PLCCS 2019 Judgments

2019 P L C (C.S.) 87

[Federal Service Tribunal]

Before Raja Hassan Abbas and Manzoor Ali Khan, Members

MUHAMMAD AZIM KHAN LEGHARI

Versus

THE ESTABLISHMENT DIVISION through The Secretary Establishment, Islamabad and 3 others

Appeal No.1046(R)CS of 2018, decided on 22nd November, 2018.

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

----Rr. 3(a) & 4(1)(b)(i)---Police Rules, 1934, R.69---Police official---Inefficiency and lack of supervision---Reduction to lower post for a period of one year---Major penalty converted to minor penalty---Punishment not commensurate with the lapse---Police vehicle used by the appellant/senior police official was stolen from a market along with official weapons belonging to other police officials---Appellant was charged for negligence, inefficiency and lack of supervision---Competent authority imposed on the appellant major penalty of reduction to a lower post from BS-20 to BS-19 for a period of one year---Legality---Driver of the appellant left the vehicle unattended and it was his duty to ensure its safety---Similarly, all police officials who were issued weapons were responsible for their safe keeping---Appellant, as a senior official, conducted his own inquiry and recommended penalty against seven police officials involved and also imposed fines on them to recover cost of vehicle and weapons, however such penalties were set aside by the Appellate Authority i.e. Provincial Inspector General, though amount of loss was recovered---Safe custody of vehicle and arms was not the personal responsibility of the appellant nor were they issued in his name---Moreover all those responsible were let of by the appellate Authority---Appellant could not be held accountable being not directly responsible---Appellant had been treated harshly by the competent authority and his punishment did not commensurate with his lapse---Major penalty of reduction to a lower post from BS-20 to BS-19 was converted into minor penalty of 'censure'---Appeal was disposed of accordingly.

2002 SCMR 690 ref.

Barrister Harris Azmat for Appellant.

Arshad Mehmood Malik, Assistant Attorney General for Respondents.

Temur Ehsan, Section Officer, Establishment Division, Islamabad as departmental respresentative.

2019 P L C (C.S.) 114

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C.J. and Ali Baig, J

MUHAMMAD BASHIR and others

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary Gilgit-Baltistan and others

Writ Petitions Nos. 112 of 2017 and 55 of 2018, decided on 6th September, 2018.

Civil service---

----Department sent requisition to the Public Service Commission for advertisement of posts of Principals/Headmasters/Headmistress/Senior Teachers and Instructors (BS-18)---Promotion on departmental quota to the posts---Petitioners employees seeking direction from Chief Court for holding Departmental Promotion Committee---Scope---Contention of petitioners-employees was that promotion against departmental quota should be made first and direct recruitment later whereas authorities contended that departmental quota of posts in question had already been exhausted---Validity---Authorities had promoted 71 Senior Teachers/Headmasters and Headmistress against the posts in question in accordance with recruitment rules---Authorities thereafter had sent requisition of 29 vacancies of Principals/Headmasters/Headmistress/ Senior Teachers and Instructors (BS-18) to Public Service Commission for initial appointment---Petitioners employees had no locus standi to seek promotion against the posts in question as vacancies/posts meant for promotion quota had already been exhausted---Present employees were not entitled to be promoted against the vacancies/ posts in circumstances---Writ petition was dismissed in circumstances.

Asadullah Khan, Latif Shah and Muhammad Qasim Shehzad for Petitioners.

Javed Akhtar, Dy. Attorney General and Mehmood Kamal Afandi, A.A.G., assisted by Muzaffar Ali Assistant L.A. for Respondents.

2019 P L C (C.S.) 123

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

GOVERNMENT OF GB through Chief Secretary and others

Versus

HADI HUSSAIN and others

Civil Revision No.50 of 2017, decided on 12th October, 2018.

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

----S. 38---Decree for appointment of employees in government department---Execution of decree---Judgment-debtor (Government department) was abolished---Non-availability of vacant posts---Effect---Decree-holders filed suit for declaration and permanent injunction against judgment-debtors in the Trial Court which was dismissed---Decree-holders filed appeal which was allowed to the extent of their appointments---Both the parties filed revision petitions and High Court modified the judgment of Appellate Court to the extent that decree-holders would also be entitled to get arrears of their salaries---Decree-holders filed execution petition which was dismissed by Trial Court while allowing objections of judgment-debtors---Decree-holders filed appeal in the Appellate Court which was allowed---Plea of judgment-debtors was that Maintenance Head of the department against which decree was passed had been abolished (by Finance Department) and resultantly the decree passed in favour of the decree-holders had become infructuous---Validity---Held, since the decree passed by Appellate Court and High Court had attained finality, judgment-debtors were bound to appoint the decree-holders and if no vacant posts were available, judgment-debtors could create new posts for their appointments---Executing court could not go beyond the decree or re-determine the liabilities of parties as the decree had become final---Revision petition, being devoid of merit, was dismissed.

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

----S. 38---Execution of decree---Scope---Executing court could not go beyond the decree or re-determine the liabilities of parties when the decree had become final.

Addl. AG assisted by H.M.H. Jahangir for Petitioners.

Safdar Ali for Respondents.

2019 P L C (C.S.) 130

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

CIVIL AVIATION AUTHORITY through Director General CAA and 3 others

Versus

Mst. GUL YASMIN

Civil Revision No.97 of 2014 converted into Writ Petition No.193 of 2016, decided on 1st October, 2018.

(a) Civil service---

----Pensionary benefits, entitlement to---Adjustment of civil servant to a post---Scope---Plaintiff filed suit for declaration and recovery of pension amount of her deceased husband who was appointed as a work charge employee in the year 1961---Services of employee were transferred to another department in 1965 and he opted to get pay according to government pay scales---Services of employee were transferred yet another departmental in 1986 with the stipulation that he will get full pensionary benefits---Employee retired from service of said department in the year 1991 but he was not given monthly pension and other pensionary benefits on one pretext or the another---Plea of department was that employee was appointed against the post purely on temporary basis in a government department, his services were transferred to present department in 1986 and he retired in the year 1991---Employee had served in the present department just for 5 years, therefore he was not entitled to pensionary benefits---Validity---Employee had been performing his duties regularly from 1961 to 1991 without any break in his service and had completed 30 years service in three department government organizations and as such employee was entitled to get the pensionary benefits---If a government servant without any break continuously remained in service, he had the right that his service be counted towards pay, pension and promotion---Some colleagues of employee were also not granted pensionary benefits on the same ground; they had approached the Civil Court and their suits were decreed by Trial Court which was maintained up to the Supreme Appellate Court---Case of employee being identical to the case of said employees; he was entitled to receive the pensionary benefits---Revision petition was dismissed.

(b) Civil service---

----Pensionary benefits, entitlement to---Continuous service---If a government servant without any break continuously remained in service then he had the right that his service be counted towards pay, pension and promotion.

Johar Ali for Petitioners.

Amjad Hussain and Musrat Wali for Respondent.

2019 P L C (C.S.) 973

[Chief Court Gilgit-Baltistan]

Before Wazir Shakeel Ahmed, CJ and Ali Baig, J

EMPLOYEES OF REGULAR MAINTENANCE STAFF (DYING CADRE) OF WATER AND POWER DEPARTMENT DISTRICT GHIZAR through Representatives and 10 others

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 27 others

Writ Petition No. 18 of 2018, decided on 7th March, 2019.

Civil service---

----Seniority, determination of---Scope---Contention of employees was that their seniority had not been determined by the department---Validity---Department was bound to prepare seniority list of their subordinate staff but they had failed to discharge their duty---Petitioners who were low paid Government employees had approached the Chief Court for redressal of their grievances---Department was to resolve the issue of employees itself---Service of petitioners had been regularized therefore, their seniority list was to be maintained/prepared from the date when they were brought on regular footing---Department was directed by the Chief Court to include the names of petitioners-employees at the bottom of seniority list of regular staff/employees forthwith and a fresh seniority list be circulated for their information---Writ petition was allowed, accordingly.

Munir Ahmed for Petitioners.

Assistant Advocate-General for Respondents.

2019 P L C (C.S.) 1255

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

EJAZ ULLAH

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 5 others

W.P. No. 11 of 2019, decided on 2nd February, 2019.

Civil service---

----Appointment against the post of Vaccinators---Interview---Procedure---Contention of petitioner was that he obtained 65% marks in written test whereas respondent obtained 56% marks in the written test but he was awarded maximum marks in interview whereas petitioner was awarded only 3/30 marks which could not be justified---Validity---Chief Court had no formula/device to gauge the performance of a candidate in interview---Chief Court observed that favour might be extended to blue-eyed persons in selection process by awarding them maximum marks in interview and that marks in interview and that marks in interview were not to be more than ten in toto---Chief Secretary was directed by the Chief Court to formulate a uniform policy for selection / appointment of candidates---Writ petition was dismissed, in circumstances.

Mehmood Alam for Petitioner.

Assistant Advocate-General for Respondents.

2019 P L C (C.S.) 1304

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Muhammad Umer, JJ

MARIAM BEGUM and another

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and 3 others

Writ Petition No. 252 of 2017, decided on 20th March, 2019.

Civil service---

----Appointment against the posts of Nursing Assistant---Confirmation---Petitioners having diplomas in 'Midwife' were appointed as Nursing Assistant---Authorities neither confirmed the services of petitioners nor their salaries were released---Validity---'Midwifery' diploma was not equal to the diploma of 'Nursing Assistant'---Diploma of 'Midwifery' could not be treated as diploma of 'Nursing Assistant'---Petitioners-employees were not in possession of relevant qualification and they could not claim to be appointed against the posts of Nursing Assistant---Writ petition was dismissed, in circumstances.

Amjad Hussain for Petitioners.

Assistant Advocate General for Respondents Nos.1 to 4.

Dr. Israr Ahmed, Director Health along with record.

2019 P L C (C.S.) 1331

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Muhammad Umar, JJ

FAZIL SHAH

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary 6 others

Civil Miscellaneous No.295 of 2018, decided on 27th March, 2019.

Civil service---

----Petition for implementation of judgment of Service Tribunal whereby department was directed to issue his promotion order---Contention of department was that it was directed to issue promotion order of the petitioner according to the approved recruitment and promotion rules and that since, the petitioner lacked required length of service therefore, his promotion order was not issued---Validity---Held; Contentions of department were of no substance---Department was directed to implement the order of the Service Tribunal in its true letter and spirit---Petition was accepted.

Raja Shakeel Ahmad for Petitioner.

A.A.G. assisted by Manzoor Ahmad for Respondents.

2019 P L C (C.S.) 1429

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed C.J. and Ali Baig, J

MINHAS HUSSAIN and 9 others

Versus

GOVERNMENT OF GILGIT BALTISTAN through Chief Secretary Gilgit Baltistan and 4 others

W.P. No.149 of 2018, decided on 9th May, 2019.

Civil service---

----Appointment of members of administrative courts and tribunals---Procedure---Petitioners being members of District Judiciary had sought appointment of members of administrative courts and tribunals from the judicial officers of the Province with consultation of Chief Justice---Validity---Held, appointment of members of administrative Courts and Tribunals were to be made through meaningful consultation with the Chief Justice of the Province---Authorities had not made consultation with the Chief Justice while making said appointment of members of administrative Courts and Tribunals which was contravention of mandatory provision of law---Authorities were directed by the Chief Court to make appointments of members of administrative courts and tribunals after consultation with Chief Justice preferably from the judicial officers of district judiciary---Writ petition was disposed of accordingly.

Raja Shakeel Ahmed for Petitioners.

Assistant Advocate-General for Respondents.

2019 P L C (C.S.) 119

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J

ZAHOOR HUSSAIN SHAH HASHMI

Versus

SECRETARY EDUCATION SCHOOLS and 6 others

Writ Petition No.579 of 2018, decided on 3rd September, 2018.

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

----Ss. 4 & 5---Petitioner was appointed as Junior General Line Teacher but his appointment order was recalled on the ground of being overaged---Departmental appeal filed by the petitioner-employee was dismissed---Validity---No other Court would grant any injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of Service Tribunal extended---Government had established Service Tribunal for adjudication of terms and conditions of civil servants---Present matter being related to terms and conditions of service of civil servant, petitioner could prefer an appeal against the impugned order before Service Tribunal---Alternate, adequate and efficacious remedy was available to the petitioner, writ petition being not maintainable was dismissed in limine.

Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1980 SC (AJ&K) 5; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Qazi Muhammad Suleman and 5 others v. Azad Jammu and Kashmir Government and 2 others 2002 PLC (C.S.) 769 and Muhammad Ilyas v. Secretary to Government Punjab, S&GAD Department, Lahore and 3 others 1998 PLC (C.S.) 36 rel.

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

----S. 47(2)---Establishment of Administrative Courts or Tribunals---Object---Where any Administrative Court or Tribunal was established no other Court would grant any injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of such Administrative Court or Tribunal extended.

2019 P L C (C.S.) 856

[High Court (AJ&K)]

Before M. Tabbassum Aftab Alvi, CJ

MUHAMMAD YOUNIS and 75 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary Muzaffarabad and 3 others

Writ Petition No.580 of 2012, decided on 15th November, 2018.

Civil service---

----Notification No. FDR/12850-960/2010 dated 27-09-2010---Employees of Election Commission Secretariat seeking same perks and privileges admissible to the employees of Civil Secretariat---Scope---Contention of employees of Election Commission Secretariat was that employees of Civil Secretariat had been granted special allowance @ 20% of basic pay but they had been refused said benefit---Validity---Held, employees of Election Commission Secretariat were entitled to pay, allowances and other facilities admissible to their counterparts in the Azad Jammu and Kashmir Civil Secretariat---Writ petition was allowed, accordingly.

Azad Government of the State of Jammu and Kashmir through Chief Secretary and another v. Abdul Kabeer Qureshi and 51 others 1995 PLC (C.S.) 46 and Muhammad Younis v. Azad Government and 3 others 2010 SCR 271 rel.

Raja Hamid Javed for Petitioners.

2019 P L C (C.S.) 1316

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

SAQIB SALEEM and others

Versus

CHAIRMAN AJKRSP, PRIME MINISTER OF AZAD JAMMU AND KASHMIR through Special Secretary and others

Writ Petitions Nos. 1968 and 2440 of 2016, decided on 16th November, 2018.

(a) Azad Jammu and Kashmir Rural Support Programme Employees Service Rules, 2009---

----Chap. 8, Cls. 8.06 & 15.2---Employee of Azad Jammu and Kashmir Rural Support Programme---Allegation of misconduct---Termination from service---Scope---Contention of petitioner-employee was that authorities had not adopted the procedure prescribed by Rules for his termination---Validity---Authorities were bound to establish the allegations of misconduct, misuse of powers or financial misappropriation against the employee---Inquiry Committee was constituted but it did not resume its functioning since its birth---Nothing was on record that any investigation into allegation against the employee was conducted---No finding of any Inquiry Committee was available on record against the employee---Organization was empowered to terminate the service of employee in view of its financial constraints---When allegations of misconduct and dishonesty were levelled against the employee then organization was bound to probe such allegations before passing an order of termination---Employee could be probed for different allegations and in such eventuality an order of termination could be passed if allegations stood proved from findings of inquiry committee---Authorities had not undergone the prescribed Rules and order for termination of employee was not maintainable---Impugned order for termination of petitioner-employee was set aside---Writ petition was allowed, in circumstances.

(b) Azad Jammu and Kashmir Rural Support Programme Employees Service Rules, 2009---

----Chap. 8, Cl. 8.08---Employee of Azad Jammu and Kashmir Rural Support Programme---Allegation of misconduct---Termination from service---Scope---Contention of employer organization was that it had powers to terminate the service of a regular employee by giving three months notice---Validity---Held, authorities were empowered to terminate the service of a regular employee by giving three months notice or payment of salary in lieu of such notice---Azad Jammu and Kashmir Rural Support Programme was not barred by law to constitute an inquiry committee for probing into the allegations against the employee---Order accordingly.

Syed Ashfaq Hussain Kazmi for Petitioner (in Writ Petition No.1968 of 2016).

