assuming jurisdiction in service matters of civil servants pertaining to promotion only where an appeal to FST is not allowed under paragraph (b) of the proviso to Section 4(1) of STA 1973. On the other hand, Article 212(1)(a) of the Constitution read with Section 3(2) of STA 1973 vest "exclusive jurisdiction" in FST "in respect of matters relating to the terms and conditions of service of civil servants". Promotion is admittedly part of the terms and conditions of service of civil servants. Needless to state that the writ jurisdiction of this Hon'ble Court invoked by the petitioners under Article 199 of the Constitution is "Subject to the Constitution" as evident from the opening phrase of Article 199. Also the relevant Constitutional provisions i.e. (a) Article 212(1) vesting exclusive jurisdiction in FST being an administrative tribunal established pursuant to the said Constitutional provision; and (b) Article 212(2) creating Constitutional bar on the jurisdiction of other Courts including this Hon'ble Court -- both start with a non obstante clause i.e. "Notwithstanding anything hereinbefore contained" thereby giving it an overriding effect over Article 199 which is contained before Article 212 in the Constitution. This is besides the fact that remedy before FST would by definition be considered an alternate adequate remedy within the contemplation of Article 199(1) of the Constitution.

(e) Petitioners cannot be considered "aggrieved" of the order/decision of deferment made by the competent authority, whereas a civil servant must be "aggrieved" of an order to be able to agitate the jurisdiction of both FST (under Section 4 of STA 1973) and this Hon'ble Court (under Article 199(1)(a) of the Constitution). Indeed, in the petitioners' case, the competent authority has not approved CSB's recommendations of supersession and longer deferment and has instead passed an order/decision of simple deferment for a short period till September, 2015.

(f) It is now well-settled that promotion cannot be claimed by the petitioners as a vested right and in the absence of a legal grievance as discussed in the preceding submissions, superior Courts of the country have always refrained from entertaining writ petitions in such cases. Reliance is placed on Government of Pakistan v. Hameed Akhter Niazi (PLD 2003 SC 110) which holds at para 22 as under:

"22. Section 9 of the Act of 1973 deals with "Promotion". It may be regarding "selection post" or "non-selection post". In case of selection post as involved in these matters, the criterion for promotion is merit, while in case of non-selection post it is done on the basis of seniority cum fitness. No civil servant can ask for promotion as a right, and the giving or refusal of promotion is a matter, which is within the exclusive domain of the government /executive authority. If a promotion is denied to a civil servant it could not be termed as denial of any fundamental rights." [Emphasis added]

(g) Only a few petitioners have challenged the Establishment Division's Office Memorandum No.F.1/1/2012-CP-2 dated 10.02.2014 ("OM") annexed therewith the Objective Assessment Form for allocation of fifteen (15) discretionary marks to be given by CSB to each candidate for promotion. What has been challenged is the provision made therein that should a civil servant score less than three (3) marks out of five (5) marks allocated to the head "Integrity/General Reputation/Perception", then he/she may be superseded or deferred by the CSB as its discretion with reasons recorded in writing. It may be mentioned that any challenge to the aforesaid OM would also be maintainable only before FST by way of an appeal in its exclusive jurisdiction vested under Article 212(1)(a) of the Constitution read with Sections 3(2) and 4(1) of STA 1973. This is because the OM clearly pertains to the terms and conditions of service of civil servants in terms of affecting their prospects for promotion. It is now well-settled that anything affecting prospects for promotion is not of itself a determination of fitness for promotion but a method or means of such promotion which can be agitated before FST as part of the right of an eligible officer to be considered for promotion. Hence, a writ petition would not be competent under Article 199 of the Constitution. This is besides the fact that appeal before FST would by definition constitute an alternate adequate remedy envisaged under Article 199(1) of the Constitution. Reliance is placed on I.A Sherwani's case (1991 SCMR 1041), wherein the august Supreme Court authoritatively held at paragraph 10 thereof as under:-

"10. From the above cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of Section 4 of the Act in order to file an appeal before the Service Tribunal….. However, we may clarify that a civil servant cannot by-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have the jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental rights…" (Emphasis added]

(h) Even otherwise what the OM provides for is something belonging to the domain of Promotion Policy of the Government. It is the discretion of the Government to introduce and revise its promotion policy from time to time and the Court cannot substitute the policy decision with its own opinion. Revised Promotion Policy of 2007 together with OM dated 10.02.2014 that allocates fifteen (15) marks to the discretion of the CSB and the manner in which it is done are policy decisions and it is the exclusive domain of the government to prescribe qualifications for a particular post which is not justifiable as a policy matter before this Hon'ble Court. If the Court ventures upon giving its own policy view, there will be no end to suggestions on how to structure the Promotion Policy in terms of weight assigned to the discretionary marks of CSB and the various components thereof. The collective wisdom of the members of CSB drawn from amongst senior-most members of federal bureaucracy also including two Parliamentarians (comprising one Opposition member) are to be trusted since no perfect objective criteria could ever be made and an element of subjectivity based on trust will stay there. Indeed, this Hon'ble Court too would not venture upon giving its own assessment criteria.

(i) Lastly, this Hon'ble Court's jurisdiction is governed by the Constitution and the law as discussed above. Having no jurisdiction in the matter and the petitions being not maintainable, this Hon'ble Court cannot assume jurisdiction on the notion of simply applying its earlier judgment(s) to examine if the same were followed or not. These are neither contempt nor execution proceedings. Such an exercise could only be undertaken by the forum/Court of competent jurisdiction, which if at all is FST in the instant cases."

1. The learned A.A-G further submitted that there was no legal constitutional infirmity with the O.M.No.F.1/1/2012-CP-2, dated 10.02.2014; that this O.M. was issued in pursuance of the directions to the Establishment Division by the Hon'ble Supreme Court in the case of Orya Maqbool Abbasi (2014 SCMR 817); that in the case of Aftab Ahmed Manika (2015 SCMR 1006), the Hon'ble Supreme Court had directed that the officers should be considered “on the basis of the criteria already set for determining the fitness or otherwise of the civil servants for promotion”; that the law obligates the CSB to give reasons for the supersession or deferment of an officer under consideration for deferment; that the decision whether or not to promote an officer to BPS-20 or BPS-21 is based on the collective wisdom of the members of the CSB, some of them being high ranking civil servants; that the proceedings of the CSB are carried out in a meticulous manner leaving no room for error; that the member of the CSB from the province or department of the officer under consideration for promotion can tell the other members about the ability and integrity of such an officer; that the Superior Courts have given the status of ‘rules’ to an O.M., and, therefore, the same should not be lightly interfered with; that the learned Single Bench had set aside portions of the O.M. dated 12.10.2012, which had not been challenged by any of the writ petitioners; and that in this way, the learned Single Judge-in-Chambers had assumed suo moto jurisdiction, which he could not exercise.

2. The learned A.A-G apprised the Court of the procedure which is adopted by the Establishment Division for issuing an O.M. He submitted that an O.M. is neither required to be vetted by the Law & Justice Division, Government of Pakistan, nor is it required to be published in the official gazette. He provided the copies of the Office Memoranda and Policies with respect to promotion of civil servants since 1982.

3. The learned A.A-G submitted that as the law did not provide a right of appeal against the proceedings of the CSB, the ICAs against the Impugned Judgment dated 27.07.2015 were maintainable. He submitted that the writ petitions challenging the vires of the O.M. dated 10.02.2014 suffer from laches and were liable to be dismissed. He submitted that although the said O.M. was issued on 10.02.2014, the writ petitioners challenged it in June, 2015, only when it was made applicable to them, and not before. He further submitted that in Aftab Manika’s case, the said O.M. dated 10.02.2014 was applied to the civil servants.

4. Mr. Abdur Rehman Siddiqui, learned ASC for respondent No.1 in I.C.As.Nos.368, 379, 382, 390, 400, 403, 406, 408, 409, 412, 417, 425, 427, 429, 430 of 2015, submitted that BPS-19 to 22 are selection posts; that the Chairman Federal Public Service Commission ("FPSC") did not attend the meetings of the CSB in which the writ petitioners were recommended to be deferred and superseded; that the absence of the Chairman FPSC from the meetings of the CSB was specifically pleaded by the writ petitioner in the petition from which ICA No.425/2015 arises, but no reply to the same was given by the Federation; that it is an admitted position that some of the Members of the CSB had boycotted the meetings; that prior to 1982, there was no policy for the CSB to recommend promotions; that the Promotion Policy of 1982 was very comprehensive and objective; that the said Promotion Policy provided a formula for the quantification of the Annual Confidential Reports; that the said Promotion Policy has been substantially amended from time to time; that subsequently, the policy of promoting 'the best of the best' was introduced; that this policy was struck down by the Hon'ble Lahore High Court in Muhammad Zafeer Abbasi's case (2003 PLC (C.S.) 503); that O.M. dated 03.09.2005 had, inter-alia, provided that if a civil servant is superseded, he will not be considered for promotion unless he has earned PERs for two full years, and that if he is again superseded, he shall lose eligibility for further consideration; that paragraph (a)(iv) of the Revised Promotion Policy/ O.M. dated 24.10.2007 provided that an officer superseded earlier shall be considered after earning a Performance Evaluation Report for one full year; and that the said O.M. dated 24.10.2007 withdrew the earlier Office Memoranda regarding earning of two years reports after supersession and loosing of eligibility for consideration after two supersessions.

5. He further submitted that the decisions made by the competent authority on the basis of the recommendations of CSB in pursuance of the 2007 Promotion Policy have been challenged in three cases before the superior courts, namely, Iram Adnan's case (2012 PLC (C.S.) 1355), Liaqat Ali Chugtai's case (PLD 2013 Lahore 413) and Orya Maqbool Abbasi' case (2014 SCMR 817); that in all these three cases, the decisions made on the recommendations of the CSB were struck down and the need for structured discretion was voiced; that the critique in the judgments of Iram Adnan and Liaqat Ali Chugtai regarding the absence of structured discretion in the decision making process by the CSB, caused the Cabinet Secretariat (Establishment Division) issued O.M. dated 12.10.2012, which amended the guidelines for the CSB in making recommendations for promotion/supersession/deferment of civil servants; that the deliberations of the CSB in accordance with the promotion policy as amended by O.M. dated 12.10.2012, were also set aside by the Hon'ble Supreme Court of Pakistan in Orya Maqbool Abbasi's case, and the Government was directed to undertake an exercise to outline an objective criteria for promotions; that this led the Establishment Division to issue O.M. dated 10.02.2014, whereby the Objective Assessment Form annexed to the promotion policy was changed; that as per Serial No.8 of the new Objective Assessment Form, the CSB could award upto 5 marks for an officer's Integrity/General Reputation/ Perception on the basis of PERs/TERs/Opinion of the Board. Furthermore, it was clarified that an officer under consideration getting less than three out of five marks under this parameter may be deferred or superseded by the CSB at their discretion but with reasons to be recorded in writing.

6. He further contended that the provision of upto five marks for Integrity etc, of a civil servant in the Objective Assessment Form is most irrational; that if there is an allegation of dishonesty or corruption against a civil servant, he is liable to be proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973 ("the E&D Rules, 1973"); that if there is no such allegation against an officer, but any Member of the CSB feels that he is dishonest or corrupt, it is essential that such an officer should be called and confronted with any material available with the Members of the CSB; that it is not understandable as to why upto five marks have been provided for different levels of an officer's integrity; that either an officer is dishonest or he is not dishonest; and that dishonesty does not have levels.

7. He further submitted that under the new Objective Assessment Form, upto five marks can be awarded to an officer, inter-alia, on the 'Opinion of the Board'; that this makes the formula more subjective than objective; that the issuance of the new Objective Assessment Form cannot be termed as compliance with the directions of the Hon'ble Supreme Court in the case of Orya Maqbool Abbasi; that the Hon'ble Supreme Court had directed for the criteria to be more objective and transparent; that this was not done by the Establishment Division; that the new Objective Assessment Form does not reflect the true spirit of the directions of the Hon'ble Supreme Court in Orya Maqbool Abbasi's case; that for the promotion of a civil servant, there has to be a subjective evaluation on the basis of an objective criteria; that section 9 of the CSA, 1973, requires the promotion of officers to BPS-20 and BPS-21 to be made on the basis of the recommendations of the CSB in accordance with prescribed conditions; that these conditions are prescribed in Rules 8 and 8-A of the APT Rules, 1973; that earlier the eligibility threshold for promotion to BPS-21 was 70 marks, but subsequently it was raised to 75 marks; that the eligibility criteria for the promotion of an officer to BPS-21 in the Promotion Policy dated 31.10.1982 is different from the one set out in the O.M. dated 24.10.2007; that the eligibility criteria under the Promotion Policy of 1982 was more objective; that under the latest Policy, upto 70 marks can be given for PERs, and upto 15 marks can be given for TERs, and 15 marks are at the discretion of the CSB; that the Objective Assessment Form, which was issued in an effort to structure the discretion of the CSB in awarding the 15 marks, lacks objectivity; that the overriding effect which the award of marks for the integrity of an officer under consideration is to be given by the CSB is irrational and unconstitutional; and that the award of upto 5 marks on the basis of the 'Opinion of the Board' brings in arbitrariness in the proceedings of the CSB.

8. He further submitted that the adverse remarks about an officer in his Annual Confidential Report have to be communicated to him within a period of one month; that if such adverse remarks are not communicated to the officer within the said period, they cannot be used against the officer; that the Promotion Policy of 2007 provides that if disciplinary proceedings are pending against the civil servant, he is to be deferred; that the Federation cannot put every thing behind the 'collective wisdom' of the members of the CSB, because the result of such collective wisdom has been set aside by the Superior Courts on more than three occasions; and that the Members of the CSB cannot place reliance on the report of Intelligence Agencies in forming an opinion about an officer under consideration.

9. He further submitted that the writ petitions instituted by the petitioners were competent, because the CSB did not pass 'an order' which could be challenged before the Federal Service Tribunal; that the CSB is a statutory authority, because it has been constituted under Section 9 of the CSA, 1973, and exercises statutory function; that if an appeal to the Federal Services Tribunal lay against the issuance of an O.M., then under the provisions of the Law Reforms Ordinance, 1972, the appeals filed by the Federation would be rendered incompetent; and that where a question of eligibility of a civil servant for promotion is involved, he has to seek his remedy before the Federal Service Tribunal, however, where the question of suitability or fitness of a civil servant for promotion is involved, his remedy lies before the Hon'ble High Court under Article 199 of the Constitution. In conclusion, Mr. Abdur Rehman Siddiqui, learned ASC prayed for the appeals to be dismissed.

10. Mr. Muhammad Shabbir Bhutta, learned ASC for respondents No.1 in I.C.A.Nos.368, 372 & 385 of 2015, submitted well prepared compendium of case law on the subject. He drew our attention to various portion of the judgments in Tariq Aziz-ud-Din and Muhammad Zafeer Abbasi's case to bring home the point that seniority is to be given with due consideration when an officer is being promoted to BPS-21 and that any material adverse to officer under consideration has to be confronted to him by the CSB before drawing a conclusion about his integrity. He further submitted that Dr. Muhammad Arif in his W.P.No.2033/2015 had also challenged the overriding 5 marks for the integrity of the officer under consideration brought in through O.M. dated 10.02.2014.

11. Mr. Muhammad Aftab Alam Rana, learned Advocate, who represented respondent No.1 in I.C.A.Nos.391 and 392 of 2015, which arose from W.P.No.1511/2015, submitted that the said petitioner had been recommended to be deferred for a period of one year, but subsequently, the competent authority reduced this period until the next meeting of the CSB, which was scheduled to be held in September, 2015; that due to the stay order in the appellate proceedings, the meeting of CSB could not take place; that the said petitioner had not challenged O.M. dated 10.02.2014; that the CSB had not adequately and meaningfully considered the said petitioner for promotion, because his Objective Assessment Form was not filled; that as per Serial No.157, Volume 1 of the Esta Code (2007), importance has been given to seniority to the posts in BPS-21; that in Serial No.156, Volume 1 of the Esta Code (2007), the process for the quantification of confidential reports is provided, and incorrect quantification identified during the course of inspection or re-verification entails a penalty under the E&D Rules, 1973 as well as the liability under the criminal law; that 12 years of service is required for the promotion of an officer to BPS-19, 17 years is required for promotion to BPS-20, and 22 years is required for promotion to BPS-21; that during the probationary period of one year, the integrity of an officer is carefully watched; that officers with doubtful integrity are not confirmed; that under Section 11 of the CSA, 1973, the services of a probationary can be terminated without notice; that under Section 9 of the CSA, 1973, a department is required to see that a civil servant possesses minimum qualifications for promotion; that under Rule 8 of the Civil Servants (APT) Rules, 1973, the department has a vital responsibility for forwarding a civil servant's name for promotion; that under Rule 7-A of the Civil Servants (APT) Rules, 1973, the competent authority may approve the promotion of an officer from the date on which the recommendations of the CSB was made; that withholding of a promotion is a penalty under Rule 4(1)(a)(i) of the E&D Rules, 1973, whereas Rules 5 and 6 provide the procedure for imposing such a penalty; that at no material stage were any adverse remarks about the writ petitioner communicated to him; that the competent authority did not agree with the recommendations of the CSB to defer the promotion of the writ petitioner for one year, and reduced the same to the next meeting of the CSB; and that the discretion exercised by the CSB was not structured and was in violation of Article 10-A of the Constitution as well as the law laid down by the Hon'ble Supreme Court in the cases of Abdul Wahab and another v. Secretary, Government of Balochistan and another (2009 SCMR 1354) and Chief Executive Officer, Quetta Electric Supply Company (QESCO) and others v. Rana Shamim Akhtar and another (2010 SCMR 442). The learned counsel gave to us the list of the several Office Memoranda that were issued by the Establishment Division from 31.10.1982 to 29.01.2013. He concluded his submissions with the prayer that the Federation's appeals should be dismissed.

12. Mr. Ahsan Hameed Dogar, learned Advocate on behalf of respondent No.1 in I.C.A.Nos.405, 413, and 419 of 2015, submitted that the recommendations of the CSB can be challenged before the Hon'ble High Court in proceedings under Article 199 of the Constitution; that the recommendation of the CSB is, in-fact, an order which can be challenged in writ jurisdiction; that under the proviso to Section 22(2) of the CSA, 1973, no representation lies on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade; that under the second proviso to Section 4(1) of the Service Tribunals Act, 1973, no appeal lies to the Federal Services Tribunal, against an order or a decision of a departmental authority determining the fitness or otherwise of a person to be promoted to a higher grade; that under the second proviso to Section 4(1)(d)(ii) of the Civil Servants (Appeal), Rules, 1977, no appeal or review lies on matters relating to the determination of fitness of a person, who hold a particular post or to be promoted to a higher post or grade; that if a civil servant is denied promotion on the ground that he was not eligible, then his remedy lies before the Federal Services Tribunal, but if the civil servant is denied promotion on the ground that he is not fit for promotion due to his doubtful integrity, then his remedy lies before the Hon'ble High Court in writ jurisdiction; that tangible and cogent material had to be available before the CSB in order to disagree with the views of the Reporting Officer and the Countersigning Officer in the ACRs of an officer, who was being considered for promotion by the CSB. In making his submissions, the learned counsel placed reliance on the law laid down in Mrs. Iram Adnan and others v. Federation of Pakistan and others (2012 PLC (C.S.) 1355), Liaqat Ali Chugtai v. Federation of Pakistan (PLD 2013 Lahore 413), Orya Maqbool Abbasi v. Federation of Pakistan (2014 SCMR 817), and Secretary, Establishment Division v. Aftab Ahmed Manika (2015 SCMR 1006).

13. The other learned counsel representing the respondents/officers deferred by the competent authority adopted the arguments of Mr. Abdur Rehman Siddiqui, learned ASC.

14. During the course of the hearing, it was decided that ICAs Nos.410 & 427 of 2015, which pertain to the promotion of officers from BS-21 to 22 would be heard separately. Therefore, the said ICAs were de-clubbed.

15. We have heard the learned counsel for the contesting parties and have perused the record with their able assistance.

16. We propose first to deal with the objection taken by the learned A.A-G as to whether a petition under Article 199 of the Constitution, by a civil servant, is maintainable against the recommendations made by the CSB to the Prime Minister.

17. Barrister Masroor Shah, learned counsel for respondent No.1 in I.C.As.Nos.376, 377, 383, 387, 415 and 433 of 2015, submitted that the recommendations of the CSB were justiciable and a petition under Article 199 of the Constitution was maintainable against such recommendations. In support of this contention, the learned counsel referred to the case of Liaqat Ali Chugtai v. Federation of Pakistan (PLD 2013 Lahore 413), wherein the recommendations of the CSB were declared as offensive to Article 14 of the Constitution. Furthermore, the Hon'ble Lahore High Court set aside the selection process carried out by the CSB by declaring it unconstitutional and illegal. The learned counsel further submitted that in the case of Orya Maqbool Abbasi v. Federation of Pakistan (2014 SCMR 817), the Hon'ble Supreme Court of Pakistan has held the CSB to be a 'semi judicial forum' authorized to examine the cases of the officers justly and fairly. Drawing support from the observations made in the said two judgments, learned counsel submitted that the learned Single Bench did not commit any jurisdictional error by entertaining writ petitions against the recommendations of the CSB.

18. Be that as it may, the Hon'ble Supreme Court in the recent case of Secretary, Establishment Division v. Aftab Ahmed Manika (2015 SCMR 1006) quoted with approval the law laid down in the case of Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore (PLD 1973 SC 144), in which the appellant had challenged before the Hon'ble High Court, the recommendations of West Pakistan Public Service Commission and the list in which the name of the appellant was not included for promotion. In the said case, it was held as follows:-

"Yet another aspect of the matter may also be noticed, viz. that the recommendations of the Public Service Commission being only advisory in nature and it being open to the appointing authority under Article 188 of the Constitution not to accept its advice, it is difficult to see how a petition of this nature can be maintained. The grievance of the candidate would rise only when the Government has made an appointment in contravention of the rules; until that time the advice tendered by the Commission remains confidential and inchoate and cannot give rise to a grievance or a cause of action within the meaning of Article 98 of the former Constitution." (Emphasis is ours)"

1. As the judgment in the case of Aftab Ahmed Manika is an authority of recent vantage, we find ourselves bound to hold in terms of Article 189 of the Constitution that the writ petitions against the recommendations simpliciter made by the CSB to the Prime Minister were not justiciable and could not be subjected to judicial review in terms of Article 199 of the Constitution. Hence, the writ petitions challenging the recommendations of the CSB alone were not maintainable, the appeals to that extent are allowed.

2. Having said that we feel that the petitions in which O.M. dated 10.02.2014 and the Objective Assessment Form annexed thereto has been challenged, stand on a different footing. This O.M. which has the force of law, has to be examined on the touchstone of the provisions of the Constitution as well as the Statute i.e. the CSA, 1973, and the law laid down in the judgments of the Superior Courts. The Hon'ble Superior Courts in the cases of (1) Mrs. Iram Adnan and others v. Federation of Pakistan and others (2012 PLC (C.S.) 1355), (2) Liaqat Ali Chugtai v. Federation of Pakistan (PLD 2013 Lahore 413), and (3) Orya Maqbool Abbasi v. Federation of Pakistan (2014 SCMR 817), directed the Establishment Division to restructure the formula for the award of 15 marks (which were to be awarded at the discretion of the CSB to an officer for consideration for promotion), so as to make it more objective, in accordance with the guidelines provided by the Superior Courts. In all the said cases the Government had taken the objection that exercise of jurisdiction of the Hon'ble Superior Courts under Article 199 and/or Article 184(3) of the Constitution was barred under Article 212 of the Constitution. The Hon'ble Courts had spurned the said objection and had examined the manner in which discretion was exercised by the CSB to award 15 marks to an officer under consideration for promotion. We are of the view that since the Establishment Division had been directed time and again by the Hon'ble Superior Courts to formulate an objective criteria for the award of 15 marks by the CSB to an officer under consideration for promotion, this Court does have the jurisdiction to examine the vires of the O.M. dated 10.02.2014 and its annexure, which according to the A.A-G, was issued in compliance with the directions contained in the said judgments, and to determine whether such directions were, in-fact, complied with.

3. Now it is not disputed that BPS-21 is a selection post, promotion whereto is made in accordance with section 9 of the CSA, 1973, which is reproduced herein below in its entirety:

“9. Promotion. - (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules of departmental promotion in the service or cadre to which he belongs:

Provided that the posts of --

(a) Additional Secretary and Senior Joint Secretary may, in the public interest, be filled by promotion from amongst officers of regularly constituted Occupational Groups and services holding, on regular basis, posts in Basic Pay Scale 20; and

(b) Secretary may, in the public interest, be filled by promotion from amongst officers of regularly constituted Occupational Groups and services holding, on regular basis, posts in Basic Pay Scale 21, in such manner and subject to such conditions as may be prescribed.

(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed --

(a) in the case of a selection post, on the basis of selection on merit; and

(b) in the case of a non-selection post, on the basis of seniority-cum-fitness.

(3) Promotion to posts in basic pay scales 20 and 21 and equivalent shall be made on the recommendations of a Selection Board which shall be headed by the Chairman, Federal Public Service Commission.”

1. Section 9 of the CSA, 1973 is supplemented by sections 7, 8 and 8-A of the APT Rules, 1973. The APT Rules, 1973, were made by the President in exercise of powers under Section 25 of the CSA, 1973. The said Rules 7, 8 and 8-A of the APT Rules, 1973, read as follows:-

“7. Promotion and transfers to posts in \[basic pay scales 2 to 18 and equivalent, \[except the posts specified in sub clause (i) of clause (b) [ and equivalent] shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts, \[specified in sub clause (i) of clause (b) and posts], in \[basic pay scales 19 to [21] and equivalent] shall be made on the recommendations of the Central Selection Board.

1. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board, as the case may be.

8-A. No promotion on regular basis shall be made to posts in Basic Pay Scales 17 to 22 and equivalent unless the officer concerned has completed such minimum length of service, attended such training and passed such departmental examination, as may be prescribed from time to time.”

1. The legal framework for promotion and its procedures were provided in the CSA, 1973, and the APT Rules, 1973. As the said statute and rules, by themselves were not enough to meet the functional requirements, and needed to be supplemented by a comprehensive and consistent set of policy guidelines, the Establishment Division, vide D.O.No.10(2)/81-CP-I(Pt), dated 31.10.1982, framed, with the approval of the President of Pakistan, comprehensive guidelines for the Departmental Promotion Committees/Central Selection Boards ("the 1982 Promotion Policy").

2. The qualifications which an officer in BPS-20 has to possess, and conditions he has to meet in order to be considered to promotion to BPS-21 are set out in the 1982 Promotion Policy, as amended from time to time. The qualifications and conditions so prescribed are set out herein below:-

(a) Qualifying Service: possess 22 years service as an officer subject to the provisions contained in Establishment Division's O.M. No.1/9/80-R-II (A), dated 2-6-1983.

(b) Eligibility threshold: attain a minimum score of 70 marks in CRs in accordance with the formula given in the Addendum.

(c) Qualifications: as are prescribed by relevant recruitment rules.

(d) Relevance of Experience: possess experience relevant to the functions of the post being filled by promotion.

(e) "Quality and Output of Work" and "Integrity" marks calculated in accordance with the formula in the Addendum shall be a crucial factor in determining the comparative merit of an officer.

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

(g) Training: should have successfully completed a regular course at the Pakistan Administrative Staff College/National Defence College. This requirement will be waived for officers who:

(i) have served as head of a training institution for at least one year; or

(ii) have served on the directing staff of a training institution for at least two years; or

(iii) have exceeded the age of 56 years.

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

1. The 1982 Promotion Policy was sent to the Chairman, Central Selection Board, and all Federal Secretaries, and Chief Secretaries of the Provincial Governments, and was required to be kept in view while processing promotion cases. The 1982 Promotion Policy was reviewed vide D.O.No.10(3)/84-CP-1, dated 30.04.1984. It was emphasized that the score for 'integrity' in the Annual Confidential Report will be a crucial factor, along with 'quality and output of work' in determining the comparative merit of officers for promotion to selection posts. While considering a civil servant for promotion, the Departmental Promotion Committee/CSB was required to clearly indicate whether an officer has been cleared for promotion, recommended for supersession or the consideration of his case was deferred. In the Revised Promotion Policy, marks for 'integrity' calculated in accordance with the prescribed formula were to be an important factor in determining the comparative merit of an officer.

2. Vide O.M. No.1/1/2001-CP.II, dated 03.09.2005, issued by the Cabinet Secretariat (Establishment Division) the 'Guidelines for Departmental Promotion Committees/Central Selection Boards/the 1982 Promotion Policy’ were further amended so as to provide that if a civil servant is superseded, he will not be considered for promotion unless he has earned Performance Evaluation Report for two full years, and that if he is again superseded he shall lose eligibility for further consideration.

3. Apparently, from the year 2000 onwards, the columns for 'quality and output of work' and 'integrity' from the Performance Evaluation Report Forms, were omitted. The Establishment Division, with the concurrence of the Central Selection Board, also omitted the said columns from the panel performance to be considered by the CSB in its meetings to be held in the year 2003. As such only the quantified score of an officer in the overall assessment was to be taken into account while considering the promotion of officers to the next grade.

4. The 1982 Promotion Policy was substantially amended, vide O.M.No.1/3/2007-CP-II, dated 24.10.2007, issued by the Establishment Division (“the 2007 Revised Promotion Policy”). These amendments were made on the basis of recommendations made by a Committee on Promotion Policy, which was constituted to develop a comprehensive criteria for the selection for promotion/deferment/supersession which was measurable to the extent possible, comparable with regard to the performance of each officer on the panel, and was based on tangible record duly placed on dossier, and also redefine the discretion of the members of the CSB, and to lay down as to how more objectivity could be brought in the recommendations of the CSB.

5. Under the 2007 Revised Promotion Policy, the following marks were required to be allocated for quantification of the Performance Evaluation Report, Training Evaluation Report, and CSB Evaluation:-

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

1. The minimum marks required for promotion from BPS-20 to BPS-21 are 75%. Paragraph 9 of the 2007 Revised Promotion Policy provided that the officers superseded by the CSB should be informed about the reasons for his/her supersession/ deferment to enable such officers to improve their performance and to complete their record/any other deficiency, as the case may be.

2. In the unreported judgment dated 20.05.2011, passed by the learned Single Bench of this Court in W.P.No.863/2011 titled "Gulab Zamir v. Federation of Pakistan" examined the promotion policy which had provided for the allocation of 70% marks for the Performance Evaluation Reports; 15% marks for the Training Evaluation Reports; and 15% marks to be given by the CSB. In the said judgment, it was, inter-alia, held as follows:-

"6. Presently, the policy for promotion from Grade-20 to Grade-21 is that names of three persons are sent to the Central Selection Board for consideration for promotion. According to the policy, 70% marks are allocated to the Performance Evaluation Reports. Quantification of these 'PERs' is made on the basis of reports in previous grades as well as the present grade. 15% marks are allocated to Training Evaluation Reports and then 15% marks are given by the Central Selection Board. As far as marks obtained through Performance Evaluation Reports and Training Evaluation Reports are concerned, those are always available and can be looked into. As far as marks given by the Central Selection Board are concerned, these are exclusively discretionary. These marks are to be given with reference to Service Record and having been examined the comparative marks as well as the performance of the officer in the Training Reports. The officer concerned does not appear before the Central Selection Board; there is no interview and there is every possibility that the Selection Board may not be knowing the person, whose case for promotion is before them, so some criteria is required to be evolved as these marks can not be given simply on the basis of whims. The order of Selection Board is required to be based upon proper reasons…..

1. In the present case, no reasons have been given and it is not known as to what sort of criteria was adopted by the Central Selection Board, for assessing the performance of the officer. In absence of any criteria, it would become unfettered discretion of the Central Selection Board to recommend promotion of one person and refuse the same to another similarly placed officer…..

2. In the circumstances, I accept this petition; the order of supersession is converted into deferment and the case is sent back to the Central Selection Board with the direction to determine 'Specific Criteria' for assessing the officer and pass a just and fair order, based on reasons."

3. In the case of Mrs. Iram Adnan and others v. Federation of Pakistan and others (2012 PLC (C.S.) 1355) (hereinafter referred to as "Iram Adnan's case"), civil servants aspiring to be promoted to BPS-20 and BPS-21, filed writ petitions before the Hon'ble Islamabad High Court against the decision of the competent authority, based on the recommendations of the CSB to supersede such civil servants/petitioners. Through the said judgment, the learned Single Bench of this Court allowed/decided writ petitions instituted by civil servants in BPS-20, who had been superseded by the competent authority on the recommendations of the CSB. In this judgment, reference was made to the case of Secretary, Revenue Division v. Gul Muhammad (2011 SCMR 295), wherein the Hon'ble Supreme Court had referred to an earlier judgment dated 25.09.2006, passed in C.P.Nos.836 and 837 of 2006, which had arisen from the judgment dated 22.07.2006, passed by the Federal Service Tribunal, Islamabad. The learned Federal Service Tribunal in the said judgment dated 22.07.2006 had directed the Establishment Division to bring more objectivity in the criteria for excellence and comparative merit by defining it further and give more specific, detailed and well argued reasons for denying promotion to an officer, who is eligible and fulfills the requisite criteria, length of service, training requirements, relevant experience etc. The said judgment of the learned Federal Service Tribunal was upheld by the Hon'ble Supreme Court of Pakistan, vide judgment dated 25.09.2006, passed in C.Ps.Nos.836 and 837/2006. In this judgment, it was held as follows:-

"2. Learned D.A.-G., despite our repeated question, could not satisfy us on this aspect of the case, therefore, we are of the opinion that decision with regard to promotion of the Officer cannot be left on the discretion of Members of the Board. There must be some criteria to judge the performance of a candidate because promotion was denied to the officer on the ground that he does not fulfill the criteria. When there is no criteria, then how a person can be denied promotion, therefore, the Service Tribunal has rightly observed that the Board must bring more objectivity in the criteria."

1. In Iram Adnan's case, this Court set aside the formula for the award of the 15 marks at the discretion of the CSB and declared the same as, inter-alia, illegal and unconstitutional. Furthermore, the Establishment Division was directed to restructure the formula for the award of 15 marks. This judgment was rendered by the Hon'ble Islamabad High Court on 20.03.2012.

2. In the case of Liaqat Ali Chugtai v. Federation of Pakistan (PLD 2013 Lahore 413), (hereinafter referred to as "Liaqat Chugtai’s case") the writ petitioners, who were officers in BS-19 and 20 in Pakistan Railways were recommended to be superseded by the CSB, which had considered them for promotion under the 2007 Revised Promotion Policy dated 24.10.2007. The essential grievance of the petitioners in that case was that the award of 15 marks by the CSB was not based on any structured objective criteria; and that the process of evaluation adopted by the CSB lacked due process and fairness.

3. The Hon'ble Lahore High Court after making reference to the decisions of the CSB regarding a criteria for the award of the 15 discretionary marks, taken in its meetings held in November 2007 and December 2009, held that "the CSB had consciously adopted a policy to place reliance on the personal views and impressions of the Members regarding the integrity and reputation of the officers under consideration." Furthermore, it was held that the process adopted by the CSB negates the very purpose of a CSB, which was expected to form a collective view after independent application of mind to the facts and circumstances of each case. The CSB was required to meticulously review the service dossier of the officers under consideration and formulate a collective opinion. The reliance placed by the CSB on the personal opinions of the Members of the CSB in making recommendations for the supersession of officers under consideration to the competent authority, was held by the Hon'ble Lahore High Court to be an affront to fairness, due process and Article 10-A of the Constitution. The criteria that had been developed/evolved by the CSB for the award of the 15 discretionary marks was held to be not sufficiently structured or elaborately tailored to reflect thorough deliberation and proper analytical assessment of the officers to be considered for promotion by the CSB. The Hon'ble Lahore High Court set aside the selection process carried out by the CSB in its meeting held in September and October, 2011 and declared the same as illegal and unconstitutional. Furthermore, the CSB was directed to formulate a well thought-out objective criterion in accordance with the 2007 Revised Promotion Policy. This judgment was rendered by the Hon'ble Lahore High Court on 17.02.2012. Before moving on, it is pertinent to reproduce herein below the guidelines given by the Hon'ble Lahore High Court for the evaluation process by the CSB:-

"(i) CSB is free to formulate its opinion on the basis of the evidence before them which is the complete service dossier of the Officers which comprises PERs for the last over 15 years and Training Evaluation Reports.

(ii) CSB is bound to confront the same to the officer under consideration and only after granting an opportunity of defence to the said officer regarding the new evidence being introduced, place reliance on it and not otherwise.

(iii) There is no room for CSB to blindly rely and pass an adverse order on the basis of impressions nurtured and opinion harboured by Member(s) of CSB. Without the Member(s) first tabling the tangible evidence against an officer before the Board and then confronting the said evidence to the officer under consideration, the Board cannot place reliance on the said evidence."

1. After the judgments in Iram Adnan’s case and Liaqat Chugtai’s case, the Establishment Division, Vide Notification No.1/1/2012-CP.II, dated 15.08.2012, constituted a Committee to consider restructuring the formula for the award of 15 marks by the CSB. The main task of this Committee was to bring more objectivity in the criteria for the award of 15 marks by the CSB in the light of observations made by the Hon'ble High Court. The Chairman of this Committee was a member of the Federal Public Service Commission. He was of the view that since approximately 900 officers were considered in each meeting of the CSB, extending personal hearing to each such officer by the CSB was not practicable. On the basis of the recommendations of this Committee, the 'Guidelines for the Departmental Promotion Committee/Central Selection Board' dated 31.10.1982, the 1982 Promotion Policy, and the 2007 Revised Promotion Policy dated 24.10.2007, was revised yet again.

2. Through O.M. No.F.1/1/2012-CP.II, dated 12.10.2012, the Establishment Division revised and restructured the criteria for the award of the 15 marks reserved for the CSB. The changes so made were as follows:-

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

b. New parameters/attributes namely 1) Integrity /General Reputation/Perception 2) Personality Profile; and 3) Conduct, discipline & Behavior are added in the said Guidelines attached with 1982 Policy.

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

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

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

Sl No. Category Range of Marks Range of Marks

1. Category –A = 11 to 15

2. Category –B = 06 to 10

3. Category – C = 00 to 05

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

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

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

1. The new Objective Assessment Form referred to in para (d) of the O.M. dated 12.10.2012 is as follows:-

CONFIDENTAIL

Government of Pakistan

Ministry of ________________________

OBJECTIVE ASSESSMENT BY CSB

Officer's Name: _____________ Seniority No._________

Group/Service/Cadre: ___________ Present Scale________

| | | | | | | --- | --- | --- | --- | --- | | S.No. | Parameters/Attributes | Categories | | | | 1 | Quality & Output of Work | Cat-A [11-15] | Cat-B [06-07] | Cat-C [00-05] | | | Integrity/General Reputation/ Perception [Last 05-Yrs of Synopsis OR as known to the Board Members] | | | | | 3. | Variety and Relevance of Experience Nature of duties, duration and location of Yrs whichever is longer relevant to the functions of posts in BS-21. BS-18 (if applicable) = yrs BS-19 = yrs BS-20 = yrs Total = yrs | | | | | 4 | Top Management Potential [Observation by RO/CO if any OR as known to the Board Members] | | | | | 5 | Personality Profile [As known to the Board Members] | | | | | 6 | Conduct, discipline Behavior [Observation by RO/CO during last five years OR as known to the Board Members] | | | | | 7 | Total | | | | | 8. | Average | | | | | 9 | Marks by CSB | | | |

__________________

[Secretary, CSB]

Dated _____________

____________________________

[Chairman CSB]

Dated ______________

1. Now it needs to be seen whether the revision in the promotion policies by the Establishment Division brought in objectivity in the criteria for the award of the 15 discretionary marks, in compliance with the directions issued by the Hon'ble High Courts in Iram Adnan’s case and Liaqat Chugtai’s case. In the case of Orya Maqbool Abbasi v. Federation of Pakistan (2014 SCMR 817), (hereinafter referred to as "Orya Maqbool’s case") the petitioner along with other officers in BPS-20, were considered for promotion to BPS-21 by the CSB in its meetings held on 11.02.2013 to 14.02.2013 and 27.02.2013, and were recommended to be deferred/not recommended for promotion. The petitioner had invoked the jurisdiction of the Hon'ble Supreme Court of Pakistan under Article 184(3) of the Constitution for the enforcement of fundamental rights involving questions of public importance pertaining to outlining an objective criteria for promotion so as to make the civil service rewarding for honest officers and free from political pressures. It was held that although promotion was not a right, but a civil servant, fully qualified for promotion, has a right to claim that his case must be considered for promotion strictly following the eligibility criteria laid down by the Government; and that the officers who were not qualifying the eligibility criteria for promotion could be deferred but not on the basis of discriminatory reasons, particularly, where such elements are not visible on the record. In paragraph 43 of the said report, it was held as follows:-

"43. As it has been discussed hereinabove the petitioner and others were subjected to arbitrariness by the CSB while considering their cases in the months of September and October, 2011 and in the meetings of CSB held twice in the month of February, 2013, it did not support to its adverse decision against the petitioner and others and on having seen their record concluded that PERs are fully supporting them and in view of the subject reports in their favour, they are eligible to be considered for promotion. However, it failed to take into consideration such reports for the reasons not tenable in law and their such findings were clear violation and departure from the promotion policy because once the officers have fulfilled the criteria, their cases have to be considered, to assess the fitness and suitability to share higher responsibility, mostly based on objective criteria, instead of denying promotion to them for the subjective consideration, as exactly has happened in this case in view of the background which has been noted hereinabove, he should have been reconsidered for promotion. Thus, such findings, which are whimsical, in violation of the policy and are also based on subjective consideration, cannot be endorsed in the public interest as well as for the good governance, relating to the welfare of the citizens. The officers, if have not been considered for promotion on merit against a selection post from BS-20 to 21, it would have direct impact on good governance, which is necessary to provide for smooth running of affairs in the country including protecting the rights of citizens under Articles 3 and 9 of the Constitution."

1. The Hon'ble Supreme Court, in Orya Maqbool's case, set aside the notifications for promotions of all the officers issued in pursuance of the recommendations of the CSB. The competent authority was directed to undertake the process of promotion of all the officers strictly according to merit and in accordance with section 9 of the CSA, 1973 read with Rules 7, 7-A and 8 of the APT Rules, 1973, and the Promotion Policy as amended. The Government was also directed to undertake the exercise of outlining an objective criteria for promotion to make the civil servant an honest officer and free from political pressure. It was also observed that it would be a great achievement if it was added in the Policy to hold an inquiry of the civil servant while sending his case for promotion and also examine his family assets at the time when he joined the service including life style, expenses on children's education, expenses on children's marriage, foreign tours as well as to ascertain the political affiliation of such a candidate to make the bureaucracy free from political affiliation as observed in the speech of the Quaid-e-Azam.

2. The mere fact that the Hon'ble Supreme Court, in Orya Maqbool’s case, directed the Establishment Division to outline an objective criteria for promotion, shows that the Establishment Division had not been able to frame an ‘objective criteria’ through O.M. dated 12.10.2012 for promotion process of senior civil servants. The Hon'ble Supreme Court in giving the said direction to the Establishment Division was fully cognizant of the directions given to the Establishment Division by the Hon'ble High Courts in Iram Adnan’s case and Liaqat Chugtai’s case, in purported compliance whereof the Establishment Division claims to have issued O.M. dated 12.10.2012.

3. It was in these circumstances that the Objective Assessment Form annexed to the Promotion Policy was revised, vide O.M. No.F.1/1/2012-CP.2, dated 10.02.2014. The Revised Objective Assessment Form is reproduced herein below:-

CONFIDENTAIL

Government of Pakistan

Ministry of ________________________

OBJECTIVE ASSESSMENT BY CENTRAL SELECTION BOARD

Officer's Name: _____________ Seniority No._________

Group/Service/Cadre: ___________ Present Scale________

| | | | | | --- | --- | --- | --- | | S.No. | Parameters/Attributes | Total Marks | Marks Assigned | | 1 | Output of Work and Quality of Work | | | | 2 | Variety and Relevance of Experience Secretariat/Field Postings; Federal/ Provincial Government Postings; Leadership/Routine Postings; Deputation/ Foreign Postings | | | | 3 | Professional Expertise | | | | 4 | Personality Profile (As known to the Board Members) | 10 | | | 5 | Conduct, Discipline and Behaviour [Observation by RO/CO during last 05 years OR as known to the Board Members] | | | | 6 | Functional Ability and Leadership | | | | 7 | Estimated Potential for Middle/Higher Management Based on PERs and Training Evaluation Reports: Management Skills, Ability to take decisions, Strategic Thinking, Leadership Qualities, Drive for Results and Accomplishments in BPS-19 and 20 in policy formulation & implementation. | | | | 8 | Integrity/General Reputation / Perception On the basis of PERs / TERs / Opinion of the Board\ | 5 | | | 9 | Total Marks by CSB | 15 | | | 10 | Overall Category Cat-A Cat-B Cat-C (11-15) (06-10) (0-05) | | |

\ An officer under consideration, getting less than 3 out of five under this parameter may be defended or superseded by the CSB at their discretion but with reasons to be recorded in writing.

________________________

Secretary CSB

________________________ Dated

____________

(Chairman CSB)

1. The most significant change brought about through O.M. dated 10.02.2014, was that the CSB was given the discretion to award upto 5 marks to an officer under consideration for promotion, for his ‘Integrity/General Reputation/Perception’ on the basis of his PERs/TERs and ‘the Opinion of the CSB’. Furthermore, as mentioned above, an officer getting less than 3 out of 5 marks could be deferred or superseded by the CSB at their discretion but with reasons to be recorded in writing.

2. On 05.05.2015, a meeting of the CSB took place in which officers of BS-19 and BS-20 were considered for promotion to BS-20 and BS-21. After the meeting, the CSB made recommendations to the competent authority/the Prime Minister. Several officers were recommended, superseded and deferred. Before the Prime Minister could take a decision on CSB’s recommendations, 57 writ petitions were filed before this Court by officers, who were either recommended to be deferred or superseded by the CSB. One of such officers was Dr. Muhammad Arif, Director General (current charge) Department of Archaeology & Museums, Government of Pakistan, whose promotion had been recommended to be deferred by the CSB. He filed W.P.No.2033/2015 against the recommendations of the CSB. Furthermore, he had also prayed for the setting aside of the five marks for Integrity/General Reputation/Perception contained in the O.M. dated 10.02.2014. The prayer clause of his writ petition has been reproduced hereinabove. As mentioned above, vide short order dated 27.07.2015, the learned Single Judge-in-Chambers allowed all the writ petitions challenging the recommendations of the CSB. Furthermore, in the detailed judgment, the following directions were given:-

“65. In this view of the matter, the Establishment Division is directed to reframe the formula by taking away the overriding effect of the marks to be awarded by CSB and categorization into A, B & C and place the cases before CSB in the light of the judgments mentioned above, within one month. The assessment shall be made on the basis of entire performance and in case any tangible material asking question about integrity of civil servant is available, he may be confronted with the same and then any opinion of deferment or supersession may be made but not on the basis of hypothesis and reputation in air. The cases of employees of BS-21 for promotion to BS-22 be placed before the High Powered Selection Board within one month.”

1. As some of the writ petitioners (10 in total, i.e. W.P.Nos.1401, 1432, 1440, 1472, 1509, 1542, 1565, 2033, 1564 & 1583 of 2015) had challenged the Objective Assessment Form annexed to the O.M. dated 10.02.2014, to the extent of award upto 5 marks at the discretion of the CSB, it is essential to examine the vires thereof on the touchstone of law laid down by the Superior Courts in the cases of Iram Adnan, Liaqat Chugtai and Orya Maqbool. The directions given by the Hon'ble Superior Courts to the Establishment Division in the said judgments to frame an objective criteria for the award of marks at the discretion of the CSB to an officer under consideration for promotion, have already been referred to above.

2. Before we examine the vires of the O.M. dated 10.02.2014 and the Objective Assessment Form annexed thereto, especially the ‘overriding’ 5 discretionary marks which the CSB can award to an officer under consideration for promotion for his Integrity, General Reputation and Perception, we are keen to see how the parameters and criterion for determining the fitness and suitability of an officer for promotion is determined through Office Memoranda issued by the Establishment Division every now and then. We have employed the term ‘overriding’ because as per the Objective Assessment Form annexed to the O.M. dated 10.02.2014, and as explained by the learned A.A-G, in the event the civil servant is given less than 3 marks by the CSB for this Integrity, General Reputation and Perception, he cannot be recommended to be promoted even if he satisfies the threshold of achieving more than 75 marks for promotion to BPS-21. Some of the respondents before us did achieve more than 75 marks, but were not recommended to be promoted, because they were given less than 3 marks by the CSB for their Integrity, General Reputation and Perception.

3. Now, Section 9 of the CSA, 1973, inter-alia, provides that a civil servant possessing such minimum qualifications “as may be prescribed” shall be eligible for promotion to a higher post. The term “prescribed” has been defined in Section 2(f) of the CSA, 1973, to mean, “prescribed by rules”. And the term “rules” has been defined in Section 2(g) of the said Act as “rules made or deemed to have been made under this Act”. Section 25 of the CSA, 1973, empowers the President or any person authorized by the President, to make such rules as appear to him to be necessary or expedient for carrying out the purposes of the said Act. One of the purposes of the CSA, 1973, is to cater and provide for the promotion of civil servants to the next higher grade. The conjoint reading of the said provisions of the CSA, 1973, brings home the conclusion that mandate of the said statute was that the minimum qualifications required for a civil servant to be considered for promotion had to be prescribed in the rules made in exercise of the power under Section 25 of the CSA, 1973. Therefore, the CSA, 1973 does not contemplate the prescription for such minimum qualification through an executive fiat.

4. Section 25 of the CSA, 1973, provides as follows:-

“25. Rules. -- (1) The President or any person authorized by the President in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act.

(2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act.”

1. Office Memoranda issued by the Establishment Division prescribing or varying the minimum qualifications required to be possessed by a civil servant in order to be considered for promotion, are certainly not “rules” framed under Section 25 of the CSA, 1973. Under Section 25(1) of the CSA, 1973, the President “or any person authorized by the President” can make the rules. Even if the President were to have authorized the Establishment Division to make rules which prescribe the minimum qualifications for a civil servant to be considered for promotion, there is no escape from the conclusion that such minimum qualifications had to be contained in the Rules and not in Office Memoranda. It appears that through Rule 8-A of the APT Rules, 1973, the power/responsibility to prescribe such minimum qualifications (completing of minimum length of service, attending training and passing departmental examination) has been further delegated. Simply providing that promotion cannot be made unless the officer concerned “has completed such minimum length of service, attended such training and passed such departmental examination” does not fulfill the requirements of Section 9(1) of the CSA, 1973. What Section 9(1) had mandated was that the “minimum qualifications” for the eligibility of a civil servant for promotion should be prescribed by the rules. We have not been able to find the minimum qualifications for the eligibility of a civil servant for promotion in the APT Rules, 1973, or for that matter any other rules framed under Section 25 of the CSA, 1973. Therefore, the Federation would be well advised to consider prescribing such minimum qualifications in the Rules framed under Section 25 of the CSA, 1973.

2. Now an O.M. is not issued by the Establishment Division in exercise of powers conferred by the CSA, 1973. Even the APT Rules, 1973, do not expressly authorize the Executive/Establishment Division to prescribe the minimum qualifications for the promotion of a civil servant, through Office Memoranda. An O.M. setting out the promotion policy or guidelines for the Departmental Promotion Committees/Central Selection Boards cannot be termed as primary or delegated legislation. At best it is an executive order which has been given the status of a ‘law’ by virtue of judgments of the Superior Courts, including but not limited to Orya Maqbool Abbasi v. Federation of Pakistan (2014 SCMR 817), Fazli Rehmani v. Chief Minister N.-W.F.P. (PLD 2008 SC 769), Sajjad Ahmad Javed Bhatti v. Secretary, Establishment, Islamabad (1996 SCMR 628), Secretary to the Government of Punjab v. Abdul Hamid Arif (1991 SCMR 628), Khan Faizullah Khan v. Government of Pakistan (PLD 1974 SC 291), and Liaqat Ali Chugtai v. Federation of Pakistan (PLD 2013 Lahore 413). Although, an O.M. has been given the status of 'law' it is certainly not primarily legislation or delegated legislation. It does not come within the ambit of a statutory instrument because it is not made in exercise of a specific statutory power conferred by the CSA, 1973.

3. We were also anxious to know as to why Office Memoranda issued after the enactment of the CSA, 1973, have been given the status of ‘rules’ in several dicta of the Superior Courts. By virtue of Section 25(2) ibid, the Office Memoranda which were in force immediately before the commencement of the CSA, 1973, are deemed to be rules made under the said Act. This is a saving provision in the statute which affords protection inter-alia the Office Memoranda issued by a competent authority prior to the enactment of the CSA, 1973. Section 25 (2) is not an enabling provision for making Office Memoranda. It also does not give the status of rules to Office Memoranda issued after the enactment of the CSA, 1973.