Abdul Rasheed Karnahi for Petitioner (in Writ Petition No.2440 of 2016).

2019 P L C (C.S.) 91

[Islamabad High Court]

Before Athar Minallah, Mohsin Akhtar Kayani and Miangul Hassan Aurangzeb, JJ

AMJAD ALI

Versus

FEDERAL SHARIAT COURT through Registrar and others

W.P. No.3250 of 2016, decided on 15th November, 2017.

(a) Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982---

----Rr. 7(g) & 11(2)---Constitution of Pakistan, Arts. 199(1), 199(5) & 208---Constitutional petition---Jurisdiction of High Court---Expression 'Persona Designata'---Scope---Petitioner was an employee of Federal Shariat Court who was removed from service as a result of departmental proceedings initiated against him---Petitioner invoked Constitutional jurisdiction of High Court to assail orders passed by Federal Shariat Court on administrative side---Validity---Expression 'Persona Designata' referred to capacity of a person outside realm of functions and powers relating to his or her office---Judge performing functions and exercising powers as a 'Judge' or 'member' of court did not act as 'Persona Designata'---Bar contained under Art. 199(5) of the Constitution extended to acts done and orders passed by a Judge of superior court as a 'member' of the court, which included administrative orders or decisions taken in exercise of powers conferred under Rules framed under Art. 208 of the Constitution---Orders passed by Federal Shariat Court were immune from being considered or adjudicated in terms of Art. 199(5) of the Constitution---High Court declined to interfere in matters in exercise of its jurisdiction under Art. 199 of the Constitution---Petition was dismissed in circumstances.

Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 961 distinguished.

Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Asif Saeed v. Registrar, Lahore High Court and others PLD 1999 Lah. 350; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Central Talkies Ltd., Kanpur v. Dwarka Prasad AIR 1961 SC 606 and SBP & Co. v. Patel Engineering Ltd. and another (2005) 8 SCC 618 ref.

Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315; Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 and Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 rel.

(b) Constitution of Pakistan---

----Arts. 189 & 201---Judgment---Binding effect---Principle---View expressed by a Bench of greater numerical strength is to be followed even if same was expressed prior in time to a different view expressed by a Bench of smaller numerical strength at some subsequent stage.

Hassan and others v. The State and others PLD 2013 SC 793; Ch. Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315 Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879 and All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600 rel.

Petitioner in person.

Muhammad Akram Gondal and Muhammad Mohsin Bhatti for Respondents.

2019 P L C (C.S.) 134

[Islamabad High Court]

Before Aamer Farooq, J AMNA IMRAN

Versus

FEDERATION OF PAKISTAN and others

W.Ps. Nos. 834, 2426, 959, 881, 954 and 1272 of 2017, decided on 30th November, 2017.

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

----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7 & 8---Service Tribunals Act (LXX of 1973), S.4(1)(b)---Promotion---Fitness, determination of---Criteria---Assessment by the Central Selection Board on the basis of knowledge of its Members---Placement in categories to the employees to be promoted---Scope---Discretion, exercise of---Requirements---Promotion of employees was denied on the basis of integrity and performance known to the Members of Central Selection Board and they were placed in category "C" despite meeting the minimum threshold marks---Validity--- Dispute with regard to terms and conditions of service had been excluded from the jurisdiction of all the Courts except Service Tribunals constituted for the said purpose---Question of fitness of a civil servant to be promoted had been ousted from the jurisdiction of Service Tribunal---No appeal had been provided on the question of fitness of a civil servant---Present constitutional petition was maintainable as same was with regard to fitness of a person to be appointed or to hold particular post---Petitioners had achieved minimum threshold marks but they had been deferred or superseded on account of personal knowledge of Members of Central Selection Board---Five marks had been awarded to the petitioners on the basis of personal knowledge of Members of Selection Board---No adverse material was available on record on the basis of which it could be said that petitioners/civil servants did not enjoy good reputation or they did not deserve to be promoted---Central Selection Board had exercised discretion in an arbitrary and whimsical manner---Decision to defer the petitioners/civil servants or superseding them was not tenable which was set aside---Petitioners should be considered afresh based on new criteria devised by the Establishment Division pursuant to directions of Supreme Court---Constitutional petition was allowed in circumstances.

2000 PSC 599; 1993 PLC (C.S.) 576; Muhammad Zafeer Abbasi v. Government of Pakistan 2003 PLC (C.S.) 503; Managing Director (POWER) WAPDA v. Muhammad Luqman PLD 2003 SC 175; Dr. Feroz Memon v. Secretary Health, Government of Sindh 2001 PLC (C.S.) 878; Orya Maqbool Abbasi v. Federation of Pakistan 2014 SCMR 817 and Iram Adnan v. Federation of Pakistan 2012 PLC (CS) 1355 ref.

Secretary Establishment Division v. Aftab Ahmed Manika 2015 SCMR 1006; Ms. Zubaida Khatoon v. Tehmina Sajid Sheikh 2011 SCMR 265 = 2011 PLC (C.S.) 596; Federation of Pakistan v. Dr. Muhammad Arif 2017 SCMR 969; Tariq Aziz-ud-Din v. Federation 2010 SCMR 1301 and Liaqat Ali Chugtai v. Federation of Pakistan PLD 2013 Lah. 413 rel.

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

----S. 4(1)(b)---Promotion---Determination of eligibility and fitness--- Dispute with regard to terms and conditions of service had been excluded from the jurisdiction of all the Courts except Service Tribunals constituted for the said purpose---Question of fitness of a civil servant to be promoted had been ousted from the jurisdiction of Service Tribunal---No appeal had been provided on the question of fitness of a civil servant---Constitutional petition was maintainable with regard to fitness of a person to be appointed or to hold a particular post.

Farooq H. Naik, Abdur Rehman Siddiqui, Ch. Asghar Ali, Abdur Rahim Bhatti, Masroor Shah and Haseeb Shakoor Paracha for Petitioner.

Afnan Karim Kundi, Addl. Attorney General, Mrs. Misbah Gulnar Sharif, Muhammd Ayub, Senior Joint Secretary, Omer Bin Zia, Joint Secretary and Muhammad Afzal Chaudhry Deputy Secretary (Lit.), Establishment Division for Respondents.

2019 P L C (C.S.) 208

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

TRADING CORPORATION OF PAKISTAN (PVT.) LIMITED through Chairman

Versus

SACKED EMPLOYEES REVIEW BOARD through Chairman and 2 others

W.P. No.263 of 2017, decided on 22nd August, 2017.

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

----Ss. 13, 11 & 12---Petition before Sacked Employees Review Board by Sacked Employee---Competency---Interpretation of Ss. 11 & 2(f) of the Sacked Employees (Re-instatement) Act, 2010---Scope---Question before the High Court was whether only "sacked employees" as strictly defined in S. 11 of the Sacked Employees (Re-instatement) Act, 2010 could file petition before the Review Board or whether the definition of "sacked employee" given in S. 2(f) would apply to the same ---- Held, that term sacked employee used in Ss. 11 & 13 of the Sacked Employees (Re-instatement) Act, 2010, if was considered to mean "sacked employee" as defined in S. 2(f) of the Sacked Employees (Re-instatement) Act, 2010; then there would be no reason for Legislature to qualify the term "sacked employee" with words "dismissed or removed or terminated from service on account of absence from duty or misconduct or any form of misappropriation of Government money or stock or his unfitness on medical grounds"---Distinction existed between the term "sacked employee" used in S. 11 and the same term as defined in S. 2(f) of the Sacked Employees (Re-instatement) Act, 2010----Definition per S. 2(f) of Sacked Employees (Re-instatement) Act, 2010 included such employee who was "dissociated or discontinued from service on account of closure of his or her employer or office or organization" or whose "contract period had expired or who was given golden hand shake, etc." and since a petition for reinstatement before Review Board was regulated by Ss. 11 & 13 of the Sacked Employees (Re-instatement) Act, 2010, therefore meaning of term "sacked employee" given in S. 11 of the same would override definition of the same term, "sacked employee"; given in S.2(f) the Sacked Employees (Re-instatement) Act, 2010 to the extent of inconsistency---High Court observed that only such sacked employee could file petition before Review Board who was dismissed or removed or terminated from service on account of absence from duty or misconduct or any form of misappropriation of Government money or stock or his unfitness on medical grounds.

Chairman, Federal Board of Revenue, Islamabad v. Al-Technique Corporation of Pakistan Ltd. PLD 2017 SC 99; Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCMR 1699; Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner PLD 1977 SC 164; Iftikhar Ahmad v. President, National Bank of Pakistan PLD 1988 SC 53; Amin Akhtar Jami v. Jehangir Alam 1993 MLD 1530 and Kazi Abdul Majid v. Province of Sindh through Secretary, Excise and Taxation PLD 1976 Kar. 600 rel.

(b) Limitation Act (IX of 1908)---

----Ss. 3, 5 & 29---Adjudication of question of limitation---Condonation of delay---Limitation prescribed by special law---Scope---Plea of limitation, even if it was not taken by a party (be it an individual or the State or its instrumentality); even then S. 3 of the Limitation Act, 1908 made it obligatory upon a Court or Tribunal to dismiss proceedings if they were instituted beyond period of limitation---Where limitation period for filing a certain petition was provided in a special law, then such delay could not be condoned by S. 5 of the Limitation Act, 1908.

Ali Muhammad v. Fazal Hussain 1983 SCMR 1239; Allah Dino v. Muhammad Shah 2001 SCMR 286; Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540; Rahim Jan v. Securities and Exchange Commission of Pakistan 2002 SCMR 1303; Government of Balochistan through Secretary, Revenue Board v. Abdul Rashid Langove 2007 SCMR 510 and Khushi Muhammad v. Mst. Fazal Bibi PLD 2016 SC 872 rel.

Aziz-ul-Haq Nishtar and Shafqat Rasool for Petitioner.

Ch. Anjum Pervaiz for Respondent No.2.

2019 P L C (C.S.) 403

[Islamabad High Court]

Before Athar Minallah, J

WASEEM RIAZ and 119 others

Versus

MINISTRY OF CAPITAL ADMINISTRATION AND DEVELOPMENT (CADD) through Secretary and another

W.P. No. 3220 of 2016, decided on 6th March, 2018.

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

----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 10, 11, 12, 13, 14, 15, 16 & 17---Notification O.M. No.F.53/1/2008-SP dated 11-05-2017---Constitution of Pakistan, Art. 25---Recruitment policy---Petitioners were appointed on daily wages in various educational institutions and they sought direction to the authorities for their regularization---Validity---'Initial' appointment to a post described in S. 5 of Civil Servants Act, 1973 was covered under Part-III of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Qualifications and other conditions relating to eligibility to a post were laid down by concerned Ministry or Division in consultation with Establishment Division---Posts were divided into 2 categories; in basic pay-scale 16 and above or equivalent and in basic pay scale 1 to 15 or equivalent---Appointment to former posts were required to be filled through tests and examinations conducted by Federal Public Service Commission and in case of latter on recommendation made by Selection Committee of the relevant department after vacancies were advertised---Candidate for any post was eligible to be considered if he or she had possessed prescribed educational qualification, experience and other conditions---Age limit was also a relevant factor---All posts, whether permanent or temporary, were to be filled strictly in accordance with Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973--- New recruitment policy was not in conflict with Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 while implementing new policy appointing authority was to ensure that provisions of Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 were not violated in case of making appointments to posts described in S. 5 of Civil Servants Act, 1973--- Initial appointments of petitioners on daily wage basis were made in violation of principles of transparency and were void as other similarly placed persons were regularized therefore, petitioners could not be treated alike--- Illegality could not be made ground for discrimination nor would give rise to rights being accrued in favor of petitioners---Petitioners were seeking their appointment as civil servants under Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---New recruitment policy approved by Federal Cabinet was not in conflict with Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Petitioners were in pay scale 16 and above and they were at liberty to apply directly to Federal Public Service Commission in accordance with new recruitment policy, i.e. Notification OM No. F.53/1/2008-SP dated 11-05-2017---High Court while exercising Constitutional jurisdiction could not condone lack of transparency and then allow illegality to perpetuate---Constitutional petition was dismissed in circumstances.

Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505 and Mst. Mukhtar Begum and others v. Ala-ud-Din and others 1999 SCMR 914 rel.

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 Institutions (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; Abdul Rashid v. Riazuddin 1995 SCMR 999 and Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance and others PLD 2016 SC 808 ref.

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

----S. 2(a)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Part-IV & R. 17---Ad-hoc appointment---Procedure---Only in exceptional circumstances and that too after seeking prior clearance from Federal Public Service Commission appointing authority may make ad-hoc appointment if latter considers it in public interest to fill post urgently till a candidate is nominated for initial appointment by Federal Public Service Commission such ad-hoc appointment can only be made for a period of 6 months---Even for making an ad-hoc appointment it is mandatory under Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 to advertise post and to observe qualifications and other conditions prescribed to case of making an initial appointment.

(c) Interpretation of statutes---

----Act and rules---Conflict---Effect---If a subordinate legislation is in conflict with parent statute, i.e., primary legislation, then it is void and ultra vires---Valid subordinate legislation can neither be made redundant nor supersede through a policy let alone a statute enacted by Legislature.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Policies and Fundamental Rights---Scope---Policies which are in violation of Fundamental Rights guaranteed under the Constitution or affect interests of public at large are void and therefore open to be challenged.

Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167 rel.

Muhammad Aftab Alam Rana for Petitioners.

Ch. Shafiaq ur Rehman and Arshad Mahmood for Respondents.

Israr ul Haq, Assistant Attorney General.

Muhammad Asif Channa, AD PEPA.

Date of hearing: 6th December, 2017.

2019 P L C (C.S.) 519

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

KALOO KHAN and others

Versus

OGDCL and others

W.P. No. 953 of 2018, decided on 26th April, 2018.

Oil and Gas Development Company Limited Employees Service Rules, 2002---

----R. 122(2)---Misconduct---Bogus educational certificates---Petitioners were employees of Oil and Gas Development Company who were dismissed from service for submitting bogus and fake certificates of their educational qualifications---Plea raised by petitioners was that certificates in question were not submitted to gain employment therefore, the same did not come within the meaning of 'misconduct' and petitioners could not be subjected to disciplinary proceedings---Validity---Submission of bogus educational degree/certificate by a person in order to gain employment or during the course of his employment, came within the meaning of 'fraud'---Such was not just a fraud on the organization where employment was sought or where service benefits/increments were obtained on the basis of bogus educational degree/certificate but it was also a fraud on deserving candidates/applicants who would have deservedly gained employment but for despicable act of submission of such educational degree/certificate by the delinquent employees---Submission of bogus educational degrees/certificates, was not just a fraud but a 'cardinal sin' which ought to be dealt with in the strictest possible terms---High Court declined to interfere in the order of dismissal from service of petitioners as there was no illegality, irregularity or procedural impropriatory in the proceedings conducted by authorities---Constitutional petition was dismissed in circumstances.

Deputy District Officer (Revenue), Qasoor v. Muhammad Munir Sajid 2013 SCMR 279 and Civil Petition No.4016 of 2016 rel.

Ch. Afrasiab Khan, Ch. Hannan Din, Rai Azhar Iqbal Kharal, Abdul Hafeez Amjad and Barrister Saad Khan for Petitioners.

Khurram M. Hashmi, Kashif Ali Malik, Sultan Mazhar Sher, Javaid Iqbal Wains and Mushtaq Hussain Bhatti and Arfan Ullah, Law Officer, O.G.D.C.L for Respondents.

Date of hearing: 13th April, 2018.

2019 P L C (C.S.) 541

[Islamabad High Court]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

DAILY KHABRAIN and others

Versus

IQBAL MUSTAFA and others

I.C.As. Nos. 156, 152, 157 to 162, 191 of 2016 and Writ Petition No. 2761 of 2016, decided on 19th September, 2018.

(a) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 2(d)---Term 'Newspaper Employee'---Scope---Person who is working on contract or even writes articles by way of employment in newspaper establishment or does any other work is "newspaper employee".