4. In the case of Khan Faizullah Khan v. Government of Pakistan (PLD 1974 SC 291), it has been held as follows:-

“This Court has stated on several occasions that even instructions contained in Memoranda issued by the appropriate Government could be regarded as being in the nature of statutory rules provided they are expressed with precision and yet possess generality so as to be capable on application to a large number of cases-See Pakistan v. Abdul Hamid (PLD 1961 SC 105), Province of West Pakistan v. Din Muhammad (PLD 1964 SC 21), Government of West Pakistan v. A. A. Aziz (PLD 1966 SC188) and Habibur Rehman v. West Pakistan Public Service Commission (PLD 1973 SC 144). The Resolution issued by the Central Government on the 8th November 1950 regarding the creation of the Civil Service of Pakistan amply fulfils these requirements.”

1. Furthermore, in the case of Secretary to the Government of Punjab v. Abdul Hamid Arif (1991 SCMR 628), it has been held as follows:-

“In this connection, however, it needs to be pointed out that this Court has held in several decisions that where an office memorandum is expressed in precise terms, which are capable of being applied with particularity to a great variety of cases and in particular those instructions can be applied with exactness in number of cases, the terms of such memorandum should be deemed to amplify and adapt the statutory rules in the relevant respect and be regarded as supplementing them. See for example Pakistan v. Abdul Hamid (PLD 1961 SC 105)”

1. In the cases of Khan Faizullah Khan and Abdul Hamid Arif, the Hon'ble Supreme Court, holding that Office Memoranda issued by the Government could be regarded as being in the nature of statutory rules, has placed reliance on the law laid down by the Hon'ble Supreme Court in judgments prior to the enactment of the Civil Servants Act, 1973. Perusal of Section 25 of the Civil Servants Act, 1973, does not give the status of statutory rules of the Office Memoranda issued after the enactment of the said Act. Therefore, Office Memoranda issued by the Establishment Division is given the status of law on the basis of Judge made law. Many other judgments of the Superior Courts, while treating the Office Memoranda issued by the Establishment Division, as ‘rules’, place reliance on the law laid down by the Hon'ble Supreme Court in the case of Khan Faizullah Khan Vs. Government of Pakistan (supra). For instance, in the case of Muhammad Afzal v. Government of Balochistan (1995 PLC (C.S.) 567), it was held by the Hon'ble Balochistan High Court as follows:-

“Before proceeding ahead, it is to be observed that the Policies, instructions issued from time to time by the Government could be equated with statutory Rules, because it possess generality and covers large number of cases on the subject. In following this principle, we are fortified by the judgment of Hon'ble Supreme Court in Faizullah Khan V. Government of Pakistan PLD 1974 SC 291.”

1. On the other hand, the Hon'ble Superior Courts in a number of cases have given Office Memoranda issued by the Establishment Division the status of ‘rules’ in accordance with the mandate of Section 25 (2) of the CSA, 1973. For instance, in the case of Muhammad Yousaf v. Abdul Rashid (1996 SCMR 1297), the Hon'ble Supreme Court, after making reference to Section 25 of the Civil Servants Act, 1973, held as follows:-

“By virtue of subsection (2) of section 25 (ibid), all existing rules, orders or instructions in respect of any terms and conditions of service of civil servant duly made or issued by a competent Authority, in so far it is not inconsistent with the provisions of the Act are saved and are to be treated as rules made under the Act. The validity of the General Principles of Seniority issued by Establishment Division on 31-12-1970 was examined in the light of provisions of the Act in Azam Ali's case (supra) and it was held that these guidelines not being in conflict with any of the provisions of the Act, acquired the force of rules on the strength of the language of section 25(2) of the Act. The precise observation of this Court in this regard in Azim Ali's case (supra), are as follows:--

“As the contents of the Circular of December, 1970 are not found to be inconsistent with any provision of the Act, they acquire force of rules under the Act on the strength of section 25, subsection (2) of the Act which provides:

Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by any authority competent to make them and enforced immediately before the commencement of this

Act, shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act be deemed to be Rules under the Act.”"

1. Now, coming back to the executive orders through which inter alia minimum qualifications for promotion of the senior civil servants to BPS-20 and BPS-21, were prescribed, the first two paragraphs of the cover letter (D.O. No.10(3)/81-CP-I(Pt), dated 31.10.1982) from the Establishment Secretary, Cabinet Secretariat (Establishment Division), Government of Pakistan, through which the 1982 Promotion Policy was issued, read as follows:-

"The legal frame-work for promotion and its procedures has been provided in the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfers) Rules, 1973, The Law and Rules, by themselves, are not enough to meet the functional requirement and need to be supplemented by a comprehensive and consistent set of policy guidelines.

1. Comprehensive guidelines for Departmental Promotion Committees/Central Selection Boards have, therefore, been framed with the approval of the President. A copy is enclosed."

2. This shows that the promotion policy and the guidelines for the CSB were issued in the form of Office Memoranda by the Establishment Division so as to supplement and meet the functional requirements of the CSA, 1973, and the APT Rules, 1973. This was done because the statute and rules were considered to be ‘not enough’ to meet the ‘functional requirements’. No reference was given to any statutory power in exercise of which the Office Memoranda prescribing the minimum qualifications for promotion of a senior civil servant to the next higher grade was given.

3. The Section Officer (Career Planning), Establishment Division explained to us that an O.M. is a mode through which communication takes place between all Ministries and Divisions of the Government. It is a mode of inter-departmental communication. O.M. supplementing the provisions of a Civil Servant Act, and the APT Rules, are said to have been made under the provisions of the Rules of Business, 1973, which are made in exercise of the powers conferred by Articles 90 and 99 of the Constitution. Rule 3(iii) of the Rules of Business provides that the business of the government shall be distributed among Divisions in the manner indicated in Schedule-II thereto. Item No.11 in Schedule-II of the Rules of Business lists the business which is to be carried out by the Establishment Division. The following entries in Item No.11 of Schedule-II of the Rules of Business are relevant for the purpose of this case:-

| | | | --- | --- | | Entry | Business | | 1 | Regulation of all matters of general applicability to 2[civil posts in connection with the affairs of the Federation] including -- (i) Recruitment; 3[(ia) Promotion;] (ii) Verification of character and antecedents; (iii) Conduct and discipline; and (iv) Terms and conditions of service (including re-employment after retirement) other than those falling within the purview of the Finance Division. | | 8 | Matters relating to-- (i) Central Selection Board; (ii) Special Selection Board, except the Special Selection Boards constituted in the Divisions relating to selection of officers for posting in Pakistan Missions abroad. (iii) Selection Committee for Provincial Posts borne on All Pakistan Unified Grades Career Planning; | | 9 | (i) Career Planning; (ii) Instructions for writing and maintenance of Annual Confidential Reports servants; (iii) Centralized arrangements in managing original or duplicate Annual Confidential Reports dossiers of officers. | | 13 | Administration of the Civil Servants Act, 1973, and the rules made thereunder |

1. It was explained to us that the process of issuing an O.M. which is supposed to supplement the legal framework for promotion and its procedure provided in the CSA, 1973, and the APT Rules, 1973, is initiated by a Note from the Secretary, Establishment Division, requiring a draft to be put up. (Rule 4(2) of the Rules of Business, 1973, provides that the Secretary, shall be the official head of the Division and shall be responsible for its efficient administration and discipline and for the proper conduct of business assigned to the Division under Rule 3(iii) for the due execution of sanctioned policy). The Section Officer (Policy), and the Deputy Secretary (Policy) Establishment Division are the initiating desks for making the draft of an O.M. The draft made by them goes up the ladder to the Joint Secretary (Policy) for approval, whereafter it goes to the Additional Secretary, and then to the Secretary (Establishment Division). Thereafter, a summary with respect to the issuance of an O.M. on the said subject is put up before the Prime Minister. Rule 5(1) of the Rules of Business, 1973, provides that no important policy decision shall be taken except with the approval of the Prime Minister, and Rule 5(4) provides that no decision of policy taken by the Prime Minister shall be varied or reversed or infringed without consulting him.) Once the Prime Minister approves the summary sent by the Secretary, Establishment Division, regarding the issuance or modification of an O.M., it is issued by the Establishment Division. Such an O.M. is then circulated to the other Divisions of the Government. Rule 11 of the Rules of Business, 1973, provides that no Division shall, without the previous consultation of the Establishment Division, issued, or authorized the issuance of, any orders, other than orders in pursuance of any general or special delegation made by the Establishment Division, which involves, inter-alia, the following:-

"appointment to a post in BS-20 and above and equivalent whether by initial appointment or promotion or transfer."

1. As mentioned above, matters relating to the CSB come within the business domain of the Establishment Division under Rule 3(3) read with Entry No.8(i), Item No.11, of Schedule-II to the Rules of Business, 1973. Rule 5(15) of the Rules of Business, 1973, provides that detailed instructions for the manner of disposal of business in the Federal Secretariat shall be issued by the Establishment Division in the form of Secretariat Instructions. Paragraph 55 of the Secretariat Instructions issued by the Management Services Wing of the Establishment Division reads as follows:-

"55. Office Memorandum.-- This form should be used:

(a for correspondence between various Divisions;

(b) for conveying information not amounting to an order of Government to Attached Departments and subordinate authorities.

It should be written in the third person and should bear no salutations except the signature and designation of the officer singing it. The name of the Division or Attached Department (including, if necessary, the name of the officer) should appear at the bottom on the left hand corner of the page. The Office Memorandum purporting to issue under directions from Government should begin with the words "The undersigned is directed to……..".

1. In the case of Tariq Aziz-ud-Din reported as 2010 SCMR 1301, the Hon'ble Supreme Court of Pakistan has emphasized that due weight was required to be given to Rules of Business, 1973, which had a constitutional sanction. And in the case of Amin Jan v. Director-General, T&T, reported as PLD 1985 Lahore 81, it has been held that Rules of Business are based on public policy and designed to effectively safeguard State interests. To act in consonance with these Rules is a clear duty cast on all the Divisions and Ministries of the Federal Government.

2. In the judgment dated 03.02.2016, passed by Division Bench of this Court in I.C.A. No.281/2015, titled, “Azra Jamali and others v. Federation of Pakistan, through Secretary, M/o Commerce and another”, has held that the consistent view taken by the Superior Courts in Pakistan has been that the Courts would not interfere in the policy making domain of the executive unless the policy was in violation of the Constitution, smacked of arbitrariness, favoritism and a total disregard of the mandate of law.

3. We now proceed to examine the vires of the O.M. dated 10.02.2014, and the Objective Assessment Form annexed thereto to see whether it satisfies not just the test of legality and constitutionality on the touchstone of the law (including judge-made law) and the Constitution, but also that of rationality and reasonability.

| | | | --- | --- | | | | | --- | | D | |

72. As per the Objective Assessment Form annexed to O.M. dated 10.02.2014, the CSB can award upto 5 marks for an officer’s “Integrity/General Reputation/Perception” on the basis of his PERs/TERs/Opinion of the Board. An officer getting less than 3 marks out of 5 may be deferred or superseded by the CSB at their discretion but with reasons to be recorded in writing. The O.M. dated 10.02.2014 does not make it clear as to how many out of the 5 marks are to be attributed to the officer’s PERs, how many to his TERs, and how many to the ‘Opinion of the Board’. The said O.M. also does not clarify as to the material /information on which the CSB can base its opinion on. In this respect it is vague and ambiguous and leaves the CSB with unfettered and unbridled discretion. In the absence of a specific criterion on the basis of which the CSB is to form its opinion about an officer’s integrity, there was no way of knowing how an officer was assessed by the CSB. As the discretion of the CSB to give marks to an officer for his integrity is not structured and is unfettered, it leaves the CSB to dish out marks at its sweet will. This is more so when the marks for integrity are given on the basis of the ‘Opinion of the Board’ as well as the PERs/TERs of an officer. In the case of Babar Sattar v. Federation of Pakistan (2016 CLD 134) the Hon'ble Islamabad High Court has held that “the concept of absolute, unfettered or unguided exercise of discretion by public authorities is treated as alien to the essence of the rule of law”.

| | | | --- | --- | | | | | --- | | D | |

73. A glance at how this discretion has been exercised by the CSB would be apposite. Before we do this, it is pertinent to bear in mind that the CSB is required to record reasons for its decisions. Paragraph 9 of the O.M. dated 24.10.2007 provides as follows:-

“The officers superseded by the CSB be informed about the reasons for his/her supersession/ deferment to enable such officers to improve their performance and to complete their record/any other deficiency, as the case may be.”

1. Vide O.M. No.1/3/2007-CP-II, dated, 19.01.2012, the Cabinet Secretariat, (Establishment Division) clarified that the officers who have been recommended for supersession/deferment may be informed about reasons of the said supersession/deferment immediately after the recommendations of the DPC/DSB/CSB have been approved by the competent authority.

2. Section 24-A of the General Clauses Act, 1897, which was inserted through General Clauses (Amendment), Act, 1997, reads as follows:-

"24-A. Exercise of power under enactments. --(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.

(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially." (Emphasis added)

1. The requirement to give reasons for orders passed and decisions made by the executive has been emphasized by the Hon'ble Supreme Court of Pakistan in umpteen cases including Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others (1998 SCMR 2268), Secretary, Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others (2010 SCMR 511), Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159), Messrs. United Bank Limited v. Federation of Pakistan and others (2014 SCMR 856) and Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary, Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630).

2. The reasons given by the CSB for superseding officers who had satisfied the threshold of qualifying marks for promotion to the next higher grades, but were not able to get 3 marks for their integrity/general reputation/perception, are as follows:-

| | | | | | --- | --- | --- | --- | | S.No. | Name of the petitioner | W.P No. | Reasons for supersession as recommended by CSB | | 1. | Qaiser Majeed Malik (PAS) | 1401/2015 | Following reasons provided: "Though the officer met the minimum threshold of 75 marks, yet the Board, after assessing the officer against the prescribed objective assessment criteria, besides keeping in view the PERs, TERs and knowledge of the Board members, placed him in Category-C and accordingly recommended him for supersession." | | 2. | S. Asif Mateen Zaidi | 1506/2015 | Following reasons provided: "Though the officer met the required minimum threshold of 70 marks, yet the Board, after assessing the officer against the prescribed objective assessment criteria, besides keeping in view the PERs, TERs and knowledge of the Board members, placed him in Category-C and accordingly recommended him for supersession. | | 3. | Samin Ullah Khan | 1507/2015 | Following reasons provided.:" Though the officer met the required minimum threshold of 70 marks, yet the Board, after assessing the officer against the prescribed objective assessment criteria, besides keeping in view the PERs, TERs and knowledge of the Board members, recommended him for supersession. |

1. The vital question that needs to be answered is whether the ‘reasons’, as mentioned above, would satisfy any reasonable mind as to their adequacy, appropriateness and sufficiency. Furthermore, do these ‘reasons’ carry any element of clarity or inform the superseded officer about the grounds which prevailed over the CSB to make a recommendation detrimental to the officer. “Integrity” has been defined in Words and Phrases, Volume 21B, to mean “moral soundness, freedom from corrupting influence or practice”. It is also used as a synonym for probity, fidelity and honesty. Do the ‘reasons’ make reference to any material which caused the CSB to conclude that the officer lacks moral soundness or honesty. Certainly not! This casts a shadow on the manner in which discretion was exercised by the CSB. This eventuality could have been averted had the Establishment Division acted in accordance with the directions contained in the judgments in Iram Adnan’s case, Liaqat Chugtai’s case and Orya Maqbool’s case and structured an objective criteria on the basis of which the CSB could have exercised discretion. Is it not a paradox that on the basis of an officer’s PERs and TERs, etc., he obtains qualifying marks for promotion, but on the basis of the ‘opinion’ of the CSB regarding his integrity etc., he is given less then 3 marks and denied promotion.

2. An officer against whom there is nothing adverse in his PERs and TERs, cannot without sufficient tangible and convincing material be relegated by the CSB by giving him less than 3 marks for his integrity, as the same would go against the age-old maxim "nemo firut repente turpissimus" (no one becomes dishonest all of a sudden). If any of the members of the CSB disagree with the positive remarks about the integrity of an officer in his annual confidential reports, they must specifically record as to why they are not satisfied with the remarks in such reports with specific reference to the material which contradicts the remarks in such reports.

3. An adverse opinion formed by the members of the CSB about a particular officer under consideration has to be based on tangible material, which would lead any reasonable mind to form the same opinion. The minutes of the meetings of the CSB and the recommendations of the CSB to defer or supersede a particular officer must make explicit reference to the material which caused them to become doubtful about such the officer’s integrity. However, if such material has not, at any material stage been, disclosed to the officer, he must first be confronted with it. If such a process is adopted, the officer in question may satisfy the members of the CSB as to inaccuracy or falsity of such material/information. If the officer concerned is not confronted with such material/information, it would be a violation of the principles of natural justice - audi alteram partem (no one should be condemned unheard). The violation of this principle would be enough to vitiate even the most solemn proceedings. This principle has been held to have originated from the Islamic Principles of Justice and would be read / considered as a part of every statute. Audi alteram partem has to be applied in all judicial and non-judicial proceedings notwithstanding that a right of hearing has not been expressly provided by the statute governing the proceedings. Reference in this regard may be made to the law laid down in the cases of Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678), Messrs Dewan Salman Fiber Ltd v. Government of N.-W.F.P. through Secretary, Revenue Department, Peshawar and others (PLD 2004 SC 441), Abdul Hafeez Abbasi and others v. Managing Director, Pakistan Airlines Corporation Karachi and others (2002 SCMR 1034), Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others (1994 SCMR 1299), Makerwal Collieries Ltd and 2 others v. Government of N.-W.F.P and 11 others (1993 SCMR 1140), and Raziuddin v. Chairman, Pakistan Airlines Corporation and 2 others (PLD 1992 SC 531).

4. In the deliberations of the CSB there is no room for hearsay, rumors, generalizations or gossip about an officer under consideration for promotion. Any member of the CSB cannot tell the others that a particular officer is known to him and that he thinks that the officer’s integrity or reputation is such that makes him undeserved for promotion. To immerse an officer into the abyss of doubtful integrity, it is not enough that the doubt fringes on a mere intuition. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain the doubt regarding that possibility. Only then, there is justification to ram an officer with the label 'doubtful integrity'. Collective wisdom implies that the tangible information and material on the basis of which such a member of the CSB formed an adverse opinion about an officer under consideration should be placed before all the other members of the CSB so that they can, with an independent application of mind, form their respective opinions about the integrity or reputation of such an officer. At this stage, it is apposite to refer to Liaqat Chugtai’s case, wherein it has been held as follows:-

“16. …CSB comprises 12 members belonging to different provinces. It is, therefore, difficult to imagine that all the Members knew about the inefficiency and performance of the petitioners, hence, personal opinion of some Members seems to have been casually adopted by the rest of the Members without independent application of mind and without carrying out a punctilious review of the service record of the petitioners. The process adopted by CSB negates the very purpose of a central selection board which is expected to form a collective view after independent application of mind to the facts and circumstances of each case.”

1. In the event, no such material or information is made available, the officer in question cannot be penalized by denying him a recommendation for promotion. On the other hand if such material or information is available, the officer in question must be called and confronted with it before an opinion is formed by the members of the CSB.

2. Again in Liaqat Chugtai’s case, the Hon'ble Lahore High Court held as follows:-

“22. In case, CSB relies on any other evidence collected through its own source (Promotion Policy does not specifically provides for this) in addition to the service dossier of the officers, CSB is bound to confront the same to the officer under consideration and only after granting an opportunity of defence to the said officer regarding the new evidence being introduced, place reliance on it and not otherwise. …”

1. Vide Order dated 01.04.2015, passed in Civil Appeal No.66 of 2009 titled Secretary, Establishment Division, Islamabad v. Abdul Ghaffar Mian, the Hon'ble Supreme Court in paragraphs 2 and 3 held as follows:-

"2. However, since this is the second round of litigation and the respondent had retired on 23.07.2009 after superannuation, we have no desire to remand the case to the High Court once again. We had required the Federation to show us the reasons why the respondent was not promoted. The relevant record has been produced before us. The ACRs signed and countersigned by the responsible senior Police Officers have stated that the respondent is a good officer who is also upright and honest. Nevertheless, the CSB has variously reported that he does not enjoy a good reputation. When we questioned the learned DAG to let us know the basis of this opinion formed by the CSB, he was not in a position to do so although the entire record of the Establishment Division relating to the respondent-officer has been produced before us. The same is also being returned to the Establishment Division.

1. Since there appears to be no apparent basis for the opinion formed by the CSB resulting in deferment/supersession of the respondent, we find that the opinion of CSB is unjustified. We may also state that the Establishment Division needs to look into this matter to improve its functioning so those senior officers of the Government who have spent more than 30 years in government service are not dealt with arbitrarily. If indeed the respondent did not enjoy a good reputation, perhaps this should have been documented or in the alternate those reporting officers should have been questioned who have stated that the respondent was a very diligent, competent, honest and good officer."

2. Furthermore, in the case of Muhammad Zafeer Abbasi v. Government of Pakistan (2003 PLC (C.S.) 503), the Division Bench of the Hon'ble Lahore High Court held at paragraphs 11 to 12 of the report as follows:-

“11. …We are quite mindful that the Selection Board comprises of very high personage with variety of experience and wisdom yet they are human beings and cannot be said to be in fallible. Such a presumption is neither warranted by reality nor supported by the history. We are also mindful that we cannot substitute the opinion of the Selection Board with over own opinion yet we may observe here that if the opinion as to unsuitability of an officer for promotion is not based on any material the decision based thereon is rendered arbitrary and open to correction by this Court in exercise of Constitutional jurisdiction."

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

2. As both the Hon'ble Judges who heard and decided Muhammad Zafeer Abbasi’s case subsequently rose to grace the Hon'ble Supreme Court of Pakistan, the said judgment deserves the respect and reverence.

3. In the case of Ahmed Saeed Siddiqui v. Pakistan through Secretary Establishment (2015 PLC (C.S.) 923), it has been held by the Hon'ble High Court of Sindh, as follows:-

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

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

1. The principle is well-settled that an adverse report in an ACR cannot be acted upon to deny promotional opportunities unless it is communicated to the officer concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the officer concerned, whether the adverse report is justified. The decision of the CSB to give less than three marks to an officer for his integrity in the absence of any adverse remarks qua the integrity of such an officer in his PERs and TERs, would assume the character or an “adverse remark” about his integrity and obligate the CSB to communicate the same to him as well as the material on which such a decision is based, so as to enable the officer to offer an explanation, before the CSB sends its recommendations to the competent authority.

2. The Hon'ble Supreme Court in Orya Maqbool’s case has observed that “Civil Servants of BPS-21 who have to involve themselves in important policy making and extensive administrative jurisdictions, having possessed proven analytical competence, breadth of vision, emotional maturity and such other qualities as determined the potential for successfully holding posts in top management for achieving the goal for the welfare of the general public, which also deals with their fundamental rights under Articles 9 and 25 etc. of the Constitution.” Therefore, the process for the promotion of such officers has to be pristine and should carry no impression of arbitrariness. We are told that the CSB has to examine hundreds of cases in a few days after every few months, therefore, each and every case cannot be given more than a certain time. Rush of work should be no excuse of not giving a meaningful and purposeful attention to each case.

3. If a junior officer is to be promoted and the senior deferred, a comparative analysis must be carried out between the two or with each of the officers over which a junior is being promoted, and reasons should be given which would satisfy and convince any reasonable mind as to the causes and factors due to which the seniors are ignored. Such reasons must contain the attributes which are possessed by a junior promoted officer and which the senior deferred or superseded officers are bereft of. Where the senior officers are so ignored, it is their right to know about their deficiencies, which prevailed over the minds of the members of the CSB in arriving at a conclusion not to recommend him for promotion.

4. In Tariq Aziz-ud-Din’s case (2010 SCMR 1301), it has been held by the Hon'ble Supreme Court as follows:-

“22. … [T]o ensure justice and openness in view of rule of law it becomes obligatory upon the competent authority to decide each case on merit taking into consideration the service record of the officers BS-21 who were eligible for promotion to BS-22. This aspect of the matter requires application of mind based on consideration and determination of merit in the light of the material explicitly showing as to why the officers who have been left out were not found to be competent/below merit in comparison to those promoted to BS-22. Such consideration of the case and determination of merit for parity of treatment becomes all the more necessary and in absence of considering the candidature of the left out officers it would alone be tantamount to pick and choose essentially leading us to hold that there was no transparency in the exercise of discretion by the competent authority.”

1. The Hon'ble Supreme Court in a number of cases have emphasized that the seven instruments that are most useful in structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair and informal procedures. The CSB in exercising its discretion whether to recommend the promotion or supersession or deferment of an officer must bear the said instruments in mind.

2. In Aftab Manika's case (2015 SCMR 1006), it is, inter-alia, held as follows:-

"….The factors or information to be taken into account while considering cases of promotion fall within the exclusive domain of the Board. Whether the reports of the Intelligence Agencies would be material and, if so, the weight that they deserve are matters within the power of the Board. Similarly, the competent authority also in its discretion may take into consideration any information while considering the recommendations of the Board. This power, however, is to be exercised sparingly and as mentioned in the Esta Code in exceptional circumstances….."

1. Although, it is the prerogative of the CSB whether or not to take the reports of the Intelligence Agencies about an officer under consideration for promotion, the law laid down by the superior courts as regards the veracity, strength and evidentiary value of such reports, must be borne in mind. A reference, at this stage, to case law on the subject is apposite:-

(i) In the case of Muhammad Akbar Khan Hoti v. Federation of Pakistan (2006 PLC (C.S) 619), the writ petitioner was aggrieved of the decision of CSB to brush aside his annual confidential reports and based their decision regarding his integrity on the reports of the Intelligence department. In paragraphs 14 to 16 of the report, it was held as follows:-

"14. Anyhow, a report from the Intelligence Department with respect to a government servant touching upon his integrity and work stands at an inferior position as invariably this is written by a person of the lowest rank, who cannot have a perception which an immediate boss of a civil servant may have. Therefore, when ACRs are discarded, the intelligence report cannot take their place absolutely as this can lead to very dangerous results. At the most an overall picture can be drawn based on the statements in the ACRs and the intelligence reports.

1. The CSB in this case has not ascertained from the entire material placed before it as to what was the integrity of the petitioner for purposes of consideration of his promotion case. It simply brushed aside the dossier on the basis of intelligence report even without asking the petitioner any question. It did not even ascertain who was the author of the report. If the report was given by a Grade IV Officer it would not be wise to depend on such a report.

2. Therefore, the CSB has not applied its mind to the case of the petitioner. As the CSB has not applied its mind, this Court has no hesitation in issuing a mandamus to the CSB to look into the entire record of the petitioner and then consider the reports on the basis of their intrinsic value and determine whether this was a fit case for promotion or not."

(ii) Similarly in the case of Sameen Asghar v. Federation of Pakistan (2010 PLC (C.S.) 725), it has been held by the Hon'ble Lahore High Court as follows:-

"7. The petitioners were superseded by the Central Selection Board merely because of the reports of the Intelligence Agencies, but admittedly neither these reports were communicated to them nor were they confronted with same. Even the details whereof were neither given in the proceedings of the Central Selection Board nor in the comments submitted by the respondents. In alike circumstances, this Court vide orders dated 21-3-2006 and 19-3-2007 passed in Writ Petition No.195 of 2006 and Writ Petition No. 11 of 2007, the reports of the intelligence agencies were declared as without lawful authority, supersession made on their basis was set aside and the Central Selection Board was directed to consider the case of the petitioner without being influenced by the report of any intelligence agency."

(iii) In the case of Muhammad Hanif v. Islamic Republic of Pakistan (2001 YLR 834), it has been held by the Hon'ble Lahore High Court in paragraph 2 of the Report as follows:-

"2. It is the case of the petitioner, that the Government of Pakistan, has conducted a thorough investigation through the officials of the Intelligence Department for the candidates of Nazim and Naib-Nazim; and as per such reports, Haq Nawaz/respondent No.5, is found to be a police tout, therefore, he is disqualified to contest the election and hold the post. According to this plea, it may be held, that in law no reliance can be placed upon the so-called intelligence reports, which are of hearsay nature, besides no such report has been placed on the record, therefore, the argument of the learned counsel is repelled."

(iv) In the case of Abdul Wadood Khan v. Secretary, Establishment Division (2009 PLC (C.S.) 348), it has been held by the Hon'ble Islamabad High Court as follows:-

"5. The supersession of the petitioner in the meeting of the Central Selection Board on the ground of negative reports from the Intelligence Agencies particularly when petitioner was not confronted with the reports, is illegal. The supersession of the petitioner in the year 2005 is, therefore, declared to have been made without lawful authority having no legal effect. The supersession of the petitioner in the year 2005 shall be treated to be a deferment."

(v) In the case of Muhammad Ashraf v. Government of Pakistan (2007 PLC (C.S.) 669), it has been held by the Hon'ble Lahore High Court in paragraphs 10 and 11 of the report as follows:-

"10. As to intelligence report qua the integrity of the petitioner is concerned, the answer would be that a report from the intelligence department with respect to a Government servant touching upon his integrity and work stands at an inferior position as invariably this is written by a person of the lowest rank, who cannot have a perception, which an immediate boss of a civil servant may have. When ACRs of a civil servant are discarded the intelligence report cannot take their place absolutely and this can lead to very dangerous results. At the most an overall picture can be drawn based on the statements in the ACRs. and the intelligence reports.

1. The non-consideration of ACRs. of civil servant by Selection Board on the basis of adverse intelligence report "qua" his integrity without asking his explanation would mean that Board had not ascertained from entire material as to what was the integrity of civil servant for the purpose of consideration of his promotion case nor the Board has determined that as to who was the author of the report and it has been laid down in case of Muhammad Akbar Khan v. Federation of Pakistan 2006 PLC (C.S.) 619 that intelligence report, if given by a Grade-IV officer could not be relied upon."

(vi) In the case of High Court Bar Association Bahawalpur v. Federation of Pakistan (PLD 2015 Lahore 317), the Hon'ble Lahore High Court set aside the decision of a Parliamentary Committee constituted under Article 175-A of the Constitution which had based its decision whether or not to accept the recommendations/nominations of the Judicial Commission on Intelligence Reports. The reasons given by the parliamentary committee in not accepting the recommendations of the Judicial Commission regarding the elevation of Judges to the High Court were termed as "frail and cosmetic".

(vii) In the case of Government of Punjab v. S. Tassadaq Hussain Bokhari (PLD 1986 Supreme Court 162), a magistrate was issued a show cause notice wherein it was alleged that he had a persistent reputation of being corrupt. The competent authority, after affording him an opportunity of personal hearing, held inter-alia, as follows:-

“I see no reason to disagree with the report of the Directorate of Anti-Corruption Establishment and the Special Branch who have looked into the allegations against the accused officer, independently of each other, and have sent separate independent reports, with identical findings, holding him guilty of the charges spelt out in the show-cause notice.”

1. Consequently, the Magistrate was removed from service. Aggrieved by this, the Magistrate agitated the matter before the Punjab Service Tribunal, which held has follows:-

"It is apparent from record without any dispute, that he had been removed from service on the basis of secret reports provided to the authority by the Special Branch of Police as well as by the Anti-Corruption Establishment. … We are of the considered opinion that the appellant has been condemned on secret reports of the Anti-Corruption Establishment and Special Branch Police, which have based their reports without recording any evidence but only by probe at their own end. Without associating the appellant at any stage of these enquiries, submitting at the same time that the appellant was reportedly or allegedly or stated to be corrupt.”

1. After holding so the Punjab Service Tribunal set aside the decision of the competent authority. The Hon'ble Supreme Court upheld the judgment of the Punjab Service Tribunal, by holding inter alia that there is no indication that the secret reports were shown or the factual contents thereof disclosed to the Magistrate.

2. The prime responsibility of the CSB is to consider the cases of the eligible civil servants in order of seniority, and either (i) recommend a civil servant for promotion to the next higher post, or (ii) recommend a civil servant for supersession, or (iii) defer the consideration of promotion of a civil servant provided that the consideration of a civil servant's promotion is deferred only for the reasons set out in the Promotion Policy/Guidelines for Departmental Promotion Committees/CSB.

3. We noticed that some of the officers that were considered for promotion by the CSB were awarded specific marks for their PERs, TERs and their Integrity. Such marking was not done for officers, who were recommended by the CSB to be deferred. The learned A.A-G submitted that the reason why marks were not given to the officers recommended to be deferred was because prior to reaching the marking stage, it was decided by the CSB to watch their performance. Now it is within the realm of possibilities that had marks for PERs, TERs and Integrity being given to such officers some may well have satisfied the threshold of 75 marks. The mere fact that they were deferred without being subjected to marking on the basis of their PERs, TERs and Integrity by the CSB, would imply that the deficiencies in their work related performance were so wanting that they did not deserve to be considered any further in the process underway. This makes the communication of the deficiencies in the officers along with the reasons for deferring them more imperative.

4. Initially, when the 1982 Promotion Policy (i.e. Guidelines for Departmental Promotion Committee/CSB issued through D.O.No.10(3)/81/CP-1(Pt), dated 31.10.1982, by the Establishment Division), the CSB could defer the consideration of promotion of a civil servant, only for the following three reasons:-

"(i) the CR dossier is incomplete or any other document/information required by the DPC/CSB for determining a civil servant's suit- ability for promotion is not available; or

(ii) disciplinary or departmental proceedings are pending against the civil servant whose promotion case comes up for consideration before the DPC /CSB; or

(iii) the civil servant is on deputation abroad to a foreign government private organization or international agency."

1. These Guidelines were subsequently changed, vide D.O.No.10(3)/84/CP-1, dated 30.04.1984. Three more grounds on which a civil servant's promotion could be deferred were added. These were as follows:-

"(iv) the civil servant does not possess the requisite length of service; or

(v) the civil servant has not undergone the prescribed training or passed the departmental examination for reasons beyond his control ; or

(vi) the civil servant's inter se seniority is subjudice."

1. Vide O.M. No.1/3/2007-CP-II, dated 24.10.2007, the Guidelines for Departmental Promotion Committees/CSB were again revised. On account of the said revision, the grounds on which the CSB could defer the consideration of promotion of a civil servant, were as follows:-

"(i) Not undergone the prescribed training or passed departmental examination.

(ii) Non submission of Part-I and Part-II of the PER by the concerned officer to his reporting officer in respect of his service in the present grade and the preceding grade.

(iii) When the Board considers the record as incomplete, or wants to further watch the performance of the officer or for any other reason to be recorded in writing.

(vi) Disciplinary or departmental proceedings are pending against the civil servant.

(v) The civil servant is on deputation abroad to a foreign government, private organization or international agency.

(vi) The civil servant's inter se seniority is subjudice."

1. The said O.M. dated 24.10.2007, inter-alia, clarified that the civil servant whose promotion has been deferred will be considered as soon as the reason on the basis of which the deferment took place ceases to exist.

2. The learned Single Judge-in-Chambers had the occasion of going through the record of the CSB. The officers in BPS-19 and BPS-20 whose promotion to BPS-20 and BPS-21 was recommended to be deferred by the CSB, and the reasons for such deferral are listed in paragraph 35 of the impugned judgment. For ease of reference, this list at Schedule-III to this judgment.

3. Perusal of the said list shows that most of the officers were recommended to be deferred, because their work related performance was to be watched/observed for periods extending from six months to one year. The CSB had ascribed the said reason on the basis of paragraph (b)(iii) of the Promotion Policy as revised, vide O.M. dated 24.10.2007. The said paragraph (b)(iii) has been reproduced hereinabove.

4. We are of the view that simply deferring the promotion of an officer because the CSB, in its collective wisdom, feels that the performance of an officer has to be watched further, does not satisfy the requirements of section 24-A of the General Clauses Act, 1897. If an officer is not promoted on account of some deficiency in his work related performance, it is his right to know, with sufficient detail, what exactly that deficiency is and which aspect of his work related performance he needs to improve upon. Simply deferring an officer by telling him that his work related performance needs to be watched for six months to one year is not just vague, ambiguous, imprecise and nebulous, but unacceptable in the service jurisprudence. The officer whose promotion is deferred for such reasons would have no way of knowing how and where his work related performance has been wanting or scarce. The Superior Courts have time and again emphasized upon the requirement of reasons being given for decisions made by public functionaries. Such reasons have to contain the basis on which public functionaries arrive at a certain decision, especially when such a decision is to the detriment of the subject. In the case at hand, the decision to recommend the promotion of an officer to be deferred, is in-fact, a decision not to promote him at a particular stage. When an officer is not promoted, when his similarly placed peers are promoted, this is detrimental and harmful to him. The assertion of the learned A.A-G that when such an officer is promoted after six months or one year after the deferment, he will regain his seniority, is no consolation to such an officer and is no excuse for not providing him reasons with specificity and detail as to the areas or facets where his work related performance is deficient. The decision to recommend the promotion of an officer to be deferred cannot be at the whims or impulses of the members of the CSB. Such a decision has to be backed by tangible material showing the deficient performance of the officer under consideration for promotion.

5. We were told by the learned A.A-G that the writ petitioners, whose promotion had been recommended to be deferred could not be termed as aggrieved persons, because the competent authority had reduced the periods of their deferral to shorter period and that they would be considered for promotion in the next meeting of the CSB. This, in our view, is a self-defeating argument. If the members of the CSB considered that the work related performance of a particular officer needed to be watched for one year, one wonders what prevailed over the competent authority to substantially reduce the period of deferral of such an officer.

6. The law laid down by the Hon'ble Supreme Court of Pakistan in Orya Maqbool's case that the "decision with regard to the promotions of the officers cannot be left on the discretion of the Members of the Board; there must be some criteria to judge the performance of a candidate because promotion was denied to an officer on the ground that he does not fulfill the criteria."

7. We are of the view that this principle is squarely applicable to the officers, who are recommended to be deferred by the CSB. The CSB can recommend the promotion of an officer to be deferred only and only for the reasons set out in the O.M. dated 24.10.2007, under the heading "Conditions for Deferment". Now Clause (iii) of the "Conditions for Deferment" does not reflect any criteria or objectivity. Just like the superior courts had earlier directed to restructure the criteria for the award of the 15 discretionary marks available to the CSB, we, without setting aside the same or making a declaration with respect to it, expect that the said Clause (iii) of the "Conditions for Deferment" would also either be reworded or supplemented by the Establishment Division so as to bring in more objectivity and transparency in the process. In expressing this expectation, we remain conscious of the limitations on our jurisdiction under Article 199 of the Constitution, especially in view of the law laid down by the Hon'ble Supreme Court in the case of Dr. Imran Khattak v. Ms. Sofia Waqar Khattak (2014 SCMR 122).

8. Paragraph 2 of the O.M. dated 24.10.2007 provides that "the civil servant whose promotion has been deferred will be considered as soon as the reason on the basis of which deferment took place ceases to exist." Now when the civil servant is not informed about the deficiency in his work related performance with specific details, how is he to know which area of his performance he has to improve upon. Unless there is specific material on the basis of which the members of the CSB feel that the work related performance is deficient and not up to the mark, and needs to be watched for another year or so, the decision of the CSB to recommend the promotion of an officer to be deferred cannot be termed as reasonable or rational.

9. Confining the reason for recommending an officer's promotion to be deferred so as to "watching his work related performance" for six months or one year, without further ado leaves the door ajar to arbitrariness and abuse of discretion. The process by which the CSB comes to the conclusion to defer an officer has to be purposeful and meaningful.

10. Some of the reasons on which an officer's promotion can be deferred are where he has not undergone the prescribed training or passed departmental examinations; where disciplinary or departmental proceedings are pending against the civil servant; where the civil servant is on deputation abroad; where the civil servant's inter se seniority is subjudice. This information about a civil servant ought to be in the knowledge of the department to which he belongs. We fail to understand as to why the case of an officer, suffering from the disabilities mentioned above, is sent by his department to the CSB for consideration for promotion. Regardless of these disabilities, if the department sends the case of such an officer for consideration for promotion to the CSB, and the CSB comes to know about such disabilities, then obviously such an officer cannot be considered for promotion.

11. The learned A.A-G submitted that an error has been committed by the learned Single Judge-in-Chambers in paragraph 54 of the impugned judgment and that while reproducing the O.M. dated 12.10.2012, the Objective Assessment Form which had been issued along with the said O.M. has not been reproduced, rather the Objective Assessment Form which had been issued along with O.M. dated 10.02.2014, had been reproduced.

12. We do not think that anything turns on this error because the O.M. dated 10.02.2014 other than replacing the Objective Assessment Form did not bring about any substantive change in the O.M. dated 12.10.2012. There is no denying the fact that the cases of the writ petitioners were considered by the CSB under the promotion policy as amended by the O.M. dated 12.10.2012 and the Objective Assessment Form issued along with the O.M. dated 10.02.2014.

13. The learned A.A-G submitted that the writ petitions filed by the respondents impugning the O.M. dated 10.02.2014, were not maintainable, because the petitioners could have filed an appeal before the Federal Services Tribunal in terms of Rule 4(1)(a) & (b) of the Civil Servants (Appeal) Rules, 1977, which are reproduced herein below:-

"4 (1) A civil servant shall be entitled to appeal to the appellate authority from an order passed by an authority which -

(a) alters to his disadvantage, his conditions of service, pay, allowances or pension; or

(b) interprets to his disadvantage the provisions of any rules whereby his conditions of service, pay, allowances or pension are regulated; or "

1. Learned A.A-G submitted that if the writ petitioners were of the view that the O.M. dated 10.02.2014 and the Objective Assessment Form annexed thereto, altered to their disadvantage, their conditions of service or interpreted to their disadvantage the provisions of any rules whereby their conditions of service were regulated, they could have challenged the vires of the said O.M. and its annex before the Federal Services Tribunal. This, we feel is a self-defeating argument, because if the remedy of an appeal under the said law was available to the writ petitioners, then under the proviso to Section 3(2) of the Law Reforms Ordinance, 1972, the appeals filed by the Federation against the judgment dated 27.07.2015 of the learned Single Bench of this Court would be liable to be dismissed as not maintainable. However, since the learned counsel for the contesting parties have argued their cases on merits stretched over a period of 25 dates of hearing, we feel that a decision on merits is warranted.

2. We are of the view that the requirement for marks to be given to an officer for his integrity/general reputation on the basis of the ‘Opinion of the Board’, went contrary to the directions given to the Establishment Division by the Superior Courts in the judgments in Iram Adnan’s case, Liaqat Chugtai’s case and Orya Maqbool’s case. Furthermore, the same was unguided and was likely to lead to arbitrariness and unreasonableness. Hence, judgment of the learned Single Bench to the extent of “declaring that the formula of award of 15 marks at the disposal of the CSB with overriding effect of 05 marks” is upheld. Consequently, the direction made by the learned Single Bench to the Establishment Division to “reframe the formula by taking away the overriding effect of the marks to be awarded by CSB” is also upheld.

3. None of the writ petitioners had challenged the O.M. dated 12.10.2012 or the Objective Assessment Form annexed thereto. Therefore, the judgment of the learned Single Bench to the extent of making a declaration with respect to the said O.M. is set aside. This, we hold in view of the law laid down by the Hon'ble Supreme Court in the case of Dr. Imran Khattak v. Ms. Sofia Waqar Khattak (2014 SCMR 122). It may, however, be observed that in the presence of the O.M. dated 12.10.2012, the Hon'ble Supreme Court, in Orya Maqbool’s case, had directed the Government to undertake an exercise to outline an objective criteria for the promotion.

4. For the foregoing reasons, we hold as follows:-

(i) The appeals arising from the impugned judgment dated 27.07.2015, whereby the writ petitions in which the recommendations of the Central Selection Board were challenged, are allowed. Therefore, the writ petitions to the extent of challenging the recommendations of the Central Selection Board, are dismissed as not maintainable.

(ii) The appeals from impugned judgment dated 27.07.2015 to the extent of striking down the O.M. dated 10.02.2014, and the Objective Assessment Form annexed thereto, to the extent of the five (5) overriding discretionary marks, which the Central Selection Board could grant to an officer under consideration for promotion for his Integrity, General Reputation and Perception, are dismissed.

(iii) The impugned judgment dated 27.07.2015 to the extent of striking down the O.M. dated 12.10.2012, is set aside.

(iv) The entire process carried out by the CSB on the basis of the O.M. dated 10.02.2014 and the Objective Assessment Form annexed thereto resulting in the recommendations of the CSB for the deferment/supersession of the officers under consideration for promotion, is declared to be unlawful and in violation of the law laid down by the Hon'ble Supreme Court in Orya Maqbool's case. The Establishment Division is directed to reframe the formula, in the light of the observations made herein, and by taking away the overriding effect of the five marks to be awarded by the CSB, and place the cases of all the officers, who were considered for promotion in the meetings of the CSB (whether subsequently promoted or not) prior to the filing of the writ petitions. The CSB shall carry out the assessment of the officers in accordance with the directions made by the learned Single Bench in paragraph 65 of the impugned judgment.

SCHEDULES – I, II, III

(“Number of Writ Petitions and

names of counsel” (pp.1 –13) not reported)

ZC/111/Isl. Order accordingly.

2018 P L C (C.S.) 1026

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

Mst. AYESHA SHABBIR and others

Versus

The REGISTRAR ISLAMABAD HIGH COURT, ISLAMABAD and others

W.Ps. Nos.3908, 3909 and 4016 of 2015, decided on 6th June, 2017.

(a) Islamabad Judicial Service Rules, 2011---

----Rr. 20 (3) (5) (7), 2 (k) & 27---Punjab Civil Judges Departmental Examination Rules, 1991, R.4 (1) (3)---Constitution of Pakistan, Art.25---Judicial officers (Civil Judges), confirmation of---Requirements--- Departmental examination--- Discrimination---Conducting departmental examination without training---Effect---Petitioners-Civil Judges were directed to appear in the departmental examination for their confirmation---Contention of petitioners was that they were not offered departmental training and without said training departmental examination should not have been conducted---Validity---Petitioners, before confirmation were required to complete training and pass departmental examination, they had never been directed to join training nor any training had been prescribed under Islamabad Judicial Service Rules, 2011 till date---Prescribed departmental examination was notified---Petitioners/Civil Judges having participated in the first departmental examination, acquiesced the holding of departmental examination---Petitioners could not wriggle out from the order of competent authority i.e. Islamabad High Court---No person could be confirmed in a post unless he had successfully completed training and passed departmental examination---Rule 20 (5) of Islamabad Judicial Service Rules, 2011 was subject to the provision of R.20(3) of the said Rules---No discrimination had been noticed in the present case---Case of petitioners was of initial appointment and their appointment did not fall within the category of absorption---Petitioners after acceptance of their terms and conditions gave their consent and appointment notification was issued by the order of the Chief Justice of the High Court---Petitioners had no right to say that they would not appear in any examination which would amount to misconduct---Petitioners/Civil Judges could not be allowed to avoid departmental examination merely on the ground that they were not subjected to training---Training was not pre-requisite for the appearance in the departmental examination---Departmental examination was to be read as part of appointment notification---Notification for departmental examination was within the purview and authority of the High Court---Petitioners' confirmation was subject to passing of departmental examination but not with the completion of maximum probation period---Examination committee had been constituted to hold, conduct and supervise the examination under the instructions issued by the Chief Justice or Administration Committee---Administration Committee would draw power from the orders of Chief Justice---Order passed by the Administration Committee of the High Court including the Chief Justice would mean the orders of the High Court---Petitioners sought restraining order for departmental examination the time of which had already expired---Petitioner filed their representations which were entertained by the competent authority---Service Tribunal having been constituted for redressal of issues of petitioners, Constitutional petition was not maintainable when alternate remedy was available---If petitioners Civil Judges were allowed to get confirmation without departmental examination, that would mean that the High Court had perpetuated the illegality---Constitutional petition could not be allowed to perpetuate the illegality---Petitioners, had been estopped by their words and conduct by appearing in first departmental examination and they could not challenge the same when results were different from their expectations---Chief Justice of the High Court had prerogative to interpret the rules if any question had arisen---Registrar of High Court was to seek further directions with regard to issuance of notification for departmental examination along with schedule of remaining chances---Departmental Examination Committee should initiate process of examination of all the remaining batches of Civil Judges and should exclude those subjects which were related to Punjab Jurisdiction and add those which were applicable in Islamabad---High Court observed that the Chief Justice was expected to issue notification of one time extension in probation period of petitioners as time of probation during pendency of present petition had already expired---Petitioners were to be treated with fairness and according to principles of natural justice---Petitioners would continue to work/act as Civil Judges-cum-Judicial Magistrate till passing of their remaining chances of departmental examinations within one time extended probation period---Constitutional petition was disposed of accordingly.

Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632 and Nusrat Elahi and 41 others v. Registrar Lahore High Court and 68 others 1991 MLD 2546 ref.

Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 rel.

(b) Constitution of Pakistan---

----Art. 25---Discrimination---Scope---Discrimination would be observed where similarly placed persons had been treated in terms of their same status.

(c) Constitution of Pakistan---

----Art. 199(5)---Constitutional petition against High Court---Maintainability---Principles.

Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others PLD 1966 SC 1; Abrar Hassan v. Government of Pakistan and others PLD 1976 SC 315 and Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161 rel.

(d) Constitution of Pakistan---

----Arts. 189 & 201---View expressed by larger Bench was to be followed even if the same was expressed prior in time.

Multiline Associates v. Ardishir Cowasjee and 2 others PLD 1995 SC 423; Babar Shahzad v. Said Akbar and another 1999 SCMR 2518; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law Justice, Islamabad and others PLD 2009 SC 879; Hassan and others v. The State and others PLD 2013 SC 793 and Ch. Muhammad Akram, Advocate High Court v. Registrar, Islamabad High Court and others PLD 2016 SC 961 rel.

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

----S. 3---"High Court"---"High Court" would mean all the Judges of the High Court.

(f) Islamabad Judicial Service Rules, 2011---

----R. 20 (3)---'Prescribed'---Meaning.

General Manager, North-Western Railway v. Sher Muhammad PLD 1966 Kar. 483; Salooka Steels Ltd. v. Director General, Coast Guards, Pakistan PLD 1982 Ouetta 1; Muhammad Hussain and 9 others v. Mst. Fatima and 2 others 1991 CLC 1826 and Syed Sajid Hussain v. Ch. Muhammad Latif and others 1992 PLC (C.S.) 421 rel.

(g) Islamabad Judicial Service Rules, 2011--

----R. 20(5)---'Subject to'---Meaning.

A.P. Moller through Agent v. Taxation Officer of Income Tax and another 2011 PTD 1460 rel.

(h) Islamabad Judicial Service Rules, 2011---

----R. 2(k)---'Initial appointment'---Meaning.

(i) Interpretation of statutes---

----Rules under an Act were to be read harmoniously and meaning be given a simple and straight concept unless any other intention had been expressed by the Legislator.

(j) Interpretation of statutes---

----Procedural law has retrospective effect.

(k) Words and phrases---

----'And'---Meaning.

Oxford Theasurs of English rel.

Ijaz Janjua for Petitioners (in W.P. No.3908 of 2015).

Mian Abdul Rauf, A.G. for Respondents Nos.1 and 2 (in W.P. No.3908 of 2015).

Wajid Hussain Mughal for Respondent No.3 (in W.P. No.3908 of 2015).

Muhammad Umair Baloch for Petitioners (in W.P. No.3909 of 2015).

Mian Abdul Rauf, A.G. for Respondents Nos.1 and 2 (in W.P. No.3909 of 2015).

Wajid Hussain Mughal for Respondent No.3 (in W.P. No.3909 of 2015).

Wajid Hussain Mughal for Petitioner (in W.P. No.4016 of 2015).

Mian Abdul Rauf, A.G. Islamabad for Respondents (in W.P. No.4016 of 2015).

2018 P L C (C.S.) 1110

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

SAJJAD HUSSAIN ALI and others

Versus

FEDERATION OF PAKISTAN and others

W.Ps. Nos.1576 of 2015, 3852 and 4134 of 2016, decided on 7th August, 2017.

(a) Civil service---

----Re-employment---Director Workers Welfare Fund, appointment of---Person having opted for Golden Hand Shake---Re-employment---Effect---Respondent got retirement from a Bank under Voluntary Separation Scheme and was appointed as Director Workers Welfare Fund---Contention of petitioner was that appointment of respondent as Director Workers Welfare Fund was made in violation of procedure and statutory rules---Validity---Held, respondent had used fake B.A. degree for his appointment as OG-III in the defunct Bank; said degree was utilized for admission in MBA (HRM) and again forgery was committed---High Court observed that criminal proceedings were to be initiated and monetary benefits connected with the said appointments be recovered from the respondent---Respondent was relieved of his duties from the Bank on 31-12-2009 and was appointed as Director Workers Welfare Fund on 15-02-2011---Golden Hand Shake/Early Retirement Benefits Scheme barred re-employment for a period of five years---Respondent had concealed said fact at the time of appointment in the Workers Welfare Fund---Respondent was not eligible for re-employment of any kind and his appointment was liable to set aside on such single score alone---Respondent had committed fraud with public at large and the Government and he did not deserve any leniency---Appointment of respondent was declared a result of an abuse of process of law, misrepresentation, fraud, void and result of colourable exercise of authority which was set aside---Department was directed to fill the post in question in accordance with relevant rules---Director General Federal Investigation Agency was directed to initiate criminal proceedings against the respondent and all public servants and private persons who facilitated commission of offence of alleged forgery---Ministry of Overseas Pakistanis and Human Resource Development, Workers Welfare Fund, Finance and the Bank were directed to ensure recovery of all monetary benefits from the respondent availed by him---Constitutional petition was allowed in circumstances.

Malik Nawab Sher v. Ch. Muneer Ahmad and others 2013 SCMR 1035; Ejaz Hussain v. Abdul Qayyum 1996 PLC (C.S.) 622; Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343; Ali Hussain Bokhari and 39 others v. Azad Government of the State of Jammu and Kashmir 1992 PLC (C.S.) 289 and Qazi Mustafa Kamal v. Federation of Pakistan through Secretary, Establishment Division and others PLD 2014 Isl.123 ref.

Muhammad Yasin v. Federation, of Pakistan through Secretary, Establishment Division and others PLD 2012 SC 132; PLD 2010 Lah. 625; 2010 PLC (C.S.) 731; 2002 PLC (C.S.) 274 and Malik Umar, Aslam v. Mrs. Sumaira Malik and others 2014 SCMR 45 rel.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Scope.

(c) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Laches, doctrine of---Applicability---Laches did not apply in case of writ of quo warranto.

(d) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Limitation---Applicability---Limitation had no relevance in writ of quo warranto. [p. 1123] D

(e) Limitation---

----No limitation would run against fraud or benefits gained through illegal means.

Khushnood Ahmed Khan for Petitioners (in W.P. No.4134 of 2016).

Ms. Hadia Aziz for Petitioners (in W.P. No.3852 of 2016).

Abid Mehmood for Petitioner (in W.P. No.1576 of 2015).

Barrister Sohail Nawaz for Respondents Nos.1 to 3 (in W.P. No.3852 of 2016).

Arbab Alam Abbasi for WWF (in all cases).

Arif Chaudhry and Nisar Ahmed Shah for Respondent (in all Cases).

Ghulam Mehboob Khokhar for Respondent No.8.

Tahir Mehmood Abbasi for Respondents Nos.1 and 2 (in W.P. No.1576 of 2015).

Qaiser Sarwar for Higher Education Commission of Pakistan (in W.Ps. Nos.3852 and 4134 of 2016).

Mushtaq Hussain Bhatti for SME Bank (in W.Ps. Nos.3852 and 4134 of 2016).

M.D. Shahzad for University of the Punjab (in All Cases).

Hassan Rasheed Qamar and Babar Bilal for Newports Institute of Communication and Economics(NICE), Karachi. (In All Cases)

Arshad Mehmood Kiani, DAG. (In All Cases).

Salman Jamal, Registrar, Newports Institute of Communication and Economics, Karachi (In All Cases).

Faisal Tariq, Dy. Director(WWF). (In all Cases).

2018 P L C (C.S.) 1224

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MANZOOR AHMED

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power, Government of Pakistan and 4 others

W.P. No.2346 of 2017, decided on 1st March, 2018.

Constitution of Pakistan---

----Art. 199---Employee of Islamabad Electric Supply Corporation---Constitutional petition---Maintainability---Non-statutory service rules---Effect---Master and servant, principle of---Applicability---Islamabad Electric Supply Corporation was to adopt Water and Power Development Authority's rules after approval by its Board of Directors---Service rules governing the petitioner's employment with the Corporation were not statutory---Constitutional petition was maintainable where respondent authority had violated any provision of law or statutory rules---Employees who were governed by statutory rules could avail the remedy of filing constitutional petition before High Court---Principle of master and servant was applicable to the employees whose services were not governed by any statutory rules---Employee of a company owned by the government in absence of violation of law or any statutory rules could not press into service the constitutional jurisdiction of High Court in order to seek relief with regard to his employment---No service rules applicable to the employees had been violated by the Islamabad Electric Supply Corporation while passing the impugned order---Constitutional petition being not maintainable was dismissed in circumstances.

Samiullah Narago v. Federation of Pakistan 2012 PLC (C.S.) 1205; Pakistan Telecommunication Company Limited v. Iqbal Nasir PLD 2013 SC 132 and Pakistan International Airline Corporation v. Tanveer-ur-Rehman and others PLD 2010 SC 676 rel.

G.M. Chaudhary for Petitioner.

Ahsan Mehmood Satti, Assistant Attorney-General with Akhlaq Ahmad, Senior Private Secretary, PEPCO for Respondents.

Syed Kazim Hussain Kazmi for Respondents Nos.2 to 4.

Muhammad Asif Khan for Respondent No.5.

2018 P L C (C.S.) 1284

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

WAHAZ ZULFIQAR and 15 others

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division and 2 others

W.Ps. Nos.2904, 3074, 3917 of 2016 and 4343 of 2017, decided on 24th January, 2018.

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

----Preamble---Master and servant, relations of---Scope---Contract employees of a statutory Body---Termination from service---Scope---Employees were appointed on contract basis through employment agreement---Employment contracts of employees were for fixed period subject to the continuation of grant by the Global Fund---Said contracts contained termination clauses empowering the employer to terminate the contracts on thirty days written notice---Employees were bound by the terms and conditions of their employment contracts---High Court under constitutional jurisdiction could neither declare the termination notices to be unlawful nor hold that their employment contracts would continue to subsist after the termination notices---No statutory rules governing the employees' relationship with the employer existed---Employees had relationship with their employer as that of Master and Servant---Employer could terminate the service of employees by giving one month's notice or one month's salary in lieu of such notice---Employees could not file constitutional petition seeking their reinstatement in service and only remedy for them was to file a suit for damages---Where conditions of service of employee of a statutory body were governed by statutory rules then any action prejudicial against such an employee in derogation or in violation of statutory rules could be set aside by the High Court under constitutional jurisdiction---Employer, in the present case, had prerogative to terminate contractual appointment if performance of employee was not satisfactory---Contractual employee could not insist for a regular inquiry to be held with regard to employer's satisfaction with the employee's performance---Notices issued to the employees for their termination did not stigmatize them---Employees were not being paid salaries by the Federal Government; continuation of their employment contracts were contingent on funding from the Global Fund---Petitioners' pay scales could not be determined because they drew their salaries in US Dollars---Regular appointment in BPS-16 and above could only be made through Federal Public Service Commission in accordance with Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---High Court could not compel a project funded by a foreign donor to be appointed on permanent basis---Statutory Body in the present case, was neither an attached department nor a subordinate office nor an adjunct of government department---Employees of said statutory Body were not employees of any Ministry---Said Statutory Body was not running its affairs with funds provided by the Federal Government---Employees were not performing function with the affairs of the Federation---Mere fact that employees were given contractual employment after test and interview could not make out their case for conversion of contractual employment into a permanent employment---Constitutional petition was dismissed in circumstances.

Chairman NADRA, Islamabad v. Muhammad Ali Shah 2017 SCMR 1979; Pakistan Telecommunication Company Limited v. Iqbal Nasir PLD 2011 SC 132; Federation of Pakistan through Secretary Law Justice and Parliamentary Affairs v. Muhammad Azam Chatha 2013 SCMR 120; Trustees of the Port of Karachi v. Saqib Samdani 2012 SCMR 64; Syed M. Yahya v. First Credit and Investment Bank Limited 2009 UC 656 and Muhammad Waqas Gul v. Water and Power Development Authority 2015 PLC (C.S.) 144 rel.

(b) Administration of justice---

----When law required a thing to be done in a particular manner then it must be done in that manner or not at all.

Shoaib Shaheen, Mirza Waqas Qayyum, Muhammad Umair Baloch and Kh. Manzoor Ahmad, Afnan Karim Kundi Additional Attorney-General and Ms. Sitwat Jahangir Assistant Attorney-General for Petitioners.

Muhammad Salman Ajaib and Barrister Salman Rashid for Respondents Nos.2 and 3.

Aftabullah Deputy Director (Litigation) Ministry of NHSR&C, Zubair, Director NTP, Irfanullah, NTP Manager Operations, Zaheer Iqbal, Section Officer (LIT-II) Cabinet Division and Zaheer Ahmad, Chief Finance and Admn. Officer, T.B. Control Programme for Respondents.

2018 P L C (C.S.) 7

[Sindh High Court]

Before Zulfiqar Ahmad Khan, J

MURAD ALI JATOI

Versus

SINDH INDUSTRIAL TRADING ESTATE (S.I.T.E.) and 5 others

Suit No.2483 and C.M.As. Nos. 16406, 17584 of 2016, decided on 20th June, 2017.

Civil service---

----Out of turn promotion in violation of judgment of Supreme Court---Employees, while holding the degree of Civil Engineering, chose to apply as Sub-Engineer, therefore, should have been dealt with the cadre of Grade-14 and treated with their contemporaries---Defendants-employees who were promoted out of turn were demoted from grade-17 to grade-14---Employees within three days of their re-erection to grade-17 were promoted to grade-18---Plaintiff-employee being B-Tech (Hons.) was inducted in service in 1993 in grade-14 whereas defendants-employees inducted in the same department in grade-14 in 2005 had reached to grade-18 in the years 2016 but plaintiff-employee had only been promoted from grade-14 to grade-17 after lapse of 16 years of service---Employees' seniority and promotion had to be driven by their own cadre in which they had chosen to be inducted---Defendants-employees while holding a Bachelor of Engineering degree could not be given benefit of said degree until and unless they applied and get selected for the post on the strength of their Bachelor of Engineering degrees---Defendants-employees while holding a Bachelor of Engineering degree not only usurped two seats of Diploma holders but had also encroached upon the rights of Civil Engineers who had joined the establishment after 2005---Case of defendants-employees was stockpiled with layers of illegality and dishonesty---Defendants-employees while joining in grade-14 were not competent as they did not possess the necessary qualification---Defendants-employees without following the rules were promoted to grade-17 and they were demoted to grade-14 in compliance of judgment of the Supreme Court but they got their demotion orders reversed by a house committee---Said committee was not able to obstruct the letter and spirit of judgment of the Supreme Court-- Impugned notification which was pretended to be issued in the light of judgment of the Supreme Court had actually done the inverse---Said notification had no merit and was declared unlawful in circumstances.

2013 SCMR 1752 and Ali Azhar Baloch v. Province of Sindh 2015 SCMR 456 rel.

Mohsin Shahwani for Plaintiff.

Samiullah Soomro for Defendant No.2.

Ahmed Ali Ghumro for Defendants Nos.5 and 6.

2018 P L C (C.S.) 52

[Sindh High Court]

Before Mahmood Ahmed Khan and Yousuf Ali Sayeed, JJ

ABRAR ALI KHICHI

Versus

CHAIRMAN SINDH PUBLIC SERVICE COMMISSION through Secretary and 2 others

C.P. No.D-4814 and C.MA. No.20560 of 2017, decided on 31st July, 2017.

Sindh Public Service Commission (Functions) Rules, 1990---

----R. 3(2)---Appointment of Additional Prosecutor General---Requisite qualification being Law Graduate from a recognized University having at least ten years standing at the Bar and not less than eight years as an Advocate of High Court provided that the length of standing at Bar would be reduced by two years in case candidate was Barrister or hold Post Graduate Degree in law---Candidate being Deputy Prosecutor General applied for the post of Additional Prosecutor General but his eligibility and qualification was denied on the basis of given/prescribed criteria, qualification, experience and standing---Contention of candidate was that all the candidates had been called for interview without any written test contravening prescribed rules and regulations---Validity---Fundamental Right of petitioner as to "equal treatment" had been violated in circumstances---Transparency could not be appreciated/recorded and maintained without written competitive test---Written test was necessary as per rules and interview could not be either prioritized or allowed to exclude the written test---High Court observed that Public Service Commission should first hold the written test, not being the multiple choice questions, for the posts advertised and thereafter call the candidates for interview and viva voce if required---Petitioner stood qualified for consideration only and final selection would rest with the concerned authorities accordingly---Constitutional petition was disposed of in circumstances.

Petitioner in person.

Muhammad Yousuf Alvi, Law Officer, S.P.S.C.

Asadullah Lashari, A.A.G.

2018 P L C (C.S.) 89

[Sindh High Court]

Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ

MUHAMMAD KHAN SOOMRO

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others

C.P. No.D-178 of 2017, decided on 27th February, 2017.

Civil service---

----Petitioner seeking nomination for attending Mid Career Management Course---Scope---Mid Career Management Course was mandatory for the purpose of promotion to the higher rank---No junior officer had been nominated for attending Mid Career Management Course---Case of petitioner did not fall within the ambit of promotion zone as well as seniority---Petitioner being a junior officer could not claim nomination for Mid Career Management Course as a matter of right; he might be considered for nomination on his turn if found eligible---No illegality or irregularity was pointed out in the impugned notification---Constitutional petition was dismissed in circumstances.

Chief Secretary Sindh v. Riaz Ahmed Massan 2016 SCMR 1784 distinguished.

Petitioner in person.

Abdul Jalil Zubadi, AAG for Respondents Nos.1 and 2.

2018 P L C (C.S.) 108

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

IFFAT ARA HASSAN and 13 others

Versus

The PRESIDENT, NATIONAL BANK OF PAKISTAN

Constitutional Petition No.D-3445 of 2012 and C.M.A No.16634 of 2016, decided on 11th January, 2017.

Civil service---

----Employee of State-owned Bank---Encashment of frozen leaves---Past and closed transaction---Scope---Contention of petitioners-employees was that they were entitled for payment of frozen privilege leaves according to circular issued by the employer-bank---Validity---Privilege and sick leave as on 31-12-1998 according to Circular by the Bank stood frozen and frozen leave could be encashed at the time of retirement maximum 365 days if available in the employee's leave account---Retiring employee according to said Circular could avail cash compensation in lieu of leave preparatory to retirement if he applied fifteen months prior to the date of retirement which condition was not in the earlier circulars---Circular in question had superseded all the earlier policies on encashment of leave preparatory to retirement---Constitutional petition had been filed against the policy decision of employer Bank which was not maintainable---Issue involved in the petition was a past and closed transaction---Prayer for implementation of Circular was not maintainable in circumstances---Petitioners-employees had been retired from their services and policy decision having been acted upon and accepted by the employees, said decision could not now be made subject of constitutional petition after lapse of long time---Petitioners-employees had not made any efforts/steps for claiming their rights earlier---Employees having received their retirement benefits at the time of their retirement, constitutional petition was hit by the principle of laches---Constitutional petition was dismissed in circumstances.

Capt. (Retd.) Mukhtar Ahmed Shaikh v. Federal Government of Pakistan 2013 PLC (C.S.) 380 ref.

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

Malik Naeem Iqbal and Faizan H. Memon for Petitioners.

Chaudhry Muhammad Ashraf and Amir Latif for Respondent.

2018 P L C (C.S.) 166

[Sindh High Court]

Before Omar Sial, J

NISAR AHMED

Versus

PAKISTAN NATIONAL SHIPPING CORPORATION and another

IInd Civil Appeal No.106 of 2013, decided on 16th May, 2017.

Civil service---

----General provident fund, recovery of---Scope---Compromise was effected between the employee and the department had agreed to accept the resignation of employee and to pay all legal dues---General provident fund due to the employee till the date of compromise had also been paid to the employee---Deduction on account of provident fund was also made by the department---If employee had received the amount, at proper time he would have earned profit on the same---Second appeal was allowed to the extent of the amount payable to the employee by the department together with profit on said amount at the prevailing cyber rate till realization.

Ghulam Sarwar Chandio for Appellant.

Abdul Ghaffar for Respondents.

2018 P L C (C.S.) 224

[Sindh High Court (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

NAZEER KHAN

Versus

PROVINCE OF SINDH through Chief Secretary and 8 others

C.P. No.D-1915 and M.A. No.7458 of 2017, decided on 28th August, 2017.

Police Act (V of 1861)---

----S. 4---Criminal Procedure Code (V of 1898), S.173---Police official, a Senior Superintendent of Police, belonging to Provincial Civil Service was alleged to have amended the report under S.173, Cr.P.C. for submission before court---Order of inquiry against said official by the Inspector General of Police---Transfer of inquiry by the Chief Secretary of the Province on the ground that the said official belonged to the Provincial civil Service---Chief Secretary transferred the said inquiry by a notification "in supersession of notification issued by the Inspector General of Police" to another Inquiry Officer---Validity---High Court observed that every superior authority had a check over his subordinate but the superiority or inferiority itself did not vest any extra jurisdiction nor permit one to deviate from the law and procedure or to use the superiority for an unnecessary interference rather every public functionary regardless of its status was supposed to function in good faith, honestly and within the precincts of its power---Power should be exercised within the four corners of law but not according to wish of the Authority---Since an officer had already been appointed as Inquiry Officer by the competent authority i.e. Inspector General of Police for doing a specific duty, the act of transferring/entrusting the same inquiry to some other person by the Chief Secretary of the Province, prima facie, appeared to be unreasonable---Nothing was on record with regard to any challenge towards competence or credibility of Inquiry Officer so appointed by the Inspector General of Police---Term 'supersession' did not mean denial to competence and jurisdiction of Inspector General of Police nor could be taken as a challenge to credibility of Inquiry Officer---Impugned order in absence of reason or justification could not be stamped as valid order---Object of both the orders was one and the same but latter had changed the Inquiry Officer---Only Inspector General of Police could order for inquiry against the police official---Order of the Chief Secretary of the Province was without any cogent reason and legal justification which was void ab initio---Constitutional petition was disposed of accordingly.

Pir Imran Sajid and others' case 2015 SCMR 1257 rel.

Ishrat Ali Lohar for Petitioner.

Allah Bachayo Soomro, Additional A.G.

2018 P L C (C.S.) 398

[Sindh High Court]

Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ

Dr. AMIR BUX and others

Versus

The FEDERATION OF PAKISTAN and others

C.Ps. Nos.D-411, D-7782 of 2015 and D-6708 of 2014, decided on 30th March, 2017.

(a) Sacked Employees (Reinstatement) Ordinance (XI of 2009)---

----Ss. 3 & 6---Civil Servants Act (LXXI of 1973), S.2(1)(b)---Constitution of Pakistan, Art.25---Employee of Sui Southern Gas Company Limited---Termination from service---Non-statutory Rules---Effect---Terms and conditions of service---Sacked employees reinstated in service in the lower grade---Seniority and promotion---Determination of---Scope---Contention of employees was that they had been demoted to the low grade on reinstatement---Validity---Petitioners were not civil servants but employees of a non-statutory company having no statutory Rules of service---Petitioners could not invoke the jurisdiction of Service Tribunal and only remedy if any was by way of civil suit before civil court---Employees were terminated from service but upon promulgation of Sacked Employees (Reinstatement) Ordinance, 2009 they were reinstated in service to complete their remaining period of contract---Conditions for reinstatement was that said contract would remain valid up to 30-04-2009 and thereafter it should automatically stand withdrawn---Reinstatement letters did not show the pay and scale---Employees accepted the terms of reinstatement letters issued in compliance of Sacked Employees (Reinstatement) Ordinance, 2009---Compliance of Sacked Employees (Reinstatement) Ordinance, 2009 had been made and no grievance could be agitated after compliance of terms and conditions of service of employer company---No further claim could be made that provisions of Sacked Employees (Reinstatement) Ordinance, 2009 had been violated---Grade, pay scale, promotion, demotion and seniority fell within the expression of terms and conditions of service which was an internal matter of service of company---Said matter could not be raised in constitutional petition---Petitioners were appointed on contract basis and no grade was assigned in their terms of contract---Employer company had to decide against which grade and pay scale it had to place the employees---Petitioners could not made any claim on the basis of Art.25 of the Constitution in that respect---Employees could not claim any fundamental/vested right in promotion and determination of eligibility as same was an administrative matter falling within the exclusive domain and policy decision making of the employer---Employer company/competent authority was entitled to make Rules in the exigency of service and to remove anomalies in service Rules---Relationship of master and servant existed between the employees and employer company---Grievance of employees pertained to the terms and conditions of service which could not be enforced through constitutional petition---Constitutional petition was dismissed in circumstances.

[Case-law referred]

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition, against a company having no statutory rules for its employees, was not maintainable

[Case-law referred]

Salahuddin Ahmed along with Rehan Kiyani for Petitioners (in C.Ps. Nos.D-411 and 7782 of 2015).

Mehmood Baloch for Petitioners (in C.P. No.D-6708 of 2014).

Aslam Butt, DAG for Respondent No.1.

Asim Iqbal along with Farmanullah for Respondent No.2.

2018 P L C (C.S.) 462

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon, JJ

MOULA BUX KHATIAN

Versus

The SUI SOUTHERN GAS COMPANY LIMITED through Managing Director and 4 others

High Court Appeal No. 268 of 2014, decided on 2nd November, 2017.

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

---- O. VII, R. 11---Rejection of plaint---Scope---Court was 'bound' to reject a plaint if same appeared from the statement in the plaint to be barred by any law.

(b) Civil service---

----Retirement benefits---Pension, gratuity and provident fund ---Employee of Government owned company ("the company") sent on deputation to Federal Government subsequently absorbed in the Provincial Government on permanent basis ---Employee retired from Provincial Government and filed a suit claiming retirement benefits from the company---Company filed application for rejection of plaint on the grounds that suit for recovery of retirement benefits was barred by law and time---Said application was allowed by Single Judge of the High Court and suit of appellant was dismissed; held, that appellant was permanently absorbed in the Provincial Government in the year 1995 with all consequential benefits and retired from service in the year 2009 with all pensionary benefits after attaining age of superannuation---Appellant was now seeking to claim the identical retirement benefits from the company, which was not sustainable under the law---Service rules of the company did not provide any deputation and as such when the appellant's service was requisitioned by the Federal Government, he was issued last pay certificate which was dated 07-08-1989---Said letter clearly stated that in compliance with a notification dated 03-06-1989, the appellant was relieved of his duties in the company and there was no mention of deputation or any indication that his lien was kept with the company---Record further reflects that the appellant voluntarily left the company and never returned to his parent department and chose to remain on deputation---Appellant got himself absorbed in the Provincial Government in the year 1995 without consent of the company, therefore, entire claim of appellant in his suit was not sustainable in law---Furthermore suit was filed by the appellant on 11-02-2010, which was about ten years after cause of action accrued to him in the year 1989 when he was relieved from service of the company---Since, the petitioner had retired from the Provincial Government on attaining the age of superannuation in the year 2009 and not from the company, therefore, the claim of the petitioner for his retirement dues from company was not tenable under the law---High Court appeal was dismissed in circumstances.

(c) Evidence---

----Documentary evidence---Reliance upon a document in proceedings---Scope---No reliance could be placed on a document which was relied upon by one party in the proceedings and was denied by the other.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 ref.

Shahanshah Hussain for Appellant.

Asim Iqbal for Respondents.

2018 P L C (C.S.) 510

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through authorized officer and another

Versus

ANJUMAN FALAH-E-BEHBOUD and 50 others

High Court Appeal No.108 of 2012, decided on 31st October, 2017.

Civil service---

----Employees of Pakistan Telecommunication Company Limited---Retirement of employees under Voluntary Separation Scheme---Stoppage of pension of employees for recovery of dues of employer on account of rent for accommodation---Scope---Trial Court ordered the employer to pay all the arrears of pension to the plaintiff-employees---Validity---Employees in Voluntary Separation Scheme had given an undertaking that if they did not vacate the subject premises employer-company would be entitled to cut their accommodation charges from their pension---Pension was not bounty from the State (employer) to servant (employee) but was based on the resolution that an employee had served the employer in best days of his ability and capacity---Employer was to compensate the employee for the services so rendered during his disability---Stoppage of pension might cause suffering, distress and other financial and ancillary problems to the retired employee---Employees had established a prima facie case and balance of convenience also lay in their favour---Stoppage of pension during pendency of suit was unjustified---Trial Court was to decide whether employer-company was entitled to deduct/adjust the rent from pension of employees---Appeal was dismissed in circumstances.

[Case-law referred]

Ch. Atif Rafiq for Appellants.

Syed Masroor Ahmed Alvi for Respondents Nos.1 to 50.

Syed Ansar Hussain Zaidi for Respondent No.26.

Iqbal Khurram for Respondent No.51.

2018 P L C (C.S.) 535

[Sindh High Court]

Before Sadiq Hussain Bhatti and Adnan-ul-Karim Memon, JJ

MUHAMMAD SULEMAN KHAN

Versus

FEDERATION OF PAKISTAN through Secretary and 2 others

C.P. No.D-7348 of 2015, decided on 19th October, 2017.

Civil service---

----Contract appointment under assistance package for the families of government employees who died in service---Termination of service---Scope---Petitioner was appointed under assistance package for the families of government employees who died while in service but he was relieved on expiry of contract period---Validity---Department conceded that case of petitioner had already been forwarded to the competent authority for regularization of his service in accordance with law---High Court observed that petitioner ought to have been considered for regularization by the authorities within a period of two months---Constitutional petition was allowed accordingly.

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.

Sanaullah Noor Ghouri for Petitioner.

Shaikh Liaquat Hussain, Assistant Attorney General.

2018 P L C (C.S.) 542

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon,JJ

AMIR JAMIL

Versus

UNIVERSITY OF KARACHI through Registrar and 2 others

C.P. No.D-1547 of 2016, decided on 18th October, 2017.

(a) Civil service---

----Contract appointment---Allegation of submitting forged degree for appointment---Termination of service---Scope---Master and servant, princples of---Applicability---Petitioner-employee was terminated from service on the ground that he had submitted forged degree to get his appointment---Contention of petitioner was that he was not afforded an opportunity of hearing on the issue involved in the matter---Validity---Employer, University had no statutory rules---If employee had gained appointment through fraudulent and dishonest means, same would amount to misconduct---Allegations against the petitioner were enquired by the University through Inquiry Officer who recommended that the service of employee be terminated---Petitioner was appointed on contract basis for a period of six months and his service was not regularized by the University---Such appointment would be terminated on the expiry of contract period or any extended period on the choice of employer or appointing authority---Case of employee was governed by the principle of Master and Servant---Petitioner did not have any vested right to seek reinstatement in service in circumstances---Contract employee could not claim vested right even for regularization of service---Opportunity of show-cause could be afforded to the employee of University who was holding permanent post---Petitioner being not permanent employee his service could be terminated on 14 days' notice or pay in lieu thereof---Petitioner had failed to establish that he had any fundamental/vested right to remain on the temporary/contractual post---Constitutional petition was not maintainable in circumstances.

[Case-law referred]

(b) Constitution of Pakistan---

---Art. 199---Constitutonal petition---Civil service---Employer department having non-statutory rules---Constitutional petition was not maintainable.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of facts could not be adjudicated upon in constitutional jurisdiction of High Court.

M.R. Sethi for Petitioner.

Moin Azhar Siddiqui and Ali Ahmed Turabi for Respondents Nos.1 and 2.

Abdul Jalil Zubaidi, AAG along with Asif Mukhtar, Director Legal Karachi University.

2018 P L C (C.S.) 676

[Sindh High Court (Larkana Bench)]

Before Muhammad Junaid Ghaffar and Khadim Hussain Tunio, JJ

GHULAM SHABBIR and 16 others

Versus

FEDERATION OF PAKISTAN through Secretary Petroleum and 4 others

C.P. No.D-738 of 2012, decided on 30th August, 2017.

(a) Constitution of Pakistan---

----Arts. 187(2) & 199---Civil service---Matter pertained to back benefits of employee---Judgment of Supreme Court---Implementation of---Procedure---Constitutional petition under Art.199 of the Constitution---Scope---High Court could exercise its jurisdiction for implementation of judgment of the Supreme Court---Petitioners approached the Supreme Court by filing original criminal misc. application for initiating contempt proceedings against the respondents and filed constitutional petition before High Court---Validity---Petitioners could not be permitted to invoke "both" the jurisdictions at the same time---Petitioners could pursue remedy before the Supreme Court and on direction from the Supreme Court could approach the High Court---Petitioners after having filed the original criminal misc. application had abated such remedy on their own and had approached the High Court by filing constitutional petition under Art.199 of the Constitution---Controversy in the case had been dealt with by the Supreme Court on merits---Nothing was available for the petitioners to agitate before the High Court in circumstances---Supreme Court had concluded that back benefits would not ipso facto include inter-se seniority from the date of granting the said benefits---High Court under limited jurisdiction in terms of Art.187(2) of the Constitution could not interpret the judgment of Supreme Court in any contrary manner which had already been interpreted---Present Constitutional petition was not filed with clean hands by the pettioners which ought to have been withdrawn---Petitioners had failed to make out a case for exercise of discretion so vested in High Court under Art.187(2) of the Constitution---Constitutional petition was dismissed with costs in circumstances.

[Case-law referred]

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Non-statutory Rules of service---Effect---Employee whose relation with the employer was not governed by any statutory Rules could not maintain constitutional petition and remedy would lie by filing a civil suit.

[Case-law referred]

Safdar Ali Ghouri for Petitioner.

Nisar Ahmed G. Abro, Deputy Attorney General.

Asim Iqbal along with Zubair Ahmed Shaikh Dy. Manager (Legal Services), SSGL, Larkana for Respondents Nos.2 to 5.

2018 P L C (C.S.) 817

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon, JJ

ZAHEER AHMED

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Finance and 2 others

C.P. No. D-1267 of 2010, decided on 12th September, 2017.

Civil service---

----Contempt of court---Scope---Petitioner sought initiation of contempt proceedings against authorities alleging non-compliance of direction issued by High Court---Validity---Authorities explained that petitioner was offered post in compliance of order passed by High Court but same was refused by him and petitioner was continuing against post which he was holding at time of order passed by High Court---Explanation offered by alleged contemnors that substantial compliance of order passed by High Court earlier was made in letter and spirit---High Court declined to initiate contempt proceedings against alleged contemnors (department)---Constitutional petition was dismissed in circumstances.

Rafiq Ahmed Kalwar for Petitioner.

Muhammad Khalil Dogar for Respondents along with Syed Nooruddin Ahmed, Coordinator/D.R. (Legal) FBR Camp Karachi.

Muhammad Aslam Butt, DAG.

2018 P L C (C.S.) 975

[Sindh High Court]

Before Muhammad Ali Mazhar, J

SHARIQ-UL-HAQ and 5 others

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION LIMITED and another

Suits Nos.1498, 1499, 1500, 1501, 1502 and 1508 of 2017, decided on 8th February, 2018.

(a) Master and servant---

----Relationship---Scope---Relationship of master and servant does not mean that in each and every case, recourse should be made only for claim of damages.

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

----Ss. 3, 8 & 9---Memorandum of Understanding (MoU)---Object, scope and purpose---Agreement may be made which expressly or impliedly anticipates that it will be superseded by a later, more formal agreement and Letter of Intent is one example of such agreements---Where court finds that parties have intended to enter into a binding legal agreement but have not expressly agreed all necessary terms, court may imply terms by reference to past practice of parties or any relevant trade custom in order to give effect to their intentions---If intention is key factor in assessment of enforceability, it must be remembered that test of intention is objective---Memorandum of Understanding (MoU) means a document that expresses mutual accord on an issue between two or more parties---Memorandum of understanding is generally recognized as binding even if no legal claim could be based on rights and obligations laid down in them---To be legally operative, a MoU must (i) identify contracting parties; (ii) spell out subject matter of agreement and its objectives; (iii) summarize essential terms of agreement; and (iv) must be signed by contracting parties---It expresses a convergence of will between parties indicating an intended common line of action---MoU most often, is used in cases where parties either do not imply a legal commitment or in situations where parties cannot create a legally enforceable agreement---MoU is put in place to establish a clear understanding of how the deal will practically function and each party's role and compensation.

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

----O. I, R. 10---Impleading of necessary party---Court, powers of---Court at any stage may order addition of a person as a necessary or proper party suo motu---For purposes of addition of parties, court is governed by provisions of O.I, R.10, C.P.C.---Power of adding parties is not a question of initial jurisdiction but of judicial discretion which has to be exercised in view of all circumstances of case---Object of O.I, R.10, C.P.C. is to discourage contests on technicalities and to save honest and bona fide claimants from being non-suited---Addition of parties is a matter of discretion of court---Expression 'at any stage of the proceedings' includes even up to stage of passing of final decree in suit---Any person may be added as party when he ought to have been joined as plaintiff or defendant and is not joined so or when without his presence, question in suit cannot be completely decided.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration, injunction and damages---Interim injunction, grant of---Master and servant, relationship of---Scope---Plaintiffs were pilots who were employees of Pakistan International Airline Corporation---Grievance of plaintiffs was that Corporation had not followed Memorandum of Understanding (MoU) between Corporation and their representative association with regards to procedure of promotion---Plea raised by Corporation was that relationship between the parties was that of master and servant and plaintiffs could only sue for damages but could not seek declaration---Validity---Two genris of lawsuits encompassing relationship of master and servant existed---One scenario could lead to claim of dismissed or terminated employee who approached court of law for reinstatement or in alternate, award of damages/compensation against his wrongful dismissal/termination in which proceedings, master could say that he was prepared to pay damages for breach of contract of service but would not accept services of servant---Other genris in same relationship was the case where an employee though in service and performing his duty satisfactorily but he was denied salary/wages and some other benefits payable to him during service---In such distinct and discreet class of cases, all such employees who were neither covered under definition of 'workers' or 'workmen' so that they could approach Labour Courts or NIRC, nor they were civil servants to move Service Tribunal nor they could file Constitutional petition under Art.199 of the Constitution, due to lack and non-existence of statutory rules of service, so only remedy was left with such employees was to file civil suit for satisfaction of their claims accrued to them during service including damages for loss sustained due to non-payment or refusal/denial of such service benefits by employer without any lawful justification---High Court directed parties for negotiation for working out a methodology in terms of MoU---High Court further directed management of Pakistan International Airline Corporation not to compel plaintiffs to join disputed training courses for promotion and that plaintiffs would continue to perform their duties as per roster till such time outcome of negotiation was intimated---High Court directed the Corporation not to disturb actual seniority of plaintiffs in their present cadre and their flying licenses would be regulated in accordance with law---Application was disposed of accordingly.

[case-law referred]

Muhammad Haseeb Jamali and M.Saad Siddiqui for Plaintiffs.

Abdul Haleem Siddiqui for Defendants.

Captain Uzair Khan, Director Flight Operations, PIAC.

Anwar Nadeem, General Manager, Flight Operations, PIAC.

Captain Waqar Hassan, Chief Pilot, Planning and Scheduling PIAC.

Captain Zarak Khan, Chief Pilot Training, PIAC.

Ahmed Rauf, Consultant Legal and Syed Fayyaz Ali Shah, Law Officer, PIAC.

2018 P L C (C.S.) 1009

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon, JJ

MUHAMMAD TARIQ KHAN and 9 others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and 3 others

Constitutional Petition No.3555 of 2016, decided on 20th September, 2017.

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

----R. 14---Notification No. SRO 286 (I)/2000 dated 23-05-2000---Appointment against the post of Plant Protection Advisor/Director General (BS-20) from the candidates having domicile of Punjab only---Contention of petitioners was that post in question could not be confined to the candidates having domicile of Province of Punjab---Validity---Post of Plant Protection Advisor/Director General (BS-20) was a promotion post---Appointment on the post was to be made through open merit on contract basis---Department had failed to justify the allocation of post in question to the Province of Punjab only---Said post was required to be filled in accordance with R. 14 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Authorities were directed to initiate recruitment process afresh for the appointment against the post in accordance with R.14 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Pending applications were disposed of accordingly.

Ahmed Ali Ghumro for Petitioners.

Muhammad Aslam Butt, DAG.

Salim Sadiq, Joint Secretary, National Food Security and Research Islamabad/Respondent No.2.

Syed Hussain Jaffer, Director Department of Plant Protection, Karachi/Respondent No.3.

Tariq Ahmed, Assistant Director/FPSC, Karachi/Respondent No.4.

2018 P L C (C.S.) 1015

[Sindh High Court]

Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ

MUHAMMAD TARIQ KHAN and 9 others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and 4 others

Constitutional Petition No.D-3555 of 2016, decided on 28th March, 2018.

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

----R. 14---Notification No. SRO 208 (I)/2017 dated 28-03-2017---Appointment against the post of Plant Protection Advisor/Director General (BS-20) on open merit basis---Scope---Contention of petitioners was that if post in question was filled by appointing the person from outside the department, door of their promotion would be closed---Validity---Government had issued Notification No. SRO 208 (I)/2017 dated 28-03-2017 so that no one was discriminated and declared to be ultra vires or nullity in the eye of law---Said Notification was an explanation added to R. 14 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 through a proviso---Any explanation added for removal of doubt, obscurity or an ambiguity would be retrospective in nature---Where post of Head of an organization was reserved for promotion then in the absence of suitable person same should be filled in by initial appointment on open merit on contract basis---Where such post was reserved for initial appointment then it might be filled on regular basis on open merit---Post in question was to be filled on open merit on Pakistan basis---No illegality or irregularity had been pointed out in the Notification in question---Person required for the post in question was to possess extra-ordinary academic and other qualifications---Respondent (candidate) had already participated in the selection process but due to litigation process of selection had been delayed---Over-age of the respondent was not to come in the way of selection process and he was to be considered along with other candidates on all Pakistan basis on open merit---Constitutional petition was disposed of accordingly circumstances.

Nazir A. Khan Swati v. Ministry of Law and Justice and others 1998 PLC (CS) 372; Sh. Muhammad Sadiq v. Federal Public Service Commission and others 2013 SCMR 264; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Suo Motu Action regarding eligibility of Chairman and Members of Sindh Public Service Commission and others 2017 PLC (CS) 652; Suo Motu Action regarding eligibility of Chairman and Members of Sindh Public Service Commission and others 2017 SCMR 637; Shankarsan Dash v. Union of India (1991) 3 Supreme Court Cases 47; State of M.P. and others v. Shyama Pardhi and others AIR 1996 SC 2219; Krishan Yadav and others v. State of Haryana and others AIR 1994 SC 2166; Union Territory of Chandigarh v. Dilbagh Singh and others AIR 1993 SC 796; Hanuman Prasad and others v. Union of India and others 1996 10 SCC 742; Province of Balochistan v. Murree Brewery Company Ltd. 2007 PTD 1195; Miss Farzana Qadir v. Province of Sindh and another 2000 PLC CS 225; Water and Power Development Authority, Lahore and others v. Haji Abdul Aziz and others 2012 SCMR 965; Muhammad Fayaz and 4 others v. Shah Nawaz Khan, Lecturer English, Government Decree College, Gharhi Dupata and 32 others 1999 PLC CS 1493 and A.A. Calton v. Director of Education and another 1983 (3) SCC 33 ref.

Commissioner of Income Tax v. M/S Nazir Ahmed & Sons (Pvt.) Ltd. Karachi 2004 PTD 921 rel.

Ahmed Ali Ghumro for Petitioners.

Salman Talibuddin, Additional Attorney General for Pakistan along with Shaikh Liaqat Hussain, Assistant Attorney General, Syed Hussain Jaffar, Director, Ministry of NFS&R, Atiq Ahmed and Haroon Rasheed, Assistant Directors, Federal Public Service Commission of Pakistan for Respondents Nos.1 to 4.

Malik Naeem Iqbal for Respondent No.5.

2018 P L C (C.S.) 1183

[Sindh High Court]

Before Munib Akhtar and Omar Sial, JJ

SHAFIQUDDIN MOINEE

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Human Resources Development, Islamabad and 2 others

C.P. No. D-1313 of 2013, decided on 12th February, 2018.

Companies Profits (Workers' Participation) Act (XII of 1968)---

----Ss. 2(f) & 3(b)---Sindh Companies Profits (Workers' Participation) Act, 2015 (XVIII of 2016), Ss. 2(h), 3(b), 7(2) & 12(1)---Beneficial legislation---Applicability---Trans-provincial companies---Number of workers, determination of---Principle---Dispute was with regard to percentage of participation of workers in profits of trans-provincial companies---Participation of workers was up to 5% of the profit in the Province of Punjab whereas in Province of Sindh the same was 7% of the profit---Plea raised by industrial establishments was that they were only liable to distribute to workers in the Province of Sindh a proportionate amount calculated on the basis of five percent---Validity---Applying principle of beneficial legislation, the reference to number of workers in first condition must be regarded as referring to the total number of workers all over the country and not merely in the Province of Sindh---Principle of territorial limitation was not violated as it was only to establish parameters that would make the scheme applicable---Such parameters could be based on or take into account the factors that lie outside the Province---Condition which related to value of fixed assets of the company was irrelevant as the same could be located within or outside the Province---Law in the Province of Sindh was to be applied and workers were to get an amount proportionate to their number calculated at 7%---Workers in the Province of Punjab were to get an amount proportionate to their number calculated at five percent and the same was not discriminatory---Legislative competence was exclusively Provincial and territorial extent was limited---Each Province was entitled to legislate in its own manner in respect of a matter that was exclusively within its domain and it was irrelevant as to where the registered office and/or industrial undertaking of trans-provincial company were located i.e. that same could be located in the Province of Sindh or elsewhere---While making computation, the whole of profits made by company were to be used, regardless of where they were earned in the country---Constitutional petition was disposed of accordingly.

KESC and others v. NIRC and others PLD 2014 Sindh 553; 2015 PLC 1; Sindh Revenue Board and another v. Civil Aviation Authority of Pakistan 2017 SCMR 1344; State of Bombay v. R.M.D. Chamarbaugwala and another AIR 1957 SC 699; Balochistan Workers Federation and others v. Government of Pakistan and others 2014 PLC 351; Dr. Nadeem Rizvi and others v. Federation of Pakistan and others PLD 2017 Sindh 347; Pakistan International Freight Forwarders Association v. Province of Sindh and others 2017 PTD 1; Cole v. Whitfield [1988] HCA 18; (1988) 165 CLR 360; Jindal Stainless Ltd. and another v. State of Haryana and others AIR 2016 SC 5617; (2017) 12 SCC 1; Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129; [1920] HCA 54; Pakistan Engineering Co. Ltd. v. Fazal Beg and others 1992 SCMR 2166; Excise and Taxation Officer and another v. Burmah Shell Storage and Distribution Company of Pakistan Ltd. and others 1993 SCMR 338; Collector of Sales Tax, Gujranwala and others v. Super Asia Muhammad Din and Sons and others 2017 SCMR 1427; 2017 PTD 1756; Inco Europe Ltd. v. First Choice Distribution (a firm) [2000] UKHL 15; [2000] 2 All ER 109; Manga alias Man Singh v. State of Uttarkhand (2013) 7 SCC 629 and Dilip S. Dahanukar v. Kotik Mahindra Co. Ltd. and another (2007) 6 SCC 528 ref.

Ch. Muhammad Ashraf Khan, Nishat Warsi, Obaidur Rehman, Faisal Siddiqui, Ch. Muhammad Rafiq, Asim Iqbal, Muhammad Hamayun Khan, Samiur Rehman, Faisal Mahmood Ghani, Ali Aziz, Ahad Zuberi, Javed Asghar Awan, Muhammad Hamayun, Mumtaz Ali Shah, Amjad Hussain Hashmi, Shahid Ali, Kh. Shaoib Mansoor, Ghulam Murtaza Saryo, Masood Ahmed, Nadeem Ahmed, Salman Mirza, Abid Naseem, Amir Latif, Syed Muhammad Younus, Saad Fayyaz, Hyder Ali Khan, Hussain Ali Almani, Ghulam Hussain Shah, Faiz Durrani, Ghulam Muhammad and Ms. Samia Faiz Durrani for Petitioner (in various petitions).

Salman Talibuddin, Additional Attorney General along with Ms. Alizeh Bashir for Official Respondents.

Kafil Ahmed Abbasi, Mohsin Imam, Sarfaraz A. Metlo for FBR/Department.

Mukhtar Simon, Deputy Chief (Legal) Ministry of Human Resources, Government of Pakistan.

Shabbir Shah, Additional Advocate-General Sindh.

Ms. Amber Lakhani for Department of Labour, Government of Sindh.

2018 P L C (C.S.) 1264

[Sindh High Court]

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

Dr. ASHFAQ AHMED TUNIO and 4 others

Versus

FEDERAL INVESTIGATION AGENCY through Director General and 3 others

Constitutional Petition No. D-2939 of 2011, decided on 28th February, 2018.

(a) Interpretation of statutes---

----Preamble of an enactment---Scope---Preamble is not an operative part of statute but it provides a useful guide for finding out intention of legislature, therefore, it cannot be ignored while interpreting the law.

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279; Iftikhar Hussain and others v. Government of Pakistan 2001 PCr.LJ 146 and State through Deputy Attorney General v. Muhammad Amin Haroon and 10 others 2010 PCr.LJ 518 rel.

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

----S. 5 & Sched.---Income Tax Ordinance (XLIX of 2001), S.227(2)---Sales Tax Act (VII of 1990), Preamble---Customs Act (IV of 1969), Preamble---Quashing of inquiry and investigation---Federal Investigation Agency, jurisdiction of---Petitioners were civil servants serving in Inland Revenue Services of Federal Board of Revenue and they were aggrieved of initiation of inquiries and investigations by Federal Investigation Agency---Validity---Entries in Schedule to Federal Investigation Agency Act, 1974 which were 38 in number, it could be seen that offenses under Income Tax Ordinance, 2001; Sales Tax Act, 1990; and Customs Act, 1969 were not included in Schedule to Federal Investigation Agency Act, 1974---Any order passed and proceedings initiated under Income Tax Ordinance, 2001, Sales Tax Act, 1990 and Customs Act, 1969 could not be made subject matter of inquiry and investigation under Federal Investigation Agency Act, 1974---Initiation of inquiry by Federal Investigation Agency authorities against petitioners was without lawful authority and based on mala fides---Authorities did not comply with legal requirements which included verification of complaint and allegations contained therein and prior permission of competent authority to initiate any inquiry---In absence of any material, Federal Investigation Agency authorities could not be allowed to carry out any fishing and roving inquiry and investigation against a public servant---High Court set aside notices issued by Federal Investigation Agency authorities as inquiry and investigation initiated against petitioners, pursuant to purported complaint, were without jurisdiction and lawful authority and were also based upon mala fides therefore, same were quashed---Constitutional petition was allowed in circumstances.

Adamjee Insurance Company Limited v. Federal Investigation Agency (F.I.A.) 2004 CLD 246; Director General, F.I.A. and others v. Kamran lqbal and others 2016 SCMR 447; Assistant Director, Intelligence and Investigation, Karachi v. Messrs B.R. Herman and others PLD 1992 SC 485; Muhammad Irshad Khan v. Chairman, National Accountability Bureau and 2 others 2007 PCr.LJ 1957 and Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another 2010 SCMR 624 rel.

Kohinoor Industries Ltd. Faisalabad v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others 1994 CLC 994; Play Pictures through Proprietor and 8 others v. The Central Board of Revenue through Member, Customs, Islamabad and 4 others 2000 CLC 1403; English Sweets (Pvt.) Ltd. Karachi v. Pakistan through Secretary to the Government of Pakistan, Islamabad and 3 others 2005 PTD 247 and Raj Muhammad Khan and others v. Muhammad Farooq Khan and others 1998 SCMR 699 ref.

Khalid Javed Khan for Petitioners.

Salman Talibuddin, Additional Attorney General for Pakistan along with Mumtaz-ul-Hassan, Deputy Director, Lubna Tiwana, A.D., Gulsher Mugheri, Inspector, Deedar Ali Shaikh, Abdul Jabbar Mendhro and Nabil Mehboob, Inspectors, F.I.A. for Respondents.

2018 P L C (C.S.) 1057

[KPK Subordinate Judiciary Service Tribunal]

Before Lal Jan Khattak and Muhammad Younas Thaheem, JJ

MUHAMMAD AYAZ KHAN

Versus

REGISTRAR PESHAWAR HIGH COURT PESHAWAR

Service Appeal No.39 of 2011, decided on 21st May, 2016.

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

----S. 5---Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 1973, Rr.2(1)(e), 4(1)(b)(i), 4(1)(a)(i) & 7-A---Criminal Procedure Code (V of 1898), S.169---Penal Code (XLV of 1860), S.302---Judicial officer---Charge of misconduct---Major penalty of reduction to two stages lower in time scale for a period of four years---Scope---Appellant being Judicial Magistrate while hearing a petition under S.169, Cr.P.C. ordered not to arrest the accused involved in a criminal case registered under S.302, P.P.C.---Inquiry officer imposed minor penalty of censure but authority did not agree and minor penalty was converted into major penalty of reduction to two stages lower in time scale for a period of four years---Validity---Appellant had acted under influence of Additional Sessions Judge and misused his judicial position while seized of an application under S.169, Cr.P.C. and issued notice/'PARWANA' for requisitioning of the record by directing his Moharir to put a note for not to arrest the accused till decision of the said application'---Act committed by the appellant could safely be termed as "misconduct"---Judicial officer was rightly proceeded under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 1973---Role played by the appellant was not expected from him as a judicial officer having been assigned the noble cause of administrating justice without fear or favour---Judicial officer had failed to understand the law and the principles of independence of judiciary by acting under the command, influence, inducement and pressure of Additional Sessions Judge---Appellant could not point out any irregularity, illegality or a jurisdictional defect in the impugned order passed by the authority---Appeal was dismissed in circumstances.

PLD 2015 Lah. 317 rel.

Amjad Ali for Appellant.

Malik Mujtaba Ahmad Standing Counsel for Respondent.

2018 P L C (C.S.) 1

[Lahore High Court]

Before Syed Mansoor Ali Shah, C.J.

MUHAMMAD HUSSAIN CHEEMA

Versus

GOVERNMENT OF PUNJAB and others

W.P. No.81711 of 2017, heard on 3rd November, 2017.

Pir Mehr Ali Shah Arid Agriculture University, Rawalpindi Act (V of 1995)---

----Ss. 14 ,15 & 9--- Officers of the University--- Appointment of Vice-Chancellor---Extension in tenure---Temporary arrangement for appointment of a Vice-Chancellor---Nature---Interpretation of S.14 of the Pir Mehr Ali Shah Arid Agriculture University, Rawalpindi Act, 1995--- Scope---Petitioner impugned the notification whereby respondent, after his retirement from post of Vice-Chancellor was appointed to the said post again on temporary basis and contended inter alia, that incumbent Vice-Chancellor, under the Pir Mehr Ali Shah Arid Agriculture University, Rawalpindi Act, 1995 could not be granted extension in tenure since under the statute, the functions of the Vice-Chancellor, if the said office fell vacant, were to be performed by Pro-Vice-Chancellor --- Validity---Section 14(9) of the Pir Mehr Ali Shah Arid Agriculture University, Rawalpindi Act, 1995 provided that in case the office of Vice-Chancellor fell vacant, the Pro-Vice-Chancellor was to perform functions of the said office, however, in the present case office of the Pro-Vice-Chancellor was also vacant at the time of the impugned notification---Temporary arrangement was made only if at any time (the intervening period) there was a temporary dysfunctionality due to non-availability of the Pro-Vice-Chancellor and as soon as, such dysfunctionality was cured or removed, intervening period and the corresponding temporary arrangement came to an end---High Court observed that notification assigning duties of Vice-Chancellor to respondent on temporary basis till the appointment of regular Vice-Chancellor was automatically superseded by the notification appointing the Pro-Vice-Chancellor and said newly appointed Pro-Vice-Chancellor shall perform the functions of the post of Vice-Chancellor till such time that a regular Vice-Chancellor was appointed, with immediate effect---Constitutional petition was allowed, accordingly.

Iftikhar Ahmad v. King Edward Medical University and others PLD 2017 Lah. 825 rel.

Asad Ullah Chathha and Qaisar Imam for Petitioner.

Anwaar Hussain and Ahmad Hassan Khan, Additional Advocates General, Punjab, for Respondent.

Malik Ghulam Mustafa Kandwal for Respondent No.4

Abdul Rafey for Respondent No.5.

Mirza Haseeb Baig, Assistant Registrar of Respondent-University.

Irshad Ali, Law officer (Agriculture Department).

2018 P L C (C.S.) 12

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

PARKS AND HORTICULTURE AUTHORITY

Versus

MUHAMMAD SALEEM

I.C.A. No.99353 of 2017, decided on 2nd November, 2017.