(b) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 2(d), 11 & 12-A---Limitation Act (IX of 1908), Art. 181---Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977, R. 16---Wage Board Award, implementation of---Limitation---Newspaper employees filed petitions before Implementation Tribunal for implementation of 7th Wage Board Award which came into existence in October, 2001---Petitions were allowed by Implementation Tribunal and order was maintained by Single Judge of High Court---Plea raised by appellants was that petitions were filed beyond period of limitation---Validity---Implementation Tribunal was not a court but a quasi-judicial forum for implementation of Wage Board Award---To lead proceedings before the Tribunal without applicability of law of limitation would be unjust and inappropriate as that would provide license for institution of stale claims---Effect of law of limitation was to bar remedy but right was not extinguished---Proceedings before Tribunal were not in nature of a suit but were instituted through application as was borne out from provisions of R. 16 of Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977 and residual Article for applications was to apply i.e., Art. 181 of First Schedule to Limitation Act, 1908 where period of limitation was 3 years from date when cause accrued---Division Bench of High Court set aside order passed by Implementation Tribunal as claims of newspaper employees were barred by limitation---Intra-court appeal was allowed in circumstances.

Associated Press of Pakistan Corporation through Managing Director, Islamabad v. Federation of Pakistan through Secretary, Ministry of Labour Manpower and Overseas Pakistanis Division, Islamabad and 2 others 2010 PLC (C.S.) 1003; S.M. Junaid v. President of Pakistan PLD 1981 SC 12; The Commissioner of Income Tax, Central Zone-B, Karachi v. M.S. Asbestos Cement Industries Limited, Karachi 1993 SCMR 1276; Dost Muhammad and another v. Rais Satik and another PLD 1962 Quetta 82; Allah Dino and another v. Muhammad Shah and others' 2001 SCMR 286; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1 and Mrs. Saeeda Mahmood and others v. Anas Munir (Pvt.) Ltd. through Chief Executive and 6 others 2007 CLD 637 ref.

(c) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 11 & 12-A--- Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977, R. 16---Implementation Tribunal---Right of review---Scope---Implementation Tribunal has no power to review its order as review is a substantive right which has not been granted under Newspaper Employees (Conditions of Service) Act, 1973 and Implementation Tribunal for Newspaper Employees (Procedure and Functions) Rules, 1977 to parties.

Hafiz Arfat Ahmad Chaudhry, Ms. Shaista Altaf and Sheharyar Tariq for Appellants.

Abdur Rehman S. Alvi, Syed Ishtiaq Mustafa Bukhari and Ms. Amara Batool for Respondents.

Date of hearing: 21st June, 2018.

2019 P L C (C.S.) 623

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Athar Minallah, JJ

FEDERATION OF PAKISTAN through Prime Minister and another

Versus

AFTAB AHMAD

I.C.A. No.355 of 2016, heard on 10th October, 2018.

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

----R. 3(2)---Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979, Preamble---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 21---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Azad Jammu and Kashmir (AJ&K) Council---Writ of Mandamus---Constitutional jurisdiction of High Court---Respondent was candidate for post of Judicial Member Appellate Tribunal Inland Revenue Azad Jammu and Kashmir but Azad Jammu and Kashmir Council re-advertised the post---Respondent assailed decision of Azad Jammu and Kashmir Council---Single Judge of High Court issued writ in favour of respondent to issue appointment letter---Validity---Body created by laws of Azad Jammu and Kashmir could not be issued a writ by High Court (Pakistan) in exercise of jurisdiction under Art. 199 of the Constitution even if it took decisions within its territorial jurisdiction and even if such decisions could not withstand test of legality on provisions of Constitution of Pakistan---Competitive process for appointment in question was not pursuant to any laws of Pakistan but under Azad Jammu and Kashmir Council vide Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979---Division Bench of High Court set aside judgment passed by Single Judge of High Court as writ of Mandamus could not be issued with respect to a decision taken by Prime Minister of Pakistan in his capacity as Chairman Azad Jammu and Kashmir Council---Intra-court appeal was allowed in circumstances.

Muhamad Waqas Malik and Shabbir Abbasi, Assistant Attorney-General for Appellants.

Shoaib Shaheen and Mirza Waqas Qayyum for Respondent.

2019 P L C (C.S.) 652

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD ASLAM

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others

W.P. No. 2143 of 2018, decided on 31st October, 2018.

Civil service

----Medical treatment from abroad---Reimbursement of expenses---Civil servant had gone abroad for liver transplantation in year 2010 and spent Rs. 4.2 million---Plea raised by civil servant was that he obtained "No Objection Certificate" from the authorities and was entitled to reimbursement of all his medical expenses---Validity---Liver transplant took place in the year 2010, he was not examined by Special Medical Board at Ministry of Health prior to his operation abroad---Civil servant was not sanctioned/permitted for treatment abroad at State expenses---Civil servant approached the High Court more than 09 years after his request for reimbursement of medical expenses had been finally turned down by Ministry of Health vide its letter dated 12-04-2011; even after submitting a belated appeal to Prime Minister, he waited for almost 2½ years before filing Constitutional petition---Constitutional petition was dismissed in circumstances.

Ch. Muhammad Akram for Petitioner.

Shumayl Aziz, learned Assistant Attorney-General for Respondents.

S.M. Ibrahim Shah, Law Officer, PWD.

Ghulam Rasool Lashari, A.D. (Lit.) Ministry of N.H.S.R.&C.

Abid Afridi, representative of the Finance Division.

2019 P L C (C.S.) 672

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Prof. Dr. ABDUL WAHEED

Versus

RECTOR, COMSATS INSTITUTE OF INFORMATION TECHNOLOGY, ISLAMABAD and others

W.P. No. 3017 of 2017, decided on 8th October, 2018.

(a) Civil service---

----Contractual employment---Regularization of service---Scope---Contractual employment did not transform into regular employment by simple efflux of time without a specific regularization order or provision in the employment contract where contractual employment was to become regular after a specified period of time.

(b) Civil service---

----Contractual employment, nature of---Termination of contractual contract---Scope---Contractual employee could not insist for a regular inquiry to be held regarding the employers' satisfaction with employee's performance---Such contractual employee could also not file Constitutional petition against termination of contract and under the same, High Court could not declare termination of contractual employment unlawful nor could it hold that said contract continued to subsist --- Such employment was in nature of master and servant --- Only exception to said principles was made when the order whereby contract for employment was terminated, was passed without conducting regular inquiry against employee, since where termination involves a stigma, the same amounted to punishment, and in such a case, such order could not be sustained.

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; Muhammad Waqas Gul v. Water and Power Development Authority 2015 PLC (C.S.) 144; The Secretary, Government of Punjab v. Riaz-ul-Haq 1997 SCMR 1552; Aleem Jaffar, Ex-Line Superintendent, WAPDA v. WAPDA 1998 SCMR 1445; Muhammad Amjad v. WAPDA 1998 PSC 337; Rai Zaid Ahmad Kharal v. Water and Power Development Authority 2008 PLC (C.S.) 1005; Dr. Muhammad Ibrahim v. Secretary Health 2009 PLC (C.S.) 741; Lt. Col. (Retd.) Sultan Zeb Khan v. Board of Governors, Fazle Haq College, Mardan 2015 PLC (C.S.) 1385; Muhammad Riaz v. Medical Superintendent, Service Hospital, Lahore 2016 PLC (C.S.) 296, Faisal Sultan v. E.D.O. (Education) 2011 (C.S.) 419 and Rana Asif Nadeem v. Executive Officer, Education, District Nankana 2008 PLC (C.S.) 715 rel.

Mirza Waqas Qayym for Petitioner.

Abid Hassan for Respondents.

2019 P L C (C.S.) 874

[Islamabad High Court]

Before Athar Minallah and Aamer Farooq, JJ

Homeopathic Doctor MEHMOOD-UL-HAQ ABBASI

Versus

H/Dr. MUHAMMAD IRFAN

I.C.As. Nos. 913, 914 and 915 of 2013, decided on 14th March, 2017.\

Unani, Ayurvedic and Homeopathic Practitioners Act (II of 1965)---

----Ss. 13(2) & 28---Unani, Ayurvedic and Homeopathic Systems of Medicines Rules, 1980, R. 15---National Council for Homeopathy, membership of---Disqualification---Appellant was member of National Council for Homeopathy who was later elected President and his membership was terminated due to misconduct vide letter dated 28-07-2009---Appellant was restored as member by Federal Government vide letter dated 18-02-2011 which was challenged by respondent before Single Judge of High Court---Appellant assailed order passed by Single Judge of High Court in exercise of Constitutional jurisdiction where his name was struck off from rolls of Council and his membership stood terminated---Validity---Disqualification under S. 13(2) of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965 had not rendered proceedings under S. 28 of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965 as being ministerial in nature---Single Judge of High Court misconstrued provisions of S. 28 of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965 by observing and holding that consequence of disqualification under S. 13(2) of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965 would be removal of a practitioner from register under section 28 of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965--- Provisions of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965 did not provide right of review or revision against order passed under S. 13(2) of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965---Federal Government was not vested with power and jurisdiction to review or recall notification dated 28-07-2009 by issuing notification dated 18-02-2011---Notification dated 18-02-2011 became infructuous after term of appellant had expired and notification dated 28-07-2009 did not create a bar for appellant to contest elections after expiry of his term---After term of 5 years had expired, notification dated 28-07-2009 had also lost its validity and consequently Constitutional petition had also become infructuous---Membership of appellant for succeeding term pursuant to elections held in April, 2012 was unaffected---Division Bench of High Court set aside order passed by Single Judge of High Court---Intra-court appeal was allowed in circumstances.

Sher Afzal Khan and Amir Abdullah Abbasi for Appellants.

Sardar Latif Khan Khosa and Niaz Ahmad Rathore for Respondents.

2019 P L C (C.S.) 907

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ASIF MAJEED PAUL and another

Versus

MINISTRY OF FINANCE and another

W.P. No. 2330 of 2016, decided on 15th February, 2019.

(a) Civil service---

----Petitioner, an Employee of Nationalized Bank---Constitutional petition---Maintainability---Statutory/Non-statutory rules---Scope---Constitutional petition is maintainable where respondent authority violates any provision of law or statutory rules--- Employees who are governed by statutory rules can avail remedy of filing Constitutional petition before High Court---Principle of Master and Servant is applicable to employees whose services are not governed by statutory rules---Employees of a body owned by Government, in absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction of High Court in order to seek relief with respect to their employment.

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.

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

----S. 11(11) [as amended by Banks Nationalization (Amendment) Act, (XVII of 1997)]---Habib Bank Limited (Staff Service Rules), 1981---Finance Division Circular No.17(9)-1F.XI/77 dated 30-11-1977---Pension, enhancement in---Non-statutory rules---Petitioners were retired employees of Nationalised Bank who sought direction to Federal Government to enhance their pension in accordance with provisions of Finance Division Circular No.17(9)-1F.XI/77 dated 30-11-1977---Validity---Finance Division Circular No.17(9)-1F.XI/77 dated 30-11-1977 was issued by Federal Government but scheme of pension was introduced by the Bank only after latter, vide its circular circulated on 27-02-1978 gave a choice to its employees to opt for new scheme of pension, gratuity and provident fund in lieu of existing retirement benefits admissible to them and it was after options were given by employees of the Bank that a pension scheme was introduced---Essential liability to pay pension to employees of the Bank was of Bank and no other---Bank Service Rules, 1981 were already declared as non-statutory by Supreme Court, therefore, Constitutional petition was not maintainable--- Petitioners were at liberty to seek redress by invoking jurisdiction of competent forum---Constitutional petition was dismissed in circumstances.

Pakistan Telecommunication Employees Trust v. Muhammad Arif 2015 SCMR 1472; Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783; P.T.C.L. v. Masood Ahmed Bhatti 2016 SCMR 1362; Abdul Wahab v. H.B.L. 2013 SCMR 1383; Muhammad Zaman v. Government of Pakistan 2017 SCMR 571 and Muhammad Ashraf v. United Bank Limited 2015 SCMR 911 rel.

National Bank of Pakistan v. Iftikhar Rasool Anjum 2017 PLC (C.S.) 453; Bahadur Khan v. Federation of Pakistan 2017 SCMR 2066 Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783 and Habib Bank Limited v. The State 2013 SCMR 840 ref.

Barrister Syed Hassan Ali Raza for Petitioners.

Rashid Hafeez, Deputy Attorney-General and Ms. Sitwat Jahangir, Assistant Attorney-General along with Abid Afridi, Assistant, Finance Division.

Shahid Anwar Bajwa for Respondent No.2/H.B.L.

2019 P L C (C.S.) 955

[Islamabad High Court]

Before Athar Minallah, J

FLIGHT LIEUTENANT RIFFAT ULLAH KHAN

Versus

FEDERAL PUBLIC SERVICE COMMISSION OF PAKISTAN and others

F.A.O. No. 131 of 2016, heard on 19th March, 2018.

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

----S. 7(3)(d)---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, R. 2 (viii)---Competitive examination---Nomination of officers of Armed Forces in the Civil Service of Pakistan---Allocation of groups---Procedure---Nine seats in various occupational groups were earmarked for the officers of armed forces in competitive examination, 2015---Appellant who belonged to the Province of Khyber Pakhtunkhwa was inducted amongst the nominated officers---Public Service Commission after assessing each nominated officer determined the order of merit---Appellant was placed seventh on overall merit while he had topped amongst the nominees who belonged to the Province of Khyber Pakhtunkhwa---Appellant who was overall seventh on the merit list and had topped the candidates from the Province of Khyber Pakhtunkhwa was not allocated one of the nine seats---Formula which was contemplated in the minutes of meeting of Public Service Commission dated had been declared as illegal by the Supreme Court---Remaining two factors i.e. merit and regional/provincial quota were required to have been applied for determining the allocation of occupational groups amongst the officers who were nominated by the Ministry of Defence for induction against the reserved quota of nine seats in the batch of CSS-2015---Appellant who had topped the candidates from the Province of Khyber Pakhtunkhwa and had overall secured seventh position had qualified to be inducted in Police Service of Pakistan---High Court directed that appellant should be inducted in the Police Service of Pakistan in CSS-2015 against one of the nine vacancies allocated for the induction of officers of Armed Forces of Pakistan---Public Service Commission was directed to issue fresh notification in accordance with the enunciation of law by the Supreme Court and the status of the nominees accordingly---Appellant was to join the Common Training Programme being conducted for the batch of CSS-2015 at the Civil Service Academy---Appeal was allowed, accordingly.

Mirza Waqas Qayyum for Appellant.

Israr ul Haq Malik, A.A.G. and Haroon ur Rashid, A.D. FPSC for Respondents.

2019 P L C (C.S.) 1149

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

IFTIKHAR HUSSAIN SHAH KAZMI

Versus

ZARAI TARAQIATI BANK LIMITED and others

Writ Petition No. 3941 of 2016, decided on 20th March, 2017.

(a) Civil service---

----Employee of Government owned Bank---Misconduct by employee---Non-participation of employee in the inquiry proceedings---Dismissal from service---Scope---Employee did not attend inquiry proceedings and was dismissed from service---Contention of employee was that he was on ex-Pakistan leave---Validity---Petitioner-employee was granted several opportunities to appear and file reply to the allegations levelled against him but he failed to file the same---Employee was informed with regard to the schedule of inquiry and he could not make any grouse against the inquiry proceedings being conducted in his absence---Willful non-participation of employee in the inquiry did not provide him a ground to contend that he was condemned unheard---Employee could not be subsequently allowed to take the plea that order passed against him was in violation of principles of natural justice---Petitioner could not defend himself during personal hearing or produce any documentary evidence in his defence---No error of law nor any excess of jurisdiction had been pointed out in the impugned order passed by the Bank---Constitutional petition was dismissed,, in circumstances.

Qari Ahmed Jan v. Government of Balochistan through S&GAD Quetta and others 2003 PLC (C.S.) 1078; Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal, Lahore, 2006 PTD 207 and Water and Power Development Authority/Lahore Electricity Supply Company v. Messrs Bhattice and Rice Mills, Buchiki 2004 YLR 1263 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of facts could not be resolved by the High Court in its constitutional jurisdiction.

(c) Constitution of Pakistan---

----Art. 199---Writ of certiorari---Object and Scope.