(a) Civil service---

----Recruitment---Advertisement---Doctrine of "substantial compliance" to terms of recruitment advertisement---Appellant Parks and Horticulture Authority impugned order whereby Constitutional petition of the respondent was allowed, and the said Authority was directed to consider application of respondent for a post, despite respondent not attaching his photographs in his application as required by the advertisement----Validity---Where there was no apparent mala fide on the part of respondent, and his right of livelihood was involved, doctrine of substantial compliance was attracted, which was a legal principle stating that if a good faith attempt was made to perform requirements of an agreement, even if the same did not meet the terms or statutory requirements, performance would still be considered complete if essential purpose was accomplished---Appellant authority could have easily asked respondent to provide the said photographs, and no such leniency was shown---No illegality therefore existed in the impugned order---Intra-court appeal was dismissed, in circumstances.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Global Textile Mills Ltd. v Superintendent of Central Excise Circle II 1993 SCMR 900 rel.

(b) Substantial compliance, doctrine of---

----Scope.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Global Textile Mills Ltd. v. Superintendent of Central Excise Circle II 1993 SCMR 900 rel.

2018 P L C (C.S.) 22

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

GOVERNMENT OF THE PUNJAB, SECRETARY HOME DEPARTMENT through Deputy Secretary (Police) Interior Department and others

Versus

QANOOT FATIMA and others

I.C.A. No.497 of 2017, heard on 2nd November, 2017.

(a) Convention for the Elimination of all forms of Discriminations against Women ("CEDAW")---

----Arts. 4 & 5---Constitution of Pakistan, Art.25(3)---Civil service---Recruitment---Reservation of quota for women---Special measures for protection of women---Gender Stereotyping and prejudice---Concept of reservation of seats for women on quota---Recruitment of women on open merit in presence of reserved seats/quota for women---Appellants impugned order of Single Judge of High Court whereby Constitutional petition of respondents was allowed and it was held that maximum limit of five percent seats for female candidates for recruitment to a Department by Provincial Government was discriminatory and illegal---Contention of Provincial Government, inter alia, was that per quota fixed by a notification, female candidates could only be adjusted against a five percent quota and remaining seats must be allocated to male candidates---Validity---Understanding of the Provincial Government for recruitment against reserved seats was misconceived and went against spirit of Art.25(3) of the Constitution which permitted seats to be reserved for women as a special measure for protection of women---Reservation of seats for women for public sector employment was an affirmative action to ensure that women got equal opportunity and equal access while applying for public sector jobs---Per the Convention for the Elimination of all forms of Discriminations against Women, to which Pakistan was signatory, Government was required to devise policies to remove obstacles and barriers for participation of women in all walks of life---Essence of fixing quotas for women in public service was to enhance their participation and ensure that equal opportunity was given to women while applying for public sector jobs and its object was never to reduce participation of women to a quota---High Court observed that reservation of five percent seats for females meant that Department should ensure that at least five percent of all candidates appointed were female and the said quota did not bar female candidates from competing on open merit---High Court further observed that gender stereotyping or classification based on stereotype roles or social expectations tantamount to discrimination which was not permissible under the Constitution and went against Constitutional mandate of equality---Intra-court appeal was dismissed, in circumstances.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161 rel.

(b) Civil service---

----Recruitment---Reservation of quota for women---Concept---Fixation of quota for women in no way barred female candidates from competing on open merit and being appointed on account of their succeeding on open merit---Concept of a quota was to ensure representation and participation of females in public sector and such quota represented the critical value below which it would be deemed that females were under-represented---Quota/reserved seats for women ensured that in the very least a percentage of the candidates should be women which would signify the very minimum representation of females in a department.

Muhammad Ijaz, AAG along with Rai Muhammad Tahir, Additional IG Police/CTD, Jawad Qamar, SSP/CTD and Altaf Hussain DSP/Legal, CTD for Appellants.

Naveed Iqbal Sivia for Respondents.

2018 P L C (C.S.) 36

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

Haji AHMAD KHAN and another

Versus

PROVINCE OF THE PUNJAB and 5 others

Intra-Court Appeal No.1633 of 2015, decided on 5th September, 2017.

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

----S. 32---Representation to the Governor---Nature---Appellant assailed order passed by Governor in representation filed under S.32 of Punjab Ombudsman Act, 1997---Single Judge of High Court, in exercise of constitutional jurisdiction, declined to interfere in the order---Validity---Remedy of representation before Governor was in fact an appeal as the Governor was acting as an appellate forum---Division Bench of High Court declined to interfere in the order passed by the Single Judge of High Court as there was no illegality or perversity in the order---Intra-court appeal was dismissed in circumstances.

Muhammad Irshad v. Secretary, Local Government and Rural Development Lahore and others 2009 PLC (C.S.) 74; Professor Mian Ejaz ul Hassan v. Lahore Development Authority through its Director General, L.D.A. Plaza Lahore and 3 others 2002 YLR 3705; Dr. Muhammad Shoaib Suddle v. Province of Sindh and others 1999 PCr.LJ 747; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another PLD 2005 SC 45; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189 and Muhammad Riaz v. Province of Punjab and others 2014 CLC 817 ref.

Sheikh Naveed Shehryar, Bashir Ahmed Mirza and Fiaz Ahmed Kaleem for Appellants.

Muhammad Ashraf Nawaz Chheena and Mohsin Raza Bhatti for Respondents.

2018 P L C (C.S.) 57

[Lahore High Court]

Before Mirza Viqas Rauf, J

KHAN BAHADAR

Versus

FEDERATION OF PAKISTAN through Federal Secretary Housing and Works and 2 others

Writ Petition No.40259 of 2015, heard on 3rd March, 2016.

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

----S. 25(2)---Estacode (Punjab) Chap. 2, Part II, 2010, S.117---Appointment on current charge basis in Pakistan Public Works Department---Scope---Current charge appointment was always made as temporary arrangement for a short span of time not beyond six months---Such appointment was to be made from amongst the most senior officers---Respondent being in lower grade and not eligible to be appointed on current charge basis had been appointed for the said post despite availability of other competent and eligible officer---Appointment of respondent as on current charge basis was violative of law which was declared without lawful authority---Impugned notification was set aside and the post was declared as vacant which should be filled in accordance with law---Constitutional petition was allowed in circumstances.

Tariq Aziz-ud-Din and others: in re Human Rights Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009 (2010 SCMR 1301) and Muhammad Asif Chatha and others v. Chief Secretary, Government of Punjab, Lahore and others 2015 SCMR 165 rel.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo-warranto, writ of---Scope.

The proceedings in the writ of quo warranto are inquisitorial so anybody can move for the same and it is upto the judicial conscious of the Court to see as to whether the same qualifies the yardsticks laid down in Article 199(1)(b)(ii) of The Constitution. The said article is meant to control the exercise of unbridled powers by the executive for making appointments to public offices against the law and also to protect a citizen from being deprived of a public office to which he had a right. In terms of Article 199(1)(b)(ii) it is within the judicial domain of the Court to call upon the holder of any public office to show as to by what right he is holding the said office, if there is some dispute with regard to his competency to hold such office on the basis of lack of transparency, favoritism, nepotism or personal whims of the executive.

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

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

----S. 25---Instructions contained in ESTACODE (Punjab) has the force of law by virtue of S.25(2) of Civil Servants Act,1973.

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

Mushtaq Ahmad Mohal for Petitioner.

Muhammad Javed Kasuri, Deputy Attorney General for Respondents Nos.1 and 2.

Muhammad Rizwan Mughal for Respondent No.3.

2018 P L C (C.S.) 96

[Lahore High Court (Rawalpindi Bench)]

Before Amin-ud-Din Khan, J

ARSHAD BASHIR SHAHEEN EST

Versus

DEPARTMENTAL PROMOTION COMMITTEE (EDUCATION DEPARTMENT) through Chairman, District Coordination Officer, Chakwal and 3 others

W.P. No.3075 of 2014, heard on 17th March, 2016.

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

----S. 4---Punjab Civil Servants Act (VIII of 1974), S. 21---Constitution of Pakistan, Arts.199 & 212--- Constitutional petition---Maintainability---Civil service---Promotion---Terms and conditions of service---Bar on jurisdiction contained under Art.212 of the Constitution---Terms "fitness" and "eligibility"---Scope---Matter of fitness was different from "eligibility"---Eligibility would relate to the terms and conditions of service whereas fitness for promotion was a subjective evaluation on the basis of objective criteria where substitution for opinion of the authority was not possible by that of a tribunal or a court---When award of a grade to civil servant was irregular, it was denial of promotion on basis of eligibility of employee for the post for which he was claiming promotion---When eligibility of employee was in question for promotion then constitutional petition was barred under Art.212 of the Constitution---Constitutional petition being not maintainable was dismissed in circumstances.

Fazali Rehmani v. Chief Minister, N.W.F.P., Peshawar and others PLD 2008 SC 769 and Tasleem Jan and others v. Muhammad Zaman and others 2005 SCMR 695 rel.

Imran Hassan Ali for Petitioner.

Khurshid Ahmad Satti, Assistant Advocate-General for Respondents.

Date of hearing: 17th March, 2016.

JUDGMMENT

AMIN-UD-DIN KHAN, J.---Through this writ petition following prayer has been made:---

"It is therefore, respectfully prayed that instant writ petition may kindly be allowed, denial of his right of promotion from EST (BS-15) to SST (BS-16) in DPC meeting held on 14.10.14 may kindly be declared as illegal, unconstitutional, violation of his legal, basic and fundamental rights guaranteed in law and Constitution, unjustified, discriminatory, void, coram-non-judice, without lawful authority, of no legal effect and may kindly be set aside with consequential mandamus direction to respondents to forthwith grant aforesaid rights to the petitioner, with all due benefits and other consequential relief.

Further prayed that operation of recommendations of the DPC held on 14.10.2014 to the extent of all those who are juniors to the petitioner as per seniority list may kindly be suspended and issuance of its implementation order may kindly be stayed, pending final decision of the main writ petition."

2018 P L C (C.S.) 152

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

PROVINCE OF PUNJAB through Secretary to the Government

Versus

Dr. MUHAMMAD ZAFAR IQBAL and 10 others

I.C.As. Nos.1066, 1088, 1089, 1090 of 2016 and 100342 of 2017, decided on 16th May, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Appointment by transfer---Respondents (civil servants) had sought a direction to the Department to regularize them and other doctors placed in similar situation with effect from a particular date with all benefits after considering their cases at par with other doctors of 'contract appointee group' whose services were also regularized--- Main controversy in the constitutional petitions was with regard to the appointment by transfer of the respondents which did not fall within the domain of terms and conditions of service of a civil servant and therefore, the respondents had rightly chosen the forum of the High Court for redressal of their grievances---Constitutional petition was held to be maintainable.

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

----S. 7---Change of cadre---Appointment by transfer---Seniority, determination of---Scope---Respondents without any objection accepted the terms and conditions of their appointment orders wherein it was clearly mentioned that the order should be prospective in nature and they would have no right or entitlement to any back benefits of past in terms of seniority---Perusal of notification, which initiated the process of respondents' appointment by transfer, showed that seniority of the respondents (in their previous cadre) and similarly placed persons shall not be counted for the purposes of seniority and they shall be placed at the bottom of the new cadre---Bare reading of the appointment letters of the respondents vividly showed that they were appointed by transfer and the said letters had been issued with certain terms and conditions of their appointment---Respondents accepted the terms and conditions and thereafter joined the respective services without any objection---Respondents were appointed through transfer and retrospective effect could not be given to their appointments as per law, because they were appointed by transfer and not promoted---Under S.7 of the Punjab Civil Servants Act, 1974 the seniority in post service of cadre shall be determined in prescribed manner and take effect from the date of regular appointment to the post---Appeal was allowed accordingly.

Nohiria Ram v. Director General of Health Services, Government of India and another AIR 1958 SC 113 ref.

(c) Notification---

----Prospective effect---Notification issued in exercise of executive powers or in the shape of subordinate legislation was not to be retrospective in operation.

Imtiaz Ahmed and others v. Punjab Public Service Commission PLD 2006 SC 472; Sheikh Fazal Ahmed v. Raja Ziaullah Khan and another PLD 1964 SC 494; Islamic Republic of Pakistan v. Mazhar ur Haq 1977 SCMR 509 and Trustees of Port of Karachi v. Zafar Zaid Ahmed 1988 SCMR 810 ref.

(d) Civil service---

----Seniority---Change of cadre---Employees who opted to change cadre shall be placed at the bottom of already serving employees.

Contempt Proceedings against Chief Secretary, Sindh and others Criminal Original Petition No.89 of 2011; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 and Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 961 ref.

(e) Civil service---

----Seniority---Estoppel---Employees had challenged their appointment after about one year of their appointments---Employees having accepted the terms and conditions of their appointment letters could not at later stage, deviate from their own acceptance; they having failed to show that they had challenged the vires of notification which affected their seniority, principle of estoppel applied to their cases---Appeal was allowed accordingly.

Rana Shamshad, Additional Advocate-General, Muhammad Siraj us Salam Khan, Additional Advocate-General, Ch. Muhammad Yaqoob Sindhu, for Appellant (in I.C.A. No.1088/2016).

Mehmood Ahmad Qazi for Appellant (in I.C.A. No.1089/2016).

Noshab Ali Khan and Muhammad Asad Manzoor Butt for Appellants (in I.C.A. No.1090/2016).

Muhammad Shahid Tasawar Rao and Mohsin Raza for Respondents (in I.C.A. No.1088/2016).

Mansoor Humayun for Respondents.

Rao Muhammad Akbar Khan Mayo, Qamar Zaman Qureshi, Mian Inam ul Haq and Talaat Farooq Shaikh for Applicants (in their respective Applications).

2018 P L C (C.S.) 169

[Lahore High Court]

Before Jawad Hassan, J

PAKISTAN TELECOMMUNICATION COMPANY LTD.

Versus

M. RAFIQUE and 2 others

W.P. No.38871 of 2016, heard on 25th September, 2017.

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

----Ss. 3, 2(d)(f) & 13---Termination of service---Application for reinstatement--- Requirements--- Limitation--- Application for reinstatement in service moved by the sacked employee was accepted by the Review Board--- Contention of department was that petition filed by the sacked employee was barred by time---Validity---Employee got appointment through bogus appointment letter and he was removed from service---Impugned order did not disclose any date of filing appeal/application before the Review Board---Sacked employee ought to have filed an application within ninety days to his employer by explicitly mentioning the date of application appearing on the face of it---If application was moved through registered post then receipt of registered post along with copy of the application would be sufficient evidence of the fact that application was filed on the date appearing on copy of application available with the sacked employee---Nothing was on record that employee filed any application before the concerned authority within ninety days of the enactment of Sacked Employees (Re-instatement) Act, 2010---Application of employee was not within time---Respondent had failed to make out a case of reinstatement into service---Impugned order passed by the Review Board was set aside---Constitutional petition was allowed in circumstances.

Capital Development Authority v. Mrs. Shaheen Farooq 2007 SCMR 1328 ref.

Shahid Anwar Bajwa and Abdul Rehman Bajwa for Petitioner.

Ch. Shaukat Hayat Gondal for Respondents.

2018 P L C (C.S.) 216

[Lahore High Court]

Before Faisal Zaman Khan, J

FAISAL MEHBOOB KHAN

Versus

CHIEF SECRETARY and 2 others

W.P. No.15763 of 2013, heard on 24 May, 2016.

Punjab Emergency Service Leave, Efficiency and Discipline Rules, 2007-

--R. 6-Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S.7---Deputy Director Punjab Emergency Service---Allegation of inefficiency---Removal from service---Back benefits---Scope---Employee was removed from service and appeal against the said removal was also dismissed---Contention of employee was that penalty of removal from service could not be awarded under R.6 of Punjab Emergency Service Leave, Efficiency and Discipline Rules, 2007---Validity---Penalty of removal from service did not figure in R.6 of Punjab Emergency Service Leave, Efficiency and Discipline Rules, 2007---Penalty of deduction of emergency allowance or deduction of 1/5th salary could have been imposed on the employee and nothing more---Petitioner was a regular employee and penalty of termination of contract could not be imposed---Department could proceed against the employee under S.7 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 as allegation of inefficiency had been raised against him---Department was not invested with the power to impose penalty of removal from service against the employee---Impugned order passed by the department was not sustainable which was set aside---Employee was ordered to be reinstated in service---Intervening period to be treated as leave of kind due---Employee was directed to apply to the department for back benefits which should be determined after ascertaining as to employee remained gainfully employed during the interregnum period---Department would be at liberty to either impose the penalty upon the employee as prescribed under R.6 of Punjab Emergency Service Leave, Efficiency and Discipline Rules, 2007 or proceed under S.7 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Constitutional petition was allowed accordingly.

Mian Bilal Bashir for Petitioner.

Faisal M. Buttar AAG and Shakeel Asim, Assistant Law Officer, Punjab Emergency Service Rescue 1122 for Respondents.

2018 P L C (C.S.) 243

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

WAQAS ASLAM and 2 others

Versus

LAHORE ELECTRIC SUPPLY COMPANY (LESCO) through Chief Executive and 4 others

W.P. No.1803 of 2016, decided on 13th May, 2016.

(a) Civil service---

----Appointment--- Advertisement for appointment of Line Superintendent---Requisite qualification being Matric with 3 years diploma in Electrical/Electronic Technology---Non-appointment of petitioners due to having higher qualification--- Scope---Discrimination---Fundamental rights---Criteria/policy of department--Classification---Petitioners, in the present case, were refused appointment on account of their higher qualification--- Validity--- Eligibility/qualification mentioned in the advertisement was considered as minimum criteria and candidates below required standard were not entitled to apply---No embargo was put on the candidates having higher qualification as they had fulfilled the minimum criteria---Appointments were to be made in a transparent manner after inviting applications from those who were eligible, deserving and desirous---Principles of merits should have been safeguarded---Refusal to appoint petitioners merely on the ground of their being over-qualified was an encroachment upon their rights---Petitioners had been deprived of their rights and they had suffered illegal exercise of discretion---Impugned actions were in violation of merit and transparency---Where appointments were to be made in exercise of discretionary powers then such powers had to be employed in a reasonable manner---Exercise of such powers unreasonably could be judicially reviewed---Validity of appointment process could be checked through selection procedure prescribed and adopted followed with rigour, objectively, transparency and due diligence to ensure obedience to law---Process of appointment would be unguided, perfunctory, mechanical, haphazard, discrete and unreasonable in absence of any criteria---Impugned criteria/process had never been geared to search and select the best man for the post---Such act of authorities was discriminatory and in violation of Art.25 of the Constitution---Any criteria/policy/instruction depriving the over-qualified persons from applying a particular job could not be termed as reasonable classification under the law---Class of less-qualified persons could not be put in advantageous position vis-à-vis over-qualified persons---Reason posed by the authority for not considering the petitioners for appointment was not reasonable rather resulted in inequality among citizens---Right person should be engaged in the right job which could not be done unless there was an open competition---Posts could not be filled by the method of competition when arbitrary classification was made between different classes of citizens---Any departmental instruction/direction/rules which were inconsistent with the Fundamental Rights were void---Constitution being a basic document was to be treated higher than other instructions/ rules/statutes---When a document in the shape of law/rules/ instructions/criteria given by any competent authority was in conflict with the Constitution then to such extent same was liable to be declared unconstitutional---Every citizen should have the right subject to such qualification if any prescribed by law to enter upon any lawful profession or occupation and to conduct any lawful trade or business---Said fundamental right would include the right of a citizen to compete and participate for appointment to a post in any government department---Right of open competition could not be exercised unless process of appointment was transparent, fair, just and free from any complaint---Act of department had depicted discriminatory treatment which could not be recognized under the law---All persons were equal before the law and were entitled to equal protection of law---Impugned criteria/policy of the department being subordinate legislation could not control or override law and Constitution---Criteria/policy could be challenged if same was in conflict with law or Fundamental Rights of citizen---Right guaranteed under the Constitution could not be taken away by ignoring any provision of the Constitution---State was bound to secure the well-being of the citizens and to promote and protect employment---Limitation could be imposed but such limitation must be rational and proportionate---If such limitation was imposed through an executive action then such action must be taken in exercise of powers conferred by law or in accordance with Constitution or Fundamental Rights guaranteed thereunder---Impugned departmental instruction/ criteria/policy was not backed by any law and same was not sustainable in the eye of law---Impugned orders passed by the department were declared to be illegal and without lawful authority---Department was directed to issue appointment letters to the petitioners within a period of 30 days without disturbing any other person employed due to their acts---Constitutional petition was allowed in circumstances.

PWD Employees' Union, Balochistan through Vice-President and others v. Secretary, Communication and Works Department, Government of Balochistan Quetta and others 2015 PLC (C.S.) 1182; Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Boara Board of Trustees and others 2014 SCMR 949; Mrs. Surraya Khanum v. Medical Superintendent, Punjab Institute of Cardiology, Lahore and 3 others PLD 2006 Lah. 469; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affair's, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621; Muhammad Tanveer v. Government of Pakistan and others 2012 PLC (C.S.) 807; Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236 and Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another PLD 2011 Lah. 120 rel.

(b) Constitution of Pakistan---

---Art. 25---Equality before law---Scope---All the citizens without any discrimination should be dealt with in accordance with law---Reasonable classification could be made provided that it was founded on an 'intelligible differentia' which distinguished persons or things which were grouped together from those left out of group---All similarly placed citizens were to be treated equally and not otherwise---Law could restrict human rights but only in order to make conflicting rights compatible or to protect the rights of other persons or important community interest.

(c) Public functionary---

----Public functionaries were required to perform their duties and discharge their functions within the limits prescribed by law and respect and obey the Constitution and law in letter and spirit.

Barrister Lamia Khan for Petitioners.

Umer Sharif for Respondents.

ORDER

MUHAMMAD SAJID MEHMOOD SETHI, J.--- Brief facts of the case are that respondent No.2 advertised 89-posts of Line Superintendent Grade-I in BPS 15 on behalf of respondent No.1. Petitioners, being Bachelors of Science in Electrical Engineering, applied for the said posts and appeared in the test conducted by National Testing Service ("NTS") on 12.07.2015. They cleared the test and were placed at Sr. Nos.17, 9 and 33 respectively. Petitioners appeared in the interview but their names did not surface in the list of successful candidates. The selected candidates were not even graduates but also secured lower position in the merit list issued by NTS. Petitioner No.2 submitted an application to respondents, but no attention was paid to his request. Feeling aggrieved, petitioners filed W. P. No.27312 of 2015, which was disposed of vide order dated 14.09.2015, passed by this Court. In pursuance of the direction contained in aforesaid order, respondents passed order dated 28.10.2015, which has been assailed through instant petition, with the following prayer:-

"In view of the submissions made above it is therefore respectfully prayed that this Petition may kindly be accepted and the process of recruitment for the posts of Line Superintendent Grade-I by the Respondents may kindly be declared to be illegal, without lawful authority and of no legal effect. It is further prayed that impugned Order dated 28.10.2015 passed by Respondent No.3 and impugned Order dated 12.03.2010 passed by Respondent No.5 but reiterated by the Chief Engineer (Admin) Power, PEPCO be declared illegal and may kindly be set aside in the interest of justice. It is also further prayed that the Petitioners may kindly be declared to be eligible and may kindly be appointed as Line Superintendent Grade-I in LESCO.

It is further prayed that the Respondents may kindly be restrained from filling the posts of Line Superintendent Grade-I, till the disposal of the writ petition.

."

1. Learned counsel for petitioners submits that petitioners are graduates and their qualification is higher than the requisite criteria, but despite that respondents appointed less qualified persons. He further submits that petitioners have been subjected to gross discrimination.

2. On the other hand, learned counsel for respondents defends the impugned order and submits that petitioners, being over-qualified, were not appointed as per policy, in order to avoid their disgrace. He adds that petitioners have failed to point out any illegality or legal infirmity in the impugned order, which is liable to be upheld under the law.

3. Arguments heard. Available record perused.

4. The order dated 28.10.2015, passed by respondent No.3, is reproduced hereunder:-

"Honourable Lahore High Court in subject writ petition filed by Mr. Waqas Aslam son of Muhammad Aslam Nayyar in the judgment dated 14.09.2015 was ordered as under:

"in view of the factual controversy involved in this case, I deem it appropriate to send a copy of this petition along with its annexures to respondent No.1, who shall treat it as an application and shall decide the same strictly in accordance with law through a reasoned order after hearing all necessary parties within a period of four weeks of the receipt of a certified copy of this order. Disposed of."

In view of above, you Mr. Waqas Aslam were called for personal hearing on 21.10.2015 at 11:00 am to address the grievance vide this office letter No.HRD/RC/38039-40 dated 15.10.2015.

After hearing you in person, it is clear to you, vide PEPCO's letter No.17123-38/MD/PEPCO/E-11/16/3039/09/UTS dated 12.03.2010, graduate engineers cannot be employed on lower posts (i.e. Line Superintendent Grade-I) and you did not meet the prescribed qualification in service rules for the post as advertised on 30.04.2015. Hence, you were not considered further for recruitment under LESCO."

1. Likewise, order dated 12.03.2010, passed by the Chief Engineer (Admn.) Power PEPCO, is reproduced hereunder:-

"The HRD PEPCO has informed to reiterate the instructions of M.D. (PEPCO), for not employing graduate engineers on lower posts to save them from disgrace. The instructions may kindly be brought to the notice of all concerned for compliance in letter and spirit."

1. Perusal of above reproduced orders shows that petitioners were refused appointment on the pretext that they possessed higher qualification and their appointment on a lower scale would earn disgrace for them. It is evident that required qualification for the post of Line Superintendent Grade-I BPS-15 was "Matric with 3-years Diploma in Electrical/Electronic Technology from any Government Poly Technical Institution in Grade-B with 3-years experience in the trade from any Government Institute". It appears nowhere in the said advertisement that candidates having higher qualification would not be entitled to apply for the said post.

2. Petitioners have placed on record copies of various advertisements published by HESCO, SEPCO, FESCO, IESCO, etc., for recruitment of post in question and all of them required three years Diploma in Electrical/Electronics with one year relevant job experience. They further made relaxation of one year experience if the candidate is holding higher qualification i.e. Degree in Electrical Engineering. Disparity in setting eligibility criteria for one and the same post by LESCO is not understandable. The eligibility/qualification mentioned in the advertisements is considered as minimum criteria and candidates below required standard are not entitled to apply. It does not create an embargo on the candidates having higher qualification because in that case they certainly fulfill the minimum criteria. It was specifically mentioned at Condition No.8 of the advertisement that short listed candidates would be called for test but at the time of scrutiny of applications of petitioners, no such objection was raised by the respondents which seems to be an after-thought.

3. Undeniably, all appointments are to be made in a transparent manner, after inviting applications through Press from all those who are eligible, deserving and desirous. In spite of this legal position, it is being violated with immunity. Such malady, which has plagued the whole society, has to be arrested with iron hands and the principles of merit have to be safeguarded otherwise it would be too late to correct it. Refusal to appoint petitioners merely on the ground of being over-qualified, was a serious encroachment upon their rights. They stood deprived of their rights and are sufferers of illegal exercise of discretion, thus the impugned actions are in serious violation of the merit and transparency.

4. Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner and exercise of such powers unreasonably, can be judicially reviewed. To test the validity of appointment process, it is to be checked that as to whether an objective selection procedure was prescribed; that if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise; and that if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law. In absence of criteria, process employed was unguided, unplanned, unsystematic, arbitrary, aimless, perfunctory, mechanical, haphazard, discrete and unreasonable. The impugned criteria/process has never been geared to search and select best man for such post. Such an unguided and unstructured process of appointment being facially discriminatory would block merit, cripple opportunities and impair access of talented persons to the post in question.

5. After the merit list was prepared, wherein the petitioners were declared higher in merit, but instead of appointing them, the other candidates were appointed on the ground that petitioners were over-qualified, and appointment to the post in question would be disgrace to them. This act of respondent authorities was discriminatory and was in utter violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), which had shown mala fide on their part. Petitioners had been deprived of their lawful rights in an illegal and unlawful manner. Petitioners' fundamental right to life and livelihood takes priority over alleged notion of disgrace earned through a post for which they might possess higher qualification. Discrimination on the basis of qualification on pretext of disgrace, is a way to deprive the candidates of their right to livelihood. Even otherwise, the post of Line Superintendent Grade-I i.e., post of BPS-15, being a white collar job, cannot be termed as disgrace, especially when unemployment is rife in the country.

6. Any criteria/policy/instruction depriving over-qualified persons from applying a particular job, cannot be termed as reasonable classification under the law and the class of less qualified persons cannot be put in advantageous position vis-a-vis over-qualified persons. Such classification constitutes discrimination and, as a result, better qualified candidates from amongst the ordinary citizens are ignored, while less qualified persons are appointed. Such state of position results in aggravation of agonies of unemployed youth. No justification has been made out in support of such classification, which offends the doctrine of "equal protection of law" enshrined in the Constitution. Constitution commands that all the citizens, without any discrimination, shall be dealt with in accordance with law and are entitled to equal protection of law. Our Constitution permits reasonable classification provided that it is founded on an 'intelligible differentia', which distinguishes persons or things that are grouped together from those that are left out of the group, and it must have rational nexus to the object sought to be achieved by such classification. But, in the present case, the reason posed by respondents for not considering petitioners for appointment, is not reasonable rather resulted in inequality amongst citizens of this country. The Holy Quran has enjoined that there is no difference between the individuals of mankind and all human beings are equal in the eye of Allah, the Almighty. Fittest person, who is strong and trustworthy, has to be employed in public employment.

7. State is bound to ensure the elimination of all forms of exploitation and gradual fulfillment of the fundamental principle from each according to his ability to each according to his work. State is responsible to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. Right person should be engaged in the right job, which could not be done unless there is an open competition for appointment against the posts in government departments/attached departments/institutions. Posts cannot be filled by the method of competition when arbitrary classification is made between different classes of citizens and preferential rights are extended towards less qualified at the cost of over-qualified citizens. The impugned criteria/ policy is a classic example of arbitrariness where less qualified persons have been put in advantageous positions vis-a-vis over-qualified persons.

8. Every individual has right to enjoy the protection of law and to be dealt with in accordance with law. "Law" would imply such provisions of law, which are in conformity with fundamental rights guaranteed by the Constitution. Every person and authorities are required to perform their duties and discharge their functions within the limits prescribed by law, and respect and obey the Constitution and law in letter and spirit. Competent authority is bound to consider the merit of all the eligible candidates for appointment on the post in question. Any departmental instructions/directions/rules, which are inconsistent with the fundamental rights, are void. Constitution being a basic document is to be treated higher than other instructions / rules / statutes. Whenever a document in the shape of law / rules / instructions / criteria given by any competent authority is in conflict with the Constitution, then to such extent, same is liable to be declared unconstitutional.

9. Every citizen should have the right subject to such qualification, if any, prescribed by law to enter upon any lawful profession or occupation and to conduct any lawful trade or business. Said fundamental right would include the right of a citizen to compete and participate for appointment to a post in any government department/attached department/autonomous body/corporation. Right of open competition cannot be exercised, unless the process of appointment is transparent, fair, just and free from any complaint. Reliance, in this regard, is placed upon PWD Employees' Union, Balochistan through Vice-President and others v. Secretary, Communication and Works Department, Government of Balochistan Quetta and others (2015 PLC (C.S.) 1182).

10. The act of respondent department, in the present case, has depicted discriminatory treatment, which cannot be recognized under the law and the Constitution. All similarly placed citizens were to be treated equally and not otherwise. Right to be treated equally is one of the fundamental rights granted by the Constitution. All persons are equal before the law and are entitled, without any discrimination, to equal protection of law. Petitioners have been subjected to hostile discrimination, which is forbidden by Article 25 of the Constitution. Non-appointment of petitioners to the post in question on the ground of being over-qualified, treating it as disgrace, amounts to discrimination as they were qualified for the post. Reference in this regard can be placed upon Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Boara, Board of Trustees and others (2014 SCMR 949).

11. No doubt "laws" could restrict human rights, but only in order to make conflicting rights compatible or to protect the rights of other persons or important community interests. Any restriction of human rights not only needs a constitutionally valid reason but also needs to be proportional to the rank and importance of the right at stake. "Reasonable restriction" or any sub-constitutional limitation or law on a constitutional fundamental right must also flow from the Constitution to protect lawful rights and interests of the others or the society at large. The "law" or "reasonable restrictions" in pith and substance must promote and advance fundamental rights of the community at large in order to qualify as a limitation to override the fundamental rights guaranteed to an individual under the Constitution. The "law" or the "reasonable restrictions" must be fashioned to uphold the constitutional themes of democracy, freedom, equality, tolerance, social justice and advance the principles of policy under the Constitution. The roots of sub-constitutional limitation must be grounded in the Constitution itself, only then they can possess the constitutional character and strength to take away the fundamental rights of an individual.

12. Petitioners, in circumstances, seem to be the victims of unreasonable and irrational approach of the authorities, disabling them to seek appointment on the ground of being over-qualified, which ultimately was going to be beneficial to the respondent-department. Even otherwise, there seems to be lack of uniform criteria / policy, equally applicable to all similarly situated persons. Different policies/criteria in the respondent institution under the administrative control of WAPDA negate the rationale and objective behind the provisions of Articles 4 and 25 of the Constitution. Concept of equality before law and that all were equal before law, had its genesis in Islamic fundamental principles elaborately propounded by the Holy Prophet Muhammad (P.B.U.H) in the Last Sermon. Provisions of Articles 4, 25, 26 and 27 of the Constitution were also in line and consistent with the "equality of all" as enshrined by Islam. Not only that the Principles of Policy laid down in Article 37(C) of the Constitution also enjoined on the State to observe the same. Reliance in this regard can be placed upon Mrs. Surraya Khanum v. Medical Superintendent, Punjab Institute of Cardiology, Lahore and 3 others (PLD 2006 Lahore 469).

2018 P L C (C.S.) 267

[Lahore High Court]

Before Syed Mansoor Ali Shah, CJ

Prof. Dr. ZAFAR IQBAL

Versus

PROVINCE OF PUNJAB and others

W.Ps. Nos.114962, 112839, 113006 and 113014 of 2017, heard on 16th January, 2018.

(a) Constitution of Pakistan---

----Art. 199---Public University---Officers of University---Criteria for appointment of Vice-Chancellor---Constitution of a search committee---"Subject/field expert"---Scope---Petitioner impugned process of appointment of Vice-Chancellor for University of Agriculture inter alia, on ground that the search committee constituted for the same was not in compliance with the principles established in the case of Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others [PLD 2017 Lahore 489]---Validity---Substantive part of process of appointment of Vice-Chancellor was scrutiny by search committee and not the act of the advertisement unless and until it was shown that such advertisement was deficient in material particulars---"Subject/field" expert qualified to be on a search committee if he could establish his expertise in the specialized subject and held the highest degree (preferably Doctorate) in the said subject with substantial and direct experience in such subject/field---In the present case, there was inclusion of a person in the search committee as "subject/field expert" whose resume did not show mainstream or direct involvement in Agriculture, and was therefore not a "subject / field expert"---High Court set aside constitution of the impugned search committee and directed Provincial Government to constitute a new search committee in line with the definition of "subject/field expert"---Constitutional petition was allowed, accordingly.

Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489; American Heritage Dictionary of the English Language 5th Edition-2016; Collins English Dictionary-Complete and Unabridged, 12 Edition 2014 and Economics, V.1, pp.818, 825 rel.

(b) Words and phrases---

----"Expert"---Meaning---Expert was a person with a high degree of knowledge of a certain subject or having skill or knowledge in a particular field.

American Heritage Dictionary of the English Language 5th Edition-2016 and Collins English Dictionary-Complete and Unabridged, 12 Edition 2014 rel.

Muhammad Ahsan Bhoon for Petitioner.

Malik Muhammad Awais Khalid for Petitioner in connected matter.

Anwar Hussain, Additional Advocate General, Punjab.

Ms. Asma Jahangir for Applicants (in C.M. No.4 of 2017).

Saad Rasool assisted by Shan Saeed Ghumman for Applicants.

Irshad Ali, Law Officer, Agriculture Department.

Dr. Ghazanfar Ali Khan, Additional Secretary, Agriculture Punjab.

Muhammad Aslam, Assistant Registrar, University of Agriculture, Faisalabad.

Mirza Haseeb Baig, Assistant Registrar, Pir Mehr Ali Shah, Arid Agriculture University.

Ishtiaq Ahmad, Second Officer (Universities)/DS (QEC) Higher Education Department.

2018 P L C (C.S.) 282

[Lahore High Court]

Before Syed Mansoor Ali Shah, C.J.

Chodri ASIF KHOKHAR annd others

Versus

FEDERATION OF PAKISTAN and others

W.P. No.8199 of 2017, heard on 23rd November, 2018.

(a) "Corporatization"---

---Concept of corporatization of Government Units---Scope---Corporatization was a process whereby government units were transformed into statutory, semi-autonomous and autonomous corporations, with independent legal status and managerial freedom, and was a globally recognized phenomenon---Primary objective of corporatization was achievement of operational efficiency by means of creating some distance between government owners and public managers---Such distance aimed to ease interference of politicians in managerial decisions and allowed for managerial freedom that was different from that found in traditional public administration---Equity, transparency, quality of the workplace, sustainability, solidarity, public ethos and transferability were the normative criteria for evaluation of corporatization in a given setup.

David A. McDonald, 'Rethinking Corporatization and Public Services in the Global South', 2014, Zed Books, London available at URL: https://books.google.com.pk/books?id=luZiDgAAQBAJ&pg=PT 132 &lpg =PT132&dq=corporatization+government+ united+ nations&source=bl&ot s=BHAU9fhOg &sig=YfhgrPQJ28YGmUGFK qnCpj6Ek3I&h1 =en&sa=X&ved=0ahUKE wj ipffe0JzXAhXnBc AKHeCuBjoQ6AEIMDAC#v= onepage&q= corporatization%20 government%2Ounited%2Onations&f=false rel.

(b) Civil service---

----Appointment made to public offices/institutions by Government---Appointment and recruitment to posts of public sector corporations/ autonomous public bodies---Criteria and essential principles for public appointments and recruitment, listed and explained.

Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI)

through President of Board, Board of Trustees and others 2014 SCMR 949; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Government of N.W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others 2014 SCMR 949 and Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 rel.

Where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must be employed in a structured, fair, even, just and reasonable manner and in the public interest and not whimsically or arbitrarily. [p. 289] B

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 and Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6 ref.

The Courts are duty bound to judicially review the integrity of the selection process adopted for appointments to public offices to ensure that the requirements of law have been met. However, they will not engage in any exhaustive or full-fledged assessment of the merits of appointee nor would seek to substitute their own opinion for that of the Executive.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 and Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 ref.

In addition to the above core principles, the appointment procedure in a public sector corporation must have the following eight elements in order to select the best of the best:

i. A job analysis leading to a written statement of the duties of the job (the job description) and the competences that the jobholder will need (the competency framework or person specification);

ii. An advertisement disseminated to eligible groups, including a summary of the job description;

iii. A standard application form;

iv. A scoring scheme based on the person specification;

v. A short-listing procedure to reduce applications, if necessary, to a manageable number;

vi. A final selection procedure based, again, on the person specification and including a panel interview;

vii. An appointment procedure based on the scoring scheme; and

vii. Notification of results to both successful and unsuccessful candidates.

Unlocking the Human Potential for Public Sector Performance', World Public Sector Report 2005, Department of Economic and Social Affairs, United Nations, New York, 2005. URL: http://unpanl.un.org/intradoc/groups/public/documents/UN/UNPAN021616.pdf rel.

Syed Mujib-ul-Hassan for Petitioners.

Nasar Ahmad Dputy Attorney General for Pakistan.

Ahmar Bilal Soofi, Ghulam Ali Raza and Daud Aziz Khokhar for Respondents Nos.3 and 4.

Saad Rasool for Respondents Nos.5 to 9.

Judge Mohsin Mumtaz, Civil Judge and Research Associate at the LHCRC.

2018 P L C (C.S.) 310

[Lahore High Court]

Before Jawad Hassan, J

QAISER ABBAS and 8 others

Versus

The PROVINCE OF PUNJAB and 2 others

W.P. No.35300 of 2017, decided on 22nd December, 2017.

Civil service---

----Recruitment to public sector posts---"Waiting list" for selection of candidates---Vested right(s) of candidates on waiting-list for appointment or recruitment---Scope---Waiting list prepared in an examination for recruitment did not furnish a source of recruitment and was only operative as a contingency, which was that if any selected candidate(s) did not join, then a candidate from the waiting list could be pushed up for recruitment---Waiting-list candidate had no vested right to be appointed except when a selected candidate did not join while the waiting list was still operative---Once selected candidates joined and no vacancy arose within period the waiting list was to operate under the Rules or within a reasonable period when no specific period was provided, then candidate from waiting list had no right to claim appointment to any future vacancy which arose unless selection was held for it---Candidates on waiting list had no vested right until and unless competent authority itself had taken a decision to appoint a person from the waiting list.

Rafaqat Ali v. Executive District Officer (Health) and others 2011 PLC (C.S.) 1615; Government of N.W.F.P. through Secretary, Education Department, Peshawar and others v. Qasim Shah 2009 SCMR 382 and Anwar Shah and 5 others v. Secretary Government of Balochistan Irritation and Power Department, Quetta and 5 others 2014 PLC (C.S.) 250 distinguished.

Musa Wazir and 2 others v. N.W.F.P. Public Service Commission through its Chairman and others 1993 SCMR 1124 and Dr. Faizur Rehman and others v. N.W.F.P. Public Service Commission, Peshawar 1996 SCMR 589 rel.

Ch. Ahmad Masood Gujjar and Amjad Farooq Bismil Rajpoot for Petitioners.

Ashfaq Ahmad Kharral, Assistant Advocate-General and Ahmad Usman, D.S.P. (Legal) for Respondents

Mian Bilal Bashir on Court's call.

2018 P L C (C.S.) 427

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION

Versus

MUHAMMAD AKRAM and 31 others

I.C.As. Nos.361, 362 and C.M. No.2 of 2017, decided on 18th January, 2018.

(a) Pakistan Agricultural Storage and Services Corporation Employees Service (Efficiency and Disciplinary) Regulations, 2007---

----Preamble---Constitution of Pakistan Arts.4 & 10-A---Contract employees of Pakistan Agricultural Storage and Services Corporation---Termination of service---Fair trial---Natural justice, principles of---Applicability---Fact finding inquiry was conducted and recommendations for formal inquiry were submitted against the employees and their officers---Recruitment process of petitioners-employees was declared to be based on irregularities and illegalities and they ceased to be the employees of the department---Constitutional petition filed by the employees was allowed by the Single Judge of High Court---Validity---Neither any show-cause notice was issued to the employees nor any opportunity of personal hearing had been afforded to them before passing the order for their termination---Employees were ousted from service through impugned order without adopting the proper procedure---Impugned order had infringed the Fundamental Rights of employees to be treated in accordance with law---Serious allegations existed against the employees and they should have been afforded opportunity of fair trial and personal hearing---Petitioners-employees should not have been terminated with a single stroke of pen rather in due prcess---Department passed the impugned order for termination of services of employees but it did not adopt the proper procedure as contained in the inquiry report i.e. formal inquiry against the employees along with their officers in accordance with Pakistan Agricultural Storage and Services Corporation Employees Service (Efficiency and Disciplinary) Regulations, 2007---Action of department was contradictory and against the principles of natural justice---Single Judge of High Court had rightly held that employees had been deprived of their Fundamental Right of fair trial and due process---No illegality or perversity had been pointed out in the order passed by the Single Judge---Intra-court appeal was dismissed in circumstances.

Basharat Ali and others v. Muhammad Anwar and others 2010 SCMR 1210; Asad Khan Mengal and others v. Muhammad Afzal Shouq and others 2010 SCMR 970; Muhammad Shahban v. Falak Sher and others 2007 SCMR 882; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Brig (R) Sakhi Marjan, CEO, PESCO, Peshawar v. Managing Director PEPCO, Lahore and others 2009 SCMR 708; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 and Government of the Punjab through Chief Secretary and others v. Aamir Junaid and others 2015 SCMR 74 ref.

Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 and Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 rel.

(b) Constitution of Pakistan---

---Art. 4---To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.

Ms. Tabinda Islam for Appellant.

2018 P L C (C.S.) 433

[Lahore High Court]

Before Ali Baqar Najafi, J

ATTA-UL-HAQ

Versus

The NATIONAL BANK OF PAKISTAN through President and another

W.Ps. Nos.6251 and 6207 of 2016, decided on 31st May, 2017.

Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 11---Constitutional petition---Maintainability---Res judicata, principle of---Applicability---Bank employee---Seeking regularization of service---Scope---Employees approached Service Tribunal but their service appeal was abated where after they approached Labour Court and matter was disposed of for being outside its jurisdiction---Appeal of employees was disposed of by the Supreme Court permitting them to approach Labour Court but they instead of filing petition before the said Court preferred constitutional petition directly before the High Court for the requisite relief---Validity---Employees had not moved the Labour Court ever since the order passed by the Supreme Court---Present constitutional petition had been preferred on the ground of discrimination which could be agitated before the Labour Court where employees might file grievance petition---Principle of res judicata was attracted in the present constitutional petition---Constitutional petition was dismissed being not maintainable.

State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan 2012 SCMR 280 and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 ref.

Ms. Tabindah Islam for Petitioner.

2018 P L C (C.S.) 442

[Lahore High Court]

Before Shams Mehmood Mirza and Muzamil Akhtar Shabbir, JJ

Rana MUHAMMAD KHALIL

Versus

REGIONAL AUDIT CHIEF, NBP AUDIT OFFICE

I.C.A. No.643 of 2014, heard on 23rd May, 2017.

Civil service---

----Employee of National Bank of Pakistan---Pensionary benefits---Scope---Federal Government treating cost of living allowance as an emolument for the purpose of pensionary benefits---Retired employee of a National Bank of Pakistan---Seeking cost of living allowance as an emolument for the purpose of pensionary benefits---Board of Directors of Bank---Functions and powers---Scope---Employee of the Bank filed constitutional petition seeking cost of living allowance as an emolument for the purpose of pensionary benefits in the light of notification of Federal Government to its employees but same was dismissed---Validity---General direction and superintendence of the affairs and business of nationalized Banks would vest in the Board of Directors---Board of Directors had powers to determine policy of the Bank, policy matters and all matters with regard to remuneration and benefits of the employees---Management of nationalized Banks was free from the control and general superintendence of the Federal Government---Federal Government was no longer empowered to give directions to the nationalized Banks with regard to areas in which Board of Bank could deal or pass decisions---Any decision taken by the Board and notification issued by the Bank in pursuance of and with regard to matters covered by S.11 of Banks (Nationalization) Act, 1974 had statutory force---National Bank of Pakistan had made the cost of living allowance to be not part of emoluments for the purposes of calculation of pension and recovery of house rent---Said notification of the Bank had overturned and superseded the Circular with regard to changes and revision in the rates and scales of pension and gratuity made by the Federal Government to be applicable to the officers/executives of National Bank of Pakistan---Office memorandum issued by Finance Division of Federal Government for treating the cost of living allowance as an emolument for the purpose of pensionary benefits could not be made applicable to the employees of National Bank of Pakistan---Judgment of Service Tribunal was not applicable to the case of petitioner as National Bank of Pakistan was not party to the said proceedings---Intra court appeal was dismissed in circumstances.

Sardar Faiz Rasool Khan for Appellant.

Umer Abdullah for Respondents.

2018 P L C (C.S.) 454

[Lahore High Court]

Before Ali Baqar Najafi, J

WASEEM YAQOOB

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.18420 of 2016, decided on 2nd March, 2017.

Constitution of Pakistan---

----Arts. 199 & 3---Constitutional petition---Civil service---Advertisement for appointment of Constables in Police Department---Involvement of candidate in criminal case---Effect---Double jeopardy---Scope---Appointment of petitioner was refused due to his involvement in criminal case---Contention of candidate was that he had been exonerated and acquitted from the said criminal case---Validity---Every person was presumed to be innocent unless proved guilty---Person though involved in criminal case if acquitted was to be considered as a person against whom no case was ever registered---Any condition creating impediment on the job in the department on the basis of acquittal in criminal case would not and should not be read as disqualification---Impugned order passed by the department was set aside and Authority was directed to decide the representation of candidate in accordance with law which should be deemed to be pending before him---Constitutional petition was disposed accordingly.

Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others 2011 SCMR 408 and Asghar Ali and others v. Mansoor Muzaffar Ali and others 2012 PLC (C.S.) 502 ref.

Director-General, Intelligence Bureau, Islamabad v. Muhammad Javed and others 2012 SCMR 165; Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan PLD 2010 SC 695; Superintending Engineer Gepco, Sialkot v. Muhammad Yousaf 2007 SCMR 537; Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 and Dr. Muhammad Aslam v. Government of N.W.F.P through Secretary, Food, Agriculture, Livestock and Cooperative Department,. Peshawar and 2 others 1998 SCMR 1993 rel.

Muhammad Younas Bhullar for Petitioner.

2018 P L C (C.S.) 480

[Lahore High Court]

Before Jawad Hassan, J

SADAF MUBEEN

Versus

GENERAL MANAGER TEVTA and others

W.P. No.2810 of 2016, decided on 13th December, 2017.

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

----S. 4(1)(b)(v)---Principal Vocational Training Institute---Allegation of misconduct and misuse of authority---Removal from service---Scope---Employee was afforded personal hearing and heard at length by the appellate authority---Petitioner received bribe of Rs. 300,000/- from two persons to secure their job---Petitioner-employee had failed to negate the facts by cogent and confidence inspiring evidence she was rightly terminated from service on proving allegations against her---Constitutional petition was dismissed in circumstances.

Ch. Tariq Javed for Petitioner.

Nauman Qaiser for Respondents Nos.1 to 3.

2018 P L C (C.S.) 493

[Lahore High Curt]

Before Jawad Hassan, J

AAMIR TUFAIL CHAUDHARY

Versus

GOVERNMENT OF PUNJAB and 2 others

W.P. No.109335 of 2017, decided on 3rd January, 2018.

General Clauses Act (X of 1897)---

----S. 21---Civil service---Appointment of Deputy District Public Prosecutor against disabled quota---Medical examination---Re-examination before Special Medical Board after clearance from Medical Board---Mala fide---Vested right---Locus poenitentiae, principle of---Applicability---Petitioner being successful candidate was recommended for appointment subject to medical examination---Medical Board cleared the candidate and recommended for adjustment against the disabled quota in the department---Department constituted Special Medical Board for re-examination of the candidate---Contention of petitioner was that constitution of Special Medical Board was based on mala fide of the department---Validity---Medical Board was constituted for medical examination of the candidate before his joining the department---Nothing was required before joining of the petitioner as Deputy District Public Prosecutor except report of the Medical Board---When candidate was not appointed and he started litigation, then department issued letters for re-examination of petitioner which was mala fide on their part---Department was estopped from writing the letters again as already specific instructions for constitution of Medical Board had issued---Vested right had accrued in favour of petitioner which could not be deviated from by the department---State and its institutions were bound to ensure that person with disabilities got reasonable accommodation in order to enjoy their Fundamental Rights in the same manner as enjoyed by other citizens---Department should have considered the possibility of providing necessary technical and human support to ensure that the petitioner was able to perform his duties was not discriminated on the ground of disability---Once a decisive step had been taken by the Authority then same could not be retracted---Offer letter was issued to the petitioner in consequence whereof he fulfilled all the terms and conditions of offer letter by having his degrees verified and having a fresh medical examination---Department under the principle of locus poenitentiae could not deny the petitioner the post as valuable rights had accrued to him---Authority being responsible of passing an order creating certain rights would not be justified to take a turn and retrace the steps to undo the said order---Impugned order was passed against the actual facts and was misconceived which was set aside---Department was directed to allow the petitioner to submit his joining report as Deputy District Public Prosecutor---Constitutional petition was allowed accordingly.

Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1 ref.

Muhammad Yousaf and another v. Chairman Federal Public Service Commission and 4 others PLD 2017 Lah. 406; Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others 2004 SCMR 1864; Mst. Basharat Jehan v. Director General 2015 SCMR 1418; Mst. Saima Hameed v. Executive District Officer (Health) Pakpattan Sharif and 2 others 2011 PLC (C.S) 351; Zakir Muneer v. Executive District Officer (Health) Abbottabad and 3 others 2011 PLC (C.S.) 1651; Munawar Hassan v. Chief Secretary, Government of Balochistan and 3 others 2017 PLC (C.S.) 81; Jawad Ali and others v. Superintendent Jail and others 2017 PLC (C.S.) 587 and JDW Sugar Mills LTD. and others v. Province of Punjab and others PLD 2017 Lah. 68 rel.

Barrister Haris Azmat, Barrister Maryam Hayat, Muhammad Bilal Ramzan, Ali Sindhu and Khursheed Nawaz Bangash for Petitioner.

2018 P L C (C.S.) 532

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

CHIEF SECRETARY TO GOVERNMENT OF PUNJAB through Secretary Finance, Lahore

Versus

Dr. SAJJAD HUSSAIN and others

I.C.A. No.1223 of 2017, decided on 12th December, 2017.

Punjab Government Servants (Medical Attendance) Rules, 1959---

----Rr. 6 & 3---Policy for Treatment Abroad of Punjab Civil Servants dated 07-09-1986---Constitution of Pakistan, Art.25---Treatment abroad of family member of civil servant---Reimbursement of medical expenses---Scope---Employee being retired civil servant applied for reimbursement of medical expenses incurred on the treatment abroad of her daughter but same was declined---Constitutional petition for reimbursement of medical expenses was allowed by Single Judge of the High Court---Validity---Reimbursement of medical expenses was granted to another retired employee which were incurred abroad despite the ban imposed on reimbursement of medical charges---If a patient was suffering from a disease or disability for which no treatment was available in Pakistan then he was entitled to treatment abroad and reimbursement as per Rules---Special Medical Board was constituted to examine the case of daughter of employee---Patient was in dire need of liver transplant which had to be carried out immediately---Liver transplant was not available in Pakistan---Employee followed the process as provided under the Rules, got necessary approval and took his daughter to a hospital in India for treatment---Government could not formulate its own criteria stating that a person of higher rank was more deserving than someone of lower rank---Criteria would be the genuineness of medical assistance required and fulfillment of criteria given in the Rules and the Policy---Punjab Government Servants (Medical Attendance) Rules, 1959 allowed treatment to family members which included son and daughter of a government servant---No illegality had been pointed out in the impugned order passed by the Single Judge---Intra court appeal was dismissed in circumstances.

Muhammad Ijaz, AAG on behalf of the Appellant along with Mrs. Naseem Mushtaq, Law Officer, Finance Department.

2018 P L C (C.S.) 539

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD QASIM

Versus

GOVERNMENT OF PUNJAB and 2 others

W.P. No.25814 of 2016 decided on 11th December, 2017.

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

----R. 17-A---Appointment---Eligibility---Threshold of requisite qualification---Rounding up the marks---Scope---Petitioner contended that he had fulfilled prescribed formalities for the appointment of junior clerk in place of his father who had been permanently incapacitated---Authorities contended that petitioner had secured less than 45% marks in Matriculation so he, at the most, was eligible for the post of Naib Qasid---Validity---Report and para-wise comments filed by the respondents revealed that prescribed qualification for the appointment as junior clerk according to Government Notification and Authority, qualification and mode of appointment of the employees, under the Rules of the Authority petitioner was required to have Matriculation certificate with minimum 45% marks with typing speed of 40 words per minute in English or 30 words per minute in Urdu along with having knowledge and skill of MS Office, Word Processing, Spread Sheet Development and composing etc.---Held, percentage of marks secured by the petitioner in Matriculation i.e. 44.94% could be considered as 45% and rest of the two tests/requirements would be taken by the Authority in accordance with the procedure prescribed under the law---High Court directed that in case the petitioner would qualify for the rest two tests/requirements, he would be issued appointment letter for junior clerk---Constitutional petition was disposed of accordingly.

Askari Hasnain v. Secretary Establishment and others 2016 SCMR 871 ref.

Muhammad Yar Sial for Petitioners.

2018 P L C (C.S.) 551

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Dr. MUSHTAQ AHMAD AKHTAR

Versus

GOVERNMENT OF PUNJAB through Secretary Education and another

W.P. No.32380 of 2013, decided on 29th November, 2017.

(a) Punjab Civil Services (Pension) Rules, 1995---

----Rr. 3.5 (1) & 2.7---Optional retirement---Pensionary benefits, grant of---Employee applied for optional retirement which was granted but his pensionary benefits were not released---Contention of department was that petitioner's service was less than twenty five years as he availed extraordinary leave for two years five months and twenty days which could not be counted towards qualifying service---Validity---Department had accorded approval to opt retirement in favour of employee---Department was bound to decide the pensionary matters within a period of two weeks---Department was bound to award pension and other service benefits to the employee---Employee had been denied his lawful right for a pretty long period of more than thirty three years---Employee had a right to enjoy the protection of law and to be treated in accordance with law---Public functionaries were required to ensure rule of law---High Court was required to enforce Fundamental Rights of citizens in discharge of judicial function---Department was directed to implement retirement notification and redress grievance of employee within a period of thirty days---Constitutional petition was allowed in circumstances.

Haji Muhammad Ismail Memon, Advocate's case PLD 2007 SC 35 and G.R. Syed v. Muhammad Afzal 2007 SCMR 437 and Amir Ali v. Indus Entertainment (Pvt.) Ltd. and others 2004 YLR 1576 rel.

(b) Public functionaries---

----Public functionaries were required to ensure rule of law.

Aziz A. Malik and Umar Abdullah for Petitioner.

2018 P L C (C.S.) 555

[Lahore High Court]

Before Jawad Hassan, J

KARAMAT ULLAH KHAN CHAUDHRY

Versus

FEDERATION OF PAKISTAN and 2 others

W.P. No.17055 of 2017, decided on 5th July, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Territorial jurisdiction of High Court---Scope---Civil service---Petitioner was aggrieved of recommendations of authorities placed at Islamabad Capital Territory---Process of advertisement, written test and interview had been completed in Islamabad---High Court could only exercise such powers which were conferred upon it by or under the Constitution---Present matter was outside the territorial jurisdiction of High Court (Lahore) as authorities did not function within its territorial jurisdiction---Petitioner should approach appropriate forum for the redressal of his grievances---Constitutional petition was dismissed for want of territorial jurisdiction in circumstances.

[Case-law referred]

(b) Dominent jurisdiction, principle of---

----Preamble of "dominant jurisdiction" connotes the rule that the court in which a case is first filed maintains the suit, to the exclusion of all other courts that would also have jurisdiction.

Syed Muhammad Ijaz and Petitioner in person.

Javaid Kasuri, Deputy Attorney General and Sadia Malik, Assistant Attorney-General for Respondents Nos.1 and 3.

2018 P L C (C.S.) 574

[Lahore High Court]

Before Shahid Mubeen, J

ALI RAZA and 2 others

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Kashmir Affairs and 4 others

W.P. No. 58073 of 2017, decided on 7th March, 2018.

(a) Civil service---

----General Clauses Act (X of 1897), S.24-A---Regularisatiom of service---Vested right---Scope---Natural justice principles of---Applicability---Petitioners, impugned order whereby the letter which was issued to regularize service of petitioners was withdrawn by the Department---Validity---Order of withdrawal had been issued without hearing petitioners and therefore same was against the principles of natural justice---When petitioners' services were regularized by the Department, a vested right was accrued to them, therefore, before passing any order which was adverse to petitioners, they must be heard---Order in question had been issued without assigning any reason which was violative of S.24-A of General Clauses Act, 1897---Impugned order was set aside---Constitutional petition was allowed, accordingly.

Messrs Ahmed Clinic v. Government of Sindh and others 2003 CLC 1196 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Laches---Question of laches, determination of---Scope---Fundamental Right(s) could not be denied, infringed or curtailed on ground of laches and court could not dismiss a lis on ground of laches if doing so defeated the cause of justice---Laches, per se, was not a bar on exercise of Constitutional jurisdiction of High Court and question of delay in filing of a Constitutional petition would have to be examined with reference to facts of each case---Question of laches was to be considered in the light of conduct of person invoking Constitutional jurisdiction and degree of negligence if any should be considered along with determining that if by grant of relief being sought, no injustice would be caused to opposite party----No Constitutional petition should be dismissed merely on ground of laches without examining dictates of justice.

Umar Baz Khan through Lhrs. v. Syed Jehanzeb and others PLD 2013 SC 268; Jawad Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472 and Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 rel.

Sheraz Zaka for Petitioners.

Mian Tariq Ahmad, Deputy Attorney General.

2018 P L C (C.S.) 580

[Lahore High Court]

Before Jawad Hassan, J

HASSAN JAWED and another

Versus

PUNJAB EDUCATION FOUNDATION and 4 others

Writ Petitions Nos.16223, 13669 and 13664 of 2014, decided on 30th November, 2017.

(a) Punjab Education Foundation Act (XII of 2004)---

----Ss. 5, 8 & 13---Punjab Education Foundation (Contract Appointment) Rules, 2006, Rr.5, 6(2) (a) (b) (d) (h) & 9---Punjab Education Foundation Service Regulations, 2006, Regln. 5---Punjab Education Foundation Employees Service Regulations (Amendment), 2010, Regln.7---Contract employees---Termination from service---Right of hearing---Powers of Managing Director of Education Foundation---Board of Director of Education Foundation---Contention of petitioners-employees was that letters for termination of their services were illegal and their service should be regularized---Validity---Executive and managing authority of the Education Foundation was with its Board of Directors---Board of Directors had powers to appoint employees and other functionaries of the Education Foundation and determine the terms and conditions of their employment---Managing Director of the Education Foundation could exercise all such powers and could do all such acts and things as were authorized by Board of Directors---Contractual appointments were made on the basis of merits which did not confer any right for regular appointment---Managing Director had powers to terminate the services of contract employees without assigning any reason or without approval of Board of Directors or Provincial Government---Managing Director could only extend the contract and re-negotiate new terms and conditions of contractual appointment with the approval of Board of Directors---Provincial Government had powers to make rules for carrying out the purposes of Punjab Education Foundation Act, 2004 through notification---Provincial Government had allowed the Education Foundation to engage personnels on contract basis---Punjab Education Foundation (Contract Appointment) Rules, 2006 having been sanctioned by the Provincial Government were applicable to the employees and Education Foundation---Punjab Education Foundation (Contract Appointment) Rules, 2006 had statutory status and deviation from the same could be enforced by competent Court---Petitioners being employees of Education Foundation had accepted employment on the basis of their service contract and agreed to be governed by Punjab Education Foundation (Contract Appointment) Rules, 2006, thus were governed by Punjab Education Foundation (Contract Appointment) Rules, 2006 having statutory backing---Managing Director of the Foundation could terminate the services of contract employees on one month's salary in lieu of terms and condition of contract appointment----Impugned letters were issued in compliance with the directions of the Managing Director of the Foundation---No violation of contract employment or statutory Rules i.e. Punjab Education Foundation (Contract Appointment) Rules, 2006 had been made by the Education Foundation---Employees enjoyed extension in their contract through letters none of which were signed by Managing Director but Human Resource Department which was not the appointing Authority---Employees did not raise any objection for such matter and only raised the objections in case of their termination---Termination of service had been approved by the Chief Minister---Education Foundation had to evaluate as to who was the employee worthy of serving the best interest of Foundation and as to who was more suitable---Impugned decision for not extending the contracts by the Education Foundation had been made pursuant to deliberations and approval of Managing Director and Chief Minister---Question of arbitrariness or illegality had no relevance to the matter in circumstances---No statutory rules or provision of Act had been violated by the Education Foundation while terminating the employment of petitioners---Appointment of employees was temporary on contract basis which could be terminated in absence of any violation of provision of law/statutory rules---Employees were entitled to one month's notice or salary in lieu of terms and conditions of contract---Petitioners-employees had failed to point out any contravention of their Fundamental Right by the Education Foundation---Such decision could not be interfered by the High Court in its constitutional jurisdiction---Services governed by a contract would not confer a guaranteed right on the employee to continue in employment and to seek reinstatement on being illegally dismissed or terminated---Such employees could not approach Court of law for seeking appointment even if they were refused employment illegally or in contravention of service contract or non-statutory rules/regulations---Damages against such termination under principle of "master and servant" could be claimed---Contract of employees had expired before impugned letters---Constitutional petition could not be allowed conferring such right to the petitioners---No statutory provision existed for regular appointment of petitioners in the Education Foundation---Directions of Chief Minister could not have precedence over the Punjab Education Foundation (Contract Appointment) Rules, 2006---Education Foundation had not raised any allegation on the employees therefore right of hearing was not mandatory to be provided---Constitutional petition was dismissed in circumstances.

[case-law referred]

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Non-statutory rules---Effect.

Waqqas Ahmad Mir, Mian Wajhat Ali, Hassan Niazi and Miss Noor Bano for Petitioners.

Mahmood Ahmad Qazi and Malik Muhammad Usman Awan and Jari Ullah Khan, Shan Gull Additional Advocate-General and Ashfaq Karal, Asst. AG for Respondents.

2018 P L C (C.S.) 664

[Lahore High Court]

Before Jawad Hassan, J

TARIQ MEHMOOD MALIK

Versus

CHIEF EXECUTIVE OFFICER and others

W.P. No.165293 of 2018, decided on 19th February 2018

Civil Scince---

----Electric Power Company---Non-statutory rules---Effect--- Transfer of employee---Scope---Employee had no vested right to remain posted at a place of his own choice nor could he insist that he must be posted at one place or the other---Petitioner-employee was liable to be transferred in the administrative exigencies from one place to another---Transfer of an employee was not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in absence of any specific indication to the contrary---Impugned order was passed in pursuance of duly adopted transfer/posting policy---Employer company had no statutory service rules---Constitutional petition against impugned order was not maintainable---Competent authority had prerogative to transfer any employee and Courts should refrain from interfering in posting and transfer when there was no element of mala fide---Employee had failed to establish element of mala fide on the part of employer company while passing the impugned order---Constitutional petition was dismissed in circumstances.

Kamran Ahmad v. Chief Executive GEPCO and others 2017 PLC (C.S.) 900; Malik Saeed Akhtar v. Government of Pakistan and others (I.C.A. No.438/2015; Muhammad Zaman and others v. Government of Pakistan and others 2017 SCMR 571 and Pakistan Defence Officer's case 2013 SCMR 1707 rel.

Ch. Imran Raza Chadhar for Petitioner.

2018 P L C (C.S.) 712

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

Dr. ZAHEER IQBAL and others

Versus

PROVINCE OF PUNJAB through Chief Secretary and others

I.C.As. Nos.718, 762, 729, 766, C.M. No.3 and I.C.A. No. 718 of 2013, heard on 23rd January, 2018.

(a) Civil service---

----Dental surgeons appointed on ad-hoc basis---Regularization of service---Recruitment through Public Service Commission---Discrimination---Effect---Employees who were appointed on ad-hoc basis applied for regularization against the seats advertised by Public Service Commission but they were not selected being lower in merit---Constitutional petition filed by the employees was dismissed on the ground that they had no vested right to be regularized and they should compete with other candidates on open merit for regularization against the post---Validity---Employees were appointed on ad-hoc basis as stop gap arrangement until the arrival of regular incumbents---Appointments of employees were extended from time to time and they continued to work as ad-hoc employee with the respondent department without any complaint or disruption---Employees appeared before Public Service Commission after applications were invited for making regular recruitment against the posts in question---Benefit of regularization was to be given to the candidates who fulfilled the minimum criteria of appointment established in test by the Public Service Commission---Cases of ad-hoc employees were not to be tagged with direct recruits and they were to be treated separately by the Public Service Commission---Public Service Commission carried out a simple interview of all the applicants on the basis of which merit list was prepared---Employees were not given any credit or benefit of their experience by the Public Service Commission---Interview process was subjective based on personal opinion of the Interview Committee with no objective criteria---Where test was competitive in nature, with a large number of applicants, the criteria for determining merit must be based on measurable data so as to ensure transparency and fairness---Even interview process marks must be allocated on an objective criteria which could enable the interview committee to evaluate the candidate in a fair and transparent manner---Posts of Hospital Pharmacists, Specialist Doctors and Medical Officers and Registrars among others had been filled up without recourse to Public Service Commission---Petitioners-employees had been discriminated in circumstances---Public functionaries must not discriminate in their decision making process and they were supposed to act fairly, justly and evenly---Impugned order passed by the Single Judge of High Court was set aside---Authorities were directed to regularize the services of employees for the posts of dental surgeons---Intra court appeal was allowed in circumstances.

Ch. Iftikhar Ahmad v. Chief Secretary Punjab and others 2012 PLC (C.S.) 1470; Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad 2013 SCMR 392; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; Muhammad Younus Aarin v. Province of Sindh 2007 SCMR 134; Muhammad Bilal Khan v. Azad Government of the State of Jammu and Kashmir 2010 PLC (C.S.) 1060; Ejaz Majeed Bhatti and 5 others v. Punjab Public Service Commission 2011 PLC (C.S. 1049 and Abdul Ghaffar and others v. The President National Bank of Pakistan and others 2018 SCMR 157 ref.

Ameer Solangi and others v. WAPDA and others 2016 SCMR 46; Government of Khyber Pakhtunkhwa v. Ihsan Ullah and others 2017 SCMR 1201 and Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 rel.

(b) Public functionaries---

----Public functionaries must act within the four corners of law.

Hafiz Tariq Nasim for Appellant (in I.C.A. No.718 of 2013).

Sardar Abdul Jabbar Tibbi for Appellants (in I.C.A. No.762 of 2013).

Malik Muhammad Ali Dadda for Appellants (in I.C.As. Nos.729, 766 and C.M. No.3 of 2013 (in I.C.A. No.718 of 2013).

Muhammad Siraj ul Islam Khan, Additional Advocate General along with Tariq Hanif, Law Officer, Health Department for Respondents.

2018 P L C (C.S.) 722

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD MOHSIN ISMAIL

Versus

MANAGING DIRECTOR PUNJAB DAANISH SCHOOL and 2 others

W.P. No.44066 of 2017, decided on 12th February, 2018.

Civil service---

---Contract appointment---Termination from service---Scope---Contention of petitioner-employee was that he was terminated without any opportunity of hearing prior to expiry of contract period---Validity---Employee was appointed on contract basis---Petitioner after accepting the terms and conditions of his contract employment submitted his joining report---Competent authority could terminate contract forthwith without any notice in case of misconduct or any other complaint---Authorities terminated the services of employee with immediate effect entitling him to receive one month's pay as per terms and conditions of contract---Behavior of employee remained unsatisfactory toward his superiors/subordinates as well as his own assignments which resulted into termination of his service---Relationship of Master and Servant would exist where employment was on the contract basis---Constitutional petition was not maintainable in such matters---No illegality or irregularity had been pointed out in the impugned order passed by the authorites---Constitutional petition was dismissed in circumstances.

PTCL v. Iqbal Nasir PLD 2011 SC 132 ref.

Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan 2017 SCMR 2010; Muhammad Ashraf Tiqana and others v. Pakistan and others 2013 SCMR 1159 and Samina Kanwal v. Director Punjab Forestry Research Institute, Faisalabad 2011 PLC (C.S.) 1553 distinguished.

Dr. Abid Ali v. Chief Secretary, Government of Punjab and 3 others 2017 PLC (C.S.) 488; Mubashar Majeed v. Province of Punjab and 3 others 2017 PLC (C.S.) 940; Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642; Major (R) Nisar Ali v. Pakistan Atomic Energy Commission and another 2004 PLC (C.S.) 758; 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.

Mohammad Haseeb Javed, Malik Mohammad Suleman Awan and Adnan Malik Awan for Petitioner.

2018 P L C (C.S.) 726

[Lahore High Court]

Before Jawad Hassan, J

Dr. TAHIR SIDDIQUE

Versus

GOVERNMENT OF THE PUNJAB and 3 others

W.P. No.21045 of 2014, heard on 22nd February, 2018.

Civil service---

---Ad-hoc appointment---Minimum criterion---Scope---Regularization of service---Recruitment through Public Service Commission---Effect---Employee who was working on ad-hoc basis applied for regular appointment against the posts advertised by Public Service Commission but he was not selected being lower in merit---Validity---Benefit of regularization should be given to ad hoc employee who fulfilled the minimum criteria of appointment established in tests administered by the Public Service Commission---Case of petitioner was to be considered separately for the purpose of recruitment---Petitioner was entitled to be regularized on the post in question with effect from the date of his interview held by the Public Service Commission and he was also for the salary if any---Authorities were directed to regularize the services of petitioner within fortnight---Constitutional petition was allowed accordingly.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Sohail Jute Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of finance and others PLD 1991 SC 329), Samiullah Khan Marwat v. Government of Pakistan through Secretary Establishment, Islamabad and another 2003 SCMR 1140; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Government of Sindh v. Saleem Raza 2001 SCMR 701 ref.

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

Pervaiz Inayat Malik for Petitioner.

2018 P L C (C.S.) 746

[Lahore High Court]

Before Shahid Karim, J

MUNIR AHMAD

Versus

FEDERATION OF PAKISTAN and others

W.P. No.38449 of 2015, decided on 18th December, 2017.

(a) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act (II of 2007)] ---

----Ss. 6(1), 6(2) & 9---Rules of Business, 1973, R.15(2)---Chairman of Pakistan Electronic Media Regulatory Authority ("PEMRA"), appointment of---Advertisement for the post and selection process---Non-transparency and non-objectivity---Eligibility and educational qualification criteria advertised for the post of Chairman PEMRA was subsequently watered down through a fresh advertisement, with ulterior motives, seemingly to accommodate the respondent (incumbent Chairman PEMRA)---In the earlier advertisement, the criteria of appointment was the guidelines laid down by the Supreme Court in different cases for appointments to regulatory bodies, but the subsequent advertisement provided that the selection was to be made in line with the Civil Establishment Code, 2007---Furthermore no record had been produced before the court which would shed any light on the respective academic qualifications of the candidates who appeared before the Selection Board and which were taken into consideration for the purposes of comparative analysis between the respondent and the other candidates---Record was lacking in any material particulars regarding the objective criteria followed by the Selection Board in order to show objectivity, transparency and due diligence---Composition of the Selection Board entirely consisted of members who were part of the Government and directly reported to the Prime Minister---None of the members of the Selection Board was specialized in the field of media or transmission---No proper summary was presented before the Prime Minister in terms of R.15(2) of the Rules of Business, 1973 to enable him to make the selection for the post in question---Salary package approved for the respondent was far in excess of the one which was mentioned in the advertisement and also much more than the salary due to an officer in the respondent's pay scale---No document was produced which would show that the salary package of respondent was approved by the President, as required under S.9 of the Pakistan Electronic Media Regulatory Authority Ordinance , 2002---High Court declared the appointment of the respondent as Chairman, PEMRA without lawful authority and of no legal effect and hence void ab initio and issued certain directions to undertake a fresh procedure to fill the vacant post and those of heads of departments and administrative agencies including regulatory authorities.

High Court recorded elaborate reasoning for allowing the Constitutional petition and issued directions for making the appointments of heads of departments and administration agencies including regulatory authorities; Appointments of heads of departments and administrative agencies including regulatory authorities must conform to settle principles of proprietary, transparency and objectivity. Regulators and supervisors needed a substantial degree of independence both from the government and the industry in order to fulfill their mandate and contribute to the achievement and preservation of financial and democratic stability. Chairman of Pakistan Electronic Media Regulatory Authority (PEMRA) was not to speak the Government line, therefore, process of his appointment should be such as not to smack of exercising control in a manner that placed a premium on loyalty and ideological affinity. It should not be a tool of governmental control. Appointment process of the Chairman PEMRA must be consistent with the provisions and overall structure of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and the Constitution.

In the original advertisement for the post of Chairman PEMRA, qualification of the prospective candidates was mentioned as Masters from a Higher Education Commission (HEC) recognized university in the country or abroad. Another significant eligibility criteria was the requirement of the prospective candidates to provide written evidence of 15 years' experience in organization of governance, management, administration, financial management, media management and marketing. This had a direct nexus with the post of Chairman PEMRA which was primarily concerned with the administration and management affairs. Subsequent fresh advertisement for the post was issued wherein significant aspects of the previous advertisement were conspicuously absent. For example, the academic qualification was watered down from Masters degree to graduation in media sciences, business, management, finance, economics or law from HEC recognized local/foreign university. Prima facie, it seemed that there was no cause for the academic qualification to be lowered unless the appointing authority had a pre-disposition to appoint the respondent (incumbent Chairman PEMRA) and was therefore compelled to structure the advertisement in such a way that the respondent could be accommodated. The previous advertisement required written evidence of fifteen years' experience in organizations of governance, management, administration, media management and marketing etc. This condition in the subsequent advertisement was got varied in such a way that the advertisement merely required written evidence of twenty years' experience in media, business, management, finance, economics or law. Therefore, the more stringent requirement of experience in organizations of governance, media management etc. was toned down and the experience which was required to be furnished was merely with regard to any of the disciplines in general i.e. media, business, etc. Post of Chairman PEMRA by its very nature demanded administrative and managerial skills and for which evidence was to be furnished in terms of the earlier advertisement. That condition was suitably amended and the aspects of governance and media management were not provided in the subsequent advertisement which also pointed to an ulterior motive in amending the said condition in order to suit the qualifications of the respondent. There was no evidence that the respondent had any experience in matters of governance, media management, administration etc. but on the other hand he indeed had experience in media in general as he was a journalist previously and was associated with a television channel prior to his joining as Chairman PEMRA. The most significant change brought about in the subsequent advertisement was relating to the selection procedure and contrary to the earlier advertisement, the selection of the candidates was to be made in line with the prescribed procedure laid down by the Government in Civil Establishment Code-2007 (Volume-I, Chapter-II, Sr. Nos.140 and 141, pages 213-217). In the earlier advertisement, the criteria of appointment was the guidelines laid down by the Supreme Court to which no mention was made in the subsequent advertisement. Relevant provisions of the Civil Establishment Code did not lay down any guidelines or essential conditions to be considered for appointment to high posts of regulatory bodies of the Federal Government nor did it cater to the elements of independence and transparency which was at the heart of such appointment process.

Muhammad Yasin v. OGRA PLD 2012 SC 132 and Muhammad Ashraf Tiwana v. Federation 2013 SCMR 1139 ref.

Academic qualification for the appointment of Chairman PEMRA was laid down as graduation in the disciplines identified in the column relating to eligibility and qualification. It was not clear whether the respondent completed his graduation in either media sciences, business, management, finance, economics or law. It was common knowledge that graduation was not a professional degree and was a step towards acquiring a professional degree. A basic qualification was laid down for the appointment to the post of Chairman PEMRA who headed an authority which regulated the entire electronic media in the country and was tasked with the onerous responsibility of the standards of education and entertainment and to enlarge choice to the people in the media for news, current affairs etc. and to improve the access of the people to mass media at the local and community level.

Appointing authority and the respondent were extremely reluctant to produce the record of the selection process as directed by the High Court and went to the extent of stating that any such order requiring the production of the record was mala fide and beyond the authority of the High Court. Such position ran counter to the established principles of judicial review on administrative decisions on the ground that no procedural impropriety had crept in the entire process of selection of a candidate for a post such as the one in question. The least that was required of the respondent and appointing authority was to have produced the entire record by which it could be demonstrated without an iota of doubt that the process was fair and impartial and was in conformity with the settled principles for such appointments to be made. Number of candidates appeared for an interview, which was part of the selection process. At least four of the candidates possessed a doctorate degree and once again the record was lacking in respect of those candidates and the reasons which weighed with the Selection Board not to consider these candidates who had outstanding academic credentials. Likewise, the appointing authority had not produced any record relating to other candidates interviewed by the Selection Board so as to enable the Court to see that the discretion was properly exercised and an informed decision was made by the Selection Board. Thirty different questions were asked from candidates during the interview, therefore, a meticulous record should have been maintained with regard to each candidate and the answers to these questions furnished by that candidate. These answers must have been compared inter se by the Selection Board while making its decision to short-list the candidates. The analysis of those answers by the members of the Selection Board and the conclusions drawn on the basis of those answers had been conspicuously withheld by the appointing authority. The failure of the appointing authority to produce said record voluntarily and of its own motion before the High Court would give rise to an inference that the entire process was farcical and opaque and it was not certain that these questions were, in fact, put to the candidates and the decision was made by objectively making an assessment on the basis of the answers delivered by the candidates respectively. Record was lacking in any material particulars regarding the objective criteria followed by the Selection Board in order to show objectivity, transparency and due diligence.

No proper summary was presented before the Prime Minister to enable him to make the selection. Rule 15(2) of the Rules of Business, 1973 require a self-contained, concise and objective summary to be placed before the Prime Minster stating relevant facts and points for decision. No such summary was produced before the High Court.

Salary package ultimately approved for the respondent was far in excess of the one which was mentioned in the advertisement. Respondent relied on a caveat mentioned in the advertisement relating to the salary package being negotiable but the fact remained that in case of an exceptional salary package being approved in favour of a candidate, it had to be determined as a fact that the candidate possessed outstanding abilities and experience. No record has been produced on the basis of which it was concluded by the competent authority that the respondent possessed far more outstanding abilities and experience as compared to the other candidates deserving an inflated salary package which was beyond the normal salary package due to an officer in the respondent's scale. Competent authority under section 9 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was the President of Pakistan but no document was produced which would show that the salary package of respondent was approved by the President, therefore, it had to be presumed that there was no approval by the President which too offended the clear mandate of section 9 of the Ordinance.

Composition of the Selection Board entirely consisted of members who were part of the Government and directly reported to the Prime Minister. None of the members was an independent member who was not part of the Government or the Division which was the controlling Division of PEMRA and so could act in a bipartisan manner and who could exercise his discretion without any dictation or extraneous considerations. Also none of the members of the Selection Board was specialized in the field of media or transmission who could assess properly and with dexterity the merit and competence of the candidates who applied for the post. Setting up of such a Selection Board was a complete farce and a mockery of the entire process which was to follow. The natural inference to be drawn from the composition of such a Selection Board would be that the Board was likely to be influenced by the executive which had a bias in favour of a particular candidate and could exert pressure on the Selection Board to select a candidate more suited to the executive and the Government so as to further the political agenda of that Government in myriad of ways by exercising sway over the electronic media.

High Court declared the appointment of the respondent as Chairman, PEMRA without lawful authority and of no legal effect and hence void ab initio. As a consequence, the notification of his appointment was set aside and the position of Chairman, PEMRA was deemed to be vacant.

High Court directed that the position of Chairman PEMRA shall be filled and appointment made after adhering to a rigorous and transparent selection process undertaken with due diligence to accord with the standards and criteria indicated in the opinions of the Superior Courts; as well as the four-tier process for making appointments to key positions. Said four-tier process would be deemed to be incorporated in the Civil Establishment Code; that the concerned Division of the Federal Government shall, prior to a fresh appointment, draw up a set of rules to be followed in any future selection process; that the Selection Board shall comprise of bipartisan and independent nominees/members, and that a complete record of the appointment process shall be maintained and a comprehensive summary shall be submitted to the Prime Minister.

(b) Constitution of Pakistan---

---Art. 199(1)(b)(ii)---Judicial review of an appointment of a person to an administrative agency/regulatory body---Locus standi of petitioner---Scope---Jurisprudential connection was established between the citizens' rights guaranteed by the Constitution and the appointment process for posts to administrative agencies/ regulatory bodies---Power of judicial review conferred jurisdiction and authority on the court to control executive action in the matter of making appointments to public office against relevant statutory provisions---In seeking a relief under Art.199(1) (b)(ii) of the Constitution, there was no requirement that a party seeking (judicial) review must allege facts showing that he was himself adversely affected nor did it insulate executive action from judicial review, nor any public interest from being protected through the judicial process---Court would not seek proof of direct injury though it may enquire into the motives of the petitioner.

Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, (2014) 1 SCC 161 and Gorakhpur University Aff. College Teacher Asso. v State of U.P 2015 (9) ADJ 283 ref.

(c) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act (II of 2007] ---

----S. 6(1)---Constitution of Pakistan, Arts.19A & 199(1)(b)(ii)---Constitutional petition challenging appointment of Chairman Pakistan Electronic Media Regulatory Authority ("PEMRA")---Locus standi of petitioner---Legitimate expectation, doctrine of---Right to acquire information of the entire process (of selection of the Chairman PEMRA) could be culled out from Art.19A of the Constitution and thus enforced through the remedy of Art.199(1)(b)(ii) ---Petitioner was enforcing his right enshrined in Art.19A and thus had sufficient interest in maintaining present petition---Petitioner did not have to allege an injury in fact---Pakistan Electronic Media Regulatory Authority was a buffer between the Government and the right to information which impacted a vast majority of the people of the country, and its role as a gatekeeper would be seriously undermined if the appointment process under S.6 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was tainted and suffered from the vice of political intrusion---From the dicta of the superior courts read in conjunction with Art.19A of the Constitution, as also from the very nature of PEMRA as a regulator, procedural and substantive requirements on public authorities were imposed by the 'doctrine of legitimate expectation'---Appointment of the Chairman PEMRA generated a legitimate expectation and the public authority/ Executive was required to take the expectation into account---Constitutional petition was held to be maintainable accordingly.

Muhammad Yasin v. OGRA PLD 2012 SC 132 ref.

R. (on the application of Bibi) v Newhan LBC [2001] EWCA Civ 607 and [2002] 1 W.L.R 237).

Mohammad Azhar Siddique, Abdullah Malik, Munir Ahmad, Muhammad Iram, Mian Shabbir Asmail, S. Perveen Mughal, Muhammad Rizwan, Mafia Kausar and Adeel Hassan for Petitioners.

Ali Shah Gillani for Respondents Nos.2 and 4.

Bilal Ahmad for Respondent No.3.

Nadeem Mehmood Mian, Asstt. Attorney General for Respondents.

2018 P L C (C.S.) 806

[Lahore High Court]

Before Jawad Hassan, J

BASHARAT ALI

Versus

MUHAMMAD AMIN VAINS

Crl. Orgl. No.94210-W of 2017, decided on 8th May, 2018.

Constitution of Pakistan---

---Art. 204---Contempt proceedings, initiation of---Contention of petitioner was that he was medically fit for appointment and did not have colour blindness but police authories had not appointed him---Petitioner had filed contempt petition for non-compliance of order passed by the High Court in constitutional petition---Validity---Issue of colour blindness might be an impediment in the way of investigation of crime---Said issue despite direction of the High Court had not be resolved---High Court constituted Special Medical Board to examine the petitioner with regard to issue of colour blindness and submit report---Petition was disposed of accordingly.

Muhammad Javed Butt for Petitioner.

Sultan Mehmood A.A.G.

Atiq Ahmad, Chief Consultant, Services Hospital, Lahore.

2018 P L C (C.S.) 831

[Lahore High Court]

Before Ali Baqar Najafi, J

JAMAT ALI

Versus

GOVERNMENT OF PUNJAB through Secretary Home and others

W.P. No.73881 of 2017, decided on 7th May, 2018.

Police (Award of Compensation) Rules, 1989---

----Rr.6 & 12---Punjab Civil Services (Pension) Rules, 1995, R.4(10)---Death compensation---Entitlement of parents---Petitioner being father of Shaheed police constable had claimed legal share from the compensation given to the widow---Validity---Held, only widow and children of the Shaheed were entitled to financial assistance---Such compensation was to be paid not as a diyat money but as a direct consequence of Shahadat---Constitutional petition was dismissed in circumstances.

Mst. Hussan Jamala and another v. Government of Khyber Pukhtunkhwa through Secretary, Home and Tribal Affairs, Peshawar PLD 2013 Pesh. 1; Mst. Sabra Begum and another v. Mst. Iffat Shafique and 2 others 2006 YLR 2678; Mst. Ameer Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 and Zaheer Abbas v. Pir Asif and 6 others 2011 CLC 1528 ref.

Federal Government of Pakistan v. Public at Large and others PLD 1991 SC 731 rel.

Muhammad Younas Bhullar for Petitioner.

Ch. Iftikhar Iqbal Ahmad, Assistant Advocate-General Punjab.

2018 P L C (C.S.) 838

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD SAGEER KHAN and 3 others

Versus

FEDERATION OF PAKISTAN and 2 others

W.P. No.103421 of 2017, decided on 1st February, 2018.

Master and servant---

----Employer Corporation having non-statutory rules---Effect---Principle of master and servant was applicable---Rules, policy and procedure enacted by the Board of Directors of the Corporation were for internal control and management having no approval of Federal Government---Said Rules, policy and procedure of the Corporation were non-statutory in nature---Employee aggrieved of actions of the Corporation, under the said Rules could not resort to constitutional jurisdiction of High Court---Petitioners could agitate the matter before appropriate forum---Constitutional petition being not maintainable was dismissed accordingly.

Muhammad Riaz v. National Fertilizer Corporation of Pakistan (Pvt.) Limited and others 1992 ALD 535 (1); Pakistan Defence Officers, Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Munda Eleven Cricket Club v. Federation of Pakistan and 4 others PLD 2017 Lah. 805 and Muhammad Zaman and others v. Government of Pakistan and others 2017 SCMR 571 rel.

Ch. Zulfiqar Ali, Faisal Grewal and M. Ahsin Butt for Petitioners.

2018 P L C (C.S.) 842

[Lahore High Court]

Before Jawad Hassan, J

ZULFIQAR ALI

Versus

PROVINCE OF THE PUNJAB and 3 others

W.P. No.66652 of 2017, decided on 9th May, 2018.

Civil service---

---Contract Appointment---Termination of service---Mala fide---Proof---Petitioner employee was terminated on the allegations of poor performance and inefficiency---Contention of employee was that he was terminated without affording any opportunity of personal hearing---Validity---Petitioner employee was appointed on contract basis---Employee after accepting terms and conditions of his contract submitted his joining report---Extension in contract appointment could not be granted as a matter of routine---Appointing authorities were to take into consideration the performance of contract employee and extension in contract appointment could only be recommended if performance of employee remained good---Behavior of employee remained unsatisfactory towards his superiors/subordinates---No mala fide had been proved on record on the part of department---Mere allegation of mala fide was not sufficient to set aside the impugned order---Case of petitioner employee was considered by the Committee with the mandate to submit its recommendations with regard to contract employees---Employee was not recommended by the said Committee for regularization/extension in the contract period---Opportunity of personal hearing was afforded to the employee and thereafter inviting his reply/defence impugned order was passed---Relationship of master and servant existed where employee was on contract basis---Constitutional petition in circumstances was not maintainable---No illegality or infirmity had been pointed out in the impugned order---Constitutional petition was dismissed in circumstances.

Lt. Col. Rtd. Aamir Rauf v. Federation of Pakistan through Secretary M/o Defence and 3 others 2011 PLC (CS) 654; Nadeem Ahmed v. Pakistan State Oil Company Limited and another 2005PLC (C.S.) 1447; Dr. Abid Ali v. Chief Secretary, Government of Punjab and 3 others 2017 PLC (C.S.) 488 and Mubashar Majeed v. Province of Punjab and 3 others 2017 PLC (C.S.) 940 rel.

Zafar Iqbal Chohan for Petitioner

Ch. Sultan Mehmood, Assistant Advocate-General.

Dr. Shahid Nabeel on behalf of the Respondents Nos.2 to 4.

2018 P L C (C.S.) 889

[Lahore High Court]

Before Jawad Hassan, J

UMAR HAYAT KHAWAJA

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN and 9 others

W.P. No.7087 of 2014 decided on 13th February, 2018.

Civil service---

---Bank employee---Promotion---Estoppel, principle of---Applicability---Authorities in pursuance of order passed in an earlier constitutional petition afforded opportunity of hearing to the petitioner employee and promoted him as Senior Vice President with effect from 01-05-2006---Employee received arrears of pay accrued to him in pursuance of his promotion without any protest and objection---Petitioner had accepted his promotion with his free will and consent from 01-05-2006---Nothing was left to be claimed by the employee qua his promotion---Petitioner's contention that he was to be promoted with effect from 01-12-2002 and not from 01-05-2006 had no weight as same was hit by principle of estoppel---Employee had not disclosed that he had sought promotion through constitutional petition which was dismissed and civil petition for leave to appeal against the same was pending before the Supreme Court---Employee had not approached the Court with clean hands and was not entitled to any relief---Constitutional petition was dismissed in circumstances.

Dr. Shahnaz Nadir v. The Government of NWFP through Chief Secretary Civil Secretariat Peshawar and 3 others 2005 PLC (C.S) 88; Muhammad Pervaiz v. The Deputy Commissioner, Narowal and 8 others 2004 PLC (C.S.) 201; Azad Jammu and Kashmir Government and others v. Syed Shakir Shah and others 2002 PLC (C.S) 821 and Enmay Zed Publications (Pvt.) through Director General v. Sindh Labour Appellate Tribunal through Chairman and 2 others 2001 SCMR 565 ref.

Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another 2016 SCMR 183; Market Committee Sahiwal v. Syed Zaigham Ali and others 2012 PLC (C.S.) 319 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 dist.

Secretary Economic Affairs Division, Islamabad and others v. Anwar ul Haq Ahmad and others 2013 SCMR 1687 rel.

Petitioner in Person.

2018 P L C (C.S.) 971

[Lahore High Court]

Present: Ali Baqar Najafi, J

AMIR HAYAT

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others

W.P. No.31278 of 2016, decided on 15th February, 2018.

Punjab Public Service Commission Regulations, 2016----

----Reglns. 59 & 62---Appointment against the post of Sub-Inspector (Police)---Non-joining of post by the successful candidate---Effect---Three successful candidates could not join the service due to medical/personal reasons and Public Service Commission advertised the posts including the said three posts---Contention of petitioner was that he being next in the merit list should have been appointed against the vacant posts as per Rules---Validity---Substitute could be provided from the merit list during its validity period if so requested by the department---Merit list would remain valid for twelve months---Post could be advertised only if a suitable candidate was not available and it was mandatory that whenever vacancy occurred the post had to be re-advertised---Petitioner had promptly approached the High Court within said period of one year---Candidate had right to be dealt with in accordance with law---Authorities were directed to adjust the petitioner and issue him appointment letter for the post in question on the basis of merit list already issued---Constitutional petition was allowed accordingly.

Muhammad Saeed Anwar v. Punjab Public Service Commission C.P.No.602-L/2016 distinguished.

Ali Raza Gillani for Petitioner.

2018 P L C (C.S.) 997

[Lahore High Court]

Present: Muhammad Farrukh Irfan Khan, J

TARIQ MAQSOOD

Versus

GOVERNMENT OF PAKISTAN and others

W.P. No.51310 of 2017, decided on 1st February, 2018.

(a) Civil service---

----Suspension---Terms and conditions of service---Service Tribunal had exclusive jurisdiction in the matter of terms and conditions of service---Civil servant was to wait for decision of his application/representation till expiry of ninety days and if it remained unattended during that period, he might approach Service Tribunal for redressal of his grievance---Jurisdiction of High Court had been ousted in the matters with regard to terms and conditions of service---Constitutional petition being not maintainable was dismissed in circumstances.

Imam Bakhsh v. Deputy Commissioner Layyah 1992 SCMR 365; Rakhsana Ijaz v. Secretary Education 1997 SCMR 167 and Province of Punjab and another v. Ch. Muhammad Ashraf and another 2000 PLC (C.S.) 118 rel.

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

----R.6---Constitution of Pakistan, Art. 10-A---Constitutional petition---Disciplinary proceedings against employee---Non-supply of relevant documents along with charge sheet---Effect---Contention of employee was that inquiry officer had not supplied to him relevant documents with the charge sheet---Validity---Civil Servant had inalienable right that he/she be provided along with charge sheet all the materials and documents on the basis of which allegations/charge sheet had been framed against him---Fair trial and due process should be provided to the civil servant to determine his guilt or innocence---Without providing material, documents and information to be used against civil servant and giving an opportunity to comment and put up his stance to the same and to allow him cross-examine the witnesses there could be no due process and fair trial---Constitutional petition was disposed of accordingly.

Amir Saeed Rawn for Petitioner.

Kh. M. Usman for Respondents Nos.3 to 5.

2018 P L C (C.S.) 1052

[Lahore High Court (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD TARIQ JAVED

Versus

The AGRICULTURAL AND RESEARCH DEPARTMENT through Secretary and 2 others

W.P. No.2464 of 2009, heard on 11th September, 2017.

Civil service---

----Appointment---Non-issuance of appointment letter due to ban on recruitment---Right to life---Scope---Petitioner being successful candidate was recommended for appointment but due to ban on recruitment appointment letter was not issued---Effect---Departmental Selection Committee had recommended the petitioner as successful candidate for the post in question on 19-09-2007---Ban on fresh appointment was imposed with effect from 01-01-2008---Such ban had no legal effect and impact on the already completed process for recruitment of vacant post/s---Ban imposed by the government could not be given retrospective effect---Fundamental Right to life would include the right to livelihood and it could not hang on the fancies of the persons in authority---Valuable right having been accrued in favour of petitioner, he was entitled to the issuance of appointment letter---Impugned order was declared without lawful authority having no legal effect---Authorities were directed to issue appointment letter in favour of petitioner within thirty days on the basis of recommendations prepared by Departmental Selection Committee---Constitutional petition was allowed in circumstances.

Syed Irfan Ahmed and another v. Government of Pakistan through Secretary, Finance Ministry of Finance, Islamabad and 4 others 2009 PLC (C.S.) 4; Muhammad Rasheed v. Government of Punjab 2006 SCMR 1082; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257 and Faisal Sultan v. E.D.O. (Education) and others 2011 PLC (C.S.) 419 rel.

Muhammad Khalid Mehmood Ayaz for Petitioner.

Aziz-ur-Rehman Khan, A.A.G. for Respondents.

2018 P L C (C.S.) 1063

[Lahore High Court]

Before Jawad Hassan, J

PAKISTAN PHARMACISTS ASSOCIATION

Versus

PROVINCE OF PUNJAB and 3 others

W.P. No.30958 of 2017, decided on 9th March, 2018.

(a) Civil service

----Recruitment of Pharmacists (Field Force)---Petitioner, a Pharmacist Association had assailed the recruitment process adopted for appointment of respondents as Field Force---Validity---Neither petitioner-Association nor any of its member had participated in the recruitment process under challenge---Impugned recruitment process did not directly or indirectly effect the services of members of the petitioner-Association---Association/member were not aggrieved of the recruitment process for appointment of Pharmacists i.e. Field Force---No Fundamental Right of petitioner-Association had been infringed due to impugned recruitment process---Recruitment process was initiated through advertisement with certain terms and conditions---Petitioner to invoke constitutional jurisdiction of High Court had to establish its legal or Fundamental Rights being violated---Petitioner was supposed to have a locus standi or should be an aggrieved party by the action of authorities to initiate proceedings against them---Impugned recruitment process was only between the authorities and the candidates for Pharmacists---Action of the authorities in appointing/transferring the employees were actions in personam and not in rem---Any member of the Association individually could challenge the recruitment process if he was aggrieved thereof which he was not nor he had challenged the said process---Litigation qua legal status of petitioner-Association was pending adjudication before the civil court---Disputed question of facts could not be resolved through constitutional jurisdiction of High Court---Constitutional petition was dismissed in circumstances.

Parvez Aslam Mian Muhammad Aslam v. Synthetic Chemical Company Limited, Karachi and others PLD 1980 Kar. 401; Muhammad Yasin Fecto v. Muhammad Raza Fecto 1998 CLC 237; Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana 2015 SCMR 1739; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Fida Hussain and another v. Mst Saiqa and others 2011 SCMR 1990; Muhammad Amir v. Umer Hayat and 5 others 2010 CLC 1798; Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279 and Haseeb Raza Khan v. Sub-Registrar and others 2017 PTD 1064 ref.

Kamran Martim, v. Mst. Siera Bibi and 4 others 2017 PLC (C.S.) 597; 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; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848; Ishaq Masih v. District Coordination Officer and others 2017 PLC (C.S.) 528; Pakistan Medical Association v. Pakistan 2016 PLC (CS) 676; EOBI Officers Association of Pakistan v. EOBI 2011 PLC (CS) 336; Mutual Funds Association of Pakistan v. Federation of Pakistan 2010 PLC 306; Messrs Mutual Funds Association of Pakistan (MUFAP) v. Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan and another 2010 PLC 306; Democratic Workers' Union C.B.A. v. State Bank of Pakistan 2002 PLC (C.S.) 614 and Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Disputed question of facts---Such question could not be resolved through constitutional jurisdiction of High Court.

Fida Hussain and another v. Mst Saiqa and others 2011 SCMR 1990 rel.

Mansoor Usman Awan, Shahzeen Abdullah, Hussain Ibrahim and Barrister Hamid Azim Leghari for Petitioners.

Ahsfaq Ahmad Kharral, Assistant Advocate-General.

Barrister Haris Ramzan, Director Legal.

Aleem Akhtar Cheema, Deputy Director Legal.

Muhammad Khurished, Deputy Director Legal,

2018 P L C (C.S.) 1082

[Lahore High Court]

Before Jawad Hassan, J

HAMID MUSTAFA

Versus

UNIVERSITY OF VETERINARY AND ANIMAL SCIENCES and 6 others

W.P. No.41644 of 2017, decided on 28th February, 2018.

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

----S. 10---Removal from service---Petitioner Lecturer at University was Ph. D scholar student---Allegations against the petitioner was that he provided fake e-mail address of external examiners and manipulated the thesis evaluation---Preliminary inquiry---Evidentiary value---Confession of employee during preliminary inquiry proceedings---Contention of petitioner employee was that he had no connection with the alleged allegations---Validity---Petitioner employee had no role in the provision of list of external examiners and their e-mail addresses---Employee could not be held responsible for the act which had been done by the employees of the University---Inquiry Officer was not appointed to proceed against the petitioner but against the employees of the University---Petitioner employee had been deprived of his right to cross-examine the witnesses 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---If mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority was not fulfilled then the entire proceedings which followed would become illegal and suffer from want of jurisdiction---Any order passed in continuation of such proceedings in appeal or revision would equally suffer from illegality and would be without jurisdiction---Confessional statement of employee recorded in preliminary inquiry was not confronted to him during regular inquiry---Said statement would be invalid to impose penalty, in circumstances---Preliminary inquiry could not be taken into consideration for the purpose of final adjudication nor any evidence recorded in such inquiry could be treated as substantive piece of evidence during regular inquiry---Impugned order passed by the university authorities was set aside---Authorities were directed to reinstate the petitioner into service from the date he was terminated; he would not be entitled to any monetary back benefits as termination period had to be considered as leave without pay---Constitutional petition was allowed in circumstances.

Muhammad Yasin v. Secretary, Government of Punjab and others 2007 SCMR 1769; Syed A.S. Shah v. University of Punjab and others 2015 YLR 1733; Rashid Ahmad v. The State PLD 1972 SC 271; Allah Ditta v. Province of Punjab and 2 others 2017 PLC (CS) 437; Noor Muhammad Lashari v. Federation of Pakistan through Divisional Superintendent Pakistan Railways and 6 others 2008 PLC (C.S.) 1058; Syed Yaqoob Shah v. XEN, PESCO (WAPDA) Peshawar and others PLD 2002 SC 677; Bashir Ahmad Sheikh v. Chairman, Port Qasim Authority, Karachi and 2 others 2006 PLC (C.S.) 766; National Bank of Pakistan v. Muhammad lqbal 1998 SCMR 234 and Muhammad Khaliq-ur-Rehman v. Secretary Housing Urban Development and Publication and 2 others 2006 PLC (CS) 1320 rel.

(b) Administration of justice---

----If mandatory conditions for the exercise of jurisdiction by a court, tribunal or authority were not fulfilled then the entire proceedings which followed would become illegal and suffer from want of jurisdiction.

Malik Muhammad Awais Khalid and Amir Shafiq Chaudhry for Petitioner.

Ashfaq Ahmad Kharral, Assistant Advocate-General for Respondents.

Syed Bilal Haider, Legal Advisor UVAS.

2018 P L C (C.S.) 1103

[Lahore High Court]

Before Mudassir Khalid Abbasi, J

ALI HAMZA

Versus

GOVERNMENT OF PUNJAB and others

W.P. No.57381 of 2017, heard on 16th August, 2017.

Civil service---

----Appointment---Involvement in criminal cases (either under trial or acquitted)---Policy decision---False statement by candidate---Effect---"Criminal" and "departmental proceedings"---Distinction---Appointments of petitioners were withheld due to their involvement in criminal cases against them---Contention of department was that candidates had misstated and had sworn false affidavits concealing the fact that criminal cases were registered against them---Validity---Policy decision was taken by the department with regard to exclusion of candidates who were found involved in criminal cases either under trial or acquitted---Rational behind said policy was to select those persons who were not involved in any case of criminal nature---Policy decisions could not be interfered with under constitutional jurisdiction under Art.199 of the Constitution unless found arbitrary, unconstitutional and against public policy---Candidate making false statement was not entitled to get employment in a disciplinary force---Conduct of employee had direct bearing on the service discipline---Even acquittal in criminal cases could not be made basis for exoneration in case of violation of departmental discipline or commission of any misconduct---"Criminal proceedings" and "departmental actions" were distinguishable---Nature of evidence and standards of proof were different in both criminal and departmental proceedings---Involvement in a criminal case had rightly been made one of the factors for not getting employment in law enforcing agency---Department had prerogative to lay down criteria for recruitment---Grant of relief under constitutional jurisdiction was discretionary in nature---Petitioners must come to the Court with clean hands---Candidates had concealed facts before entering into service which had shaken their credibility---Constitutional petition was dismissed in circumstances.

Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985; Asghar Ali v. Mansoor Muzaffar Ali and 3 others 2012 PLC (C.S.) 502; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Director General, Intelligence Bureau, Islamabad v. Muhammad Javed and others 2012 SCMR 165; Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan PLD 2010 SC 695; Rahimullah Jan v. Kashif and another PLD 2008 SC 298 and Dr. Muhammad Islam v. Government of N.W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993 distinguished.