Certiorari is not a writ of right, but one of discretion. Its object is to curb excess of jurisdiction, and to keep inferior Courts and Tribunals within their bounds. The High Court while judicially reviewing the proceedings and judgments of the inferior Courts and Tribunals, cannot substitute its own decision with that of such inferior Courts or Tribunals. The grounds on which certiorari may be invoked is where there is an error of law apparent on the face of the record, and not every error either of law or fact which can be corrected by the appellate authority. It lies where the inferior Court or Tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which they was meant to administer. It is also issued when the inferior Court or Tribunal acts illegally in exercise of its jurisdiction. For instance, when it decides without giving any opportunity to the parties to be heard or violates the principles of natural justice. The High Court while issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. The High Court will not judicially review findings of fact reached by an inferior Court or a Tribunal unless there is manifest error apparent on the face of the proceedings, or where such findings are based on disregard of the provisions of law. The Superior Courts have also interfered with the findings of the inferior Courts and Tribunals where such findings have been found to be perverse or patently erroneous i.e. contrary to the evidence on the record.

Taimoor Aslam Khan for Petitioner.

Ch. Sagheer Ahmed for Respondents.

2019 P L C (C.S.) 1268

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. MUHAMMAD BABAR CHOHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Federal Education and Technical Training and 2 others

W.P. No. 2813 of 2018, decided on 30th November, 2018.

(a) Civil service---

----Appointment against the post of Deputy Permanent Delegate at the Permanent Delegation of Pakistan to UNESCO---Criteria---Contention of petitioner was that he secured 68 marks in the competitive process for appointment whereas respondent secured only 62 marks and in interview petitioner was awarded 09 marks whereas respondent was given 18.5 marks and calculation of marks was not made in accordance with law---Validity---Marks obtained by the candidates for appointment against the said post was not the sole criteria---Eighty percent weightage had to be given for the marks obtained in written test whereas twenty percent weightage had to be given to the marks obtained in the interview---Petitioner, in the present case, had obtained 68 out of 100 marks in the written test and 9 marks out of 20 in the interview---Petitioner's marks for written test came to 54.40 and there was no need to give 20% weightage to the marks obtained by the candidates in the interview---Petitioner's total marks came to 63.40 which placed him at 4th position---Respondent obtained 62 out of 100 marks in the written test and 18.50 marks out of 20 in the interview---Respondent's marks for written test came to 49.60 and total marks came to 68.10 which placed her in the 1st position---Clearance of a written test did not by itself create any vested right in the petitioner's favour for appointment against the post in question when test was not the sole criteria for making appointment---Criteria for appointment, in the present case, against the post in question was not just a written test but also an interview---Petitioner was at serial number 4th and he could not be appointed against the said post---Respondent had assumed charge of her new appointment which by itself was a ground not to interfere with the said appointment---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

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

Muhammad Safdar Shaheen Pirzada for Petitioner.

Adnan Haider Randhawa for Respondent No.3.

Shumayl Aziz, Assistant Attorney-General.

2019 P L C (C.S.) 1348

[Islamabad High Court]

Before Athar Minallah, CJ and Miangul Hassan Aurangzeb, J

MANAGING DIRECTOR, PUBLIC PROCUREMENT REGULATORY AUTHORITY (PPRA) and another----Appellants

Versus

MUHAMMAD ZUBAIR and 6 others----Respondents

I.C.As. Nos. 258, 259 of 2018, in W.P. No. 348 of 2018, heard on 9th May, 2018.

Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S.7(6)---Appointment in Public Procurement Regulatory Authority---Respondents were candidates for vacancies advertised by Public Procurement Regulatory Authority and despite approval of recommendations of Human Resource Committee of Public Procurement Regulatory Authority respondents were not appointed---Single Judge of High Court declared that concluded process of appointments could not have been recalled---Validity---Board of Directors of Public Procurement Regulatory Authority in its 34th meeting approved recommendations of H.R. Committee of Public Procurement Regulatory Authority regarding appointment of respondents and till date such decision was not annulled---Board of Directors of Public Procurement Regulatory Authority, in its 35th meeting approved recommendation of appointment of Director-Generals in Public Procurement Regulatory Authority and approval regarding appointment of respondents was not undone---Vested rights were created in favour of respondents for appointment letters to be issued to them---Respondents could not be made to suffer by Public Procurement Regulatory Authority for their own procedural lapses and omissions---Division Bench of High Court declined to interfere in orders passed by the Single Judge of High Court as it did not debar the authority for proceeding against respondents for just cause and in accordance with law---Division Bench of High Court directed that respondents should not be penalized or blamed for faults and omissions on part of management of Public Procurement Regulatory Authority in recruitment process---Intra-court appeal was dismissed accordingly.

Secretary to Government of N.-W.F.P. v. Saadullah Khan 1996 SCMR 413; Collector of Customs and Central Excise v. Abdul Waheed 2004 SCMR 303; Muhammad Akhtar Sherani v. Punjab Textbook Board 2004 SCMR 1077; Province of Punjab v. Zulfiqar Ali 2006 SCMR 678 and Managing Director, Sui Southern Gas Company Ltd. v. Ghulam Abbas PLD 2003 SC 724 ref.

Abdul Rahim Bhatti and Yassar Rahim Bhatti for Appellants (in I.C.As.Nos.258 and 259 of 2018).

Muhammad Anwar Mughal for Respondents Nos.1 to 5 (in I.C.A.No.258 of 2018).

Ummar Zia-ud-Din and Mubashir Najeeb for Respondents Nos.1 to 16 (in I.C.A.No.259 of 2018).

Ch. Muhammad Tahir Mahmood, Assistant Attorney-General with Muhammad Zubair D.G. M&E, Ali Taimoor D.D. Admin/H.R. and Muhammad Khurshid D.D. Legal for Respondents.

2019 P L C (C.S.) 1361

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

MUHAMMAD ZARYAB ALI

Versus

MINISTRY OF RELIGIOUS AFFAIRS, through Secretary, Islamabad and others

Writ Petition No. 3947 of 2018, decided on 24th April, 2019.

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

----Rr.15 & 16---Constitution of Pakistan, Art. 27---Appointment against the posts of Naib Qasid on local basis in Ministry of Religious and Interfaith Harmony---Local authority or Provincial Government was empowered to prescribe any condition with regard to residence for any post or class of service under that Government or authority---Islamabad Capital Territory could hire candidates who were residents of Islamabad and having domicile issued by the district administration of Islamabad---Term "Local" meant persons who were based in Islamabad with domicile issued by the Islamabad Capital Territory Magistrate---Two out of eighteen candidates were appointed from Islamabad Capital Territory while remaining candidates had been appointed from rest of Pakistan---Minimum requirement had not been fulfilled, in circumstances---Departments were bound to apply the law in its true perspective with regard to "local" residents of Islamabad Capital Territory who were not being considered for any post in other provinces---Advertisement did carry condition that local candidates would be given preference while making appointments in question---Respondent was bound to appoint local inhabitants having domicile of Islamabad and if any local resident was not appointed then reason should have been recorded---Depriving a "local" resident of Islamabad from appointment would amount to depriving him from his legitimate right of appointment---Authorities had not considered the ratio and wisdom of the term 'local basis' explained in R.16 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as well as in the advertisement---Department had to give preference to the candidates who belonged to Islamabad Capital Territory due to their permanent residence as well as domicile---Authorities were directed to reconsider the entire hiring process and appoint candidates having domicile of, Islamabad Capital Territory---Constitutional petition was disposed of, in circumstances.

(b) Words and phrases---

----'Local'---Meaning.

(c) Words and phrases---

----'Domicile and residence'---Meaning and scope.

Ms. Zaib-un-Nisa for Petitioner.

Barrister Mumtaz Ali, AAG. Ms Rakhshanda Younas, Inam-ul-Haq, Director, R&R, M/o Religious Affairs, Islamabad for Respondents.

2019 P L C (C.S.) 1391

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. ALI BAT KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and others

W.P. No.4203 of 2017, heard on 28th March, 2019.

Civil Servants Act (LXXI of 1973)---

----S.14(1)---Contract appointment---Extension of---Appointment against the post of Advisor/Consultant on Development Budget (Operation)---Scope---Contention of petitioner was that contract appointment of respondent was against law---Validity---No law existed to the effect that a contract appointment made against a project post could be extended from time to time for as long as the project had completed---Extension in contract appointment should be for a "reasonable" period---Nine years extension could not be termed as "reasonable"---Respondent could compete for appointment against post in question as and when it was re-advertised---Respondent had been appointed after participating in a competitive process pursuant to an advertisement published by the authorities---Respondent was not re-employed against the same post which he had held prior to retirement---No embargo existed that a retired civil servant could not compete for appointment on contract basis against a post in a project controlled by the Government---Appointment of respondent could not be termed as re-employment after superannuation---Extension of respondent was declared unlawful---Department was directed to re-advertised the project post of Advisor/Consultant on Development Budget (Operation) for which respondent would be at liberty to apply and participate in the competitive process---Constitutional petition was allowed, in circumstances.

Azra Jamali v. Federation of Pakistan through Secretary, Ministry of Commerce 2017 PLC (C.S.) 533; Tariq Aziz-ud-Din's case 2010 SCMR 1301; Amin Jan v. Director-General, T&T PLD 1985 Lah. 81 and Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah. 343 ref.

Mazhar Iqbal for Petitioner.

Shumayl Aziz, Learned Assistant Attorney General with Mahmood Khan Lakho Section Officer Establishment Division and Niaz Ali Khan Section Officer Ministry of Planning, Development and Reform for Respondents.

Respondent No.2 in person.

2019 P L C (C.S.) 1491

[Islamabad High Court]

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

MUHAMMAD QASIM and others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Overseas Pakistanis and Human Resources Development and another

I.C.A. No.108 of 2017, decided on 14th November, 2017.

(a) Civil service---

----Contractual employment---Regularization of service---Scope---Appellants sought direction of High Court to the authorities to regularize their services with effect from the date of their initial appointment---Appellants contended that similarly placed persons had been regularized; that the appellants had completed one year of contractual service and therefore deserved to be regularized; that despite expiry of their contract, the appellants continued to perform their duties; that during the pendency of appellants' constitutional petition, authorities had initiated the appointment process against 23 posts of the same cadre and that the authorities should have regularized the appellants instead of initiating a fresh appointment process---Validity---Appellants had not pleaded that they were offered appointment after participation in a competitive process---Terms and conditions of appellants' employment were set out in appointment letters which clearly provided that the appointment was purely on temporary basis for a period of six months, and that it would automatically terminate after completion of the said period and that the appointment would be liable to termination on thirty days notice or payment of salary in lieu of notice, without assigning any reason---Appellants did not place on record any provision in Service Rules under which their temporary/contractual employment could be converted into a permanent employment---Youth to secure permanent employment in the public sector would be let down and demoralized if the contractual employment of persons like the appellants was converted into permanent employment without a competitive process---Appellants, during their contractual appointment, were not working against sanctioned posts--Appeal, being devoid of merits, was dismissed.

Government of Khyber Pakhtunkhwa v. Adnan Ullah 2017 PLC (C.S.) 307 and Rizwan Javed v. Secretary, Agriculture and Livestock 2017 PLC (C.S.) 712 distinguished.

(b) Civil service---

----Elimination of exploitation---Security of person---Equality of citizens---Competitive process---Permanent employment---Contractual or temporary appointment---Regularization of service---Scope---Dimensions and parameters of a competitive process for a permanent appointment and a contractual/temporary appointment are altogether different---Competition for a contractual/temporary employment is not as aggressive and competitive as competition for a permanent employment---Many vying for a permanent employment would not bother applying for contractual/temporary employment---Moreso when there is no representation in the advertisement inviting applications for contractual/temporary employment that the same would somehow transform into permanent employment---If a person employed purely on temporary basis is to be given a permanent employment without any competitive process it would amount to stealing a march on hundreds of thousands of able would-be applicants who did not apply for temporary/contractual employment, but would have applied had they known that the contractual employment would, without any further competitive process, turn into permanent employment---Conversion of a person's temporary/contractual employment without any transparent competitive process, would be a clear violation of Arts. 3 & 9 of the Constitution---Equal opportunity in public employments is a constitutional mandate---Principle of "each according to his ability to each according to his work" can only be achieved by appointing meritorious candidates in the public sector through strict competition---Such competition for a permanent employment in the public sector cannot be given a go-bye simply because a contractual employee, desirous of his employment being made regular/permanent, was given contractual employment through a competitive process---Equality clause enshrined in the Constitution is to be followed scrupulously by the public sector---Youth, burning the midnight oil to secure permanent employment in the public sector, would be let down and demoralized if the contractual employment is converted into permanent employment without a competitive process---Such relaxation would be a bad precedent to a large number of qualified people aspiring for permanent employment in the public sector.

Sayyed Umar Sohail Shah for Appellant.

Shabbir Abbasi, Learned Assistant Attorney-General.

2019 P L C (C.S.) 1516

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

NATIONAL BANK OF PAKISTAN

Versus

The SACKED EMPLOYEES REVIEW BOARD ESTABLISHMENT DIVISION and another

W.Ps. Nos.2678 to 2683 of 2017, decided on 27th April, 2018.

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

----Ss.3(1), 2(f), 11 & 13---Limitation Act (IX of 1908), S.5---Sacked employees---Termination of service---Application for reinstatement---Requirements---Limitation---Condonation of delay---Employees filed constitutional petitions which were transmitted to the Review Board with the direction to treat the same as representations and decide in accordance with law---Review Board accepted petitions moved by the employees and reinstated them in service with effect from the date when they were terminated---Contention of employer Bank was that petitions filed by the employees were barred by time---Validity---Sacked employee could be reinstated under the provisions of Sacked Employees (Re-instatement) Act, 2010 only if such employee was appointed between 01-11-1993 to 30-11-1996 and dismissed, removed or terminated from service or whose contract period expired or was given a golden hand shake between 01-11-1996 to 12-10-1999---Services of present employees were discontinued by the Bank after 12-10-1999 and they did not fall in the category of employees who could be reinstated under the provisions of Sacked Employees (Re-instatement) Act, 2010---Sacked employee could file application within ninety days of the enactment of Sacked Employees (Re-instatement) Act, 2010 for reinstatement in service---None of the employees, in the present case, had filed a petition before Review Board within the time limit prescribed under Sacked Employees (Re-instatement) Act, 2010---Order passed by the High Court for transmitting petition to the Review Board did not absolve the employees from crossing the hurdle of limitation as provided in S.13(1) of Sacked Employees (Re-instatement) Act, 2010---Review Board should have dismissed the employees' applications for reinstatement if same had been moved beyond the limitation period of ninety days from the date of enactment of Sacked Employees (Re-instatement) Act, 2010---Provisions of Limitation Act, 1908 were not applicable to any proceedings under Sacked Employees (Re-instatement) Act, 2010---Review Board was not vested with the power to enlarge the limitation period within which petition could be preferred under S. 13(1) of Sacked Employees (Re-instatement) Act, 2010---Where limitation period for filing certain petition was provided in special law then delay in filing the same could not be condoned under S.5 of Limitation Act, 1908---Petitions of employees for reinstatement before Review Board being time barred were not maintainable, in circumstances---None of the petitioners-employees were dismissed, removed or terminated from service between 01-11-1996 to 12-10-1999 and they could not have been reinstated in service---Impugned orders passed by the Review Board were without jurisdiction and lawful authority which were set aside---Employees would be at liberty to agitate their cases for reinstatement in service before the appropriate forum subject to law---Constitutional petition was allowed in circumstances.

Ali Muhammad v. Fazal Hussain 1983 SCMR 1239; Allah Dino v. Muhammad Shah 2001 SCMR 286; Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540; Rahim Jan v. Securities and Exchange Commission of Pakistan 2002 SCMR 1303; Government of Balochistan through Secretary, Revenue Board v. Abdul Rashid Langove 2007 SCMR 510; Khushi Muhammad v. Mst. Fazal Bibi PLD 2016 SC 872; Province of Punjab v. Muhammad Bakhsh 2012 SCMR 664; Mansab Ali v. Amir PLD 1971 SC 124; Shabbir Ahmad v. Kabir-un-Nisa PLD 1975 SC 58 and National Bank of Pakistan v. Khalid Javed Qureshi 2014 PLC (C.S.) 737 rel.