Abdul Manan v. Provincial Police Officer and 2 others 2017 PLC (C.S.) 862; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (CS) 924; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177; Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534; West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318; Messrs Syed Bhais (Pvt.) Ltd. through Director v. Government of Punjab through Secretary Local Government and 3 others PLD 2012 Lah. 52 and Muhammad Maqsood Sabir Ansari v. District Returning Officer Kasur and others PLD 2009 SC 28 rel.

Syed Karamat Ali Naqvi for Petitioner.

Muhammad Hammad Khan Rai, Assistant Advocate General for Respondents.

2018 P L C (C.S.) 1135

[Lahore High Court]

Before Mudassir Khalid Abbasi, J

AWAIS SAEED and others

Versus

GOVERNMENT OF PUNJAB and others

W.P. No.58973 of 2017, heard on 18th August, 2017.

(a) Constitution of Pakistan---

---Art. 199---Police Order [22 of 2002], Art. 7 (3) (c) (a)---Punjab Public Service Commission Regulations, 2016, Reglns. 33 & 34---Punjab Public Service Commission Ordinance (II of 1978), Ss.7 & 10---Punjab Public Service Commission Policy Decision, 2016, Policy Decision No. 166---Constitutional petition---Maintainability---Policy decision---Civil service---Appointment of Head Constables and Assistant Sub-Inspectors through promotional quota for Sub-Inspectors---Restriction was imposed on candidate for not availing more than three chances for written examination---Contention of candidates was that Reglns. 33 & 34 of Punjab Public Service Commission Regulations, 2016 imposing restriction on availing more than three chances for written examination were ultra vires the Constitution---Validity---Held, Courts was to lean in favour of upholding the constitutionality of law unless it was violative of constitutional provisions---Regulations 33 & 34 of Punjab Public Service Commission Regulations, 2016 were not in derogation to Art. 7 (3) (c) (a) of Police Order, 2002---Statute must be in conformity with the constitutional provisions with reference to Fundamental Rights of the citizens---Policy decisions should not be interfered by the Court under constitutional jurisdiction unless found arbitrary, unconstitutional and against public interest---Law could be struck down as ultra vires if it was repugnant to constitutional provisions or some other statute, or with its parent Act and was not reasonable and opposed to public policy---Every legislation was subject to judicial review under constitutional jurisdiction and could be struck down on the ground that prescribed statutory procedure had not been followed---No candidate had vested right to be governed by any particular set of rules---Rational and legislative intent behind a restriction of availing not more than three chances among serving Assistant Sub-Inspectors and Head Constables was to give an opportunity to other employees and to avoid an endless exercise on the part of unsuccessful candidates---Impugned Regulations 33 & 34 of Punjab Public Service Commission Regulations, 2016 were not ultra vires the Constitution or any other law---Constitutional petition was dismissed in circumstances.

Syed Aizad Hussain and others v. Motor Registration Authority and others PLD 2010 SC 983; Dr. Muhammad Aslam Khakhi v. The State and others PLD 2010 Federal Shariat Court 1; Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499; Arif Ghafoor v. Managing Director, H.M.C., Taxila PLD 2002 SC 13; Superintendent of Police, D.I. Khan and others v. Ihsanullah 2007 SCMR 562; Muhammad Iqbal v. District Officer, Sahiwal and another 2011 SCMR 534; Government of Pakistan through Secretary M/o Finance and others v. Asif Ali and others 2006 SCMR 1005; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Messrs Home Comforts v. Mirza Rashid Baig and others 1992 SCMR 1290; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924; Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Javed and others 2015 SCMR 269; Finance Secretary, Government of Pakistan, Islamabad and 2 others v. Shahid Hussain and others 1992 SCMR 77 and Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772 rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Policy decision was not to be interfered by the Court under constitutional jurisdiction unless found arbitrary, unconstitutional and against public interest.

(c) Interpretation of statutes---

---Principle of harmonization was to be followed while interpreting a statute.

Abbas Ali for Petitioners.

Muhammad Hammad Khan Rai, Assistant Advocate General for Respondents.

2018 P L C (C.S.) 1230

[Lahore High Court]

Before Jawad Hassan, J

WALI-UR-REHMAN

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 4 others

Writ Petition No.2096 of 2013, decided on 26th April, 2018.

Civil service---

----Employees having retired under Voluntary Retirement Separation Scheme sought one increment for pension calculation which was rejected by the employer Corporation---Validity---Employer-Corporation had announced voluntary retirement separation scheme with certain terms and conditions---Employees had accepted the said retirement scheme and availed its benefits in terms of their pre-mature retirement---Voluntary retirement separation scheme was a contract between the employer-Corporation and employees and employees had option to accept the same or otherwise---Employees 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 served after they opted for retirement under the scheme---Terms and conditions of scheme were opted by the employees voluntarily without any coercion or duress---Employees after accepting the emoluments could not turn around and seek additional benefits---Employees had approached the Court after lapse of thirteen years and no reason had been given for said delay---No illegality or perversity had been pointed out in the impugned order passed by the Corporation---Constitutional petition was dismissed in circumstances.

Ms. Salma Moosajee and another v. Federation of Pakistan and others 2014 SCMR 135; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 PLC (C.S.) 218; Muhammad Rafiullah and others v. Zarai Taraqiati Bank Limited (ZTBL) through President, Islamabad and another 2018 SCMR 598; Muhammad Din v. Abdul Ghani and another 2012 SCMR 1004; Wali ur Rehman and others v. State Life Insurance Corporation and others 2006 SCMR 1079 and Shahzad Nazir and 5 others v. Executive Vice President PTCL Lahore and 3 others PLJ 2009 Lahore 758 ref.

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

Bilal Akhtar and others v. President/Chief Executive , Officer and 6 others 2017 PLC (C.S.) 564; Muhammad Rafiullah and others v. Zarai Taraqiati Bank Limited (ZTBL) through President, Islamabad and another 2018 SCMR 598 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 PLC (C.S.) 218 rel.

Mian Muhammad Sharif for Petitioner.

2018 P L C (C.S.) 1261

[Lahore High Court]

Before Shams Mehmood Mirza Chairman, Faisal Zaman Khan and Muhammad Sajid Mehmood Sethi, Members

MUHAMMAD ASAD ULLAH SIDDIQUI

Versus

THE REGISTRAR LHC, LAHORE and another

S.A. No.4 of 2016, decided on 2nd March, 2018.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Judicial officer---Dismissed from service---Reinstatement---Employee having remained gainfully employed during the intervening period of dismissal---Back benefits, grant of---Procedure---Appellant was reinstated into service by the Service Tribunal---Judicial officer moved representation for grant of back benefits along with affidavit demonstrating the amount earned by him from the date of dismissal to the date of reinstatement---Authority dismissed the said representation on the ground that employee remained gainfully employed during the period of dismissal---Validity---Appellant was entitled to the back benefits including salary for the period he remained out of service on account of dismissal which was termed as wrongful by the Service Tribunal---Judicial officer was entitled to the salary minus the amount that he earned during the period intervening from his dismissal from service and reinstatement---Said aspect of the matter had not been considered by the Authority while rejecting the representation of appellant---Impugned order passed by the Authority was set aside---Tribunal observed that Representation filed by the appellant be treated to be pending before the competent authority which should be decided afresh after taking into consideration the documents submitted by the employee along with his affidavit---Appeal was allowed in circumstances.

Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 at 438 rel.

Mahmood Ahmad Qazi for Appellant.

Zubda Tul Hussain for Respondents.

ORDER

This service appeal is directed against order/letter dated 20.04.2016 whereby the representation preferred by the appellant for grant of back benefits was dismissed.

1. The facts of the case are not in dispute and may be stated as under. The appellant while working as a civil judge was terminated from service on 10.11.2003. The petitioner preferred an appeal (Service Appeal No.16 of 2003) against his termination, which was allowed by this Tribunal through judgment dated 16.05.2014 and the appellant was accordingly reinstated in service. The appellant thereafter filed a representation before the competent authority for grant of back benefits from the date of dismissal to his date of reinstatement. Since appellant remained gainfully employed throughout the intervening period, he also filed an affidavit along with other supporting material demonstrating the amount earned by him. His representation for the grant of back benefits was, however, declined on 20.04.2016, hence this appeal.

2. The operative part of this Tribunal's order dated 16.05.2014 passed in Service Appeal No.16 of 2003 reads as under:

For the above reasons we allow this appeal and set aside the order dated 10.11.2003 regarding dispensing with the services of appellant. The appellant is ordered to be reinstated in service. The entitlement of the appellant to claim back benefits, however shall be decided by the learned Authority because no civil servant can claim salary and other benefits without performing the duty therefore learned Authority will determine as to whether appellant is engaged in gainful employment during the intervening period. Needless to say that the learned Authority may probe into allegation of misconduct against the appellant if deemed appropriate. The appellant would continue to be treated as probationer on assumption of duties and acceptance of his appeal in no way would relieve him of conditions for confirmation in accordance with relevant law and rules.

2018 P L C (C.S.) 116

[Peshawar High Court]

Before Yahya Afridi and Rooh ul Amin, JJ

MUHAMMAD ZAFAR ALI and 10 others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment, Islamabad and 6 others

Writ Petition No.3151-P of 2014, decided on 20th April, 2016.

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

----Preamble---Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, Preamble---Provincial Police Officers---Promotion of---All Pakistan Service---Contention of petitioners being Provincial Police Officers BPS-17 was that there was no service structure for them beyond BPS-18 at provincial level---Validity---Provincial Police Officers on reaching BPS-18 would enter the All Pakistan Service and they would be governed under Civil Servants Act, 1973 and Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---Provincial Police Officers up to BPS-17 were not to be dealt with by or under Federal Service Laws but when they reached for promotion to BPS-18 then they would enter (encadred into) the Federal Public Service and only thereafter their service would come under the Federal Service regime---Provincial Services and Federal Services were not only distinct services but had also been kept separate with their distinct allocated realm of administrative fields---Services which were common to both the Federation and Provinces had been vested in the jurisdiction of Parliament---Constitutional Court had no jurisdiction to strike down rules with regard to terms and conditions of service of a civil servant even if challenge was made on the touchstone of violation of fundamental rights---Constitutional Courts could refuse relief on the ground of jurisdiction but Government was to ensure a transparent and conducive service environment---Provincial and Federal Government should convene a joint meeting to consider the grievance of the petitioners---Constitutional petition was dismissed in circumstances.

Muhammad Zafar Ali's case 2015 SCMR 365; Mian Amanul Mulk's case PLD 1981 Pesh. 1; Abdul Bari's case PLD 1987 Kar. 290 and Qamar Dost Khan's case 2006 SCMR 1630 ref.

Mehrajuddin's case PLD 1959 SC (Pak) 147; Wood v. Riley (1867) LR 3 CP-26; Re: Marr and another (bankrupts) case (1990) 2 All ER 880 and Contempt Proceedings Against Chief Secretary Sindh 2013 SCMR 1752 rel.

(b) Constitution of Pakistan---

----Arts. 212 & 199---Rules relating to terms and conditions of service---Constitutional jurisdiction of High Court---Scope---Constitutional Court had no jurisdiction to strike down rules with regard to terms and conditions of service of a civil servant even if challenge was made on the touchstone of violation of fundamental rights.

(c) Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S. 4---Jurisdiction of Service Tribunal, invocation of---Final order---Scope---Civil servant in order to invoke the jurisdiction of Service Tribunal inter alia had to challenge a final order passed by the departmental authority---Vires of rules and orders passed during the inquiry proceedings could be termed as final order.

Engineer Musharaf Shah's case 2015 PLC (C.S.) 215 rel.

(d) Interpretation of Constitution---

----Principles of harmonizing and preserving every provision in the Constitution should be ensured while interpreting divergent Constitutional provisions.

Shahid Nabi Malik's case PLD 1997 SC 32 and Sabir Shah's case PLD 1994 SC 738 rel.

(e) Interpretation of Constitution---

----Where different provisions with regard to one subject matter had been provided then the latter should prevail.

(f) Interpretation of Constitution---

----No redundancy of Constitutional provisions---Each and every provision should be given its due and appropriate weight.

(g) Interpretation of Constitution--

---Interpretation of Constitution---Principles detailed.

Following are the principles in interpreting constitutional provisions:-

(i) Unlike other instruments, constitutional provisions cannot be changed or amended frequently.

(ii) Constitutional provisions are not to be slaves of the past and are to be read with the changing circumstances as a living organism.

(iii) Constitutional provisions are to be read as a whole, to discover the true intention of the law makers.

(iv) Constitutional provisions cannot be declared redundant, absurd or inconsistent.

(v) Constitutional provisions, if found to be apparently inconsistent with each other, then grammatical and literal construction of the words are not to be adopted, and instead the same are to be interpreted in order to harmonise the apparently conflicting provisions and to render their application purposeful and in accordance with the intention of the law makers.

(vi) Constitutional provisions, when they deal with two distinct situations or matters, then each provision is to operate in its allotted field independently.

(vii) Subject to the above guidelines, what is true of the interpretation of the ordinary statute is not anytheless true to the case of constitutional provisions and the same rules apply equally to both.

Muhammad Zafar, Tahirkheli, and Ghulam Nabi, for Petitioners.

Syed Muhammad Attique Shah, Syed Arshad Hussain Shah, Additional Attorney General and Manzoor Khalil, DAG, along with Qaiser Khan Khattak, S.O, Police Department, Islamabad for Respondents.

Umar Farooq Adam, Additional Advocate General (Provincial Government).

Ijaz Anwar for Respondents.

2018 P L C (C.S.) 316

[Peshawar High Court (D.I. Khan Bench]

Before Muhammad Ayub Khan and Ijaz Anwar, JJ

SANAULLAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

W.P. No.865-D of 2015, decided on 17th April, 2017.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----Preamble---Appointment against the post of Secretary, Village/ Neighbourhood Council---Plea of petitioner was that he secured 70 marks in written examination but he was deprived of appointment---Validity---Candidate obtained 70 marks but failed in computer test and interview---High Court, under its constitutional jurisdiction, could not enter upon the domain of the interviewing authorities or could question the computer test conducted by the authorities---Every department while making any appointment was bound by the recruitment policy formulated under the provisions of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---No illegality or irregularity had been committed by the department while making the impugned appointment---Capability of candidate could not be adjudged without conducting computer test---High Court could not enter into domain of appointing authority or selection committee to judge the potential of a candidate---Constitutional petition was dismissed in circumstances.

2014 SCMR 157; 2015 SCMR 112 and 2000 SCMR 966 rel.

Muhammad Mohsin, A.G. for Petitioner.

Kamran Hayat Miankhel for Respondent No.1.

Muhammad Yousaf Khan for Respondents Nos.2 to 5.

2018 P L C (C.S.) 342

[Peshawar High Court (Abbottabad Bench)]

Before Qaiser Rashid Khan and Qalandar Ali Khan, JJ

Dr. FARHAT NAZ

Versus

CHAIRMAN SELECTION/PROMOTION BOARD AYUB TEACHING HOSPITAL, ABBOTTABAD and others

Review Petition No.19-A of 2016, decided on 24th January, 2017.

Civil Procedure Code (V of 1908)---

----S. 114---Review of judgment---Appointment of Senior Registrar in a hospital was assailed and High Court referred the matter to Appointing Authority for selection in accordance with rules---Petition assailing judgment under review was pending before Supreme Court and meeting of Selection Committee had been convened for selection of not only Senior Registrar but also Assistant Professors---Effect---Opportunity to petitioner and others aspirants to secure a better position than they were vying for, left the petitioner with no grievance or justification to seek review of judgment in question--- Petition was dismissed in circumstances.

2008 SCMR 960; PLD 1956 (W.P) Pesh. 121 and 2005 PLC (C.S.) 645 rel.

Mushtaq Ali Tahirkheli for Petitioner.

Fawad Saleh and Tahir Hussain Lughmani for Respondents.

2018 P L C (C.S.) 381

[Peshawar High Court]

Before Qaiser Rashid Khan and Muhammad Younis Thaheem , JJ

ANWAR ALI

Versus

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

W.P. No.3117-P of 2017, decided on 26th October, 2017.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

--R. 10(4)---Appointment against the quota for the children of deceased civil servant---Scope---Father of petitioner died while serving in the department and petitioner was minor at that time---Petitioner, on attaining the age of majority submitted application for appointment against quota for the children of deceased civil servant but to no avail---Contention of department was that policy for appointment of children against the quota for deceased civil servant was applicable to those individuals whose parent died on or after 01-01-1988 while father of petitioner passed away in the year 1985---Validity---If a person had put in years long service and given his sweat for the department and died with his boots on then his children could not be deprived of such policy---Beneficial policy had to be for all intents and purposes having retrospective effect---Department was directed to appoint the petitioner as and when post became available by observing quota meant for the children of deceased employees---Constitutional petition was disposed of accordingly.

Raja Muhammad Ejaz for Petitioner.

2018 P L C (C.S.) 387

[Peshawar High Court (Mingora Bench)]

Before Musarat Hilali and Mohammad Ibrahim Khan, JJ

ZAHID SAEED and 9 others

Versus

DIRECTOR GENERAL TECHNICAL EDUCATION AND MANPOWER TRAINING KHYBER PAKHTUNKHWA, PESHAWAR and 2 others

W.P. No.213-M of 2016, decided on 6th June, 2017.

Civil service---

----Daily wages employees of a college---Regularization of service---Scope---Petitioners-employees were appointed on contract basis---Contention of employees was that their contracts were extended from time to time and they were entitled for regularization of their service--Validity---Employees were appointed on the basis of daily wages from student fund for some months each year when College session was on---Employees were engaged out of student fund on fixed pay---Prayer for regularization of petitioners on the sole score that contractual period had been extended from time to time could not be accepted---Constitutional petition was dismissed in circumstances.

Miss Zakia Naurin and others v. Federation of Pakistan and others 2014 PLC (C.S.) 609; Dr. Zafar Aziz Khan v. Dr. Shabnam Iqbal Niazi and another 1997 SCMR 1101; Muhammad Yaqoob v. The Secretary Local Government 2002 PLC (C.S.) 1625; Mustaq Ahmad Moral v. The Hon'ble Lahore High Court 1997 SCMR 1043 and Lahore Development Authority v. Mst. Imrana Tiwana and others 2015 SCMR 1739 ref.

Qazi Zaki-ud-Din for Petitioners.

Sabir Shah, A.A.G. for Respondents.

2018 P L C (C.S.) 394

[Peshawar High Court]

Before Yahya Afridi, C.J. and Syed Afsar Shah, J

BEHRAM KHAN

Versus

GOVERNMENT OF PAKISTAN through Secretary Law, Justice and HR Division and 2 others

W.P. No.3846-P of 2017, decided on 18th October, 2017.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Transfer of employee---Bar of jurisdiction contained in Art.212 of the Constitution---Scope---Contention of employee was that he had been transferred in violation of tenure policy---Validity---Transfer order of employee could not be challenged before High Court as the same fell within the purview of terms and conditions of service---High Court was barred to entertain matter with regard to terms and conditions of service---Constitutional petition was not maintainable in circumstances---Notices issued to the respondents were recalled---Employee if so advised could seek his appropriate remedy as provided under the law---Constitutional petition was dismissed.

Zahid Akhtar's case PLD 1995 SC 530; Roshan Khan's case 2007 SCMR 599; Abdul Hameed Anjum's case PLD 2010 SC 857; Syed Mahmood Akhtar Naqvi's case PLD 2013 SC 195; Lt. Col. Syed Jawaid Ahmed's case 2013 SCMR 1707 and Mujeeb Ahmed's case 2015 P.S.C. 900 SC distinguished.

Muhammad Isa Khan for Petitioner.

Waqar Ahmad Khan, AAG for Respondents.

2018 P L C (C.S.) 475

[Peshawar High Court (Bannu Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

YAR MOHAMMAD KHAN

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through President and 8 others

W.P. No.110-B of 2016, decided on 12th July, 2017.

Civil service---

----Misconduct---Compulsory retirement---Delegation of powers---Authority and authorized officer---Scope---Petitioner-employee was served with a charge-sheet by General Manager of Telecommunication Company---Suspension order was communicated by the same officer---De novo inquiry was again authorized by the said officer---Final show-cause notice was also served by the General Manager---Order of removal from service issued was served by the said officer and order of acceptance of departmental appeal conveyed to the employee was again served through the same officer---Validity---Nothing was on record that departmental proceedings/penalty was approved by the Authority---Whole proceedings in the present case were initiated and authorized by Manager Discipline and never authorized by the competent authority---Even if there was any delegation of powers then Executive Vice-President (HR) being himself as delegatee could not further delegate his powers to the Manager Discipline Management---Where through a law or notification powers were delegated to an authority and that law or notification had not given any power to the authority for further delegation of said power then any such further delegation would not vest the delegatee such powers---Department had violated the concept of authority and authorized officer---Where the department itself constituted and notified the authority then all the departmental actions should have been initiated under the order of Authority---Order of penalty also required the approval of the Authority---Proceedings initiated against the employee and concluded having not been authorized by the Authority, had no legal status and were declared illegal and without lawful authority by the High Court---Impugned order of compulsory retirement was set aside and department was allowed to initiate fresh departmental inquiry, if so advised---Employee was directed to be reinstated and his back benefit's any should be decided after the out-come of such inquiry---Constitutional petition was allowed accordingly. Saleemullah Khan Ranazai and Anwarul Haq for Petitioner.

Muhammad Iqbal Khan Kundi for Respondents.

2018 P L C (C.S.) 1248

[Peshawar High Court]

Before Mohammad Ghazanfar Khan and Ijaz Anwar, JJ

MUHAMMAD AZEEM KHAN AFRIDI, CHAIRMAN, KHYBER PAKHTUNKHWA, SERVICE TRIBUNAL

Versus

REGISTRAR OF THE PESHAWAR HIGH COURT and 4 others

W.P. No.2466-P of 2017, decided on 12th June, 2017.

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

----Ss.3 & 3-B, [as amended by Khyber Pakhtunkhwa Service Tribunal (Amendment) Act, (XXII of 2013)], Ss.3 & 3-B---General Clauses Act (X of 1897), S.21---District and Sessions Judge---Appointment as Chairman, Service Tribunal---Repatriation before completion of tenure period---Appointment on ex-cadre posts---Deputationist---Scope---Petitioner was appointed as Chairman, Service Tribunal for a period of three years or till attaining the age of sixty years---Provincial Government with the consultation of the Chief Justice of the High Court repatriated the services of petitioner-employee---Employee filed reference against the repatriation order but same was rejected by the competent authority---Validity---Chief Justice of the High Court had been given the meaningful consultative powers in appointment of Members and Chairman of Service Tribunal---Appointments on ex-cadre posts were considered to be on deputation as period was required to be specified for such posting---Chairman, Service Tribunal was nominated by the Chief Justice for his appointment for specific period of three years or until he attained the age of sixty years whichever was earlier---Officer while posting under the Provincial Government remained under the administrative powers of Chief Justice---Authority to appoint and to hold the post of Chairman, Service Tribunal would remain with the Chief Justice of the High Court---Where authority had the power to appoint an individual then it had the power to remove also---Deputationist was at the consent of lending and borrowing departments and incumbent of the post had no right whatsoever to ask for completion of the tenure or have any right to remain as such--- Lending department could require the services of its officer by repatriating him and similar would be the case with borrowing department---Borrowing department could relieve or spare the deputationist as no longer required---Mere posting of Chairman, Service Tribunal for three years could not be considered sacrosanct and same was subject to modification/curtailment at the exigencies of service---Deputationist did not have any right to remain on the post for ever or for a stipulated period---Deputationist could be ordered to be repatriated to the parent department at any time without assigning any reason---High Court was not obliged to assign any reason for repatriation of employee---Administration Committee of High Court had rightly regretted the reference of petitioner---Constitutional petition was dismissed in circumstances.

PLD 2013 SC 501 and PLD 2016 SC 961 ref.

2011 SCMR 1688; 2014 SCMR 799, 822 and 2010 SCMR 378-618 rel.

(b) Civil service---

----Deputationist---Scope---Deputationist did not have any right to remain on the post for ever or for a stipulated period---Deputationist could be ordered to be repatriated to the parent department at any time without assigning any reason.

Muhammad Muazzam Butt for Petitioner.

Nemo. for Respondents.

2018 P L C (C.S.) 1092

[Punjab Subordinate Judiciary Service Tribunal]

Before Shahid Waheed, Chairman, Faisal Zaman Khan and Muhammad Tariq Abbasi, Members

Sheikh SHAHID RAFIQ

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE through Registrar

S.A. No.30 of 2011, heard on 22nd January, 2016.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Constitution of Pakistan, Art.10-A---Judicial officer---Charge of misconduct---Compulsory retirement---Inquiry Officer participating in the meeting of Administration Committee---Decision-making authority being bias---Effect---Fair trial---Natural justice, principles of---Scope---Inquiry Officer had pre-judged the issue against the appellant before participating in the meeting of Administration Committee---Inquiry Officer who had already formed an opinion against the appellant could not be said that he sat in the meeting with an unbiased mind---Doctrine of natural justice should be complied with---Decision-maker or authority should not be biased or prejudiced---Fair trial required that the rights of a person be determined by an independent and impartial court/tribunal/authority---No one should adjudicate a matter in which he had formed an opinion adversely to the party---Inquiry Officer could not participate in the meeting of Administration Committee of High Court in which the case of appellant was considered---Presence of Inquiry Officer in the said meeting was not a mere irregularity but was an illegality which had vitiated the whole proceedings---Impugned notification was set aside and Registrar of the High Court was directed to place the matter before the Authority (Administration Committee) for a fresh decision---Appeal was allowed in circumstances.

R. v. Sussex Justice Ex.P Mc Carthy (1924) 1 K.B 256 at 259; R. v. Hertfordshire JJ (6 Q.B.753); R. v. Middlesex JJ (1 QFD 173) R. v. Lond. C.C. (1892) 1.Q.B.190; R v. Lancashire JJ (75 L.J.K.B. 198; Ghulam Rasul and others v. Crown PLD 1951 F.C. 62; Mian Muhammad Abdullah, District Manager, Government Transport Service, Lyallpur v. The Road Transport Corporation, Lahore through its Secretary and others PLD 1964 (W.P) Lah. 743; Locabail (U.K) Ltd. v. Bayfield Properties Ltd. 200 Q.B.451; R.v. Gough 1993 AC 646; Dimes' case (3 House of Lords Cases 759), Pinochet case (2001) 161 IAC 119; J.R.L; exp. C.J.L. (1986) 161 CLR 342 and President of the Republic of South Africa v. South African Rugby Fortbal Union (1999) 4SA 147 rel.

(b) Constitution of Pakistan---

----Art. 10-A---"Fair trial"---Requirements---Fair trial required that the rights of 3 person be determined by an independent and impartial court/tribunal/authority.

(c) Maxim---

----"Nemo judex in sua causa"---Meaning---No one should be a judge in his own cause.

(d) Words and phrases---

----'Natural justice'---Meaning---Natural justice in disciplinary proceedings was meant the observance of procedural fairness before holding an officer guilty of misconduct.

Muzammil Akhtar Shabbir and Muqtadir Akhtar Shabbir for Appellant.

Zubda Tul Hussain for Respondent.

2018 P L C (C.S.) 1212

[Punjab Subordinate Judiciary Service Tribunal]

Before Shahid Waheed, J Chairman, Faisal Zaman Khan and Muhammad Tariq Abbasi, JJ Members

ABDUL HASEEB SHEIKH

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE

Appeal No.18 of 2011, heard on 8th April, 2016.

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 7(7-a)---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Judicial officer---Disciplinary proceedings---Recommendation for imposition of minor penalty by the inquiry officer---Enhancement of penalty by the authority---Requirements---Inquiry officer made recommendations for imposition of minor penalty of withholding of promotion of the appellant for a period of four years---Competent authority issued show cause notice for enhancement of penalty upon which reply was filed by the judicial officer which was found unsatisfactory and major penalty of compulsory retirement was awarded---Contention of appellant was that authority could enhance punishment if inquiry officer had imposed penalty---Validity---Once inquiry had been completed by the inquiry officer/inquiry committee and charges were proved then inquiry officer/inquiry committee should have passed order imposing minor penalty and inform the competent authority by way of sending the record to the authority---If authority was not satisfied with the quantum of punishment awarded by the inquiry officer then it might within 30 days of receipt of the case could either initiate de novo inquiry or issue notice for enhancement of penalty---Inquiry officer, in the present case, recommended minor penalty but did not impose the same and record was sent to the authority---Authority could only issue notice for enhancement of penalty once minor penalty was awarded/imposed by the inquiry officer and same did not commensurate with the offence committed by the Judicial Officer---Inquiry officer had not awarded any minor penalty which could be enhanced by the authority---Authority/Administration Committee of the High Court had no jurisdiction to issue a notice for enhancement of penalty in circumstances---Authority had exceeded its jurisdiction by issuing a notice for enhancement of penalty on the basis of which impugned notification awarding major penalty was issued---Impugned notification was without lawful authority and jurisdiction which was set aside---Appellant had attained the age of superannuation therefore no order of reinstatement could be passed---Appeal was allowed in circumstances.

(b) Maxim---

----"A communi observentia non est recedendum"---Meaning and applicability.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Rashid Ahmad v. The State PLD 1972 SC 271; Shabbir Ahmad v. Mst. Kabir-un-Nisa and others PLD 1975 SC 58; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Talat Farooq Sheikh along with the Appellant in person.

Abdus Shakoor Ch. for Respondents.

2018 P L C (C.S.) 15

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar and Muhammad Hashim Khan Kakar, JJ

Mrs. TAHIRA PARVEEN BALOCH

Versus

CHIEF JUSTICE, HIGH COURT OF BALOCHISTAN, QUETTA through Registrar

Service Appeal No.4 of 2015, decided on 2nd June, 2017.

Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989) ---

----S. 5---Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, Rr.2(1) (f) & 4(b)(ii)---Judicial service---Nature---Judicial officer (District and Sessions Judge)---Allegation of misconduct---Compulsory retirement---Scope---Inquiry was conducted against the Officer by a Judge of High Court---Recommendation for imposing major penalty was also given by the sitting Judge of High Court---Authority, after fulfilling the legal formalities had passed the impugned punishment---Personal file of officer was full of explanations, show-cause notices, warnings and complaints---Law required the Authority to consider the entire service record of employee while assessing whether he/she could be compulsory retired---Case of a judicial officer was required to be examined treating him/her to be differently than other civil servants---Honesty and integrity of judicial officer was expected to be beyond doubt---Nature of judicial service was such that it could not afford to suffer continuance in service of a persons with doubtful integrity or the one who had lost his/her utility in order to keep the stream of justice unpolluted---Judge could not be stamped with the label of doubtful integrity in absence of tangible material---General impression of the Judge as a corrupt Judge in the mind of general public was alone sufficient for his/her compulsory retirement by the Authority---Officer remained an average officer throughout her service career and never improved---Judicial officer did not enjoy good reputation in the eyes of general public as well as her superiors---Compulsory retirement was a major penalty but differed from dismissal and removal from service as it did not involve penal consequences---Person compulsorily retired was entitled to pension and other retirement benefits proportionate to the period of service standing to his/her credit---Officer had already attained the age of superannuation---No chance to make allegation of non-application of judicial mind and mala fides in making the decision against the officer existed---Sufficient material was available to connect the officer with the commission of misconduct during her service---Inquiry Officer as well as Authorized Officer had appreciated the evidence in its true perspective---Appeal was dismissed in circumstances.

Ayaz Zahoor and Zahir Kakar for Appellant.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondent.

2017 P L C (C.S.) 29

[Balochistan High Court (Sibi Bench)]

Before Nazeer Ahmed Langove and Muhammad Hashim Khan Kakar, JJ

MUHAMMAD AKBER

Versus

The SECRETARY, EDUCATION GOVERNMENT OF BALOCHISTAN and 5 others

Constitution Petition No.(S)223 of 2016, decided on 9th January, 2017.

(a) Civil service---

----Appointment of Teacher and Mo'alam-ul-Quran---Candidate having qualification of Shahadat-ul-Aalia---Appointment order/letter in favour of candidate was not issued on the ground that degrees possessed by him did not qualify the requirements of posts applied for---Validity---No illegality or irregularity had been committed by the department while issuing appointment orders in favour of qualified persons---Competent authority found the degrees of candidate invalid for the subject posts---No discrimination had taken place---High Court, while exercising constitutional jurisdiction, could not reverse the decision with regard to policy matters applicable to the candidates/participants without any discrimination---No Fundamental Right of petitioner guaranteed under the Constitution having been violated or denied, High Court could not enter into factual controversy which could only be resolved after thorough probe and recording evidence---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---High Court could not enter into factual controversy which could only be resolved after thorough probe and recording evidence.

Nemo for Petitioner.

Abdul Latif Kakar, Asstt. A.G. for State.

2018 P L C (C.S.) 68

[Balochistan High Court]

Before Muhammad Noor Meskanzai, C.J. and Abdullah Baloch, J

NOOR-UD-DIN and others

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY through Director General NADRA and others

C.Ps.Nos.1043 to 1049 of 2016, decided on 29th December, 2016.

(a) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Correction of date of birth---Scope---Withdrawal of constitutional petition without permission to file fresh one---Filing of fresh constitutional petition---Effect---Present matter was with regard to terms and conditions of civil servants---Petitioners/employees had adequate and efficacious remedy before Service Tribunal---Constitutional jurisdiction of High Court could only be invoked in exceptional circumstances which lacked in the present case---Factual controversies with regard to actual date of birth was involved in the matter---Petitioners/employees had withdrawn their earlier constitutional petition unconditionally---Fresh constitutional petition was not competent which was dismissed .

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

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

----O. XXIII, R. 1---Withdrawal of suit---Filing of fresh suit---Scope---Once a suit was withdrawn without permission to file fresh suit on the same cause of action, plaintiff could not maintain a suit/petition before the same Court.

Abdul Ahad Kakar for Petitioners.

Zubair Naseem for Respondents.

2018 P L C (C.S.) 99

[Balochistan High Court]

Before Abdullah Baloch and Muhammad Ejaz Swati, JJ

MAZHAR ILYAS NAGI and others

Versus

GOVERNOR, STATE BANK OF PAKISTAN and others

C.Ps. Nos.690 and 692 of 2006, decided on 11th September, 2017.

State Bank of Pakistan Act (XXXII of 1956)---

----S. 54, Chap. IV [Ss.17 to 40]---State Bank of Pakistan Staff Regulations (IX of 1999), Regln.34---Constitution of Pakistan, 1973, Art.199---Constitutional petition---Maintainability---Embezzlement of Bank money---Imposition of penalty of permanent deduction of amount from the monthly salary of petitioner/Bank officer---Non-production of defence witness of petitioner before inquiry officer---Contributory negligence---Scope---Petitioner contended that his case was at par with other officers who were exonerated and that inquiry officer had assured him that there was no incriminating material against him, hence, there was no need to lead defence---Validity---Question which fell for consideration was as to whether Bank fell within the definition of the State or authority under the control of Government and its Rules were statutory or otherwise and whether the Bank was a "person" within the meaning of Art.199(1)(a)(ii) read with Art.199(5) of the Constitution---State Bank of Pakistan, a body corporate was established under State Bank of Pakistan Act of 1956--- Bank in question was entrusted with numerous functions with the affairs of the Federation, as well as the Provinces as enumerated in Chap.IV of State Bank of Pakistan Act, 1956---Legislature under S.54(2)(J) of State Bank of Pakistan Act, 1956 delegated power to the Central Board of the said Bank to make regulation consistent with the Act provided for the recruitment of the officers---Terms and conditions of service of employees/officers of the Bank were governed by the State Bank of Pakistan Staff Regulations, 1999 though said staff regulations were non-statutory, however, the employee claimed that he had not been provided equal treatment between similarly placed employees---Record revealed that the petitioner(employee) was rendering meritorious services diligently to the Bank since 1975 when the incident of 1994 was unearthed wherein the main accused the then Chief Manager absconded and was found responsible for entire defalcation/wilful embezzlement including several charges---High ranking Executive of the Bank was appointed as Inquiry Officer who found the then Chief Manager responsible for unearthed defalcation/embezzlement---Findings of Inquiry Officer showed that prior to inquiry proceedings an evasive and unspecified charge sheet was issued to the petitioner, which was replied by the petitioner but, contrary to the request of petitioner, the witnesses of petitioner were not summoned by the Inquiry officer without assigning any plausible reasons rather the petitioner was assured by the Inquiry Officer that no tangible incriminating evidence was available by the prosecution against him, as such, there was no need for the petitioner to lead such defence---While concluding the inquiry proceedings on such vague assurance to the petitioner, the Inquiry Officer recommended for imposition of major penalty to the petitioner by imposing reduction of Rs.2500/- from his salary, permanent reduction as well as imposition of non-payment of back benefits to the petitioner--- Director Personnel though was competent to impose such penalty to the petitioner but the same was harsh, since no findings were recorded by the Inquiry Officer with regard to the financial loss caused to the Bank by the act of petitioner---Merely on the basis of contributory negligence and without determination of responsibility of each officer penalty was unjustified---Petitioner was deprived of opportunity to produce his defence evidence being condemned unheard and discriminated as the case of other four employees/officers co-accused, similarly placed, on identical charge were exonerated and their absence from duty including their suspension was treated as period spent on duty---High Court set aside impugned penalty declaring the same as void ab initio--- Constitutional petition was allowed accordingly.

Nemo for Petitioner.

Muhammad Riaz Ahmed for Respondents.

2018 P L C (C.S.) 174

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ

NASIR ALI

Versus

CHAIRMAN BALOCHISTAN PUBLIC SERVICE COMMISSION and 4 others

C.P. No.105 of 2016, decided on 28th March, 2017.

(a) Balochistan Prosecution Service (Constitution, Functions and Powers) Act (VI of 2003)---

----S. 2 (m)---Balochistan Police Act (X of 2011), S.42---Police Rules, 1934, Vol. III, Chap. XXVII, Rr.27.1 to 27.39---Criminal Procedure Code (V of 1898), Ss.4(1)(t), 173, 190, 492, 493, 494 & 495---Advertisement for appointment of District Attorney and Assistant District Attorney---"Public Prosecutor" and "Prosecuting Inspector"---Contention of petitioners was that "Prosecuting Inspectors" and "Prosecuting Sub-Inspectors" did not fall within the definition of "Pleader" or "Public Prosecutor" and they could not be appointed District Attorney and Assistant District Attorney---Validity---"Prosecuting Inspector" and "Prosecuting Sub-Inspector" discharged functions before the Judicial Magistrate, exercise powers and fulfilled duties within the meaning of Ss.493, 494 & 495, Cr.P.C.---Experience of "Prosecuting Inspector" and "Prosecuting Sub-Inspector" was to be considered as "Public Prosecutor"---"Prosecuting Inspectors" being "Public Prosecutors" qualified to take examination for the posts of District Attorney and Assistant District Attorney---Chairman Public Service Commission awarded more than fifty percent marks to the petitioner candidate who could not secure first position for single post of District Attorney---Petitioner made bald allegations against the Chairman Public Service Commission---Whenever aspirant candidate could not qualify the test/examination, he/she tried to level baseless allegations against the recruiting agency/interviewing committee---Such practice on the part of a practicing lawyer was to be condemned and discouraged---No one was to be allowed to ruin the professional ethics or defame and demoralize the integrity of any individual---Petitioner had failed to allege any previous enmity or animus against Chairman Public Service Commission---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Question of fact was not amenable to the constitutional jurisdiction of High Court.

(c) Prosecutor---

----Scope and meaning.

Blacks' Law Dictionary rel.

Abdur Razzaq Sharr for Petitioner.

Dawood Khan Kasi and Masood Tareen for Respondents Nos.3 and 4.

Abdul Lateef Kakar, Assistant Advocate General along with Dilawar Khan Kasi, Law Officer Balochistan Public Service Commission, Quetta for State.

2018 P L C (C.S.) 263

[Balochistan High Court]

Before Zaheer-ud-Din Kakar and Muhammad Hashim Khan Kakar, JJ

SAEED AHMED and another

Versus

MEMBERS JUDICIAL SELECTION BOARD and others

C.Ps. Nos.743 and 813 of 2015, decided on 16th October, 2017.

Civil service---

----Advertisement for appointment of Civil Judges---Appointment against reserved seats---Recruitment policy---Scope---Contention of petitioner-candidate was that appointments in question were not made while observing zonal allocation but was made on merits---Validity---Constitution prohibits discrimination of citizens in the matter of appointment to the service of Pakistan inter alia on the basis of race, religious, caste, sex, residence or place of birth---Authorities could reserve posts for persons belonging to different classes or areas to secure their adequate representation in the service of Pakistan---Authorities were not bound to reserve seats for persons belonging to different areas---Government/Authority was allowed to follow quota system if it so desired---Government/Authority was not under any compulsion to reserve seats for persons belonging to certain areas---No right vested in any citizen to seek a direction from High Court against government/Authority to provide for special exclusive seats for such persons belonging to different districts or areas of the Province such discretion had been left with the employer---Petitioner stood at serial number 35 in written examination but could not succeed in viva voce---Candidates were interviewed by 'Judicial Selection Board' comprising of three Judges of High Court---Petitioner-candidate could not secure enough marks to be selected---Authority of Selection Board could not be challenged and questioned as members of Selection Board were the best judge at the given time to form an opinion and take decision after judging the abilities and capabilities of the candidates---High Court could not interfere and thrust its opinion subsequently changing the verdict of Selection Board except when it had been made other than the capability of petitioner or it smacked mala fide---Constitutional petition was dismissed in circumstances.

Petitioner in person (in C.P. No.743 of 2015).

Mehmood Sadiq Khokhar for Respondents Nos.3 to 16 (in C.P. No.743 of 2015).

Mazhar Ilyas Nagi for Respondents Nos.3, 4, 8 to 20, 22 to 27 29 to 35 (in C.P. No.813 of 2015).

Khalil-uz-Zaman Alizai, Additional Advocate General for Official respondents.

2018 P L C (C.S.) 292

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ

FATIMA

Versus

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

C.P. No.434 of 2015, decided on 28th March, 2017.

(a) Civil service---

----Withholding of appointment due to restraining order of National Industrial Relations Commission---Locus poenitentiae, principle of---Applicability---Legitimate expectation, doctrine of---Promissory estoppel, doctrine of---Applicability-Petitioner was finally selected for appointment but appointment letter was not issued due to restraining order passed by the National Industrial Relations Commission---Validity---Once process of selection was completed in an ordinary manner, same could not be upset in an arbitrary manner---Process of recruitment was completed and all decisive steps had been taken for petitioner's appointment---Right had accrued to the petitioner for job against vacancy for which she had been selected---Any lapse or delay in executing formality would not render such process incomplete---Department had no power of locus poenitentiae to retract their steps---Department could have retracted its steps till such time that the merit list had not left the fold of their office---Once merit list was made public creating right in favour of petitioner then power of department to withheld the same had been taken away by law---Issuance of appointment letter was only consequential step which at the best be termed to be ministerial---Petitioner had been selected after securing the highest marks---Candidate developed legitimate expectation to be considered for appointment as soon as the lis before the National Industrial Relations Commission attained finality---Neither qualification for the post in question was altered nor post was abolished by the public authority---No valid reason had been rendered for denying the appointment to the petitioner---Public authority under the doctrine of promissory estoppel was bound to fulfill its promise to the citizen with regard to her inalienable right---Doctrine of legitimate expectation would come into play, in circumstances, and petitioner was entitled to get the benefit thereof---Ban imposed subsequent to the selection could not take away the right of the petitioner which had already accrued to her---Ban if any could at the best be applied retrospectively---No impediment or ban existed in employing the petitioner---Petitioner had now gone over-aged due to reluctance of respondent to discharge their lawful authority with diligence---Authorities were directed to issue formal appointment letter in favour of petitioner for the post in question within a period of one month---Constitutional petition was allowed in circumstances.

Dr. Marvi Shah and 9 others v. Province of Sindh 2009 PLC (C.S.) 182; Dr. Shoukat Pervez v. Federation of Pakistan 2011 PLC (C.S.) 26; Muhammad Ismail v. Secretary Education, Government of Punjab and another 2000 PLC (C.S) 112; Imran Hussain v. Water and Power Development Authority 2011 PLC (C.S) 116; Munir Ahmed v. Minister Home and Tribal Affairs, Government of Balochistan, Quetta and others 2007 PLC (C.S) 679 and Muhammad Asghar Waseer v. Secretary, Local Government 2009 PLC (C.S.) 586 ref.

Muhammad Bilal and 7 others v. Government of Khyber Pakhtunkhwa 2014 PLC (C.S.) 769; Mst. Basharat Jehan v. Director General, Federal Government Education FGEI(C/Q) Rawalpindi 2015 PLC (C.S.) 1519 and Federal Public Service Commission v. Altaf Hussain 2015 SCMR 581 distinguished.

Regarding Pensionary Benefits of the Judges of Superior Courts PLD 2013 SC 829 and Secretary of Government of N.W.F.P, C&W Department v. Jamal Abdul Nasir 2003 PLC (C.S.) 977 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---High Court could issue any order for enforcement of any of the Fundamental Rights.

(c) Constitution of Pakistan---

---Art. 4---Every individual had right to be dealt with in accordance with law.

(d) Locus poenitentiae, principle of---

----Applicability---Scope.

Under the Principle of 'locus poenitentiae', the authority passing or making order, no doubt had the power to recall, modify or cancel the said order, but said order is subject to exception that where the order had taken legal effect and in pursuance thereof certain right had been created in favour of an individual, such order could not be withdrawn or rescinded to the determent of those rights.

(e) Legitimate expectation, doctrine of---

----Applicability---Scope.

Judicial Review of Public Action at pages 1365 to 1367 rel.

(f) Promissory estoppel, doctrine of----

----Applicability---Scope.

Baz Muhammad Kakar and Abdul Ghani Khilji for Petitioner.

Aminuuddin Bazaj, Deputy Attorney General for State.

Fayaz Aslam Dar for Respondents Nos.2 and 3.

2018 P L C (C.S.) 367

[Balochistan High Court]

Before Abdullah Baloch and Muhammad Ejaz Swati, JJ

Syed NASRULLAH

Versus

The DIRECTOR GENERAL PAKISTAN SPORTS BOARD, ISLAMABAD and 2 others

C.P. No.553 of 2016, decided on 27th November, 2017.

Civil service---

----Employee of Pakistan Sports Board---Termination from service---Department having no statutory rules---Effect---Department had no statutory rules with regard to appointments, transfer, posting, promotion and disciplinary action--- Constitutional petition was not maintainable in the cases of non-statutory bodies-- Employer organization was non-statutory body having no rules and regulation even directions and policy with regard to its employees---Constitutional petition was not maintainable against the organization---Prima facie petitioner had a case on merit---Services of petitioner were terminated in the garb of order passed in another constitutional petition which was misconceived---High Court observed that employer organization might consider the case of petitioner on sympathetic and humanitarian grounds---Constitutional petition was dismissed accordingly.

2002 SCMR 549; 2013 SCMR 1383; 2013 SCMR 1707; PLD 2010 SC 676; PLD 1992 (sic) 531; 2014 CLC 503; 2008 SCMR 314; 2011 SCMR 1813; PLD 2010 SC 969 and 2014 SCMR 122 ref.

Abdul Wahab and others v. Habib Bank Ltd. and others 2014 PLC (C.S.) 393; PTCL v. Masood Ahmed Butti, 2016 SCMR 1362; Syed Tahir Abbas Shah v. OGDCL through MD Head Office Islamabad and others PLD 2007 SC 681 and 2017 SCMR 353 rel.

Mazhar Ilyas Nagi for Petitioner.

Syed Shabbir Shah, Assistant Attorney General for Respondents.

2018 P L C (C.S.) 417

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail, and Naeem Akhtar Afghan, JJ

KHADIM HUSSAIN

Versus

GOVERNMENT OF BALOCHISTAN EDUCATION DEPARTMENT (COLLEGES SECTION), QUETTA through Secretary and another

C.P. No.496 of 2011, decided on 21st April, 2016.

Civil service---

----Contract appointment---Regularization of service---Scope---Employee being appointed on contract basis sought regularization of his service---Validity---Contract employee had no vested right to claim for extension or regularization of service---Constitutional petition was dismissed in circumstances.

Abdul Sattar Durani v. The Province of Balochistan through Chief Secretary 2015 PLC (C.S.) 489; Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others 2011 PLC (C.S) 623; Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120; Suo Motu case No.15 of 2010 Human Rights Cases (H.R.C) No.44517-K of 2010, HRC No.13938-P of 2010, HRC No.22070-P of 2011 and in Constitutional Petition No.74 of 2011 Muzaffar Khan and others v. Government of Pakistan 2013 SCMR 304 and Messrs Oil and Gas Development Company Ltd., Islamabad through Chief Executive v Muhammad Azhar Chughtai 2014 SCMR 812 rel.

Tahir Ali Baloch for Petitioner.

Naseer Ahmed Bangulzai, Additional Advocate General for Respondents.

2018 P L C (C.S.) 797

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ

MUHAMMAD NOOR

Versus

GOVERNMENT OF BALOCHISTAN, S&GAD through Secretary and 2 others

C.P. No.79 of 2014, decided on 19th June, 2017.

Balochistan Employees' Efficiency and Discipline Act (VI of 2011)---

----Ss. 16 & 17---Balochistan Province Removal from Service (Special Powers) Ordinance (III of 2000), Ss.3, 9 & 10 [since repealed]---Balochistan Government Servants (Conduct) Rules, 1979, R.21---Balochistan Government Rules of Business, 2012, Rr.5, 15 & 45---Constitution of Pakistan, Art.199---Writ of quo warranto---Absence from duty---Removal from service---Reinstatement on the direction of Chief Minister---Bar on civil servants to approach members of Assembly---Employee was removed from service and his appeal was also declined by the Authority-Employee-respondent was reinstated into service on the directions of Chief Minister---Validity---Departmental appeal of employee was dismissed by the competent authority---Employee did not avail remedy before Service Tribunal---Penal order passed by the authority had attained finality---No remedy of review was available before the competent authority---No power of revision was available with the Chief Minister under Balochistan Province Removal from Service (Special Powers) Ordinance, 2000 or Balochistan Government Rules of Business, 2012---Governor (competent authority) could exercise such powers under S.9 of Balochistan Province Removal from Service (Special Powers) Ordinance, 2000 or Chief Minister under S.17 of Balochistan Employees' Efficiency and Discipline Act, 2011---No such power was exercised, rather on the recommendation of Provincial Minister a process was initiated and an order was passed to undo the act done within the ambit of a special law---Employee could not approach any member of National Assembly or Provincial Assembly directly or indirectly to intervene on his behalf in the matter---Employee being guilty of misconduct, order passed by the Chief Minister was in contravention of law---Directions of Chief Minister were implemented without raising any question by the officers concerned---Compliance of any illegal and arbitrary order was neither binding on the subordinate forum nor valid in the eye of law---Chief Minister had misused his powers---Impugned order of reinstatement of employee was declared to be illegal and set aside---Constitutional petition was accepted in circumstances.

Hamdullah v. Saifullah PLD 2007 SC 52; Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning, Karachi 2008 SCMR 105 and Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 rel.

Tahir Ali Baloch and Abdul Razzaq Shar for Petitioner.

Shai Haq Baloch, Asstt. Advocate General for Respondents Nos.1 and 2.

Abdul Wali Khan Nasir for Respondent No.3.

2018 P L C (C.S.) 835

[Balochistan High Court]

Before Abdullah Baloch, J

YASMEEN REHMAT

Versus

SECRETARY BALOCHISTAN PUBLIC SERVICE COMMISSION and 3 others

C.P. No.9 of 2018, decided on 18th January, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Public Service Commission---Appointment against the post of lecturer (Botany)--- Non-impleadment of successful candidate--- Effect---Contention of petitioner was that she was the successful candidate and the candidate who had been selected against the post in question had lower qualification---Validity---Petitioner without impleading the successful candidate against the post in question had filed the Constitutional petition---Petitioner had failed to point out the name of successful candidate who had been selected/recommended by the Public Service Commission---Constitutioal petition was vague in nature and did not disclose any cause of action against anybody---Constitutional petition was dismissed in limine being not maintainable---Petitioner would be at liberty to assail the selection/ recommendation of selected candidate as and when she would come to know her name.

Abdul Zahir Noorzai for Petitioner.

2018 P L C (C.S.) 33

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ABDUL REHMAN SADIQ and others

Versus

GOVERNMENT OF PUNJAB and others

Civil Petitions Nos. 1398-L, 1674-L of 2013 and C.M.A. No. 44-L of 2014, decided on 11th April, 2017.

(Against the order dated 31.7.2013 passed in the Lahore High Court, Lahore in I.C.A. No. 294 of 2013)

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

----Art. 112---Posts of Assistant Sub-Inspectors (ASIs) in "Punjab Police"---25% quota for promotion cases for graduates serving as Police Constables/Head Constables---Eligibility---Police constables from other wings such as Traffic Police Wardens, Police Constabulary and Patrolling Police were not eligible to apply against the said 25% quota---Service Rules for Punjab Highway Patrol, Traffic Police Wardens and Punjab Constabulary were not only separate but their method of appointment and promotion track were also separate and further, in each wing, the requirement and skill were different---Provincial Police Department while exercising powers conferred under Art. 112 of the Police Order, 2002 had approved the recruitment criteria and terms and conditions of service for members of the Punjab Highway Patrol, perusal whereof revealed that it not only provided recruitment as well as promotion criteria for the members of Punjab Highway Patrol but also laid the procedure of merger in executive branch and at a specified level---High Court had rightly disallowed the participation of the candidates from other forces/wings of the Punjab Police such as Traffic Police Wardens, Police Constabulary and Patrolling Police against the quota in question---Petition for leave to appeal was dismissed accordingly.

(b) Civil service---

----Violation of service rules---Any practice in violation of (service) rules did not confer any enforceable right.

(c) Civil service---

----Service rules, enforcement of--- Scope--- Applicability and/or enforcement of service rules was not contingent with the date such rules were notified---Civil servant could not claim that service rules would not apply to him till they were notified.

Mian Jaffar Hussain, Advocate Supreme Court for Petitioners (in both Petitions).

Ishtiaq A. Khan, Advocate Supreme Court for Petitioners (in C.M.A. No. 44-L of 2014).

Nemo for Respondents.

2018 P L C (C.S.) 93

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Faisal Arab, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and another

Versus

BASHIR AHMED, SBA IN MES, MINISTRY OF DEFENCE, GE(ARMY), NOWSHERA

Civil Petition No. 935 of 2015, decided on 18th April, 2017.

(On appeal against the judgment dated 24.03.2015 passed by the Federal Service Tribunal, Islamabad in Appeal No.745(P)CS-2013)

Civil service---

----Continuous absence from duty---Major penalty of compulsory retirement---Respondent was serving in the Military Engineering Services, Ministry of Defence---During service respondent was nominated as an accused in a murder case and an FIR was lodged against him---Respondent remained absent from duty without any authorization from the day the FIR was registered against him---Show-cause notice and opportunity of personal hearing was provided to respondent but he failed to appear before the Authorized Officer---Major penalty of compulsory retirement was imposed on the respondent on account of his continuous absence from duty---Service Tribunal had held that on account of murder charges and the enmity with the complainant party, his absence was justified, thus, the major penalty of compulsory retirement was converted into minor penalty of withholding of three increments with reinstatement back in service---Legality---Case record showed that during the period of absence, no attempt was made on behalf of the respondent to apply for leave---Criminal case came to an end and respondent was acquitted on account of compromise reached with the complainant party, nevertheless before reaching the compromise, he was not in custody but remained an absconder and only surrendered before the law after the compromise was reached with the victim's family members---To seek condonation of absence during his absconsion would amount to putting premium on such act---In the present case, if reason provided by respondent was made a ground for condonation of absence, then in every case where the civil servant was involved in a criminal case and absconded, his absence from duty would have to be condoned---Act of absconsion or being a fugitive from law could not be regarded as a reasonable ground to explain absence---Impugned judgment of Service Tribunal was set aside and departmental action of imposition of major penalty of compulsory retirement was restored---Appeal was allowed accordingly

Central Board of Revenue v. Shafiq Muhammad 2008 SCMR 1666 distinguished.

Syed Nayyab Hassan Gardezi, Assistant Attorney General and Qari Abdul Rasheed, Advocate-on-Record (Absent) for Petitioners.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondent.

2018 P L C (C.S.) 354

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Energy and Power Department, Peshawar and others

Versus

IHSAN ULLAH and others

Civil Appeals Nos. 1515 and 1516 of 2016, decided on 5th May, 2017.

(On appeal from the judgment/order dated 02.06.2015 passed by Peshawar High Court, Peshawar in W.Ps. Nos.4122 of 2010 and 214 of 2011)

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

----Ss. 2(1)(b)(ii) & 19(2) [as amended by the Khyber Pakhtunkhwa Civil Servants (Amendment) Act (IX of 2005)]---Pakhtunkhwa Energy Development Organization Act (I of 1993), S. 3---Contract Employees of Pakhtunkhwa Energy Development Organization ("PEDO")---Project posts---Regularization in service---Scope---Pakhtunkhwa Energy Development Organization ("PEDO") was not a government department; it was rather a semi-autonomous body---Right to regularization in service under S.19(2) of the Khyber Pakhtunkhwa Civil Servants Act, 1973 applied to employees of the government and not to employees of semi-autonomous bodies---Respondents/Project employees of "PEDO" were, therefore, not eligible for regularization under S. 19(2) of the Khyber Pakhtunkhwa Civil Servants Act, 1973---Besides the respondents' letters of appointment clearly stated that their posts were "temporary project posts" which would be "likely to continue till the completion of the project"---Supreme Court directed that in the interest of justice, the respondents may within one month place documentary evidence of the regularization of service of any project employee of "PEDO" before the relevant authority in order to show that notwithstanding the employment of such employee on a temporary project post his services were nevertheless regularized by the authority; that in such event, the authority shall after verification forthwith regularize the services of the respondents in "PEDO" with effect from the date of termination of their services---Appeal was disposed of accordingly.

Government of Khyber Pakhtunkhwa and others v. Kaleem Shah and others 2011 SCMR 1004 and Government of NWFP and others v. Abdullah Khan and others 2011 SCMR 898 = 2011 PLC (C.S.) 775 distinguished.

Umar Farooq Adam, Additional A.-G. Khyber Pakhtunkhwa for Appellant No.1 (in both cases).

Shumail Butt, Advocate Supreme Court for Appellants Nos.2-3 (in C.A. 1515 of 2016 and for Appellants 2-6 in C.A. 1516 of 2016)

Zulfiqar Khalid Maluqa, Advocate Supreme Court for Respondents (in both cases).

2018 P L C (C.S.) 362

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

RAFIQ AHMED and others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and another

Civil Appeal No. 587 of 2017 and C.M.A. No. 3198 of 2017, decided on 29th September, 2017.

(On appeal against the judgment dated 14.03.2017 passed by the High Court of Balochistan, Turbat Bench at Quetta in C.P. No.(T)94 of 2016)

Gwadar Development Authority Employees (Service) Regulations, 2006---

----Paras. 4.11, 4.24 & 4.25---Appointment by absorption---Legality---Appointment by absorption figured nowhere in the Gwadar Development Authority Employees (Service) Regulations, 2006---Appointment by transfer had been provided in the said Regulations but that could not be stretched to civil servants of the Federal or Provincial Government---Appellants, who completed their normal and even extended tenure of deputation in the (Gwadar) Development Authority ("the Authority"), had to go back to their parent department---Absorption of the appellants in the 'Authority' being against the law and rules was to be set at naught---Notification repatriating the appellants to their parent departments was therefore unexceptional---Supreme Court treating the appeal as review and hearing the same as such, dismissed the petition accordingly.

Contempt Proceedings Against Chief Secretary Sindh and others 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.A. No.587 of 2017).

Amanullah Kanrani, A.-G. Balochistan and Ayaz Khan Swati, Additional A.-G. Balochistan for Respondents.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court (in C.M.A. No. 3198 of 2017).

2018 P L C (C.S.) 375

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ABDUL JABBAR and others

Versus

GENERAL MANAGER (PERSONNEL) PAKISTAN RAILWAYS and others

Civil Appeals Nos. 17-K to 42-K of 2017, decided on 16th November, 2017.

(Against the consolidated order dated 26.8.2016 passed by the Federal Service Tribunal Islamabad in 94(K)CS/16 to 119(K)CS/16)

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

----R.4(1)---Appeal from an 'order' passed by an authority---"Order"---Scope---For preferring an appeal in terms of R. 4 of the Civil Servants (Appeal) Rules, 1977, there had to be an order altering, interpreting to a civil servant's disadvantage, reducing or withholding his maximum pension and allowances---In such grievances/proceedings no particular form of order was required and even pension fixation notices could be treated as an order for the purposes of availing the remedy of appeal under R. 4 of the Civil Servants (Appeal) Rules, 1977.

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

----Pensionary rights, claim for---Limitation---Grievance in respect of pensionary benefits was a recurring cause, consequently, limitation could not come in the way of such relief---Where, however, such pensionary benefit was altered or interpreted to the disadvantage of a civil servant or his pension was reduced or his maximum pension was withheld including an additional pension admissible to him under the rules then his grievance to that extent had to be regulated in terms of R.4(1) of the Civil Servants (Appeal) Rules, 1977.

Chief Executive Progressive Paper Ltd./The Chairman National Press Trust, Islamabad v. Sh. Abdul Majeed 2005 PLC (C.S.) 1439 ref.

Muhammad Khalil Dogar, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellants (in all cases).

Sanaullah Noor Ghouri, Advocate Supreme Court and Ms. Raana Khan, Advocate-on-Record for Respondents.

2018 P L C (C.S.) 383

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

ABDUL GHAFOOR and others

Versus

The PRESIDENT NATIONAL BANK OF PAKISTAN and others

Civil Petition No. 3724 of 2015 and C.M.As. Nos. 7903 of 2016, 3473 and 4154 of 2017, decided on 8th November, 2017.

(Against judgment dated 26.10.2015 of the Balochistan High Court, Quetta passed in C.P. No. 201 of 2012)

Employer and employee---

----'Contract employee'---Regularization in service as 'permanent employees'--- "Contractor"--- Scope--- Petitioners were rendering janitorial services in various offices and branches of the state owned Bank for several years, on the basis of contracts executed directly between them and the bank for different spans of 11 months, from time to time---Services rendered and work performed by the petitioners was of a permanent nature---Like any other employee or worker, the petitioners were rendering manual services for the Bank---Neither the petitioners were supplying any manpower nor any goods to the Bank; nor were they getting any job done by acquiring and/or engaging the services of others; nor were they paid on item to item and/or project basis, thus they clearly did not fall within the definition or category of "contractors"---Bank could not be allowed to exploit its workers and defeat the spirit and purpose of law by calling such workers as "contractors" instead of "contract employees" and "contract employment"---Since the petitioners for all intents and purposes were engaged/employed by the Bank and were being paid salary/ compensation for the services they rendered, on monthly basis from year to year, and having so served for more than one year on several 11 months stints, they had earned entitlement for regularization of their services with the Bank---Supreme Court directed the bank to regularize the services of the petitioners as permanent employees---Appeal was allowed accordingly.

Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance), Telephone Industries of Pakistan and others 2015 SCMR 1257 and Ikram Bari and others v. National Bank of Pakistan 2005 SCMR 100 ref.

Shoaib Shaheen, Advocate Supreme Court and Nazir Ahmed Bhutta, Advocate Supreme Court for Petitioner/Applicant(s) (in C.M.A. No. 3473 of 2017).

M. Rashid Qamar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

2018 P L C (C.S.) 391

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

WAPDA through Chairman and others

Versus

Raja IFTIKHAR AHMED and others

Civil Petitions Nos. 3451 to 3464 of 2017 and Civil Petitions Nos. 3473 to 3651 of 2017, decided on 15th December, 2017.

(Against order dated 17.07.2017 of Federal Service Tribunal, Islamabad, passed in Miscellaneous Petitions Nos. 2630 to 2715 of 2016, etc.)

Civil service---

----Special allowance, grant of---Non-implementation of judgments of the Service Tribunal and the Supreme Court---Abuse of process of the court---Special costs imposed on the Chairman of the department---All points raised by the petitioner-department had repeatedly been considered, addressed and rejected by the Service Tribunal as well as the Supreme Court---Same points could not be re-agitated and reopened for the umpteenth time and the attempt on part of the petitioners to do so reeked of mala fide---Such conduct constituted denial of the fruits of justice and gross abuse of the process of the Supreme Court---Supreme Court deprecated the conduct of the petitioner-department and imposed special costs of Rs.50,000/ on the Chairman of the department in his personal capacity, and directed that said amount shall be paid by the Chairman out of his own pocket and deposited with a trust foundation, and that the department shall forthwith implement the orders of the Service Tribunal and submit a report within seven (7) days of date of receipt of present order with the Registrar of the Supreme Court---Petition for leave to appeal was dismissed accordingly.

Umar Aslam Khan, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record and Ahmed Bakhsh Tarar, DG (Law), Wapda for Petitioners.

Nemo for Respondents.

2018 P L C (C.S.) 436

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

Raja IVIZ MEHMOOD and another

Versus

FEDERATION OF PAKISTAN through Secretary M/o Information Technology and Telecommunication and others

Civil Petitions Nos.931, 1657 and 1659 of 2017, decided on 7th November, 2017.

(On appeal against the order dated 28.02.2017 passed by the Islamabad High Court, Islamabad in I.C.As. Nos. 363, 323 and 324 of 2014)

(a) Pakistan Telecommunication (Re-organization) Act (XVI of 1996)---

----S. 36(2)---Master-servant, relationship of---Scope---Termination from service---Petitioners, who were employees of Telegraph and Telephone Department (T&T Department), were transferred to Pakistan Telecommunication Company Limited ("Company")---Company gave petitioners the option to tender their resignation as "transferred employees" and opt for a "Key Talent" package which offered much higher salaries and benefits---Petitioners tendered their resignations, executed fresh "employment contracts" under the "Key Talent" package and accepted the "new terms and conditions"---Company, after two years, terminated the employment of the petitioners in terms of their employment contracts---Petitioners argued that the terms and conditions of their service were protected by S. 36 of the Pakistan Telecommunication (Re-organization) Act, 1996, and that they could not have opted out of a protection provided to them by law, even if, they wanted to; that the share purchase agreement for the sale of the Company to a foreign buyer provided that the employees of the Company were entitled to protection of their terms and conditions of service and that the same could not be altered or modified to their detriment; held, that the petitioners opted for the "Key Talent" package, voluntarily tendered their resignations, signed fresh employment contracts and were granted employment under the "new terms and conditions"---Admittedly, petitioners received enhanced pecuniary benefits and rendered services in their respective capacities for more than two years---From the time of acceptance of the "new terms and conditions" and till termination of their respective contracts, none of the petitioners lodged any protest or raised any objection that they had been forced to tender their resignations or execute fresh contracts and accept "new terms and conditions" of contract---Petitioners performed their services under the new scheme without protest or demur---Petitioners had consciously and with full awareness and application of mind executed fresh contracts of service and accepted all its terms and conditions including severing their earlier relationship with the Company---Such conscious decision was made in consideration of a much higher salary among other benefits which was admittedly much better than the one they were receiving at that time---By their acts and deeds both the parties clearly and categorically expressed their understanding and intention that the earlier relationship of employer and employee stood terminated, and that the petitioners were in a new contractual relationship with the Company---Once the petitioners opted to tender their resignations for opting the new package their existing status as transferred employees and the protection and safeguards available to such employees (except the safeguard of pension) came to an end---New employment contracts represented a fresh arrangement based upon the principle of 'Master and Servant' and their service was governed by the terms and conditions of their fresh contract---Protection under S. 36(2) of the Pakistan Telecommunication (Re-organization) Act, 1996 as well as the sale agreement between the Company and its foreign buyer could not therefore be extended to the petitioners because now their relationship with their employer was governed by the principle of 'Master and Servant' on the basis of the terms and conditions of their new contract---Even otherwise, having voluntarily accepted an offer made by the employer-Company and the same having been acted upon by both the sides, the petitioners were estopped from resiling from the same---Services of petitioners were terminated in terms of their new employment contracts with the Company---Petition for leave to appeal was dismissed accordingly.

(b) Master/servant---

----Termination from service---Discrimination---Proof---Right and discretion of the employer regarding the quality and quantity of the employees that it wished to retain or rehire could not lightly be interfered with in the absence of clear proof of mala fides and a systematic and conscious effort to discriminate.

Petitioner in person (in C.P. 931 of 2017).

Muhammad Afzal Kharral, Petitioner in person (in C.Ps. Nos.1657 and 1659 of 2017).

Zulfiqar Khalid Maluka, Advocate Supreme Court for PTCL.

2018 P L C (C.S.) 458

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J. Umar Ata Bandial and Ijaz ul Ahsan, JJ

WAPDA through Chairman and others---Petitioners

Versus

ABDUL GHAFFAR and others---Respondents

Civil Petitions 1035-L to 1061-L of 2017, decided on 21st December, 2017.

(Against judgment dated 01.02.2017 of Federal Service Tribunal, Lahore, passed in Appeals Nos. 225 to 235, 247 to 250(L)CS of 2015 and Appeals Nos. 367 to 378(L)CS of 2016)

Civil service---

----Promotion---Similarly placed employees---Entitlement to the same relief---Point of law relating to terms of service of civil servant decided by the Service Tribunal or the Supreme Court---Where such point of law covered not only the case of the civil servants who litigated, but also of other civil servants, who may have not taken any legal proceedings, the dictates of justice and rule of good governance demanded that the benefit of the point of law be extended to other civil servants, who may not be parties to the litigation instead of compelling them to approach the Tribunal or any other legal forum.

Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185 and Abdul Hameed Nasir v. National Bank of Pakistan 2003 SCMR 1030 ref.

Mian Ghulam Hussain, Advocate Supreme Court for Petitioners.

Mian Mehmood Hussain, Advocate Supreme Court, Faiz-ur-Rehman, Advocate-on-Record for Respondents (in C.Ps. Nos.1035-L to 1049-L of 2017).

M. Ikram Sheikh, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Respondents (in C.Ps. Nos.1050-L to 1061-L of 2017).

2018 P L C (C.S.) 502

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

TARIQ IQBAL and others

Versus

DG MILITARY LAND AND CANTONMENTS DEPARTMENT MINISTRY OF DEFENCE and others

Civil Petitions Nos. 382-K to 385-K of 2017, decided on 14th December, 2017.

(Against the consolidated Order dated 1.6.2017 passed by the High Court of Sindh in C.Ps. Nos. D-5661/14, 4531/14, 4532/14, 5468/14, 4790/13 and 7751/15)

Pakistan Cantonments Servants Rules, 1954---

----R. 5(i)---Employees of Cantonment Board---Transferable posts---Director General of Military Lands issued a letter in terms of R. 5(1) of the Pakistan Cantonments Servants Rules, 1954, declaring that the employees of Cantonments Boards in BS-5 and above who were presently in non-transferable categories be placed in the transferable categories and could be transferred throughout the country---Pakistan Cantonments Servants Rules, 1954 were duly published in accordance with law and no change in the said rules had been questioned nor it had been brought to the notice of the court---Transferred employees/petitioners also never challenged the vires of R. 5 of the Pakistan Cantonments Servants Rules, 1954---Petition for leave to appeal was dismissed accordingly.

M. Shafi Muhammadi, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioners (in C.Ps. Nos.384 and 385 of 2017).

Ghulam Qadir Jatoi, Advocate-on-Record for Petitioners (in C.P. No.383 of 2017).

Petitioner in person (in C.P. No.382 of 2017).

Muhammad Umer Riaz, Advocate Supreme Court and Sohail H.K. Rana, Advocate Supreme Court for Respondent No.3 (in C.Ps. Nos.382 and 383 of 2017).

Muhammad Iqbal Ch., Advocate-on-Record for Respondent No.3 (in C.P. No.384 of 2017).

2018 P L C (C.S.) 564

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

MUHAMMAD SHARIF TAREEN, CHIEF OF SECTION (ACTING) (BPS-19), PLANNING AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another

Civil Appeal No.709 of 2017 in Civil Petition No. 1332 of 2017, decided on 25th September, 2017.

(On appeal against the judgment dated 14.03.2017 passed by the High Court of Balochistan Quatta in C.P. No. 1155 of 2016)

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

----R. 7--- Appointment by absorption--- Repatriation to parent department---Appellant was appointed as Agricultural Officer (BPS-17) by initial recruitment in the Balochistan Agricultural and Cooperative Department, and then absorbed against the post of Research Officer (BPS-17) in the Planning and Development Department without affecting the seniority of the Research Officers already working in the department---Plea on behalf of appellant that his case was not covered by the dicta rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others (2013 SCMR 1752), Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) and Muzaffar Hussain v. Federation of Pakistan (Crl. O. P. No.31 of 2016 decided on 10.05.2016), therefore, the notification repatriating him to his parent department could not hold the field; held, that the relevant service rules of the Provincial Planning and Development Department provided that vacancy of Research Officer was to be filled by initial recruitment, thus, there was no scope for filling such vacancy by promotion, transfer, absorption or by any other method which was not provided by the relevant law and rules---Appointment of appellant by absorption being hit by the judgments rendered in the cases of Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) and Muzaffar Hussain v. Federation of Pakistan (Crl.O.P. No.31 of 2016 decided on 10.05.2016) could not be maintained---Appellant had thus rightly been repatriated to his parent department---Review petition was dismissed accordingly.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record (Absent) for Appellant.

Amanullah Kanrani, A.-G. Balochistan and Ayaz Khan Swati, Additional A.-G. Balochistan for Respondents.

2018 P L C (C.S.) 577

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sajjad Ali Shah, JJ

STATE through Prosecutor-General, Punjab

Versus

JAHANGIR AKHTAR and others

Criminal Appeals Nos. 430 to 432, 442, 446, 447 and 495 of 2017, decided on 17th January, 2018.

(Against the orders dated 26.01.2016, 29.01.2016 and 03.02.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals Nos. 523, 438, 439, 494, 520, 440 and 437 of 2015)

Constitution of Pakistan---

----Art. 13(a)--- Criminal Procedure Code (V of 1898), S. 403---Simultaneous disciplinary and criminal proceedings---Permissibility---Employment in police obtained on basis of fake and forged documents---As a disciplinary measure the respondents (police officials) were compulsorily retired from service but criminal proceedings against them were stopped on the basis that in view of their compulsory retirement it would amount to double jeopardy; held, that disciplinary action taken by a department and criminal prosecution were quite distinct from each other and could proceed simultaneously or one after the other and such separate actions did not attract the principle of double jeopardy---Disciplinary proceedings were meant solely for maintaining and ensuring purity of service whereas criminal prosecution was meant to punish a person for the offence committed by him---Supreme Court restored status of respondents as accused persons in the relevant criminal cases and the Trial Court was directed to proceed with their trials in accordance with law.

[Case-law referred]

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for Appellant (in all cases).

Tanvir Iqbal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in all cases).

2018 P L C (C.S.) 615

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

TIKKA KHAN and others

Versus

Syed MUZAFFAR HUSSAIN SHAH and others

Civil Petitions Nos. 3577 to 3583 and 3889 to 3895 of 2016, decided on 19th April, 2017.

(On appeal against the judgment dated 20.10.2016 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 1778(R)CS/2015 to 1783(R)CS/2015 and 2095(R)CS/2015)

Civil Servants (Seniority) Rules, 1993---

----Rr. 4 & 4-A---Seniority on transfer from one office to another---Civil servants transferred from one Ministry to another after abolishment of the former---Numerous Ministries were abolished and reorganized in the wake of a Constitutional amendment and the respondents being the employees of an abolished Ministry were transferred to a re-organized Ministry---Case of the respondents was, thus, not one of appointment by transfer or absorption or appointment on deputation in the re-organized Ministry---Transfer of the respondents to the re-organized Ministry, therefore, could not be seen through the prism of R. 4 of the Civil Servants' (Seniority) Rules, 1993---Respondents' case was more akin to R. 4A of the Civil Servants' (Seniority) Rules, 1993 and was fully covered by Serial No.33(6) of Estacode, Vol-I, Edition 2007---No cannons of interpretation would scratch or strike off past service of the respondents when they on abolition of the Ministry, were compulsorily transferred to the re-organized Ministry---Past service of the respondents had to be respected and recognized for determining their seniority, and it would, thus, be unfair and unjust to treat the respondents junior to the junior most civil servants in the re-organized Ministry---Petition for leave to appeal was dismissed accordingly.

Hafiz S. A. Rehman, Senior Advocate Supreme Court and Mehmood A. Sh., Advocate-on-Record (Absent) for Petitioners (in C.Ps. Nos.3577-3583 of 2016).

Syed Nayyab Hassan Gardezi, Standing Council and Faiz-ur-Rehman, Advocate-on-Record (Absent) for Petitioners (in C.Ps. Nos.3889-3895 of 2016).

Nemo for Respondents.

2018 P L C (C.S.) 647

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Maqbool Baqar, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, DG KHAN and another

Versus

MUHAMMAD ALTAF and others

Civil Petition No. 4299 of 2017, decided on 30th November, 2017.

(Against judgment dated 22.9.2017 of the Lahore High Court, Multan Bench passed in I.C.A. No. 332/2017)

Civil service---

----Daily wage employees---Regularization in service---Respondents had been employed by the petitioner-Education Board on daily wages for a considerable period of time---Employment contracts of respondents were terminated after every 89 days and were resumed a day thereafter---All the respondents had served the petitioner-Board for not less than nine months, however with artificial breaks, to break the continuity of their service with mala fide intent to avoid their regularization---Despite the fact that services of respondents had matured and they were under the law required to be regularized, the petitioner-Board contemplated to make fresh appointments through advertisement---High Court had rightly regulairzed the services of the respondents with the petitioner-Board---Petition for leave to appeal was dismissed accordingly.

Mehboob Azhar Sh., Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2018 P L C (C.S.) 654

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Faisal Arab, JJ

MUHAMMAD YOUNIS

Versus

FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER, PAKISTAN RAILWAYS, LAHORE and others

Civil Petition No. 264 of 2017, decided on 13th February, 2018.

(On appeal against the judgment dated 15.12.2016 passed by the Federal Service Tribunal, Islamabad in Appeal No.3272(R)CS/2012)

Civil service---

----Pensionary benefits---Different rates of increase in pension dependent on date of retirement---Plea of discrimination---Reasonable classification---In terms of impugned Office Memorandums, those employees who retired on or before 01-12-2001 were given 20% rise in pension whereas those who retired thereafter were given only 15% rise---Petitioner contended that there should not be two different rates of increase and all pensioners should be given the same percentage of increase in pension irrespective of their dates of retirement; held, that distinction between 'old pensioners' and 'new pensioners' was necessary as the quantum of pension was determined keeping in view the difference of pay in different time periods---Argument of discrimination raised by the petitioner had to be rejected as bifurcation between pensioners was considered necessary in order to maintain a uniform rise in pension due to the different rate of salaries the ex-employees were drawing at the time of their retirement---Petition for leave to appeal was dismissed accordingly.

Federation of Pakistan v. I.A. Sherwani and others 2005 SCMR 292 ref.

Petitioner in person.

Hafiz Muhammad Saeed, Advocate Supreme Court and Manzoor Malik Moor, A.O. for Respondents.

2018 P L C (C.S.) 657

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sardar Tariq Masood and Faisal Arab, JJ

MUHAMMAD RAFIULLAH and others

Versus

ZARAI TARAQIATI BANK LIMITED (ZTBL) through President, Islamabad and another

Civil Petitions Nos. 3078 to 3130, 3163 to 3180, 3184 to 3203, 3244 to 3258, 3263, 3285 and 3286 of 2016 and Civil Misc. Applications Nos.6624 to 6626 of 2016 and 5569 of 2017, decided on 22nd November, 2017.

(Against the judgment dated 29.06.2016 of the Islamabad High Court, Islamabad, passed in I.C.As. Nos. 29, 30, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 170 of 2014, 994, 998 of 2013 and 181 of 2018)

(a) Civil service---

----Terms and conditions of service, alteration in--- Terms and conditions of service could not be unilaterally altered by the employer to the disadvantage of the employees.

(b) Civil service---

----Service benefits---Where an employee voluntarily accepted and received benefits under some arrangement with the employer out of his own free will then he could not turn around and seek benefits that were ordinarily applicable to other employees.

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

(c) Agricultural Development Bank Employees Pension and Gratuity Regulations, 1981---

----Preamble---Zarai Taraqiati Bank Limited (Staff Regulations), 2005, Preamble---Constitution of Pakistan, Art. 25---Plea of discrimination---Reasonable classification between two sets of employees---Employees of Agricultural Development Bank of Pakistan received their pensionary benefits computed on basis of pension factor of 2.33%---Before Agricultural Development Bank of Pakistan was converted into Zarai Taraqiati Bank Limited, the bank issued a circular which reduced the pension factor to 1.15%---Said circular was applicable to those employees who opted for the Golden Handshake Scheme or were covered under the Zarai Taraqiati Bank Limited (Staff Regulations), 2005 ("first set of employees")---Employees of the Bank, who had neither opted under the Golden Handshake Scheme nor under Zarai Taraqiati Bank Limited (Staff Regulations), 2005 ("second set of employees"), upon their retirement were also given pensionary benefits on the basis of the revised pension factor of 1.15%, however on the orders of the High Court their pension factor was restored to 2.33%---First set of employees contended that their pension factor should also be restored to 2.33% as their terms and conditions of service could not be changed by the Bank unilaterally, and that they were being discriminated against in reference to the second set of employees; held, that the first set of employees received all benefits including pensionary benefits as provided in the scheme under which they exercised their option---Said employees on account of their own voluntary act considered the most beneficial option, which disentitled them from claiming pensionary benefits under Agricultural Development Bank Employees Pension and Gratuity Regulations, 1981---Said employees could be categorized distinctly from the second set of employees who had not opted either under the Golden Handshake Scheme of 2002 or under Zarai Taraqiati Bank Limited (Staff Regulations), 2005---Plea of discrimination was, therefore, not available to the first set of employees being of distinct class---Petition for leave to appeal was dismissed accordingly.

National Bank of Pakistan v. Nasim Arif Abbasi 2011 SCMR 446 and State Bank of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280 ref.

Abdur Rehman Khan, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3078, 3079, 3083, 3085 to 3091, 3093 and 3123 to 3130 of 2016).

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3094 to 3121 of 2016).

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3092, 3080 to 3082, 3084, 3122, 3163 to 3180, 3184 to 3190 of 2016).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3191 to 3203, 3244 to 3258, 3263, 3285 and 3286 of 2016).

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court for Applicants (in C.M.As. Nos. 6624 to 6626 of 2016).

Ch. Imtiaz Ahmed, Advocate Supreme Court for Applicants (in C.M.A. No. 5569 of 2017).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondents (in C.Ps. Nos. 3078 to 3130, 3163 to 3180, 3184 to 3190 of 2016).

2018 P L C (C.S.) 669

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

FEDERATION OF PAKISTAN through Secretary Capital Administration and Development Division, Islamabad and others

Versus

NUSRAT TAHIR and others

Civil Appeals Nos. 1631 to 2112 of 2017, Civil Appeal No. 216 of 2016 and Civil Appeals Nos. 806 to 811 of 2016, decided on 17th January, 2018.

(On appeal from the judgments dated 18.7.2017, 11.1.2016, 05.10.2015 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 565 to 573, 757 to 793, 894-918-A, 919-943, 998-1005, 1005-A, 1006-1045, 1108-1179, 1224-1243, 1265-1325, 2327-2350, 2352-2368-A, 2369, 2370, 2372-2443, 2446-2449, 2453, 2451, 2452, 2450, 2454, 2484, 2487-2501, 2508-2520(R)CS/2016, 867-872(R)CS/13, 224(R)CS/15 etc.)

Career Structure for Health Personnel Scheme Ordinance (VI of 2011)---

----S. 2(b) & Sched. I---Employees of different institutions functioning under the Directorate General of Special Education---Entitlement to payment of health allowance---Health allowance was allowed to said employees vide certain Office Memoranda ("the Memorandums")---Plea of Federal Government that health allowance was only for employees of a health organization, whereas the employees in question were engaged in the process of education, training and rehabilitation of disabled children and therefore did not fall within the ambit of a health organization; held, that education, training and rehabilitation of disabled persons were services provided in the health sector---Said services fell within the terms of Schedule-I to the Career Structure for Health Personnel Scheme Ordinance, 2011 and therefore the providers thereof qualified as health personnel---Memorandums issued by the Finance Division, Government of Pakistan still held the field in their original terms---Grant of the health allowance and the terms of eligibility to receive the same were determined by the competent authority, i.e. Ministry of Finance in accordance with Rules of Business of the Federal Government---Memorandums were acted upon for a certain period of time before the Finance Division stopped the payment of allowance to the employees in question---Payment of the health allowance to the employees had conferred a vested right upon them, thus, in such circumstances, the Executive was barred by the rule of locus poenitentiae from unilaterally rescinding and retrieving the benefit availed by its recipients---Appeals were dismissed by the Supreme Court and the entitlement of employees of the Directorate General of Special Education, allied institutions/centers, National Council for Rehabilitation of Disabled Persons ("NCRDP") and National Trust for the Disabled ("NTD") to receive the health allowance was affirmed. [pp. 674, 675] A, B, C & D

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and The Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.

Sajid Ilyas Bhatti, DAG, Syed Rifaqat Hussain Shah, Advocate-on-Record, Ms. Saadia Kanwal, S.O. Fin. Abid Hussain Channa, S.O. Fin. Sajid Javed, Assistant, Legal Fin. and Abdul Razzaq, AAO MEG Rawalpindi for Appellants (in all cases).

Respondents in person.

Muhammad Ilyas Lodhi, Advocate Supreme Court and Malik Itaat Hussain Awan, Advocate Supreme Court for Respondents (in C.A. No. 216 of 2016).

Muhammad Makhdoom Ali Khan, Senior Advocate Supreme Court and Sikandar Bashir Mohmand, Advocate Supreme Court for Amicus Curiae.

2018 P L C (C.S.) 692

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SUO MOTU ACTION REGARDING NON-PAYMENT OF RETIREMENT BENEFITS BY THE RELEVANT DEPARTMENTS AND OTHERS: In the matter of

Suo Motu Case No. 20 of 2016 and Human Rights Cases No.7094-P, 26591-P, 15518-P/2015, 25917-S and 26252-S/2016 and 3910-K, 3911-S, 3912-P, 3913-G and 3914-P/2018 and Constitutional Petitions No.45/2016 and C.M. Appeal No.203/2016 in Constitutional Petition No. NIL/2016 and Civil Misc. Applications Nos.7394 and 7484/2016 and 141, 288, 3772, 3374, 892, 1496, 2076, 2655, 2656, 3797, 3912, 3913, 4252, 4253, 4254, 4291, 8234, 9172, 9312, 9313 and 9314/2017 and 57, 45, 301, 381, 454, 577, 511, 592, 593, 652, 653, 654, 727, 728, 735, 777, 778, 779, 813, 780 and 883/2018, decided on 13th February, 2018.

Civil service---

----Master and Servant---Minimum pensionary benefits---Retired employees of privatized Banks---Suo motu case concerning minimum pension paid to the retired employees of privatized Banks---Subjecting a pensioner to a life of penury and impoverishment, was a clear violation of his Fundamental Rights to life and dignity as enshrined in Arts. 9 & 14 of the Constitution respectively---Pension given to pensioners must be of a level which allowed them to keep body and soul together---Supreme Court directed that with immediate effect the minimum pension paid to any pensioner (including their widows, where applicable) of the concerned privatized Banks (UBL, HBL and ABL) would be Rs. 8,000 per month; that such payments would be prospective, i.e, from the date of present judgment; that there would be an annual increase of 5% in the said pension, effective on the 1st of January every year; that the said pension would be paid to all three categories of pensioners, i.e. the "original retirees", those whose pensions were linked to basic pay "frozen" in past years, and in the case of one of the Banks (UBL) to retrenched employees including those who had served the Bank for more than ten years on the date of retrenchment; that employees who were receiving pension sums in excess of Rs.8,000/- shall continue to do so, and those whose pension would fall below the minimum pension (after 5% annual increase, effective on the 1st of January) they shall be paid the minimum pension with 5% annual increase, however, those who had availed the benefit of VSS (Voluntary Separation Scheme) or Golden Handshake Scheme would not be benefited by present judgment---Suo motu case was disposed of accordingly.

Muhammad Waqar Rana, Addl. A.G.P., Rashid Hafiz, DAG, Mian Abdul Rauf, A.G. Islamabad, Shehryar Qazi, Addl. A.G. Sindh, Ayaz Swati, Addl. A.G. Balochistan, Farid Dogar, AAG, Balochistan and Zahid Yousaf Qureshi, Addl. AG Khyber Pakhtunkhwa in attendance.

Tariq Waheed, Dy. Accounts Officer for D.C. Rawalpindi.

Nasir Mehmood, LO Finance Dept. Pb., Syed Afzal Hassan, Accounts Officer AGPR, Saqib Javed Abbasi, AAO AGPR, Aziz Ahmed, Director CGA Islamabad, Sohail Ijaz, AAO, Syed Imtiaz Hussain, AAO CGA, Fayad Durrani, Accountant General, Peshawar, Abid Hussain Channa, SO M/o Finance and M. Ikram Abbasi, Law Officer, Education Department, Punjab.

M. Naseem Butt, Accounts Officer Legal for Accountant General Punjab.

Abdul Razzaq, Asstt. Accountant Officer, MAG RWP.

Rehan Akhtar, AO for AG Balochistan.

Bakhtiarullah, AO for AG Khyber Pakhtunkhwa.

Rana Amanullah, Dir. (Finance) Local Board Punjab, Rana Tariq Shaukat, Dy. Dir. Colleges, Punjab and Tariq Hameed, Dy. Secy. HE Dept. Punjab.

Shahid Anwar Bajwa, Advocate Supreme Court (for HBL and ABL).

Sikandar Bashir Mohmand, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record (For UBL).

Hashmat Ali Habib, Advocate Supreme Court (in C.M.A. No.288/2017).

Farrokh Niaz, in person (in C.M.A. No. 8404/2016).

Abdul Raheem Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.As. Nos.1496/2017 and 558/2018).

Ms. Ayesha Hamid, Advocate Supreme Court and Raja Muhammad Sarfraz, in person (for retired UBL employees).

Syed Ali Zafar, Advocate Supreme Court and Mr. Zahid Nawaz Cheema, Advocate Supreme Court (for HBL).

Salman Aslam Butt, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record (for UBL/Resp.4 in Const.P.45/2016)

Babar A. Khilji, Advocate Supreme Court (in C.M.A. No.883/18)

Shoaib Shaheen, Advocate Supreme Court (in C.M.A. No.3797/17)

Javed Iqbal, Advocate Supreme Court (for PPCBL).

Umer Aslam Khan, Advocate Supreme Court (in C.M.A. No.7394/2016)

Rai M. Nawaz Khan Kharal, Advocate Supreme Court (in CMA No.9172/2017)

Tariq Mehmood Khokhar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (for Allied Bank employees in C.M.As. Nos.8234, 9312-9314/2017).

Raja M. Farooq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.A. No.892/2017)

Ahmed Awais, Advocate Supreme Court, Tipu Salman Makhdoom, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record (in Constitutional Petition No.45/2016).

Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.A. No.45/2018).

Raja Muhammad Sarfraz (UBL) and Nazar Abbas (UBL) (in C.M.A. No.2656/2017).

Muhammad Naseem Qazi (UBL) (in C.M.A. No.1459/2017).

Khan Muhammad (WAPDA) (in C.M. Appeal No.203/2016).

Sultan Mahmood (in C.M.A. No.141/2017).

Shafqat Hussain (in C.M.A. No.2655/2017).

Hazoorul Islam Abbasi (HBL) and Mehboob Ahmed Soomro (HBL).

Dildar Awan, Maqsood Hussain Kazmi and M. Rafique (ZTBL).

Muhammad Farooq (in C.M.A. No.8234/2017).

Mian Muhammad Aslam (in C.M.A. No.3772/2017).

Dr. Khawar Ubaid Alvi (in H.R.C. No.25917-S/2016).

Dr. Surraya Khawar (in H.R.C. No.25917-S/2016).

Syed Imtiaz Ali (in H.R.C. No.26252/2016).

Mian Muhammad Saleem (UET).

M. Ishaque, in-person (in H.R.C. No.26252/2016)

Makhdoom Ali Khan, Senior Advocate Supreme Court

Amicus Curiae.

Ms. Seema Kamil, President UBL, Aamir Karachiwala, CFO UBL, Raymond H. Kotwal, President HBL, Jamal Nasir, Head HR, Tahir Hassan Qureshi, President ABL and Atif Izhar, SVP/Head of HR Deptt. ABL on Court's Notice.

2018 P L C (C.S.) 718

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

JAHANZAIB MALIK

Versus

BALOCHISTAN PUBLIC PROCUREMENT REGULATORY AUTHORITY through Chairman Board of Directors and others

Civil Petition No.216-Q of 2017, decided on 4th January, 2018.

(On appeal against the judgment dated 08.11.2017 passed by the High Court of Balochistan, Quetta in Constitution Petition No. 721 of 2015)

(a) Civil service---

----Advertised post---Academic qualification for candidates---Degree issued after last date for submitting application for the post---At the time of submitting his application for the post in question, appellant had not received his degree on basis of which he applied for the post---Appellant completed his degree in January, 2014 (i.e. before the last date for submission of application for the post), however, the degree was formally issued in March, 2015 for reasons beyond his control---Degree itself showed that the appellant had successfully completed the requisite course work and examination in the academic year 2014---Transcript issued by the concerned institute also verified the fact that the appellant had completed his degree in January, 2014---Fact that the degree was formally issued in year 2015 was not, in the facts and circumstances of the present case of much significance---Furthermore appellant was at the top of the list (of candidates) on the basis of his performance in the test and interview---Impugned judgment of the High Court whereby appellant was held to be not qualified to hold the post in question was set-aside---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199--- Suo motu powers of the High Court--- Scope---Constitutional petition becoming infructuous---Constitutional petition as originally filed challenged the appointment of respondent to an advertised post only on basis of his alleged lack of education qualification---Once the respondent's tenure expired, he was granted an extension of two (2) years, vide an office order---Said office order was not challenged by the petitioner either through amendment in the Constitutional petition or by filing a fresh petition---When the petitioner was held to be academically qualified for appointment to the post, then the Constitutional petition as originally filed was rendered infructuous---By taking suo motu notice of such extension, the High Court appeared to have exceeded its jurisdiction for reasons which were not legally sustainable---Impugned judgment of High Court was set aside in circumstances.

Tariq Mehmood, Senior Advocate Supreme Court for Petitioner.

Ayaz Swati, Addl. A.G. for Respondents Nos.1 and 2.

Nemo for Respondent No.3.

2018 P L C (C.S.) 730

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Ijaz ul Ahsan, JJ

AZIZ UL ALLAH and others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and another

Civil Appeals Nos. 588 to 590 of 2017, C.M.As. Nos. 2032, 2421, 2422 and 2419 of 2017 and Civil Appeal No. 710 of 2012, decided on 25th September, 2017.

(On appeal against the judgment dated 14.03.2017 passed by the High Court of Balochistan Quetta in C.Ps. Nos. 1163 and 1172 of 2016)

Balochistan Civil Service (Executive Branch) Rules, 1984---

----R. 5---Balochistan Secretariat (Grade 16 and above) Service Rules, 2002, R. 5---Balochistan Finance and Accounts Group Service Rules, 2001, R. 5---Assistant Executive Officers (appointed under the aegis of the Provincial Public Service Commission) absorbed in Provincial Civil Service (Executive Branch) and Provincial Secretariat (Section Officers) Service---Legality---Rules regulating appointment by initial recruitment, promotion and transfer in the Provincial Civil Service (Executive Branch) and the Provincial Secretariat (Section Officers) Service did not allow squeezing in any intruder, therefore, individual or en-bloc absorption from any other group of service, being essentially against law, could not be upheld---Absorption of a civil servant of a non-cadre post against a cadre post was alien to the said rules.

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

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.A. 588 of 2017).

Khawaja Haris Ahmed, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.A. 589 of 2017).

Qasim Mengat Appellant in person (in C.A. 590 of 2017).

Malik M. Qayyum, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. 710 of 2017).

Amanullah Kanrani, A.-G. Balochistan, Ayaz Khan Swati, Additional A.-G. Balochistan and Raja Ibrahim Satti, Senior Advocate Supreme Court for Respondents (Rs 3-7 in CA 588 and Rs 2-6 in 589/17).

Syed Ali Zafar, Advocate Supreme Court and Zahid Nawaz Cheema, Advocate Supreme Court for Respondents (Rs 32-37 in C.A. 890/17).

Ms. Asma Jehangir, Senior Advocate Supreme Court for Respondents (Rs 2-6 in C.A. 710/17).

Raja Ibrahim Satti, Senior Advocate Supreme Court (in C.M.A. 3198/1).

2018 P L C (C.S.) 846

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J. and Mushir Alam and Sajjad Ali Shah, JJ

Messrs SUI SOUTHERN GAS COMPANY LTD. and others

Versus

FEDERATION OF PAKISTAN and others

Civil Appeals Nos.1583 to 1598 of 2014, 970 and 971 of 2013, 4, 5, 606 and 1152 of 2015 and Civil Petition No.2154-L of 2014 and Civil Misc. Application No.484-K of 2014 in Civil Appeal No.1598 of 2014.

(Against the judgments date 4-8-2014, 29-10-2010, 3-12-2014, 18-3-2015, 9-6-2015 and 17-4-2014 of the High Court of Sindh, Karachi/Islamabad High Court, Islamabad/Peshawar High Court, Peshawar/Lahore High Court, Lahore passed in C.Ps.Nos.D-304/2012, D-3195/2010, D-1762/2012, D-658/2012, D-3530/2011, D-3196/2010, D-2948/ 2011, D-2947/ 2011, D-2701/ 2011, D-2269/ 2013, D-2188/2011, D-1642/2012, D-1410/2010, D-4184/2012, D-153/ 2012, D-1796/ 2010, D-2428/ 2010, W.P. No.4626/ 2014, 4628/ 2014, C.P. No.4514/2013, W.P. No.634/2015 and R.A. No.93/2012).

(a) Constitution of Pakistan---

----Art. 184(3)---Vires of statute---Legislative enactment, vires of---Judicial review---Scope---While considering the vires of a legislative enactment under its powers of judicial review, the Supreme Court could consider not only the substance of the law but also the competence of the legislature---Further no mala fide could be attributed to the legislature, however, the bona fides of the legislature as also the purpose and object of a statute may also be considered in the determination of the vires of a statute---Vires of a statute could also be determined on the ground that the legislation was colourable.

(b) Constitution of Pakistan---

----Art. 184(3)---Legislative enactment, constitutionality of---Judicial review---Scope---When a law was enacted by the Parliament, the presumption was that Parliament had competently enacted it (law), and if the vires of the same (law) were challenged, the burden always laid upon the person making such challenge to show that the same (law) was violative of any of the Fundamental Rights or the provisions of the Constitution---Where two opinions with regard to the constitutionality of an enactment were possible, the one in favour of the validity of the enactment was to be adopted---Court should lean in favour of upholding the constitutionality of a legislation and it was thus incumbent upon the Court to be extremely reluctant to strike down laws as unconstitutional---Such power should be exercised only when absolutely necessary as injudicious exercise of such power might well result in grave and serious consequences

[Case-law referred]

(c) Constitution of Pakistan---

----Fourth Sched.---Legislative Lists, interpretation of---Principles stated.

Principles of interpretation with regard to Entries in the Legislative Lists were as follows:

(i) The entries in the Legislative Lists of the Constitution were not powers of legislation but only fields of legislative heads;

(ii) In construing the words in an Entry conferring legislative power on a legislative authority, the most liberal construction should be put upon the words;

(iii) While interpreting an Entry in a Legislative List it should be given widest possible meaning and should not be read in a narrow or restricted sense;

(iv) Each general word in an entry should be considered to extend to all ancillary or subsidiary matters which could fairly and reasonably be said to be comprehended in it;

(v) If there appeared to be an apparent overlapping in respect of the subject-matter of a legislation, an effort had to be made to reconcile the Entries to give proper and pertinent meaning to them;

(vi) A general power ought not to be so construed so as to make a particular power conferred by the same legislation and operating in the same field a nullity;

(vii) Legislation under attack must be scrutinized in its entirety to determine its true character in pith and substance; and

(viii) After considering the legislation as a whole in pith and substance, it had to be seen that with respect to which topic or category of legislation in the various fields, it dealt substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way.

[Case-law referred]

(d) Industrial Relations Act (X of 2012) ---

----S. 3 & Preamble---Constitution of Pakistan, Arts. 17, 97, 137, 141, 142 & Fourth Sched, Pt. I, Entries 58 & 59---Industrial Relations Act, 2012, vires of---Establishments/trade unions functioning at the Federal as well as trans-provincial level---Legislative domain of Federal and Provincial Legislature---Scope---Federal Legislature had extra-territorial authority to legislate, but no such extra-territorial authority had been invested with the Provincial Legislature---Provincial Legislature, therefore, had no legislative competence to legislate laws regulating the trade unions functioning at trans-provincial level---Constitution itself had provided a mechanism in form of Entries Nos.58 and 59 of Part I of the Federal Legislative List, whereby the Federal Legislature had been mandated to legislate in order to preserve and regulate a right, which in its exercise transcends provincial boundaries, especially one guaranteed under Art.17 of the Constitution---When a provincial legislature was not competent to legislate with regard to the workmen of trans-provincial establishments, obviously the Federation had to interfere in the matter with a Federal legislation (such as the Industrial Relations Act, 2012) to preserve and protect the Fundamental Rights of the said workmen ensured under Art.17 of the Constitution---Parliament in its wisdom had intentionally left it for a Province to make legislation concerning the establishments/trade unions functioning only within the limits of that Province, without transgressing the territorial limits of the said Province---Neither did the Industrial Relations Act, 2012 in any manner, defeat the object of the Eighteenth Amendment (to the Constitution) nor did it destroy or usurp the provincial autonomy or the principle on which the Federation was formed under the Constitution; rather it facilitated to regulate the right to form unions at trans-provincial level, which could not be attained through a provincial law---Supreme Court declared that the Industrial Relations Act, 2012 had been validly enacted by the Parliament and was intra vires the Constitution; that workers of the establishments/industries functioning in the Islamabad Capital Territory or carrying on business in more than one provinces shall be governed by the Federal legislation i.e. Industrial Relations Act, 2012; whereas, the workers of establishments/industries functioning or carrying on business only within the territorial limits of a province shall be governed by the concerned provincial legislations.

(e) Industrial Relations Act (X of 2012)---

----S. 3 & Preamble---Constitution of Pakistan, Fourth Sched, Pt. I, Entries Nos. 3 & 32 & Fourth Sched, Pt. II, Entries Nos.13 & 18---Industrial Relations Act, 2012, vires of---Establishments/trade unions functioning at the Federal as well as trans-provincial level---Question as to whether the Federal Legislature was competent to enact the Industrial Relations Act, 2012; held, that entry No.32 of Part I of the Federal Legislative List, brought within the legislative competence of the Federal Legislature the matters relating to the international treaties, conventions, etc.---Matters relating to trade unions and labour disputes, etc., have been dealt with and protected under the International Labour Organization's Conventions No.87 (Convention concerning Freedom of Association and Protection of the Right to Organise) and No.98 (Convention concerning the application of the Principles of the Right to Organise and to Bargain Collectively) which were covered under Entries Nos.3 and 32 of Part-I of the Federal Legislative List---Federal Legislature, thus, had legislative competence to legislate in such regard to discharge the obligations created under the International Treaties and Conventions---Entry No. 13 of Part II of the Federal Legislative List, which covered "Inter-provincial matters and co-ordination" also provided legislative authority to the Federal legislature to enact laws relating to inter-provincial matters/trade unions---Moreover Entry No. 18 of Part II of the said List enlarged the scope of Entry No. 13---Federal legislature had the competence to legislate in relation to establishments/trade unions functioning at the Federal as well as trans-provincial level---Industrial Relations Act, 2012 was, therefore, validly enacted by the Parliament.

(f) Industrial Relations Act (X of 2012)---

----S. 35---National Industrial Relations Commission ("NIRC"), jurisdiction of---Scope---National Industrial Relations Commission (NIRC) formed under S. 35 of the Industrial Relations Act, 2012 had jurisdiction to decide the labour disputes, etc., relating to the employees/workers of companies/corporations/institutions/ establishments functioning in more than one Province.

(g) Interpretation of statutes ---

----Procedural law---Retrospective effect---Procedural law had retrospective effect unless contrary was provided expressly or impliedly.

Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division Islamabad and others 2011 SCMR 1254 ref.

(h) Industrial Relations Act (X of 2012)---

----Preamble---Industrial Relations Act (IV of 2008), Preamble---Industrial Relations Act, 2012---Date of applicability---Industrial Relations Act, 2012, being a procedural law, would be applicable retrospectively w.e.f. 01-05-2010, when the Industrial Relations Act, 2008 ceased to exist.

Khalid Anwar, Senior Advocate Supreme Court, Nisar A. Mujahid, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.As. Nos. 970 and 971 of 2013).

Asim Iqbal, Advocate Supreme Court for Appellants (in C.A. No.1583 of 2014).

Dr. Muhammad Farough Naseem, Advocate Supreme Court for Appellants (in C.As. Nos.1584, 1585, 1589, 1590, 1591, 1593, 1596, 1597 and 1598 of 2014).

Nemo for Appellants (in C.As. Nos. 1586, 1587, 1588, 1592, 1594 and 1595 of 2014).

Tariq Masood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos.4 and 5 of 2015).

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.A. No. 606 of 2015).