Sohail Nawaz for Petitioner.

Muhammad Umair Baloch, Fazal-ul-Mabood Chughtai and Sheraz Ahmed Barri for Respondents.

Rashid Hafeez, Learned Deputy Attorney-General.

2019 P L C (C.S.) 41

[Sindh High Court]

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

KAMRAN AHMED MALLAH and others

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources and others

Constitutional Petitions Nos.D-3759 and 4422 of 2017, decided on 19th January, 2018.

(a) Civil service---

----Employees of Company functioning with the affairs of Pakistan---Contract employee---Regularization of service---Equal treatment---Scope---Plea of petitioners-employees was that they had secured more than 35% marks in National Testing Service and qualified for permanent absorption in the employer-Company---Validity---Regularization of employees was not part of terms and conditions of their service for which statutory rules were required but regularization would depend upon the length of service---Performance of employees in the employer-Company had not been called in question throughout their service period---Employees had secured more than 35% marks in National Testing Service---Petitioners were entitled to permanent absorption in accordance with Recruitment Policy, 2013 in the manner identical to one adopted to regularize their colleagues---Employer-Company had enhanced qualifying marks to 60% for permanent absorption but no policy framed in 2017 enhancing the benchmark from 35% to 60% had been brought on record---Any subsequent change in the criteria could not be applied retrospectively to the serving employees who were subjected to Recruitment Policy, 2013---Conduct of employer company was discriminatory in circumstances---Employees were entitled to similar treatment which was extended to their similarly placed colleagues for their regularization and absorption---Employer-Company could not act whimsically while making fresh appointments against the posts already held by the petitioners who were appointed in a transparent manner---Petitioners had served the Company for a period from five to seventeen years and had acquired expertise in the respective fields---Federal Government had directed Ministries/Divisions/Companies to regularize the Services of all the contract employees who had rendered minimum one year service in continuity as on 01-01-2017---Petitioners were in continuous service of the Company for long time and were paid salary as well---Employer-Company was directed to consider the case of petitioners for regularization of their service in accordance with law within a period of two months---Constitutional petition was disposed of in circumstances.

Nagina Bakery v. Sui Southern Gas Ltd. and others 2001 CLC 1559; Saleemullah Khan v. Shahid Hamid and others 2010 PLC (C.S.) 888; Abdul Hameed v. Ministry of Housing and Works Government of Pakistan, Islamabad and others PLD 2008 SC 395; Mumtaz Ali Narai v. Chief Secretary Government of Sindh and others 2008 PLC (C.S.) 255; Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497; Government of Pakistan through Establishment Division Islamabad and others v. Hameed Akhter Niazi, Academy of Administrative Walton Training Lahore and others PLD 2003 SC 110; Dr. Ilyas Qadeer Tahir v. Secretary M/O Education Now M/O CADD, Islamabad and others 2014 SCMR 997; Syed Nazeer Gillani v. Pakistan Red Crescent Society and others 2014 SCMR 982; PIA Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545; PTCL and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362 and Chairman NADRA, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979 ref.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan International Airlines Corporation and others v. Tanveer-ur-Rehman and others PLD 2010 SC 676; Defence Housing Authority v. Lt. Col Syed Javaid Ahmed 2013 SCMR 1707; Hadeed Welfare Trust (A subsidiary of Pakistan Steel Mills 2017 PLC (C.S.) 1020; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Government of Khyber Pakhtunkhwa and others v. Adnanullah and others 2016 SCMR 1375 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition against company, which was performing function in connection with the affairs of Federation of Pakistan was amenable to constitutional jurisdiction of High Court---Mere fact that such company was limited by shares and registered under Companies Ordinance, 1984 was not sufficient to hold that Constitutional petition against such company was not maintainable---Registered companies founded by the Federation or Province fell under the dominative control of the State, jurisdiction under Art. 199 of the Constitution could be invoked against such company.

Khawaja Muhammad Asif v. Federation of Pakistan PLD 2014 SC 206; Ramna Pipe and General Mills (Pvt.) Ltd v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Aitcheson College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 and Pakistan Defence Housing Authority and others v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 rel.

M.A.K. Azmati for Petitioner (in C.P. No.D-3759/2017).

Malik Naeem Iqbal and Faizan Hussain Memon for Petitioner's (in C.P. No.D-4422/2017).

Shaikh Liaquat Hussain, Assistant Attorney General for Respondent No.1.

Asim Iqbal and Ms. Mariam Riaz for Respondents Nos.2 to 5.

2019 P L C (C.S.) 80

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

MUHAMMAD TARIQ MANGI

Versus

KARACHI ELECTRIC SUPPLY COMPANY, through Chief Executive Officer and another

Civil Suit No.174 and C.M.As. Nos. 1439, 12515 of 2012, decided on 15th August, 2018.

Civil service---

----Dismissal---Performance evaluation---Employee sought initiation of contempt proceedings against the Management for non-compliance of order passed by court directing the management to continue with the enquiry proceedings against the employee and not to pass final order---Plea of Management was that plaintiff was terminated from service along with 107 other employees on another charge and till date even after completion of the proceedings, no final order had been passed---Validity---Held; Management was not restrained from passing any order while reviewing the performance of the employee as well as other employees as per procedure in vogue---Services of employee had been terminated for poor performance which did not amount to contempt or violation of court's order---Contempt petition was dismissed in circumstances.

Shakeel Ahmed for Plaintiff.

Faisal Mehmood Ghani along with Hammad Khalid, Director (Peoples Services), alleged contemnor for Defendant.

2019 P L C (C.S.) 178

[Sindh High Court]

Before Muhammad Faisal Kamal Alam, J

Mrs. RUKHSANA YAHYA

Versus

FEDERATION OF PAKISTAN through Secretary, Finance Division

Suit No.754 of 2005, decided on 6th February, 2018.

Civil service---

----Suit for damages---Appointment on contract basis for two years but employee was terminated prior to the said period---Service dues---Scope---Employee, being female, during service was not allowed to work in a congenial and professional environment---Mental auguish and humiliation caused to employee---Damages---Scope---Contention of employee was that she had been partly paid salary and allowances---Validity---Employee's service was for twenty three months---Qualifying length of service for getting the second gratuity was condonable as only one and half month was short to make the employee entitled for the second gratuity---Claim of employee for gratuity to the extent of Rs. 57,500/- was justified---Employee was entitled for official car and driver along with 270 liters petrol per month right from the start of her employment---Claim of Rs.6,23,040/- for expenses incurred towards car, petrol, driver and maintenance from the period of August, 2002 to July, 2003 had been proved by the employee and she was entitled for the said amount---Department was guilty of breach of contractual obligation due to non-payment of admissible dues and not adhering to the terms of contract employment---Employee had been deprived of her service dues---Department had caused mental anguish and humiliation to the employee---Employee was entitled for damages to the tune of Rs.15,00,000/- in circumstances.

Federation of Pakistan through Secretary, Ministry of Housing and Works, Islamabad v. Mst. Ismat Qayyum Malik PLD 1994 Lah. 360; Gohar Ali and another v. Messrs Hoechst Pakistan Limited 2009 SCMR 109; Muhammad Sharif v. Nawab Din and another PLD 1957 (W. P.) Lah. 283 and Onkarmal and another v. Banwarilal and others AIR 1962 Rajasthan 127 ref.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others PLD 2012 SC 80 = 2012 CLD 6 = 2012 PLC (C.S.) 574 and Azizullah v. Jawaid A. Bajwa and others 2005 SCMR 1950 rel.

S.M. Yahya for Plaintiff.

Muhammad Masood Hussain, Assistant Attorney General for Defendant.

2019 P L C (C.S.) 203

[Sindh High Court]

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

AKMAL HUSSAIN

Versus

SECRETARY ESTABLISHMENT GOVERNMENT OF PAKISTAN, ISLAMABAD and another

C.P. No.D-1377 of 2014, decided on 15th September, 2017.

Section Officers Promotional Examination Rules, 2012---

----Condition No. 25---Appointment of Section Officer---Non-joining of post by the successful candidate---Effect---Four successful candidates did not join the service of Section Officer---Contention of petitioner was that he being next in the waiting list should be recommended by the Public Service Commission---Validity---Waiting list candidate not declared successful could not be recommended for appointment against any vacancy occurring due to non-joining of any successful candidate---No vested right for appointment as Section Officer had been created in favour of petitioner---Exercise of constitutional jurisdiction was discretionary in nature and meant to foster the cause of justice and fair play---No valid reason existed for indulgence in the present matter---Constitutional petition was dismissed in circumstances.

Shabana Akhtar v. District Coordination Officer Bhakkar and others 2012 PLC (C.S.) 366; Rafaqat Ali v. Executive District Officer Health and others 2011 PLC (C.S.) 1615 and Muhammad Ashraf v. Government of Punjab Education Department 2012 PLC (C.S.) 600 rel.

Dr. Shah Nawaz Memon for Petitioner.

Muhammad Aslam Butt DAG.

2019 P L C (C.S.) 238

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Khadim Hussain Tunio, JJ

ABDUL HALEEM SIDDIQUI and others

Versus

FEDERATION OF PAKISTAN through the Law Secretary, Ministry of Law and Justice, Pakistan Secretariat, Islamabad and others

C.Ps. Nos. D-3460, D-3366 of 2011, D-1053, D-1524, D-1657, D-3644 of 2013 and D-1268 of 2016, decided on 4th September, 2018.

(a) Constitution of Pakistan---

----Arts. 212 & 199----Constitutional jurisdiction of High Court---Civil Service---Constitutional petition seeking relief for framing of service rules and seniority list----Relief seeking framing of rules and seniority list, prima facie, cannot be legally entertained by High Court being a matter relating to service structure and applicable rules.

(b) Constitution of Pakistan---

----Arts. 25 & 4----Fundamental rights of equality of citizens and right to be dealt in accordance with law----Scope----Expression "equality before law" or "equal protection of law" did not secure to all persons the benefit of Art. 25 of the Constitution, which required that persons, similarly situated or circumstanced shall be treated alike and if one intended to seek exception to the application of Art. 25 of the Constitution, then such person would be required to establish that things were different and only then discrimination could be made which too much be based on some intelligible differential, bearing a reasonable and just relation to the object, sought to be achieved.

Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 rel.

(c) Constitution of Pakistan---

----Arts. 25, 4, 38(e) & 37(d)---Interpretation of the Constitution---Fundamental Rights---Principles of Policy---Equality of citizens---Right to be dealt in accordance with law---Obligation of state to ensure inexpensive and expeditious justice---Application of such rights to public servants/civil servants---Terms and conditions of Public Service---Scope---Constitution was a living and organic document, and while interpreting the same, expensive and dynamic approach was to be adopted---Fundamental Rights included equality in terms and conditions of service and Arts. 25, 37(d) & 38(e) of the Constitution were to be read with Arts. 4 & 25 of the Constitution.

(d) Constitution of Pakistan---

----Arts. 25, 4, 37(d), 38(e) & 199---Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act (IX of 2009), S.9(1)---Judicial Officers---Remuneration and benefits of judicial officers---Special Judicial Allowance---Entitlement of Offices of State Representation to Special Judicial Allowance---Roles and Functions of the Sindh Criminal Prosecution Service---Employees of Provincial Criminal Prosecution Service entitled to same benefit(s) as employees of the Offices of the Advocate-General and Attorney-General---Scope---Question before the High Court was whether petitioners, who were working for the Provincial Criminal Prosecution Service, were entitled to grant of Special Judicial Allowance, as was being provided to offices of the Advocate-General and Attorney-General---Contention of petitioners, inter alia, was that functions and duties of the office of the petitioners was similar to that of the offices of the Advocate-General and Attorney-General, and thus they were being discriminated against---Validity---Barriers of names and classification of office(s)/court(s) were of no significance when question of Special Judicial Allowance was involved---Judiciary, anywhere in the country, was to be as a class in itself and barriers of names, classification and Provinces could not therefore stand---Special Judicial Allowance was not limited to the Judiciary alone, but also to its counterpart, which was "State Representation"---Prima facie, purpose and object of both Advocate-General Office and the Provincial Criminal Prosecution Service was one and the same, which was representation of the Government and mere difference of "civil matters", which was dealt with by Advocate General Office and "criminal prosecution", dealt with by Provincial Criminal Prosecution Service, could not be a factor in the present case---High Court observed that Office of Advocate-General performed the same functions in the Province as the Provincial Criminal Prosecution Service, and therefore petitioners were entitled for equal treatment under Art. 25 of the Constitution, and thus were entitled to avail the same benefits as employees of the Advocate-General Office---High Court declared refusal of grant of Special Judicial Allowance to petitioners being violative of Art. 25 of the Constitution and directed payment of the same to the petitioners---High Court further directed the State respondents to take steps and initiate legislative measures as may be necessary to frame service structure of employees/non-gazetted staff of the Provincial Criminal Prosecution Service---Constitutional petitions were allowed, accordingly.

Government of Punjab v. Mubarak Ali Khan PLD 1993 SC 375; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Secretary, Ministry of Finance v. Masdar Hossain (1999) DLR (AD) 82; Pir Imran Sajid and others v. Managing Director/General Manager and others 2015 SCMR 1257; WP Sadaqat Ali v. Government of Punjab and Muhammad Akram v. Selection Committee 2003 CLC 18 rel.

2019 P L C (C.S.) 386

[Sindh High Court (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Khadim Hussain M. Shaikh, JJ

Mst. HALEEMA

Versus

UNIVERSITY OF SINDH, through Vice-Chancellor and 2 others

Constitutional Petition No.D-188 of 2012, decided on 22nd February, 2018.

(a) Sindh University Employees Pension Statutes, 1974---

----Statutes. 2.2, 2.3 & 4.4---Civil Service Regulations (CSR), Art. 371-A---Contract employee died while in service---Family pension, payment of---Requirements---Employee rendered temporary service for more than six years---Contention of department was that employee did not render minimum length of service to be entitled to the pensionary benefits---Validity---Employee would be entitled to the benefit of pension if his qualifying service was ten years---Service of employee to qualify for pension would begin when he took charge of the post to which he was first appointed---Employee who had not completed qualifying service period of ten years after being confirmed would not be entitled to the pensionary benefits---Appointment on contract basis was a stopgap arrangement made by the employer to do with day to day affairs of a particular nature of job till either the post of that job was created and filled or till a regular appointment was made thereon---Deceased employee, in the present case, had served on contract basis (from 01-12-1997 to 26-04-2004) against the fixed honorarium which period of service could have been counted or added to his pensionary benefits if he had later on (after being appointed on permanent basis) served for ten years more to qualify for pension---Constitutional petition was dismissed in circumstances.

2009 SCMR 769; PLD 1990 SC 719; 1993 SCMR 609; PLD 2008 SC 522 and PLD 2013 SC 829 ref.

Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jehan Shah PLD 2016 SC 534 rel.

(b) Civil service---

----Appointment on contract basis---Effect---Appointment on contract basis was a stopgap arrangement.

(c) Sindh University Employees Pension Statutes, 1974---

----Statute. 2.3, clause second---Word 'Count' as used in statute 2.3---Connotation---Word "count" has been used as against "qualify" or "eligible", which would mean the temporary and officiating service would be counted or added for pensionary benefits, if it is followed by confirmation.

Taj Muhammad Kerio for Petitioner.

Kamaluddin for Respondents Nos. 1 and 2.

Allah Bachayo Soomro for Respondent No.3.

2019 P L C (C.S.) 475

[Sindh High Court]

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

IQBAL HUSSAIN

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Information and Technology, Government of Pakistan and 7 others

C.P. No.D-4789 of 2016, decided on 5th April, 2018.

(a) Sindh Removal from Service (Special Powers) Ordinance (IX of 2000) [since repealed]---

----S. 5---Termination from service---De novo proceedings---Procedure---Major penalty without holding regular inquiry---Scope---Service Tribunal set aside the order for dismissal of employee while accepting the appeal and directed the department to initiate de novo proceedings---Department, instead of holding de novo inquiry/proceedings issued show-cause notice and compulsory retired the employee from service---Contention of petitioner-employee was that impugned order was illegal as no independent inquiry was conducted---Validity---Service Tribunal allowed the appeal and proceedings initiated earlier were declared as null and void and directed the department to initiate 'de novo proceedings' under the provisions of Sindh Removal from Service (Special Powers) Ordinance, 2000---No de novo proceedings were initiated by the department rather show-cause notice was issued after dispensing with regular inquiry---While proceeding de novo all the parameters as enshrined in Sindh Removal from Service (Special Powers) Ordinance, 2000 had to be initiated from the very beginning and all the provisions of said Ordinance, 2000 had to be complied with in letter and spirit---No regular inquiry in de novo proceedings had been conducted and proceedings had been initiated after dispensing with the inquiry---Fair and reasonable opportunity to make defence to a party was its primary right---Major penalty of compulsory retirement had been imposed upon the employee without regular inquiry---Department had not applied its independent mind while passing the impugned order---Employee had denied all the charges of show cause notice therefore regular inquiry was imperative---Department was to hold a regular inquiry to examine the veracity of submissions of employee---Reliance on the previous inquiry and material gathered previously was not proper dispensation of justice---Holding of regular inquiry in case of imposition of major penalty was prerequisite and mandatory condition which could not be dispensed with---Regular inquiry was also essential condition to prove the charges of fact---Impugned orders were not made in accordance with law which were set aside---Employee presently having attained the age of superannuation, no regular inquiry could be conducted---Department was directed by the High Court to award back benefits to the employee with effect from compulsory retirement till retirement on attaining the age of superannuation---Constitutional petition was allowed accordingly.

Shakeel Ahmed v. P.T.C.L. and others 2017 PLC (C.S.) Note 76, p. 78; Federation of Pakistan and another v. Gohar Riaz 2004 SCMR 1662; Noor Muhammad v. Air Chief Martial of Pakistan and others 1990 PLC (C.S.) 246 and The Province of Punjab v. Khan Khaliq Dad Khan PLD 1953 Lah. 295 ref.

Naseeb Khan v. D.S. Pakistan Railways 2008 SCMR 1369; Alamgir v. Divisional Forest Officer, Multan 1993 SCMR 603; Nawab Khan v. Government of Pakistan (Ministry of Defence) PLD 1994 SC 222; Basharat Ali v. Director Excise and Taxation Lahore 1997 SCMR 1543; Muhammad Haleem v. General Manager (Operation) Pakistan Railways Headquarter, Lahore 2009 SCMR 339; Executive Engineer GEPCO Limited v. Liaqat Ali 2009 PLC (C.S.) 987 and Chief Election Commissioner of Pakistan v. Miss Nasreen Pervez 2009 PLC (C.S.) 650 ref.

(b) Civil service---

----Holding of regular inquiry in case of imposition of major penalty was prerequisite and mandatory condition.

(c) Words and phrases---

----'De novo' proceedings---Connotation---De novo connotes something which has to be started afresh, as if there were no proceedings initiated previously---Illustration.

Black's Law Dictionary; Words and Phrases, Volume 12; Handbook of Legal Terms and Phrases by Ilyas Khan; Concise Oxford English Dictionary Ballentine's Law Dictionary and Warton's Law Lexicon rel.

Shaikh Liaqat Hussain, Assistant Attorney General for Pakistan for Respondents Nos.1 and 8.

Abdul Moiz Jaferi for Respondents Nos.2 to 7.

Dates of hearing: 14th and 28th March, 2018.

2019 P L C (C.S.) 492

[Sindh High Court (Hyderabad Bench)]

Before Muhammad Junaid Ghaffar and Amjad Ali Sahito, JJ

ASIF ALI MEMON

Versus

The PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petition No. D-2202 of 2018, decided on 28th June, 2018.

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

----S. 10---Transfer and posting of employee---Plea of employee was that he was transferred and posted as Deputy Commissioner, at "T" and he assumed the charge on the same day but his notification for transfer was recalled on the very next day---Validity---Employee was a civil servant and was governed by the Sindh Civil Servants Act, 1973---Every civil servant was liable to serve anywhere within or outside the Province at any post under Federal or any Provincial Government or local authority---Civil servant had no vested right in posting and transfer---Services of civil servants were to be regulated through Administrative Court and Tribunal---Matter with regard to terms and conditions of the persons in service of Pakistan including disciplinary matters were to be dealt with by the Service Tribunal---Transfer and posting was a matter of terms and conditions of service and could not be challenged under Art. 199 of the Constitution---Posting of employee was made by the outgoing Government just two days before the end of its tenure which was mala fide on its part---Election Commission had already posted new officers in view of general transfer of civil servants within the province and also in the entire country---Restriction of tenure posting in circumstances was not a matter which could be considered---Constitutional petition was not maintainable as petitioner had an alternate remedy---Constitutional petition was dismissed, in circumstances.

Justice Khushid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483; Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan 2013 SCMR 1; Muhammad Saleh Asim v. Secretary Schools Education Government of Punjab 2009 PLC (C.S.) 44; Mahar Maqbool Ahmed, Manager Auqaf Rahimyar Khan v. Auqaf Department, Punjab 1997 PLC (C.S.) 639 and Peer Muhammad v. Government of Balochistan 2007 SCMR 54 ref.

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

Altaf Hussain v. Province of Sindh 2012 PLC (C.S.) 489; Niazamuddin v. Government of Sindh 2014 PLC (C.S.) 914 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 rel.

Irfan Memon for Petitioner.

Allah Bachayo Soomro and Muhammad Ismail Bhutto, Additional Advocate General for Province of Sindh.

Ishrat Ali Lohar for Respondent No.3.

Liaqat Ali Sangrasi for Election Commission on Court Notice.

2019 P L C (C.S.) 557

[Sindh High Court]

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

IRSHAD AHMED

Versus

PORT QASIM AUTHORITY through Chairman and 2 others

C.P. No. D-1842 of 2015, decided on 13th November, 2017.

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

----S.3---Fundamental Rules, R.54-A---Disciplinary proceedings---Retirement on superannuation---Petitioner was employee of Port Qasim Authority and his termination from service was set aside by High Court with the direction to reinstate him in service with back benefits with effect from 7-11-2003---Authority assailed the order before Supreme Court and the petition was dismissed on 2-5-2013---Petitioner, in the meantime, had attained the age of superannuation on 15-4-2007 and his retirement order was issued on 25-7-2014 with retrospective effect---Authority treated intervening period as leave without pay, for the purposes of calculating back benefits---Plea raised by the Authority was that back benefits could not be awarded to petitioner upon his reinstatement---Validity---Disciplinary proceedings, under Fundamental Rule 54-A, could not be continued or conducted, as petitioner ceased to be employee of the Authority on attaining age of superannuation on 15-4-2007---Plea raised by the Authority was not tenable in law, as the Authority could not conduct fresh proceedings / inquiry against petitioner in compliance with the order of High Court---Authority was left with no option but to award back benefits in terms of order passed by High Court earlier---Allegations could not be inquired and petitioner was not heard on the allegations leveled against him---High Court directed the Authority to re-calculate pensionary benefits of petitioner of intervening period and other benefits as admissible under law and make payment of the same to petitioner within a period of 30 days---Constitutional petition was allowed accordingly.

Mubin-ul-Islam and others v. Federation of Pakistan and others PLD 2006 SC 602; 2013 SCMR 1707; Sardar Ali Bhatti v. Pakistan through General Manager Lahore PLD 1961 West Pakistan Lah. 664; Abdul Wali v. WAPDA and others 2004 SCMR 678; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 and Superintendent Engineer GEPCO Sialkot v. Muhammad Yusuf Civil Petition No. 1097-1 of 2004 ref.

(b) Civil service---

----Pension---Scope---Pension is not a bounty from State/employer to servant/employee but is fashioned on the premise and resolution that employee serves his employer in days of ability and capacity and during the formers' debility, the latter compensates him for the services so rendered---Right to pension has to be earned and for the accomplishment thereof.

M.M. Aqil Awan for Petitioner.

Munawar Ali Insani for Respondent/PQA along with Amir Ibrahim, Director Accounts, Port Qasim Authority.

Shaikh Liaquat Hussain, Assistant Attorney General.

Date of hearing: 13th November, 2017.

2019 P L C (C.S.) 572

[Sindh High Court]

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

ANWERY BEGUM

Versus

FEDERATION OF PAKISTAN through Secretary and 4 others

Constitutional Petition No.D-5798 of 2014, decided on 2nd October, 2017.

(a) Civil Service Regulations---

----Arts. 361, 418(b) & 420---Resignation---Re-employment---Interruption in service---Pensionary benefits---Determination of---Procedure---Petitioner employee resigned from service and thereafter was re-employed in the same department---Department forfeited past service of employee for the purpose of pensionary benefits---Validity---Petitioner employee after serving eleven years ten months and four days resigned from service which resignation was accepted by the competent authority and she was discharged from service---When a civil servant submitted resignation his service stood terminated from the date on which the same was accepted by the competent authority---Employee remained out of service for four years seven months and fifteen days after her resignation from service---Said period of interruption in service could not be counted for pensionary benefits---Department had rightly declined the claim of employee---Constitutional petition was dismissed in circumstances.

Ikram Elahi Sheikh v. Director General, National Institute of Science and others 2006 SCMR 1986 = 2006 PLC (C.S.) 1126; Inayatullah Khan v. Secretary Food and others 2006 YLR 656; Adreshir Cowasjee Karachi v. Messrs Multiline Associate Karachi PLD 1993 Kar. 237; Manzoor Hussain Khan v. Lahore and others 1992 SCMR 441; Additional Accountant General v. M.M. Malik 2012 PLC (C.S.) 1370; Chairman Selection Committee and others v. Wasif Zamir Ahmed and another 1997 SCMR 15; Akhtar Hussain v. The Superintendent of Police 1981 CLC 423; Rakhshinda Habib v. Federation of Pakistan 2014 PLC (C.S.) 247; Secretary Government of Punjab and others v. M. Ismail Tayer and 269 others 2015 PLC (C.S.) 296; Pakistan Telecommunication Employees Trust through M.D. Islamabad and others v. Muhammad Arif and others 2015 SCMR 1472 and Mian Tariq Javed v. Province of Punjab 2008 SCMR 598 ref.

(b) Civil service---

----Resignation---Effect---When civil servant submitted resignation his service stood terminated from the date on which resignation was accepted by the competent authority.

(c) Civil service---

----'Resignation'---Meaning---Resignation is characteristically the voluntary surrender of a position by the one resigning, made freely and not under duress.

Corpus Juris Scandium, Volume LXXVII at page 77 rel.

Abdul Salam Memon along with Petitioner.

Muhammad Aslam Butt, DAG along with Ahmed Noor, Deputy Director Legal, Headquarter ASF.

Date of hearing: 23rd Agust, 2017.

2019 P L C (C.S.) 594

[Sindh High Court]

Before Abdul Rasool Memon and Agha Faisal, JJ

MUHAMMAD TARIQ QASMI and others

Versus

FEDERATION OF PAKISTAN through Secretary and 2 others

Constitutional Petition No. D-2110 of 2009 and 30 others connected petitions, decided on 16th July, 2018.

(a) Accommodation Allocation Rules, 2002---

----R.15---Civil service---Retention of accommodation by civil servant---Vested right---Continuation of occupation of government accommodation---Petitioners were civil servants residing in government accommodation allocated to them---Accommodations were being retained by either petitioners after their retirement or by legal heirs of deceased civil servants---Validity---Allotment orders permitted accommodation of respective properties while occupants were in service and upon terms and conditions therein contained---Petitioners were either retired from service or legal heirs of deceased persons retired from service---Petitioners were unable to substantiate any right by virtue whereof they could remain in occupation of government accommodation---Allotment orders and ancillary documentation referred by petitioners did not confer any rights upon petitioners save for those which were expressly stated therein and even those rights were no longer subsisting---Petitioners failed to place on record to demonstrate that rights allotted stood novated in any other form by any subsequent law or action---Constitutional petition was dismissed accordingly.

C.P. No. D-3433 of 2016 fol.

(b) Accommodation Allocation Rules, 2002---

----R. 15---Policy Governing Allotment of Residential Accommodation (Meant for Secretariat Employees) at Karachi by Estate Office, SGA&CD dated 22-05-1999, Paras. 7, 13, 24 & 26---General Clauses Act (X of 1897), S. 24-A---Constitution of Pakistan, Art. 10-A---Government residence---Unlawful occupation---Ejectment---Petitioners were residents of government residential properties and were aggrieved of ejectment by Provincial Government---Petitioners contended that their status as residents was disputed and Provincial Government ejected them without determining their status as unauthorized occupants---Validity---No determination had ever taken place even in manner considered applicable to declare occupation of petitioners of respective properties as unlawful---Any notice served to petitioners in manner delineated for ejectment was premature---Competent authority ought to have initiated and concluded proceedings in accordance with law to determine occupation rights of petitioners prior to serving them with eviction notices.

Following are the directions issued by the High Court:

i. Immediately upon the announcement of present judgment, the competent authority (Province of Sindh) shall issue notice to each of the Petitioners in the Constitutional Petitions listed in the second category of petition under consideration herein.

ii. The said notice shall delineate the grounds upon which the competent authority seeks to determine the occupancy rights of the Petitioners.

iii. Each of the said Petitioners shall be provided an opportunity of a personal hearing and the Petitioners shall also have the right to submit their replies in writing, provided that the written submissions are received by the competent authority on or before the designated time / date upon which the hearing has been scheduled in respect thereof.

iv. The Petitioners shall be entitled to rely upon such material, record and / or evidence as may be relevant, inclusive of without limitation the material pleaded / relied upon in their respective petitions under consideration herein.

v. The competent authority shall then, by way of a reasoned order, issue a determination in accordance with the law with respect to each Petitioner.

vi. Such proceedings shall be conducted, uninfluenced by any observations contained herein, and concluded preferably within a period of two weeks from the date of announcement of present judgment.

vii. Any person aggrieved by any such determination, in whole or in part, may be entitled to seek such relief before such forum and in such proceedings as may be appropriate. [pp. 619, 623] B, C & E

Pakistan Distressed Employoees Association v. The Islamic Republic of Pakistan and others CPSLA No.K-216 of 1980; C.P. No. D-3433 of 2016; Dr. Syed Ashraf Ali Shah and 2 others v. Province of Sindh and others 2009 SCMR 249; Government of Sindh v. Aftab Hussain Shah Jillani CPLA No.395-K of 1999 and Government of Sindh v. Naweed Ahmad Awan and another CPLA No.418-K of 1999 ref.

Pakistan Tibbi Pharmaceutical Manufacturers v. Federation of Pakistan and others C.P. D-4387 of 2014 rel.

(c) Accommodation Allocation Rules, 2002---

----R. 15---Constitution of Pakistan, Art. 199---Civil service---Retention of government accommodation---Vested right---Scope---Continuation of occupation of government accommodation---Constitutional petition---Disputed question of fact---Petitioners were civil servants residing in government accommodation allocated to them despite issuance of vacation notices by authorities---Validity---Instead of replying notices, petitioners obtained status quo orders and same continued to operate---Issue of illegal encroachment was serious matter and same was compounded when such grave allegation was leveled against a serving government employee---No reply to show-cause notices was given till date and on the contrary, constitutional petitions were filed and interim orders were obtained to prevent authorities from proceeding further with notices---High Court could not determine as to whether or not unauthorized encroachments had taken place or not High Court could not determine culpability for any encroachment if same had occurred---Issuance of notice in respect of encroachment was a correct step taken by authorities---High Court observed that it was just and proper for notice to be replied to and matter proceeded with by appropriate authority in due compliance with law---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Petitioner in person (in C.P. No. D-2110 of 2009).

Naeem Suleman for Petitioners (in C.P. No. D-2120 of 2011).

Muhammad Habib Jalib for Petitioners (in C.P. No. D-1479 of 2012).

Rafiq Ahmed Kalwar for Petitioners (in C.P. No. D-5005 of 2015).