Mehmood Abdul Ghani, Advocate Supreme Court and M.S. Khattak, Advocate on Record for Appellants (in C.A. No.1152 of 2015).

Khalid Ismail, Senior Advocate Supreme Court for Appellants (in C.P. No.2154-L of 2014).

M. Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondents (in C.As. Nos.1583, 1585, 1586, 1590 to 1595 of 2014).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Respondents (in C.A. Nos. 1584 and 1587 of 2014).

Khalid Ismail, Advocate Supreme Court for Respondents (in C.As. Nos. 4 and 5 of 2015, 970, 971 of 2013).

Nemo for Respondents (in C.A. No.970 of 2013).

Amir Javed, Advocate Supreme Court for Respondents (in C.A. No.1152 of 2015).

Salman Riaz Ch., Advocate Supreme Court for Respondents (in C.P. No.2154-L of 2014).

Muhammad Waqar Rana, Addl. A.G.P., Shehryar Qazi, Addl. A.G. Sindh, Ms. Asma Hamid, Addl. A.G. Punjab, Barriater Qasim Wadood, Addl. A.G.KPK, Ayaz Swati, Addl. A.G. Balochistan, M. Bilal Nadeem, Dy. Registrar, NIRC, Syed Farrukh Manayun, Joint Director Labour Department, Sindh, Raja Maqsood, LO Labour Deptt. Punjab and Mazhar Hussain, SO (Coordination) Ibd (on Court's Notice).

Saleem Khan, Advocate Supreme Court, Qazi Ahmed Naeem Qureshi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Intervener.

2018 P L C (C.S.) 893

[Supreme Court of Pakistan]

Before Gulzar Ahmed, Qazi Faez Isa and Sajjad Ali Shah, JJ

KHAN MUHAMMAD

Versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN QUETTA and others

Civil Petition No.2812 of 2017, decided on 22nd May, 2018.

(Against the judgment dated 17.7.2017 of the Balochistan Service Tribunal, Quetta passed in S.A.No.238/2017).

(a) Balochistan Civil Servants Act (IX of 1974) ---

--- S. 10 --- Balochistan Government Rules of Business, 2012, Rr. 6(1) & 8(1)(c) ---Balochistan Government Servants (Conduct) Rules, 1979, R. 21---Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992---Posting and transfer---Notification empowering Provincial Minister to post and transfer civil servants---Rule 6(1) of the Balochistan Government Rules of Business, 2012 did not grant to a Minister the power to post or transfer a civil servant---Where such a power was given to a Minister it would negate R. 8(1)(c) of the Balochistan Government Rules of Business, 2012, which stipulated that the relevant Secretary was "the official head of the Department"----Such a power vesting in the Minister would also undermine the secretary's power to enforce "discipline" and dilute his power to ensure the "efficient administration" of the Department---Civil servant must not pursue a Minister to get a posting/transfer of his/her choice, but this, more likely than not would happen, if a Minister was given the power to post/transfer a civil servant---Civil servants were not permitted to approach politicians---Ministers were politicians who had been elected by the people and as such were entitled to enact policies on the basis of which they were elected, however, the posting or transfer of a civil servant was not a policy matter---Balochistan Government Servants (Conduct) Rules, 1979 stipulated that "No Government servant shall, directly or indirectly, approach any Member of the National Assembly or Provincial Assembly or any other non-official person to intervene on his behalf in any manner"---When a civil servant approached a Minister to obtain a posting or transfer of his choice it also constituted misconduct, and disciplinary action could be initiated against such civil servant---Furthermore the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 which defined 'misconduct' and included when, a civil servant brought or attempted to bring political or other outside influence directly or indirectly to bear on the Government or the Minister or any Government officer in respect of any matter relating to the appointment, promotion transfer, punishment, retirement or other conditions of service of a civil servant---Any notification which granted a Minister the power to post/ transfer a civil servant was ultra vires the Balochistan Government Rules of Business, 2012 and the scheme of governance envisaged in the Constitution and therefore was of no legal effect --- Supreme Court directed that the Provincial Chief Secretary and the Secretaries of the departments of the Government were not to act pursuant to any notification, order and/or instruction whereby a Minister ordered the posting/transfer of a civil servant --- Supreme Court observed that if a dispute arose between a Minister and a Secretary with regard to the respective scope of their domains or the orders of a Minister appeared to depart from any rule or regulation of established Government policy the Secretary had to draw the attention of the Minister to it, and, if the Minister disagreed with the Secretary then the Secretary was required to refer the matter to the Chief Minister through the Chief Secretary.

(b) Balochistan Civil Servants Act (IX of 1974) ---

--- S. 10 --- Posting and transfer of civil servant --- Junior officer elevated and placed above his seniors through a notification --- Section 10 of the Balochistan Civil Servants Act, 1974 did not state that a civil servant could be posted or transferred by disregarding his seniority, nor did it empower the Government to cut short the normal tenure of a posted /transferred civil servant, and particularly without assigning any reason --- By way of impugned notification a junior officer was elevated and placed above his seniors without assigning any reasons --- Supreme Court set aside the impugned notification in circumstances.

Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 ref.

(c) Balochistan Civil Servants Act (IX of 1974) ---

---S. 10--- Posting and transfer of civil servant on his own pay and scale basis (OPS) --- Such posting/transfer was not legally permissible.

Province of Sindh v. Ghulam Fareed 2014 SCMR 1189 ref.

(d) Balochistan Civil Servants Act (IX of 1974) ---

--- S. 10--- Posting and transfer of civil servant --- Minimum period of posting/transfer---While S.10 of the Balochistan Civil Servants Act, 1974 did not prescribe a minimum period during which a civil servant must serve at his post, it did not mean that the Government without assigning any reason could move a civil servant from the place he was posted to after a month or subject the civil servant to repeated postings in a short period of time because that would amount to punishing him---Such postings also adversely affected the public interest and resulted in the wastage of scarce resources and constituted bad governance.

M. Shoaib Shaheen, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (absent) for Petitioner.

Ayaz Khan Swati, Additional Advocate General, Balochistan Noor-ul-Haq Baloch, Secretary, Secondary Education Department for Respondents Nos.1 and 2.

Kamran Murtaza, Advocate Supreme Court for Respondent No.3.

2018 P L C (C.S.) 967

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ASAD IQBAL

Versus

PAKISTAN RANGERS SINDH and others

Civil Appeal No. 97-K of 2016, decided on 30th November, 2017.

(Against the order dated 9.4.2015 passed by the Federal Service Tribunal in Appeal No. 98/2011)

Constitution of Pakistan---

----Art. 212(3)---Employee of Pakistan Rangers---Misappropriation/ embezzlement---Recovery of embezzled amount and award of sentence of imprisonment---Appellant was appointed as a clerk (munshi) at a petrol station owned by the Pakistan Rangers---Accused was alleged to have misappropriated money from the petrol station, whereafter he was charge sheeted and ultimately awarded 89 days rigorous imprisonment along with a direction to deposit his share of the misappropriated money; held, that the appellant was provided full opportunity to defend himself---Deposit of portion of the embezzled amount made by the appellant appeared to be voluntary---Even otherwise, the charge of misappropriation/embezzlement, being a question of fact, had been scrutinized and proved before the three forums (below) concurrently and appeared to be in consonance with the record---Regarding a "No Demand Certificate" issued to the appellant after serving out his punishment, bare perusal of such certificate revealed that it was a "No Demand" by various branches of Rangers including officers mess, canteen, washer man, barber, tailor etc. a pre-requisite of transfer of every soldier from one unit to another and not a "No Demand Certificate" in respect of mis-appropriation as claimed by the appellant---No question of law of public importance had been pointed out by the appellant calling for interference by the Supreme Court while exercising powers under Art. 212(3) of the Constitution---Appeal was dismissed accordingly.

Salim Salam Ansari, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellant.

Sanaullah Noor Ghori, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record and Zafar Mehmood, Law Officer Pak. Rangers for Respondents.

2018 P L C (C.S.) 1001

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

COMMANDANT, FRONTIER CONSTABILARY, KHYBER PAKHTUNKHWA, PESHAWAR and others

Versus

GUL RAQIB KHAN and others

Civil Appeals Nos. 521 of 2015, 2387, 2388, 2552-2553 of 2016, Civil Petitions Nos. 3875 of 2016, 2418, 2879, 2937-2940 and 4287 of 2017, decided on 29th January, 2018.

(On appeal from the judgment/order of Peshawar High Court, Peshawar dated 28.05.2001 passed in W.P. No.597-P/2013 and judgment dated 02.12.2015 passed in W.Ps. No. 2256-P/2013, 604-P/2014 and judgment dated 09.06.2015 passed in W.Ps. 1736-P and 3016-P of 2013 and judgment dated 01.11.2016 passed in W.P.2808 of 2010 and judgment dated 11.05.2017 passed in W.P.1512 of 2016 and judgment dated 13.06.2017 passed in W.P. 1666 of 2014 and judgment dated 21.03.2017 passed in W.Ps. Nos.1477-P, 1611-P/2016, 118-P/2017 and judgment dated 28.09.2017 passed in W.P. 1746-P of 2016)

(a) Frontier Constabulary Act (XIII of 1915)---

----Ss. 3 & 3A---Frontier Constabulary Rules, 1958, Chap. II---Constitution of Pakistan, Arts. 240(a) & 260---Employees of Frontier Constabulary ("FC"), status of---Civil servants---Test for determining whether an employee was a civil servant---Matter of terms and conditions of service of the employees of the Frontier Constabulary, were in the first place regulated by the Frontier Constabulary Act, 1915, and elaborated pursuant thereto by the Frontier Constabulary Rules, 1958---Test laid down in Art. 240(a) of the Constitution for determining whether an employee was a civil servant required that the appointment to and the terms and conditions of service of posts in connection with the affairs of the Federation and of a service of Pakistan shall be determined "by or under an Act of" Parliament---Expression "by or under" in Art. 240(a) of the Constitution authorized the terms and conditions of service of a civil servant to be provided both by statute or by statutory rules---Provision made in the Frontier Constabulary Act, 1915, and the Frontier Constabulary Rules, 1958, therefore, satisfied the Art. 240(a) test---Second crucial test for determining whether a person qualified as a member of a service of Pakistan and therefore as a civil servant, was that the civil post he held must bear connection with the affairs of the Federation, including any such post connected with the Defence---Under S. 3 and S. 3A of the Frontier Constabulary Act, 1915, the employees of Frontier Constabulary, inter alia, performed functions for the better protection and administration of the frontiers of Pakistan---Performance of such duties and functions was clearly in connection with the affairs of the Federation of Pakistan because these were rendered to protect the solidarity, integrity and law and order in Pakistan---Employees of Frontier Constabulary were, thus, civil servants.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 and Federation of Pakistan v. Muhammad Nazir 1998 SCMR 1081 ref.

(b) Frontier Constabulary Act (XIII of 1915)---

----S. 3---Constitution of Pakistan, Arts. 212---Employees of Frontier Constabulary ("FC")---Matter relating to terms and conditions of service of employees of Frontier Constabulary---Such employees were civil servants, therefore, an appeal before the Federal Service Tribunal was available to them as exclusive remedy under the law.

Mian Shafaqat Jan, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellants/Petitioners (in C.A.521/2015).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/ Petitioners (in all other cases).

Naveed Ahmed, Asstt. Dir. FC.

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for the Respondents (in C.A. 521 of 2015).

Shaukat Ali Yousafzai, Advocate Supreme Court for Respondents (in C.As. 2387-2388/2016).

M. Ijaz Khan Sabi, Advocate Supreme Court for Respondents (in C.As. 2552-2553/2016).

Respondent No. 22 in person (in C. A. 3875 of 2016).

C. P. 2418/2017 Not represented.

Muhammad Asif, Advocate Supreme Court for Respondents (in C.A. 2879 of 2017).

Dil Muhammad Khan Alizai, Advocate Supreme Court for Respondents (in C.Ps. 2937 and 2939 of 2017).

Nemo for Respondents (in C.Ps. 2938 and 2940 of 2017).

C.P. 4287 of 2017 Not represented.

2018 P L C (C.S.) 1144

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

INTRA COURT APPEALS NOS.4, 6, 8, 9, 18, 19, 21 TO 23 OF 2017 AND 2 OF 2018

(Against the judgment dated 29.3.2017 of this Court passed in Crl.O.Ps. Nos.33, 60, 55 and 62/2017)

AND

CRIMINAL MISC. APPLICATIONS NOS.43 TO 45 OF 2018

(Applications for impleadment)

AND

CRL. REVIEW PETITIONS NO.42, 68 AND 523 OF 2017

(On review of this Court's judgments dated 29.3.2017/28.3.2017 passed in Crl.O.P.60/2017 and C.M.A.687/2017)

AND

CIVIL MISC. APPLICATION NO.3347 OF 2017 IN CIVIL REVIEW PETITION NO.NIL OF 2017 IN CIVIL MISC. APPLICATION NO.687 OF 2017

(Permission to file and argue review petition - On review of this Court's judgment dated 28.3.2017 passed in C.M.A.687/2017)

AND

CRIMINAL ORIGINAL PETITIONS NOS.138, 96, 121 TO 127, 132, 139, 167 AND 217 OF 2017, 4 OF 2018, 92 OF 2017, 152 OF 2016, 104 AND 214 OF 2017

(Non-compliance of Court's order)

AND

CRL. MISC. APPLICATIONS NOS.1002 AND 937 OF 2017

(Applications for impleadment)

AKHTER UMAR HAYAT LALAYKA and others---Appellants/Petitioners

Versus

MUSHTAQ AHMED SUKHAIRA and others---Respondents

Intra Court Appeals Nos.4, 6, 8, 9, 18, 19, 21 to 23 of 2017 and 2 of 2018, Criminal Misc. Applications Nos.43 to 45 of 2018, Crl. Review Petitions Nos.42, 68 and 523 of 2017, Civil Misc. Application No.3347 of 2017 in Civil Review Petition No.Nil of 2017 In Civil Misc. Application No.687 of 2017, Criminal Original Petitions Nos.138, 96, 121 to 127, 132, 139, 167 and 217 of 2017, 4 of 2018, 92 of 2017, 152 of 2016, 104 and 214 of 2017 and Crl. Misc. Applications Nos.1002 and 937 of 2017, decided on 13th May, 2018.

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

----S. 8-A [since omitted]---Sindh Civil Servants Act (XIV of 1973), S. 9-A [since omitted]---Police officials---Out of turn promotion---Exception created in paragraph 111 read with paragraph 143 of the judgment titled "Shahid Pervaiz v. Ejaz Ahmed (2017 SCMR 206)"---Scope---In the said judgment the Supreme Court declared concept of out of turn promotions as unconstitutional, however, in paragraph 111 of the Supreme Court observed that "the cases wherein 'out of turn promotion' was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court…They shall remain intact unless reviewed"---Held, that the word "review" used in the said paragraph had been used by the Supreme Court in its general meaning, whereby the Department/ Inspector General Police could also re-examine individual cases of personnel who were granted out of turn promotion---If word 'review' was taken to mean review by judicial authorities then such interpretation would be contrary to the judgment itself---When the very concept of out of turn promotion was declared to be unconstitutional in the said judgment then the exception created therein at paragraph 111 could not be said to be extended to in service employees whether they had any judicial verdict in their favour or not---Supreme Court by exercising its suo motu review jurisdiction held that the exception, created in paragraph 111 read with paragraph 143 of the judgment titled "Shahid Pervaiz v. Ejaz Ahmed (2017 SCMR 206)", whereby protection was extended to the category of cases "wherein 'out of turn promotion' was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court", should be withdrawn---Supreme Court directed the Provincial Inspector General Police, the Provincial Home Secretary and the Secretary, Establishment Division, to comply with the present judgment, by fixing the seniority of all the police officers/officials who were given out of turn promotions along with their batch-mates, as if they were never given out of turn promotion.

Shahid Pervaiz v. Ejaz Ahmed 2017 SCMR 206 ref.

(b) Constitution of Pakistan---

----Art. 188---Review before the Supreme Court---'Second review'---Second review was barred by law and no party could approach the Supreme Court for a second review.

(c) Constitution of Pakistan---

----Arts. 184(3), 187 & 188---Power of Supreme Court to revisit its earlier judgment---Scope---Supreme Court had absolute power to re-visit its earlier judgments/orders by invoking its suo motu jurisdiction under Arts. 184(3), 187 or 188 of the Constitution---Such power was not dependent upon an application of any party.

Khalid Iqbal v. Mirza Khan PLD 2015 SC 50 and Syed Shabbar Raza Rizvi v. Federation of Pakistan 2018 SCMR 514 ref.

Malik Muhammad Qayyum, Sr. Advocate Supreme Court for Appellants/Applicants/Petitioners (in I.C.As. Nos.4 and 18/2017).

Khawaja Haris Ahmed, Sr. Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/Applicants/ Petitioners (in I.C.As. Nos.8, 9 and 17/2017).

Talat Farooq Sheikh, Advocate Supreme Court, Maqbool Hussain Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants/Applicants/Petitioners (in I.C.As. Nos.6, 21, 22 and 23/2017).

S. A. Mehmood Khan Sadozai, Advocate Supreme Court for Appellants/Applicants/Petitioners (in I.C.A. No.19/2017).

Muhammad Ahsan Bhoon, Advocate Supreme Court for Appellants/Applicants/Petitioners (in I.C.A. No.2/2018).

Nemo. for Appellants/Applicants/Petitioners (in Crl.M.As. Nos.43 to 45/2018).

Shakeel-ur-Rehman Khan, A.G. Punjab and Waseem Mumtaz Malik, Addl. A.G. for Appellants/Applicants/Petitioners (in Crl.R.P. No.42/2017).

Qamar-uz-Zaman, Advocate Supreme Court for Appellants/ Applicants/Petitioners (in C.R.P. No.523/2017).

Appellant/Applicant/Petitioner in person (in C.M.A. No.3347/2017).

Appellant/Applicant/Petitioner in person (in Crl.R.P. No.68/2017).

Talat Farooq Sheikh, Advocate Supreme Court for Appellants/Applicants/Petitioners (in Crl.O.Ps. Nos.125, 126, 127, 139/2017 and 4/2018 and Crl. M.A. No.1002/2017).

M. Bashir Khan, Advocate Supreme Court for Appellant/Applicant/Petitioner (in Crl. O.P. No.132/2017).

Qausain Faisal, Advocate Supreme Court for Appellant/ Applicant/Petitioner (in Crl.O.P. No.217/2017).

Mushtaq Ahmed, Advocate Supreme Court for Appellants/ Applicants/Petitioners (in Crl.O.Ps. Nos.121 to 124/2017).

Aziz Ahmed Malik, Advocate Supreme Court for Appellants/ Applicants/Petitioners (in Crl.O.P. No.96/2017).

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Appellants/Applicants/Petitioners (in Crl.O.Ps. Nos.92/2017 and 152/2016).

Muhammad Faiz Ahmed Cheema, Advocate Supreme Court for Appellants/Applicants/Petitioners (in Crl. O.P. No.214/2017).

Malik Azmatullah Kasi, Advocate Supreme Court for Appellants/Applicants/Petitioners (in Crl. O.P. No.167/2017).

Nemo for Appellants / Applicants / Petitioners (in Crl.O.P. No.104/2017 and Crl. M.A. No.937/2017).

Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondent No.5 (in I.C.As. Nos. 4, 6, 8, 18, 21 and 23/2017).

Nemo for Respondents (in Crl. R.Ps. Nos.42, 68 and 523/2017, C.M.A. No.3347/2017 and Crl.O.P. No.138/2017).

Syed Nayyar Abbas Rizvi, Addl. A.G.P., Shakeel-ur-Rehman Khan, A.G. Punjab, Saif-ul-Murtaza, AIG Legal (For IGP Punjab) and Rana M. Ashraf, SO (Police) Home Deptt. Punjab on Court's Notice.

2018 P L C (C.S.) 1209

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

Syed RIZWAN AHMED and 3 others

Versus

SECRETARY, CADD, ISLAMABAD and others

Civil Petitions Nos. 4745 to 4748 of 2017, decided on 27th February, 2018.

(Against judgment dated 26.09.2017 of Federal Service Tribunal, Islamabad, passed in Review Petitions Nos. 122, 124, 126 and 129 of 2017)

(a) Civil service---

----Promotion rules, change in---Promptitude in challenging new promotion rules---Employees of the Directorate General of Special Education, Capital Administration and Development Division---Federal Government changed the promotion rules of the employees in question---Employees slept over the issue of change in their promotion rules for at least seven years before challenging the same before the Service Tribunal---No plausible explanation was offered for such delay---Where a right was required to be asserted, it had to be done vigilantly and no indulgence could be shown to indolent and negligent litigant---In matters relating to and arising out of service matters, a civil servant had to display vigilance and promptitude in approaching the appropriate fora and unexplained delay was always a material factor which could prove fatal for him---Petition for leave to appeal was dismissed accordingly.

Muhammad Asghar Rana v. Board of Intermediate and Secondary Education 2008 SCMR 663 and Rehmat Din v. Nasir Abbas 2007 SCMR 1560 ref.

(b) Review---

----Review could not be granted for merely re-examination of the same argument on merits or any additional ground which was beyond the scope of review jurisdiction.

Muhammad Ashiq v. Water and Power Development Authority 2009 SCMR 749 ref.

G.M. Chaudhry, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2018 P L C (C.S.) 1217

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Qazi Faez Isa, JJ

IKHLAQ AHMED and others

Versus

CHIEF SECRETARY, PUNJAB, LAHORE and others

Civil Petitions Nos. 2537 to 2549 and 2644-L of 2016, decided on 23rd April, 2018.

(On appeal against the judgment dated 09.05.2016 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos. 1575, 1577 to 1585, 1420, 1421, 1422 and 3594 of 2010)

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

----R. 23---Power of Chief Minister to relax rules in case of hardship---Scope---Contract employees---Regularization in service---Petitioners were appointed on contract basis for a period of three years, however, only after a year an order was issued by which the petitioners were regularized with immediate effect, in relaxation of the provisions of the Contract Appointment Policy and the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as a special one-time dispensation---Legality---Rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 ("the Rules") stated that "any of the rules" in "any individual case of hardship" and "for special reasons to be recorded in writing" and "to the extent prescribed" by the Chief Minister may be relaxed---In case of petitioners not a single one of said stipulated preconditions were even mentioned, let alone fulfilled, and were flouted---Reason given by the Principal Secretary to the Chief Minister for relaxing the Contract Appointment Policy and the Rules was to prevent the petitioners from getting better salaries and perks in the private sector and therefore it was deemed to be in the "public interest" to get them regularized---Same Principal Secretary however contradicted himself subsequently and mentioned "compassionate circumstances of the case and the experience accumulated by them [petitioners] during the period of their contractual appointment" as reasons for relaxing the Rules and recommending the petitioners' regularization---Incongruous order was passed which both relaxed the Rules and regularized the petitioners---Such order did not mention the individual hardship of any petitioner, it was not passed by the Chief Minister, "special reasons" were not recorded in writing by the Chief Minister necessitating relaxing of the Rules and the particular rule, i.e. "any one of the rules" was not mentioned---Completely illegal exercise was carried out in purported exercise of R. 23 of the Rules---Principal Secretary to the Chief Minister, implemented the wish of the Chief Minister and did so by resorting to absurd reasons without compunction, and he apparently did so in his enthusiasm to appease and serve the person of the Chief Minister, and not the Province and its people---Supreme Court observed that bureaucrats must remember that they were servants of the State and the people and that their abject subservience to one person (the Chief Minister in the present case) destroyed the confidence of the people in the bureaucracy---Petition for leave to appeal was dismissed accordingly and leave was refused.

Muhammad Tariq Javed, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record (Absent) for Petitioners (in C.Ps. Nos.2537-2549 of 2016).

Muhammad Lehrasib Khan, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record (Absent) for Petitioners (in C.P. Nos.2644-L of 2016).

Barrister Qasim Ali Chohan, Additional Advocate-General, Punjab and Zeeshan Ranjha, S.O., S&GAD, Punjab for Respondents.

2018 P L C (C.S.) 1239

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

Dr. IKRAMULLAH KHAN

Versus

KHYBER PAKHTUNKHWA AGRICULTURAL UNIVERSITY, PESHAWAR and others

Civil Petition No. 536 of 2015, decided on 12th April, 2018.

(Against judgment dated 04.2.2015 of the Peshawar High Court, Peshawar passed in Writ Petition No. 1012 of 2014)

Civil service---

----Post of Associate Professor in 'Weed Science' department of University---Qualification and experience---Grievance of the petitioner was that though he has achieved his Doctor of Philosophy (Ph.D) degree, in "Weed Sciences", and also possessed the requisite length of ten (10) years experience, as prescribed for the post of Associate Professor (BS-20) but he had not been selected for the said post, and instead respondents who had neither been conferred doctorate in "Weed Science" nor possessed the requisite experience, had been selected for such appointment---Validity---Committee was constituted in order to determine as to which particular field of Agriculture Science, the doctorate degrees conferred upon the petitioner and respondents pertained to---Said Committee upon examining the dissertations, and after due deliberation came to the conclusion that the dissertations/thesis of all three of them pertained to the field of 'Weed Science'---In his report the Chairman, Higher Education Commission fully endorsed the opinion and findings expressed by the Committee---Although the text of the PhD degrees awarded to the respondents did not contain the word "Weed Science", however, as stated by the experts and academics on the subject, it was not the text of the degree that was determinative of the question, as to in which specific field or the area of a particular subject, the degree had been awarded, it was rather the dissertation/thesis which revealed the field/specialization and the scope of the degree---Subject, scope and the focus of respondents in their doctorate program was therefore evidently and clearly relating to the management of weeds which fell within the ambit of 'Weed Science'---Academic record of the respondents and the petitioner also showed that the respondents had been studying the subject of 'Weed Science' much earlier than the petitioner---Record also reflected that both the respondents since their appointment in the years 2002 and 2003 respectively had been teaching 'Weed Science' at the University in question---Fact as to when and on what date such appointments of respondents were confirmed had absolutely no relevance, more so when it had not been alleged that they were not teaching the students on regular/full time basis, like the petitioner, or any other lecturer/teacher appointed on regular basis---Furthermore the credential and academic qualifications of the respondents were evaluated by three subject specialists from outside the University in question, and the same were re-evaluated by a high profile committee---After going through the said process, respondents were granted marks higher than those granted to the petitioner, and their re-evaluation by the Selection Board was approbated by the Syndicate of the University---Petition for leave to appeal filed by the petitioner challenging the appointment of respondents was dismissed accordingly and leave was refused.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Khalid Khan, Advocate Supreme Court for Respondents Nos.1 to 5.

Tanvirul Islam, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 6 and 7.

Nemo for Respondent No.8.

Dr. M. Mukhtar, Chairman HEC, Professor Khan Bahadur and Professor M. Ismail on Court's Call.

2018 P L C (C.S.) 1254

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through Chairman and others

Versus

TANVEER SAJID and others

Civil Petitions Nos. 4828/2017, 2509/2016, 3395/2016 and 107-L/2017 and C.M.As. Nos. 5346/2016 and 1257/2017 in C.P. No. 2509/2016 and C.M.A. No.7110/2016 in C.P. No.3395/2016 and C.M.A. No.129-L/ 2017 in C.P. No. 107-L of 2017, decided on 7th March, 2018.

(Against the judgment dated 23.10.2017/22.6.2016/ 28.9.2016/ 29.11.2016 of the Lahore High Court, Lahore/Rawalpindi Bench, Rawalpindi passed in W.P. No.6828/2017, I.C.A. No. 56/2016, W.P. No. 1863/2016 and W.P. No. 13626/2014)

Civil service---

----Daily wagers/contract employees of Board of Intermediate and Secondary Education ("the Board")---Regularization in service---Respondent-employees had been working in the establishment of the Board for long period of time ranging between 3 to 12 years, on contract basis---Contracts of said employees provided that they were initially appointed for a period of 89 days but after the expiry of said period, their contracts were renewed from time to time for further periods of 89 days at a time with an artificial break of 1 or more days; held, that motive behind such artificial break was to avoid regularization of respondents' services on the pretext that they were not continuously in service---Since the respondents were in service for a long time, it clearly showed that the posts they were occupying were permanent in nature and not casual or temporary---Services of respondents were not only required but also beneficial to the Board and that they (respondents) had been performing their duties with due diligence to the satisfaction of the authorities---High Court had rightly directed the Board to regularize services of respondents---Supreme Court deprecated the practice of keeping employees on temporary basis for long periods of time without confirming or regularizing their services---Petition for leave to appeal was dismissed and leave was refused.

Habibullah v. Government of the Punjab PLD 1980 Lah. 37; Pakistan v. Public at Large PLD 1987 SC 304; Sui Southern Gas Company Ltd. v. Ghulam Abbas PLD 2003 SC 724; Dr. Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC 101; Abdul Sattar v. Sui Northern Gas Pipelines Limited 2001 SCMR 1935; Ikram Bari v. National Bank of Pakistan 2005 SCMR 110; Ejaz Akbar Kasi v. Ministry of Information and Broadcasting PLD 2011 SC 22 and Pir Imran Sajid v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257 ref.

Mubeen-ud-Din Qazi, Advocate Supreme Court for Petitioners (in C.P. 4828 of 2017).

M. Siddique Awan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.Ps. Nos.2509 and 3395 of 2016).

Mehboob Azhar Sheikh, Advocate Supreme Court for Petitioners (in C.P. No.107-L of 2017).

Malik Noor Muhammad Awan, Advocate Supreme Court for Respondents (in C.P. No.4828 of 2017).

Tanvir Iqbal, Advocate Supreme Court for Respondents (in C.P. No.2509 of 2016).

M. Bashir Khan, Advocate Supreme Court for Respondents (in C.P. No.3395 of 2016).

Sardar Akbar Dogar, Advocate Supreme Court for Respondents (in C.P. No.107-L of 2017).

2018 P L C (C.S.) 65

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

Syed ZAHOOR HUSSAIN SHAH

Versus

IMRAN RIAZ and 5 others

Civil Appeal No.267 of 2016, decided on 5th June, 2017.

(On appeal from the judgment of the High Court dated 28.9.2016 in Writ Petition No. 44 of 2013).

Civil service---

----Appointment---Selection Committee---Appointment of employee was challenged without impleadment of Selection Committee---Writ petition was accepted by the High Court and appointment was declared to be without lawful authority---Validity---Held, appointment of employee could not be declared invalid without arraying the Selection Committee as party in the line of respondents in the writ petition---Appeal was allowed accordingly.

Ch. Muhammad Manzoor, Advocate for Appellant.

Sardar Muhammad Habib Zia, Advocate for Respondent No.1.

2018 P L C (C.S.) 205

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

NARGAS AFTAB RAJA

Versus

ACCOUNTANT GENERAL, ACCOUNTS DEPARTMENT OF AZAD JAMMU AND KASHMIR and 5 others

Civil Appeal No.206 of 2015, decided on 24th May, 2016.

(On appeal from the judgment of the High Court, dated 26.06.2015 in Writ Petition No.1306 of 2012).

Azad Jammu and Kashmir Federal Service Tribunal Chairman and Members Rules, 1983---

----Rr. 5, 6 & 7---District and Sessions Judge appointed as Chairman Service Tribunal---Terms and conditions of service---Determination---Contention of appointee was that her pay and privileges should be fixed equal to the Judge of High Court---High Court dismissed writ petition filed by the employee---Validity-- -Employee at the time of appointment as Chairman Service Tribunal was in service of Azad Jammu and Kashmir---Bar of R.5 of Azad Jammu and Kashmir Federal Service Tribunal Chairman and Members Rules, 1983 was attracted and employee would fall in the category of person mentioned in the said Rule---Case of employee would fall under Rr.6 & 7 of the Rules, and High Court had drawn correct conclusion in the impugned judgment---Appeal was dismissed in circumstances.

Muhammad Yousaf Haroon v. Competent Authority and others 2014 SCR 1180 rel.

Sheikh Masood Iqbal, Advocate for Appellant.

Khalid Rasheed Chaudhary, Advocate for Respondents.

2018 P L C (C.S.) 253

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

Civil Appeal No.12 of 2015

MUHAMMAD ALTAF KHAN

Versus

KHALID MAQBOOL and 7 others

(On appeal from the judgment of the Service Tribunal dated 15.07.2014 in Service Appeal No.128 of 2013)

Civil Appeal No.261 of 2015

KAHLID MAQBOOL

Versus

MUHAMMAD SHAHZAD and 7 others

(On appeal from the judgment of Service Tribunal, dated 08.05.2015 in Service Appeal No.97 of 2014).

Civil Appeals Nos. 12 and 261 of 2015, decided on 31st May, 2016.

Civil service---

----Advertisement for appointment---Appointments made excess in number than advertised---Scope---Two posts of junior teachers were advertised against which appointments were made according to merit list---Department made appointments excess in number against advertised posts---Validity---Respondent-employee was at serial No.6 of the merit list whose appointment order had also been issued despite the fact that the post against which he was appointed was neither advertised nor was available at the time of advertisement---When an order was made in violation of the law then same could not be protected merely on the ground that no one had challenged the same---Any appointment which had been made without following the prescribed procedure of law was illegal and same could not be given the legal cover---No one could be appointed against any other post which became available subsequently after appointment of successful candidates against the posts which were advertised---Appointment of respondent-employee had been made in violation of law which could not be allowed to remain in field---Impugned judgment passed by the Service Tribunal along with the basic appointment order of employee were set aside---Appeal was allowed in circumstances.

Tanveer Ahmed v. Roshan Din and 2 others 2001 PLC (C.S.) 256 and Sardar Asif Mehmood Raza v. Abdul Khadim and 7 others 2004 SCR 298 ref.

Azad Government and 2 others v. Muhammad Qadir Javid and another 2014 PLC (C.S.) 1334 and Naseem Abbas Shah and another v. Imran Shafi and 6 others 2014 SCR 1022 rel.

Sardar Muhammad Habib Zia, Advocate for Appellants (in Civil Appeal No.12 of 2015).

Sardar Pervaiz Akhtar, Advocate for Respondent No.1 (in Civil Appeal No.12 of 2015).

Sardar Pervaiz Akhtar Advocate for Appellants (in Civil Appeal No.261 of 2015).

Sardar Muhammad Habib Zia, Advocate for Respondent No.1 (in Civil Appeal No.261 of 2015).

2018 P L C (C.S.) 279

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J.

MUHAMMAD ZAFFAR

Versus

MUSHTAQ AHMED and 3 others

Civil PLA No.211 of 2014, decided on 29th May, 2014.

(On appeal from the judgment of the AJ&K Subordinate Judiciary Service Tribunal dated 07.02.2014 in Appeal No.161 of 2010).

Civil service---

----Appointment against the post which fell vacant due to compulsory retirement of an employee---Scope---Appointment was made against the said post and appeal of the retired employee was accepted---Validity---Petitioner was appointed against the post which fell vacant due to compulsory retirement of respondent-employee---Post was no more vacant after the restoration of retired employee in to service---Petitioner could not claim to remain posted against the said post because it was no more vacant post---Person who was holding said post had been reinstated in service, petitioner, fresh appointee had no right to challenge the restoration order of the existing employee---No legal question was involved in the petition for leave to appeal---Leave to appeal was refused by the Supreme Court in circumstances.

Ch. Muhammad Manzoor, Advocate for Petitioner.

Raja Sajjad Ahmed Khan, Advocate for Respondent No.1

2018 P L C (C.S.) 318

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Syed TASAWAR HUSSAIN SHAH

Versus

SENIOR MEMBER BOARD OF REVENUE, MUZAFFARABAD and 20 others

Civil Appeal No.358 of 2015, decided on 17th November, 2016.

(On appeal from the judgment of the Service Tribunal dated 20.04.2014 in Service Appeal No.616/2011).

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

----Ss. 3 & 6(6)---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, R.8(1)(b)---Azad Jammu and Kashmir Rules of Business, 1985, R.48---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.6---Azad Jammu and Kashmir Board of Revenue Act, 1993, Preamble---Land Revenue Act (XVII of 1967), Preamble---Naib Tehsildar---Officiating appointment---Promotion--- Seniority, determination of Procedure--- Permanent vacancy---Scope---Appellant was promoted on the basis of officiating promotion as Naib Tehsildar against the post reserved for departmental promotion quota and was placed at serial No.33 by the department in the seniority list---Appellant filed appeal against the list which was dismissed by the Service Tribunal---Validity---Powers with regard to terms and conditions of civil servants of revenue department could not be exercised by the Board of Revenue under the provisions of Land Revenue Act, 1967 or Azad Jammu and Kashmir Board of Revenue Act, 1993---Matter of terms and conditions of service had to be dealt with in accordance with Azad Jammu and Kashmir Civil Servants Act, 1976 and the Rules made thereunder---Seniority list could not be declared illegal merely on the sole ground that same was prepared by the Senior Member Board of Revenue---Date of appointment of appellant as Naib Tehsildar was mentioned as 24-09-1999 in the seniority list circulated in the year 2007---Said seniority list had attained finality as no one had challenged the same---Date of appointment of appellant in the disputed seniority list was mentioned as 21-07-2004 which was not the correct position---Selection Committee had observed that appellant was appointed against the post of Naib Tehsildar on 24-09-1999---Vacant post was available with effect from 26-09-1998---Selection Committee recommended for confirmation of appellant from the date of his appointment and he was confirmed with effect from 24-09-1999 as Naib Tehsildar---Said order had not been challenged by anybody and had attained finality---Subsequent change in the impugned seniority list was not justified and correct---Appellant was continuously holding the post available from the date of his appointment---Seniority should be determined from the date of continuous appointment in the grade---If civil servant was officiating and permanent post was not available, his confirmation should take effect from the date of occurrence of permanent vacancy---Permanent vacancy was available before the appointment of appellant and he was continuously officiating in the present case---Confirmation of appellant from the date of appointment on the recommendations of Selection Committee was not contrary to law---Impugned seniority list was against law and not sustainable---Judgment of Service Tribunal was telegraphic one lacking proper appreciation of factual and legal proposition---Impugned judgment passed by the Service Tribunal was set aside and seniority list was declared to be illegal by the Supreme Court---Department was directed to restore the seniority position of appellant while treating 24-09-1999 as his date of promotion/ appointment as Naib-Tehsildar---Appeal was allowed accordingly.

Raja Muhammad Ashraf Khan Kiayani v. Azad Govt. and others 1998 PLC (C.S.) 110; Syed Subtain Hussain Kazmi v. Syed Mumtaz Hussain Kazmi and others 2013 SCR 889 and 2016 SCR 259 ref.

Zaib-un-Nisa v. Tahira Khanum and others 2015 SCR 860 distinguished.

Syed Shafqat Hussain Gardezi, Advocate for Appellants.

Kh. Muhammad Nasim, Abdul Waheed Durani and Raja Aftab Ahmed, Advocates for Respondents.

2018 P L C (C.S.) 338

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J., and Raja Saeed Akram Khan J

SAIMA FAREED and 4 others

Versus

DIVISIONAL DIRECTOR SCHOOLS ELEMENTARY/SECONDARY (FEMALE MUZAFFARBAD) and 24 others

Civil Appeal No.220 of 2015, decided on 8th April, 2017.

(On appeal from the judgment of the High Court, dated 02.12.2014 in Writ Petition No.93/2014).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of I974)---

----S. 44--- Writ petition--- Maintainability--- Civil service---Advertisement for appointment of Junior Teachers---Selection Committee---Impleadment as a party in the writ petition---Scope---Writ petition was dismissed on the ground of non-impleadment of necessary parties---Validity---Impugned orders had been passed on the recommendations of Selection Committee---Validity of act of Selection Committee was the basis of main controversy---Selection Committee as a legal person had not been arrayed in the writ petition as party---Chairperson, Secretary and one Member of Selection Committee had been arrayed in their individual capacity---Necessary party was one whose action had been challenged in the writ petition---Action of Chairperson, Secretary or Member of Selection Committee had not been challenged rather action of Selection Committee was challenged---Selection Committee was a legal person and unless same was arrayed as party the writ petition was not maintainable---Impugned judgment passed by the High Court did not suffer from any illegality or infirmity---Appeal was dismissed in circumstances.

Shafqat Hayyat v. M. Shahid Ashraf and others 2005 SCR 57; Syeda Shaista Mumtaz v. Secretary Education and others 2003 SCR 446 and Ehsan ur Rehman and others v. Arshad Ali Khan and others 2012 PLC (C.S.) 795 ref.

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

----S. 44---Writ petition---Civil service---Advertisement for appointment---Participation in test and interview---Acquiescence, principle of---Applicability---Writ petition was dismissed on the principle of acquiescence--- Validity--- Petitioners-candidates participated in test and interview conducted by the Selection Committee---Petitioners-candidates challenged the validity of merit list when they failed to attain merit position---Candidates who participated in the selection process and failed could not be allowed to turn around and challenge the same while treating the same as illegal---Principle of acquisance was applicable in the present case---Appeal was dismissed in circumstances.

(c) Administration of justice---

----Inherent powers of Court not to be used for favouring one party and depriving the other of legally vested accrued rights.

Syed Mushtaq Hussain Gillani, Advocate for Appellants.

Raja Gul Majeed Khan, Abdul Hamid Khan Shahid, Ch. Shoukat Aziz, Ch. M. Manzoor, Kokab Al-Saba Roohi and Kh. Ansar Ahmed, Advocates for Respondents.

Nemo for Respondent No.19.

2018 P L C (C.S.) 359

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

SECRETARY AZAD JAMMU AND KASHMIR COUNCIL

Versus

MUHAMMAD QADEER and 4 others

Civil Appeal No.37 of 2017, decided on 1st June, 2017.

(On appeal from the judgment of the High Court dated 19.05.2016 in Writ Petition No.1109/2015).

(a) Civil service---

----Appointment---Non-availability of rules for appointment---Effect---High Court accepted writ petition with the direction to the government to appoint any officer in the department/relevant field whosoever appeared at the top of the seniority list and also suitable---Contention of department was that no rules for appointment against the post in question had been framed and High Court should have issued direction to the authority for framing the rules---Validity---Authority was bound to frame the rules for appointment and failure would amount to negligence---Impugned judgment of High Court could not be objected or challenged on the ground of negligence and violation of law by the department rather authority should rectify the wrong if not earlier then henceforth take necessary steps for framing of the rules---Impugned judgment passed by the High Court was well reasoned, consistent with spirit of law and rules---Contesting respondents had retired from service and not contesting the present appeal---No appeal could be heard without there being a contesting respondent---Present appeal could not proceeded further, which was dismissed.

Azad Government of the State of Jammu and Kashmir v. Sarfraz Alam and others 1996 SCR 326 rel.

(b) Administration of justice---

----Every institution and public functionary was bound to perform his assigned function.

Raja Amjad Ali Khan, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents Nos.3 to 6.

Muhammad Yaqoob Khan Mughal, Advocate for Interveners.

2018 P L C (C.S.) 447

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

MUSA JAN and 4 others

Versus

ABDUL WAHEED GANAI and 9 others

Civil Appeal No.47 of 2016, decided on 8th July, 2017.

(On appeal from the judgment of the Service Tribunal dated 25.11.2015 in Service Appeals Nos.976 of 2011, 441, 477 and 533 of 2012).

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

----S. 4---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.7(2)--- Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42-B--- Promotion on current-charge/officiating basis---"Current/officiating appointment" and "initial appointment"---Seniority---Determination of---Procedure---Employee was promoted on current-charge basis and was confirmed thereafter---Appeal of employees was accepted with the direction to the Authority to give effect to the seniority of employees from current-charge/officiating promotion---Validity---Seniority in the grade to which a civil servant was promoted should take effect from the date of regular appointment to a post in that grade---Confirmation of employees had been made from the date of current-charge appointment which was illegal and erroneous---Employees were not appointed against the clear vacancies on current-charge but against the posts of direct recruitment---Appointments of employees were not correct---Seniority could not be given to the employees retrospectively in circumstances---Promotion on officiating basis did not confer any right for regular promotion---Impugned seniority list was issued in accordance with law laid down by the Supreme Court---Direction given by the Service Tribunal to the Authority was illegal and violative of relevant law, rules and judgments of Supreme Court---Seniority under challenge was determined/fixed by the competent authority in pursuance of judgment of Supreme Court---Impugned judgment passed by the Service Tribunal was recalled and seniority list issued by the authority was restored---Appeal was allowed in circumstances.

Muhammad Arshad Khan Tehsildar District Bagh and others v. Azad Government of the State of J&K through its Chief Secretary Muzaffarabad and others 2000 PLC (C.S.) 247; Ejaz Ahmed Khan's 2005 SCR 242; Asad Muhammad Malik's case 2009 SCR 129 and Syed Subtain Hussain Kazmi's case 2013 SCR 889 rel.

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

----S. 42-B---Decision of Supreme Court---Binding effect---Any decision of Supreme Court to the extent it had decided a question of law or was based upon or enunciated a principle of law was binding on all the Courts.

Sheikh Masood Iqbal, Advocate for Appellants.

Raja Khalid Mehmood Khan, Advocate for Respondents Nos.1 to 4 and 6.

Kh. Mumtaz Ahmed, Advocate for Respondent No.5.

Mehmood Hussain Ch. Additional Advocate-General for Official Respondents.

2018 P L C (C.S.) 471

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

EJAZ AHMED AWAN

Versus

SENIOR SUPERINTENDENT POLICE RESERVE, MUZAFFARABAD and 11 others

Civil Appeal No.229 of 2016, decided on 9th June, 2017.

(On appeal from the judgment of the High Court dated 19.02.2016 in Writ Petition No.1639/2013).

(a) Civil service---

----Appointment of Constables in police department---Quota reserved for 'children of police officers/officials'---Scope---Father of candidate was serving as Assistant Director (BS-17) in the police department---Name of such candidate was not mentioned in the merit list on the ground that his father was serving in police department in ministerial staff---Validity---All permanent civil servants of police department would fall within the scope of 'officer/official'---Entire police establishment would be deemed to be one police-force---Father of petitioner was serving in police establishment holding the post of Assistant Director and he was police officer/official---Merit position of the petitioner was higher to the candidates appointed from the concerned district---Denial of right of candidate with regard to his appointment against reserved quota being son of police official, was against law---Impugned judgment of the High Court was recalled---Authorities were directed to appoint the candidate being son of police official according to his merit position---Appeal was allowed accordingly.

(b) Words and phrases---

----'Officer'---Meaning.

Black's Law Dictionary Sixth Edition rel.

(c) Words and phrases---

----'Official'---Meaning.

Fiaz Ahmed Janjua, Advocate for Appellant.

Raza Ali Khan, Advocate-General and Kokab Al Sabah Roohi, Advocate for Respondents.

2018 P L C (C.S.) 482

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

Civil Appeal No.49 of 2016

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

Versus

Syeda SABEEN NAZ GILLANI and 7 others

(On appeal from the judgment of the Service Tribunal dated 15.07.2015 in Service Appeal No.153 of 2014)

Civil Appeal No.329 of 2016

Raja MUHAMMAD ARIF KHAN and 2 others

Versus

Syeda SABEEN NAZ GILLANI and 6 others

(On appeal from the judgment of the Service Tribunal dated 15.07.2015 in Service Appeal No.153 of 2014)

Civil Appeals Nos.49 and 329 of 2016, decided on 4th May, 2017.

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

----R. 8---Section Officer appointed in compliance with direction of High Court---Seniority---Determination of---Procedure---Batch fellows of civil servant were appointed as Section Officers on 11-02-2011 on the recommendations of Public Service Commission whereas appointment of appellant/employee was made on 29-04-2013 in compliance with direction of High Court---Employee filed appeal for determination of her seniority---Service Tribunal accepted appeal with the observation that seniority of employee would be reckoned along with the group appointed in pursuance of recommendations made by the Public Service Commission at the relevant time---Validity---Appointment order of the batch fellows of employee was issued on 11-02-2011---Employee filed writ petition and High Court accepted the same while issuing direction to the Public Service Commission to recommend the employee---Government appointed the employee on the said recommendation of Public Service Commission thereafter---Employee was illegally deprived of her vested right; right of appointment had accrued to the employee along with her batch fellows---Appointment of employee would be deemed to be made on the date when the group along whom she qualified the test/interview was appointed---Seniority should be determined on the basis of date of continuous/actual appointment, however where a civil servant had been deprived of his/her vested right then his matter of seniority should be considered retrospectively to redress his/her grievance and to protect his/her accrued right---Service Tribunal had not committed any illegality while passing the impugned judgment---Appeal was dismissed in circumstances.

Syed Subtain Hussain Kazmi v. Syed Mumtaz Hussain Kazmi 2013 SCR 889 distinguished.

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

----S. 4---Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, Rr.7 & 10---Appeal, filing of---Requirements-Registrar Service Tribunal was bound to scrutinize the appeal when same was presented---If appeal was drawn-up in accordance with R.7 of Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976 Registrar should entertain the same and if there was any deficiency, Registrar Service Tribunal was to record an order on the memorandum of appeal while pointing out the deficiency and return the same by specifying the time for resubmitting the appeal---If appellant failed to resubmit the appeal after curing the deficiency within the period specified by the Registrar then appeal should be deemed to be dismissed---Registrar Service Tribunal failed to point out that appeal had been filed without annexing the certified copies of mandatory documents---Litigant, in circumstances, should not be penalized due to fault of Tribunal/Court and appeal could not be dismissed.

Iffat Bibi v. Azad Government and 19 others 2014 PLC (C.S.) 1160 and Tanveer Fatima v. Divisional Director Schools and others 2016 SCR 714 rel.

Asghar Ali Malik, Advocate for Appellants (in Civil Appeal No.49 of 2016).

Syed Asim Masood Gillani, Advocate for Respondent (in Civil Appeals Nos.49 and 329 of 2016).

Raja Amjad Ali Khan, Advocate for Proforma Respondents (in Civil Appeal No.49 of 2016).

Asghar Ali Malik, Advocate for Proforma Respondents (in Civil Appeal No.329 of 2016).

2018 P L C (C.S.) 1129

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Sardar Abdul Hameed Khan, JJ

SHOUKAT ALI MUGHAL, Versus

SECRETARY SERVICES AZAD JAMMU AND KASHMIR GOVERNMENT MUZAFFARABAD and 14 others

Civil Appeal No.245 of 2017 decided on 29th January, 2018.

(On Appeal from the Judgment of the Service Tribunal dated 16.06.2017 in Service Appeal No.24 of 2012).

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

----S.4---Appeal to Service Tribunal---Limitation---Induction of employee through transfer---Seniority---Determination of--- Procedure---Employee was inducted into service of serving department through mutual transfer against permanent post on regular basis---Mere fact that lien of employee was kept intact with the parent department did not mean that he was appointed on temporary or ad-hoc basis---Provision of lien in the parent department was provided just for the purpose that in case there was any hardship for a civil servant in the transferee department then he/she might join the service in the parent department---Regular induction of a civil servant made by transfer could not be given any other meaning---Seniority could only be determined from the date of regular appointment made either by initial recruitment, transfer or promotion---Appointments made otherwise could not be considered as regular appointment and not relevant for determination of seniority---Conditions for determination of seniority were regular appointment to the grade or post and continuous service---Induction of employee in the serving department was made through transfer which was one of the recognized modes of regular appointment and there was also continuity in his service---Serving department had to determine seniority of the employee from the date when he joined the post in the said department---Service Tribunal had failed to adhere to the fact that seniority had to be determined from the date of regular appointment and anti-dated/proforma appointment was not a regular appointment---Retrospective effect given to the appointments of respondents did not affect the right of seniority of inducted employee---Dismissal of appeal on the ground that said employee had not challenged the proforma appointment of respondent was illogical---Employee challenged the seniority list dated 22-11-2011 on 18-02-2012 after a period of eighty eight days which was within time---Impugned judgment passed by the Service Tribunal was based on mis-reading and non-reading of record---Employee was inducted into service on regular basis through transfer order dated 09-09-2000 in the serving department---Seniority of employee should be reckoned from the date of joining of the post i.e. 11-09-2000 and not from the date when his lien came to an end in the parent department---Impugned judgment passed by the Service Tribunal was set aside---Department was directed to determine the seniority of employee from the date of his induction i.e. 11-09-2000 and enter his name at proper place in the seniority list---Appeal was allowed in circumstances.

Syed Subtain Hussain Kazmi, Tehsildar presently posted at Bagh Development Authority and 2 others v. Syed Mumtaz Hussain Kazmi, Naib Tehsildar presently posted at Office of Deputy Commissioner, Bagh, Haveli and 5 others 2013 SCR 889 rel

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

----S.4---Appeal to Service Tribunal---Limitation---Limitation for filing of appeal was ninety days.

(c) Civil service---

----Seniority---Determination of---Procedure---Seniority could only be determined from the date of regular appointment made either by initial recruitment, transfer or promotion.

Mir Sharafat Hussain, Advocate for Appellants.

Raza Ali Khan, Advocate-General for Respondents Nos.1 and 2.

Muhammad Noorullah Qureshi Advocate for Respondents Nos.3 to 15