Haq Nawaz Talpur for Petitioners (in C.P. No. D-889 of 2016).

Syed Mehmood Alam Rizvi for Petitioners (in C.Ps.Nos.D-1591 of 2016 and 7563 of 2017).

Waqas Ahmad Khan for Petitioners (in C.Ps. Nos. D-5154 of 2015 and for Petitioner No.5 in 4997 of 2016).

Muhammad Ajmal Awan for Petitioners (in C.P. No. D-4997 of 2016).

Farooq H. Abbasi for Petitioners (in C.P. No. D-733 of 2017).

G. N. Qureshi for Petitioners (in C.Ps. Nos. D-1108 and 2898 of 2017).

Muhammad Riaz for Petitioners (in C.P. No. D-1171 of 2017).

Fareed Ahmed Dayo for Petitioners (in C.Ps. Nos.D-1455 of 2017 and 5057 of 2018).

Jawad Hyder Rizvi for Petitioners (in C.P. No. D-1664 of 2017).

Muhammad Arif for Petitioners (in C.Ps. Nos. D-2341 of 2017, C.P D-4333 of 2018 and C.P. D-5004 of 2018).

Kashif Nazeer for Petitioners (in C.P. No. D-2750 of 2017).

Shahid Akhtar for Petitioners (in C.P. No. D-2890 of 2017).

Amir Jamil for Petitioners (in C.P. No. D-4287 of 2017).

Abdul Samad Memon for Petitioners (in C.P No. D-4865 of 2017).

Abdul Majeed Khoso for Petitioners (in C.P No. D-7118 of 2017).

Hussain Bux Baloch for Petitioners (in C.P. No. D-48 of 2018).

Rasheed A. Razvi for Petitioners (in C.P. No. D-1699 of 2018)

Ahmed Niazi for Petitioners (in C.P. No. D-2086 of 2018).

Ms. Benazir Behan for Petitioners (in C.Ps. Nos. D-4990, 5107 and 5108 of 2018).

Salman Talibuddin, Additional Attorney General for Respondents.

Abdul Wasey Khan Kakar, Deputy Attorney General for Respondents.

Saifullah, Assistant Advocate General and Ms. Nasreen Sahito, State Counsel for the Province of Sindh.

Ghulam Hyder Shaikh and Ghulamullah for Respondent No.3 (in C.P. No. D-1591 of 2016).

Ghulam Muhammad for Respondent No.3 of Sindh Katchi Abadi Authorities (in C.Ps. Nos. D-1664 and 733 of 2017).

Saleem Raza Kazmi, Assistant Executive Engineer on behalf of PWD.

Owais Nazir Mughal, S.O. (Estate) SGA&CD (in C.P. No.D-1699 of 2018).

Bashir Ahmed, Additional Estate Officer, Estate Office, Karachi (in C.Ps. Nos. D-2110 of 2009 and 5154 of 2015).

2019 P L C (C.S.) 639

[Sindh High Court]

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

FAIZULLAH AZIZI SHAIKH through Authorized Attorney

Versus

NATIONAL BANK OF PAKISTAN through President and 3 others

Constitutional Petition No.D-343 of 2017, decided on 12th May, 2017.

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

----S. 5---Appointment---Petitioner, who was appointed in Bank as AVP, requested for 1095 days (3 years), Ex-Pakistan leave, but he was granted only 577 days leave---Petitioner, after expiry of said period, having not jointed duty, was issued two notices to join the duty---Petitioner joined his duty and the competent authority, while taking a lenient view, regularized his excess leave---Petitioner again applied for three years leave, which was turned down due to non-availability of sufficient leave balance in his account---Petitioner thereafter applied for 22 days Ex-Pakistan leave and gave an undertaking in writing that he would not extend the leave under any circumstance, which leave was granted to the petitioner---Petitioner did not join the duty as per his undertaking after expiry of his leave and instead sent applications for extension of leave, which was regretted and his appointment was vacated---Petitioner had not been able to justify his continuous unauthorized absence from the duty---Petitioner, in circumstances, was not entitled to the discretionary relief under Art. 199 of the Constitution---Petitioner had served the Bank from 1996 and remained its employee till January, 2016---Petitioner, would be entitled to the dues accrued to him for the said period---No case warranting interference by High Court having been made out, Constitutional petition was dismissed, in circumstances.

Ghulam Hyder Shaikh for Petitioner.

Suleman Hudda for Respondents Nos.1 to 3.

2019 P L C (C.S.) 660

[Sindh High Court]

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

NISAR AHMED MEHAR

Versus

PROVINCE OF SINDH thorough Chief Secretary Sindh and 5 others

Constitutional Petition No.D-5748 of 2014, decided on 10th February, 2018.

(a) Civil service---

----Appointment against post of Police Constable---Plea of petitioner was that he had qualified all the tests and only medical certificate was required for appointment purposes whereas department submitted that candidate could not qualify the running test---Validity---Petitioner had failed to place on record any proof with regard to his success in the necessary tests for appointment of Police Constable---Candidate was not an aggrieved person as no legal right had been denied to him by the authorities---Candidate had failed to establish any enforceable right on the face of record---Justifiable right must exist for enforcement of the same otherwise no direction could be issued while exercising constitutional jurisdiction---Petitioner had failed and/or avoided to narrate the true facts---Petitioner was not entitled to seek discretionary and equitable relief under Art. 199 of the Constitution, in circumstances---Suitability of a candidate for appointment would fall exclusively within the domain of appointing authority---Said authority could not be compelled to make appointment without fulfilling the requisite formalities by a candidate---Candidate had failed to submit reply/affidavit-in-rejoinder in response to the comments filed by the authorities---Contents of comments of authorities had gone un-rebutted/un-challenged---High Court could not perform the functions of competent authority in service matters by substitution of its own opinion---Candidate had no legal/vested right which could be enforced under discretionary jurisdiction of High Court---Constitutional petition was dismissed, in circumstances.

Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope.

Nazir Hussain Sajan Allana for Petitioner.

Ms. Nasreen Sahito State Counsel for Respondents.

2019 P L C (C.S.) 688

[Sindh High Court (Larkana Bench)]

Before Muhammad Saleem Jessar and Adnan Iqbal Chaudhry, JJ

NOORULLAH

Versus

INSPECTOR GENERAL OF POLICE SINDH KARACHI and 3 others

Constitutional Petition No.D-313 of 2017, decided on 22nd January, 2019.

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

----R. 11-A---Appointment against deceased employee's quota---Scope---Petitioner applied for appointment to any suitable post under deceased employee's quota---Plea of department that petitioner could not be considered for the post of Police Constable due to deficiency in height---Petitioner case was recommended for the post of Niab Qasid but he was not so appointed for the reason that there was no such vacancy---Validity---Nothing had been placed on record to show that a vacancy for the post of Naib Qasid or junior clerk did not occur in last three years---Intent of R. 11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 was to rescue/help the family of a deceased civil servant by providing a job and it was a primary duty of the department to intimate the family of a deceased civil servant when the benefit of R. 11-A became available---High Court directed the department to appoint the petitioner to the post of Naib Qasid or Junior Clerk against the existing vacancy.

Abid Hussain v. Director Schools Education, Mirpurkhas 2018 PLC (C.S.) Note 19 and Mir Hassan v. Province of Sindh 2017 PLC (C.S.) 864 ref.

Muhammad Ashiq Dhamraho for Petitioner.

2019 P L C (C.S.) 709

[Sindh High Court]

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

SHER MUHAMMAD ZAFAR and 2 others

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman and another

Constitutional Petition No.3482 of 2012, decided on 6th February, 2018.

Pakistan International Airlines Corporation Employees (Services and Discipline) Regulations, 1956---

----Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Passage Policy---Non-statutory rules---Petitioners were retired employees of Pakistan International Airlines Corporation and they were aggrieved of change in Passage Policy with regards to benefits of passage/tickets facility---Plea raised by petitioner was that they were entitled to such benefits in accordance with Administration Order---Validity---Employer Corporation was a statutory entity and passage benefits of petitioners were not governed under statutory rules which were not enforceable through Constitutional petition---Employer Corporation was to frame its passage policy for its employees/ex-employees which was an internal matter of Corporation and was devoid of any Constitutional interference---Petitioners failed to show any violation of their legal or Fundamental Rights to invoke Constitutional jurisdiction of High Court---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

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

Aircraft Engineers of Pakistan and others v. Federation of Pakistan and others C.P. No.D-948 of 2009; Pakistan International Airline Corporation v. Syed Suleman Alam Rizvi 2015 SCMR 1545 and Pakistan International Airline Corporation v. Aziz-ur Rehman Chaudhary and others 2016 SCMR 14 ref.

Shafique Ahmed Khan and others v. NESCOM through Chairman Islamabad and others PLD 2016 SC 377; Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad 2017 SCMR 571; Ghulam Rasool v. Government of Pakistan and others PLD 2015 SC 6; 2014 SCMR 220 and Dr. Alyas Qadeer, Tahir v. Secretary M/O CADD, Education Islamabad 2014 SCMR 97. rel.

Petitioner in person.

Khalid Jawed for Respondent No.1.

Shaikh Liaquat Hussain, Assistant Attorney General.

2019 P L C (C.S.) 751

[Sindh High Court]

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

Syed FAISAL ALI and 16 others

Versus

FEDERATION OF PAKISTAN through Secretary Water and Power Development Authority Islamabad and 4 others

C.P. No.D-2520 of 2014, decided on 10th February, 2018.

(a) Constitution of Pakistan---

----Arts. 199(1)(a)(ii) & 199(5)---Constitutional petition---Maintainability---Person performing functions in connection with affairs of Federation---Scope---Objection was raised on maintainability of constitutional petition that respondent was a company duly incorporated under company law and no writ could be issued by High Court under the Constitutional jurisdiction---Validity---Profile of respondent company revealed that same was a State Enterprise and Government owned majority of its shares---Chief Executive of company was a nominee of Government of Pakistan and had been delegated with such powers by Board of Directors as were necessary to effectively conduct business of company---Respondent company, in circumstances, could be regarded as a 'person' performing functions in connection with affairs of Federation under Art. 199(1)(a)(ii) read with Art. 199(5) of the Constitution---High Court had jurisdiction to exercise judicial powers in subject affairs of respondent company under the Constitution and constitutional petition was maintainable---Objection was rejected accordingly.

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

(b) Constitution of Pakistan---

----Arts. 9, 25 & 199---Constitutional petition---Appointments, regularization of---Terms and Conditions of Service---Scope---Petitioners were contract employees with respondent company who sought regularization of their service as per terms of advertisement---Validity---Regularization of employees was not part of terms and conditions of service of employees but it depended upon length of service---Petitioners approached High Court for regularization of service when they had no legal remedy for enforcement of their Fundamental Rights particularly those enshrined under Arts. 9 & 25 of the Constitution---High Court directed Chief Executive Officer/competent authority of respondent company to consider cases of petitioners for regularization of their service in accordance with law and dicta laid down by Supreme Court---Constitutional petition was allowed accordingly.

Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Hyderabad Electric Supply Co. v. Mushtaq Ali Brohi 2010 PSC 1392; Zain Yar Khan v. The Chief Engineer C.R.B.C, WAPDA D.I. Khan and another 1998 SCMR 2419; Zafar Mahmood v. WAPDA and others 1998 SCMR 2401; Mir Zaman v. Mst. Sheda and others 2000 SCMR 1699; Muhammad Iqbal v. Federation of Pakistan and others 2014 PLC (C.S.) 467; Raziuddin v. Member-II, Punjab Service Tribunal Lahore and others 2004 PLC (C.S.) 469; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Syed Jawad Raza Naqvi and others v. Federal Tax Ombudsman and others 2015 PLC (C.S.) 1300; Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; Gulshan Ara v. The State 2010 SCMR 1162; Akhlaque Hussain Memon and others v. Water and Power Development Authority and others 2015 PLC (C.S.) 596; Engineer Samiullah Mughal v. Chairman, Pakistan Engineering Council and others 2009 PLC (C.S.) 280; Shabbir Ahmad v. WAPDA and others 1982 PLC (C.S.) 613; Muhammad Saleem and others v. Secretary Prosecution, Government of Punjab, Lahore and another 2010 PLC (C.S.) 1; Yousaf A. Mitha and others v. Aboo Baker and others PLD 1980 Kar. 492; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Human Rights Commission of Pakistan and others v. Government of Pakistan and others PLD 2009 SC 507; Captain Salim Bilal v. Pakistan International Airline Corporation (PIAC) and others 2013 PLC (C.S.) 1212; Islamic Republic of Pakistan v. S.A. Rizvi 1992 SCMR 1309; Federation of Pakistan and others v. Mrs. Itrat Sajjad Khan 2017 SCMR 1010; Abdul Rehman v. Federation of Pakistan and others 2010 PLC CS 691; 2017 PLC (C.S) 1020; Constitution Petitions Nos. D-3199, D-4605 and D-5079 of 2013; Constitution Petitions Nos.D-509, D-2034 and D-1091 of 2014; Civil Petitions Nos.409-K to 414-K of 2017 and Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 ref.

Malik Naeem Iqbal for Petitioners.

Fayyaz A. Soomro for Respondents Nos.2 to 4.

Shaikh Liaquat Hussain, Assistant Attorney General.

2019 P L C (C.S.) 771

[Sindh High Court]

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

MAJID AKHTAR

Versus

PROVINCE OF SINDH through Chief Secretary New Sindh Secretariat Karachi and 3 others

Constitutional Petition No. D-8265 of 2017, decided on 21st December, 2017.

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

----S. 5---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rr. 10, 11 & 5---Ad-hoc appointment---Regularization of---Seniority---Determination of---Procedure---Retrospective regularization and promotion against the judgment of the Court---Effect---Private respondent was appointed on ad-hoc basis and thereafter his service was regularized retrospectively from the date of initial ad-hoc appointment---Service appeal was filed against said order of regularization of service of respondent and retrospective regularization was set aside---Seniority and regularization of service of respondent was ordered to take effect from the date of order for regularization---Retrospective regularization and promotion of respondent was cancelled in compliance of judgment of Service Tribunal but same was again restored and orders of Service Tribunal were disobeyed---Validity---Impugned notification was in conflict with the decision of Service Tribunal whereby retrospective regularization and promotion was set aside---Department cancelled promotion of private respondent and regularization of service was given effect from the date of its regularization and not from the initial ad-hoc appointment---Appointment from BS-3 to BS-15 was to be made through Departmental Selection Committee after assessment of ability---No approval of Departmental Selection Committee was on record in the matter of respondent---Ad-hoc appointments were stop gap arrangement which were always made without adopting due process of law---Ad-hoc employee did not carry any vested right of regularization in service from the date of his induction---Period of ad-hoc appointment could not be counted towards service---Seniority in grade was to take effect from the date of regular appointment to the post and could not be conferred retrospectively---Ad-hoc appointee would only be entitled to seniority from the date of his regularization and not from the date of initial ad-hoc appointment---Department could not sit in appeal against the findings rendered by Service Tribunal---No sanctity could be attached to the impugned notification which was unlawful---Discrepancies in the service record of respondent with regard to his appointment, regularization and promotion were on record---Respondent had been allowed promotion in violation of judgment of the Supreme Court---Quorum of Departmental Promotion Committee in which matter of promotion of respondent was approved was not complete---Recommendations of Departmental Promotion Committee were set aside and promotion of respondent was declared illegal---Respondent was neither entitled to retrospective seniority nor promotion---Employee could not claim promotion as a Fundamental or vested right---Impugned notification was set aside having no legal effect---Constitutional petition was disposed of accordingly.

Muhammad Yasin Saqib v. Chairman, Pakistan Telecommunication Corporation Islamabad and others 2003 PLC (C.S.) 1105 ref.

Nadir Shah, S.D.O. Minor Canal Cell Irrigation Sub-Division, Dera Murad Jamali and 2 others v. Secretary, Irrigation and Power Department Baluchistan, Quetta and 7 others 2003 PLC (C.S) 961; Ali Azhar Khan Baloch v. Province of Sindh and others 2015 SCMR 456; Province of Sindh and others v. Ghulam Farid and others 2014 SCMR 1189; Secretary to Government of Punjab and others v. Muhammad Khalid Usmani and others 2016 SCMR 2125; Secretary, Government of Punjab and others v. Dr. Abida Iqbal and others 2009 PLC (C.S.) 431 and Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others 2016 SCMR 1021 rel.

(b) Civil service---

----Ad-hoc appointment---Scope---Ad-hoc appointment was stop-gap arrangement which was always made without adopting due process of law---Ad-hoc employee did not carry any vested right of regularization in service from the date of his induction---Period of ad-hoc appointment could not be counted towards service---Seniority in grade was to take effect from the date of regular appointment to the post and could not be conferred retrospectively---Ad-hoc appointee would only be entitled to seniority from the date of his regularization and not from the date of initial appointment.

(c) Civil service---

----Seniority---Direct recruit could claim seniority only from the date of his regular appointment---Seniority in service, cadre or post to which an official was promoted was to take effect from the date of regular promotion to that service, cadre or post and not from the date of any ad-hoc induction.

(d) Civil service---

----Promotion---No employee could claim promotion as a fundamental or vested right.

Ali Asadullah Bullo for Petitioner.

Abdul Jalil Zubedi Assistant Advocate General for Respondents Nos.1 to 3.

Malik Naeem Iqbal and Faizan Hussain Memon for Respondent No.4.

2019 P L C (C.S.) 791

[Sindh High Court]

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

ATIF HUSSAIN

Versus

THE SECRETARY MINISTRY OF TEXTILE INDUSTRY and others

C.P. No.D-2377 of 2017, decided on 31st January, 2018.

Civil service---

----Contract appointment---Allegation of misconduct---Termination from service---Scope---Petitioner was terminated from service on the allegation of withdrawal of illegal pay raise on the basis of a letter bearing forged signature---Validity---Inquiry was conducted with regard to forging the send letter---Allegation against the employee had been established/confirmed through inquiry proceedings---Involvement of beneficiaries for illegal increase in their salaries without approval of competent authority was on record---Employer-Organization while dispensing with service of employee had followed the relevant procedure, rules and regulations with regard to the service issue of its employees---Petitioner had been provided opportunity to rebut the allegation but he failed to discharge his burden---Service of employee was rightly dispensed with by the competent authority---Employee had committed misconduct in circumstances---Nothing was on record with regard to malice on the part of Employer to falsely implicate the employee---Employer was competent to terminate the contractual service of employee---Period of project had not been extended by the authority and contract of all the employees had been terminated---No illegality, infirmity or material irregularity had been pointed out in the impugned order passed by the employer---Constitutional petition was dismissed, in circumstances.

Khaliq Dad v. Inspector General of Police and others 2004 SCMR 192 rel.

Petitioner in Person.

Sheikh Liaquat Hussain, Assistant Attorney General along with Kafeel Ahmed, Assistant Director Ministry of Textile Industry for Respondents.

2019 P L C (C.S.) 817

[Sindh High Court]

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

Mst. NAZIMA KHATOON

Versus

PROVINCE OF SINDH through Secretary and 3 others

Constitutional Petition No.D-5307 of 2015, decided on 2nd February, 2018.

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

----Preamble---Office Memorandum dated 09-04-1989---Service matter---Ombudsman---Jurisdiction of---Scope---Primary School Teacher of Karachi Metropolitan Corporation having retired from service---Appointment on the basis of son quota---Scope---Petitioner sought appointment of her son on the basis of son quota which was declined by the department on the pretext of ban on fresh appointments---Contention of petitioner was that Ombudsman had recommended the appointment of her son---Validity---Office Memorandum dated 09-04-1989 was a private settlement between management of Karachi Development Authority and Collective Bargaining Agent/Mazdoor Union of KDA---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 did not apply to the petitioner's case as Karachi Metropolitan Corporation employees were not civil servants---Office Memorandum dated 09-04-1989 was not binding upon Karachi Metropolitan Corporation which had not been adopted by the authorities---Right of employment of petitioner's son never accrued to her---Ombudsman had no jurisdiction to entertain service matters---Constitutional petition was dismissed, in circumstances.

Fazal Ahmed Samtio v. Province of Sindh through Secretary Local Government and 3 others 2010 PLC (C.S.) 215 rel.

Muhammad Saleem Khan for Petitioner.

Iqbal M. Khurram for Respondents Nos.2 to 4.

Chaudhary Muhammad Rafiq Rajorvi, Assistant Advocate General Sindh.

2019 P L C (C.S.) 839

[Sindh High Court]

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

SHAH ABUL HASAN

Versus

FEDERATION OF PAKISTAN through Secretary and 3 others

C.P. No.D-631 of 2018, decided on 26th January, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Bank Employee---Petitioner being retired employee of a Bank moved constitutional petition for reimbursement of medical charges---Plea of employee was that he was entitled for reimbursement of amount spent on the medical care of his wife---Validity---High Court while exercising constitutional jurisdiction could not entertain the grievance of petitioner-employee against Bank---Petitioner might avail appropriate remedy as provided to him under the law---Constitutional petition was dismissed being not maintainable.

Shafique Ahmed Khan and others v. NESCOM through Chairman Islamabad and others PLD 2016 SC 377 rel.

Muhammad Arif Khan for Petitioner.

2019 P L C (C.S.) 846

[Sindh High Court (Sukkur Bench)]

Before Muhammad Shafi Siddiqui and Khadim Hussain Tunio, JJ

AMJAD ALI

Versus

PROVINCE OF SINDH, through Secretary Education and Literacy Department, Sindh Secretariat Karachi and 2 others

Constitution Petition No. D-78 of 2014, decided on 27th November, 2018.

(a) Sindh Differently Able Persons (Employment, Rehabilitation and Welfare) Act (XVI of 2015)---

----S. 8---Appointment of Junior School Teacher against disabled quota---Discrimination---Effect---Right to life---Differently able persons---Petitioner qualified written test but appointment letter was not issued to him---Validity---Disabled person should not be made subject to any discrimination while considering for employment---Disabled person had discretion to apply for his recruitment as an 'ordinary citizen' on open merits if disability otherwise did not disqualify him or to apply under special provisions---Right to life would fail if anyone was denied or deprived of any such thing which otherwise did make his life complete i.e. meaningful---Employment did help one in claiming his life meaningful and complete---Such right should be considered as an essential part of the life---Petitioner qualified the test and was placed in merit list at Serial No. 3---Twenty two posts were available and petitioner was entitled for recruitment on open merit, in circumstances---Authorities might frame any policy however, same must pass the test of its being 'reasonable'---Differently Able persons had been provided some privileges/advantages but policy of letting 'normal' persons to compete on Taluka/Union Council basis while Differently Able persons on District/Division level could not be accepted as 'reasonable'---Candidate securing highest marks was to be on the top of the merit list but when policy was that the vacancy would be filled on need basis then such need was to be specified before and at the time of issuance of public notice/advertisement---Filling up of such vacancy on need basis could not be done at the time of tabulation---Vested right had accrued in favour of petitioner which could not be deviated from by the department---Petitioner after passing test was successful candidate in disabled quota---Department was directed to appoint the petitioner as Junior School Teacher as and when a vacancy fell vacant---Constitutional petition was allowed, in circumstances.

National Engineering Services Pakistan (NESPAK) (Pvt.) v. Kamil Khan Mumtaz 2018 SCMR 211; Pir Imran Sajid and others v. Managing Director/General Manager and others 2015 SCMR 1257; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 and Abdul Karim Nausherwani v. State 2015 SCMR 397 rel.

(b) Constitution of Pakistan---

----Art. 25---"Equal protection of law"---Scope---Constitution provides equal protection to every single 'citizen'---Term 'citizen', nowhere, permits possibility of any discrimination on count of caste, colour creed or even disability rather places every single 'citizen' on equal stand.

Junaid Mahmood v. Government of Punjab PLD 2017 Lah. 1 rel.

(c) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to life would fail if anyone was denied or deprived of any such thing which otherwise did make his life complete i.e. meaningful.

National Engineering Services Pakistan (NESPAK) (Pvt.) v. Kamil Khan Mumtaz 2018 SCMR 211 rel.

(d) Interpretation of statutes---

----Policy---Scope---Policy should not be in contravention of an 'Act' and 'Act' would prevail over the policy.

Shamsuddin Rajper for Petitioner.

Noor Hassan Malik, Assistant Advocate General Sindh along with Shafqat Hussain Hothi for Respondents.

Hameedullah Mahar, District Education Officer Khairpur.

2019 P L C (C.S.) 864

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

Dr. NADEEM KHALID KHAN

Versus

SINDH EMPLOYEES SOCIETY SECURITY INSTITUTION

Suit No.2400 and C.M.A. No.15900 of 2017, decided on 17th July, 2018.

General Clauses Act (X of 1897)---

----S. 16---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suspension of employee---Temporary injunction, grant of---Scope---Competent authority having power to make appointment was also empowered to pass order of suspension even if such powers of suspension had not been specifically provided in the governing rules---Employee had failed to make out any prima facie case nor balance of convenience did lie in his favour and there was no irreparable loss if injunctive relief was not granted---Impugned order of suspension was within the four corners of law---Application for suspension of impugned order was dismissed, in circumstances.

Ghulam Hafeez v. Government of Sindh 1991 PLC (C.S.) 530; Federation of Pakistan and another v. Saeed Ahmed Khan and others 2015 CLC 1797; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158; Muhammad Arshad Rafique v. Government of Pakistan through Secretary and 4 others 2016 PLC (C.S.) 952; Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Federation of Pakistan through Secretary Establishment Division v. Shahid Hayat and another 2010 SCMR 169; Abdul Hameed v. Province of K.P.K through Chief Secretary, Peshawar and 3 others 2016 PLC (C.S.) 424; Dr. Hassan Bux Rind and 11 others v. Province of Sindh through Secretary Sindh Secretariat, Karachi and 3 others 2011 PLC (C.S.) 228 and Federation of Pakistan through Secretary, Ministry of Interior (Interior Division), Islamabad and 2 others v. RO-177 Ex-DSR Muhammad Nazir 1998 SCMR 1081 ref.

East-End Exports, Karachi v. The Chief Controller of Imports and Exports PLD 1965 SC 605; Zafar Iqbal v. Federal Urdu University of Arts, Sciences and Technology, Karachi through Registrar and 2 others 2017 PLC (C.S.) 1376; Lt. Col. Aziz K.M. Khan v. A.B.A Haleem, Vice-Chancellor, University of Karachi and another PLD 1957 (W.P.) Kar. 496 and Khalid Aziz v. Federation of Pakistan through Secretary, Establishment Division, Pakistan Secretariat and 3 others 1997 PLC (C.S.) 783 rel.

Muhammad Ali Lakhani for Plaintiff.

Ayan M. Memon for Defendant

2019 P L C (C.S.) 882

[Sindh High Court ]

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

ZAFAR IQBAL ZAHID and 9 others

Versus

FEDERATION OF PAKISTAN through Secretary Commerce Pakistan Secretariat Islamabad and 5 others

C.P. No. D-3408 of 2013, decided on 5th March, 2018.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Limited Company performing functions in connection with affairs of Federation is amenable to Constitutional jurisdiction of High Court---Mere fact that it is a limited company registered under companies law is not sufficient to hold that Constitutional petition cannot be maintained against it---Even if companies are registered under companies law but are funded by Federal or Provincial government and are under dominative control of State, jurisdiction under Art. 199 of the Constitution applies against such company.

Pakistan Defence Officers Housing Authority v. Lt. Col. Jawed Ahmed 2013 SCMR 1707; Muhammad Rafi and others v. Federation of Pakistan and others 2016 SCMR 2146; Ramna Pipe and General Mills (Pvt.) Ltd v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 rel.

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

----Ss. 2(f)(i) & 4---Sacked Employees (Reinstatement) Ordinance (XXIII of 2009), S. 3---Reinstatement in service--- Sacked employees---Scope---Petitioners were appointed in a Corporation during years 1975 to 1984 and were released under Voluntary Retirement Scheme in year 1998---Petitioners sought their reinstatement on grounds that they had never opted for their release under Voluntary Retirement Scheme---Validity---Provisions of Sacked Employees (Reinstatement) Ordinance, 2009 and Sacked Employees (Reinstatement) Act, 2010 were applicable only to employees who fell within very limited category, i.e., recruited during November-1993 to November-1996 and removed during November-1996 to December-1998---Word used between two described periods was 'and' therefore, unless an employee of the Corporation could meet the two conditions, he was not entitled to benefit of Sacked Employees (Reinstatement) Ordinance, 2009 and Sacked Employees (Reinstatement) Act, 2010---Action was taken against petitioners by the Corporation before its merger in an other Corporation---Nothing was available on record to show any mala fide on part of corporation for retiring petitioners from service---High Court declined to interfere in the matter under provisions of Sacked Employees (Reinstatement) Act, 2010---Constitutional petition was dismissed in circumstances.

Masroor Hussain and 45 others v. Chairman, Pakistan International Airlines and another 2010 PLC (C.S.) 630 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Provisions of Art. 199 of the Constitution cast obligation on High Court to act in aid of law and protect rights within framework of the Constitution---Jurisdiction conferred under Art. 199 of the Constitution is discretionary with object to foster justice in aid of justice and not to perpetuate injustice.

Muslim Commercial Bank Ltd. through Attorney v. Abdul Waheed Abro and 2 others 2015 PLC 259 rel.

(d) Administration of justice---

----Decision behind back of parties is nullity in eyes of law.

Syed Shoa-un-Nabi for Petitioners.

Syed Ashfaq Hussain Rizvi for Respondent No.4.

Shaikh Liaquat Hussain, Assistant Attorney General.

2019 P L C (C.S.) 917

[Sindh High Court]

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

MUHAMMAD AYUB ALVI

Versus

ADMIN INCHARGE PAKISTAN COTTON and others

Constitution Petition No.D-4942 of 2017, decided on 20th March, 2018.

Pakistan Cotton Standard Institute Service Rules, 1995---

----Rr. 3.38, 2.1 (n) & 6.6---Cotton Field Officer---Allegation of lack of qualification---Misconduct---Termination from service without inquiry---Maxim: Audi alteram partem---Applicability---Petitioner-employee was directed to submit his graduation degree but he failed and he was terminated from service after issuing show cause notice---Validity---Appointments were to be made in a transparent manner after inviting application through public notice---Eligibility criteria for any post was a prerequisite---Qualification required for the post of Cotton Field Officer was second class graduation---Competent authority at the relevant time of appointment of petitioner did not care to look into his qualification and continued him in the job---Service of petitioner as Cotton Field Officer was protected under Pakistan Cotton Standard Institute Service Rules, 1995---Competent Authority had not verified the credentials of petitioner at the relevant time---Petitioner had been terminated when he was at the verge of his retirement from the service---Competent Authority could not blow hot and cold in the same breath to hide their negligence in appointment of the petitioner without checking his testimonial/credentials---Petitioner was appointed through transparent procedure and nothing was adverse against him during his service---Employee had served the establishment for thirty one years---Action against the petitioner was unjustified and there was negligence on the part of Competent Authority---Petitioner could not be blamed to be sole responsible for his appointment on the subject post without qualification---No inquiry into the allegations against the employee had been conducted---When department was directly affected by wrongful act of an employee and failed to challenge the said act for considerable time, then such negligent action of the department would fall within the ambit of "estoppel"---Competent Authority should probe into the claim and counterclaim of the parties---High Court in constitutional jurisdiction could not determine the veracity of such claim of the parties---Petitioner had been condemned unheard in the present case---Competent Authority was directed to reinstate the employee in service forthwith to his original position and conduct an impartial inquiry into the allegation leveled against the petitioner and delinquent officials of the department---Back benefits of the employee would depend upon the result of fresh notice/proceedings---Impugned order passed by the Competent Authority was set aside---Constitutional petition was allowed, accordingly.

Saad Salam Ansari v. Chief Justice High Court of Sindh through Registrar 2007 SCMR 1726; Muhammad Naeem Akhtar v. Managing Director Water and Sanitation Authority, LDA, Lahore 2017 SCMR 357; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730 and Ghulam Abbas and others v. Muhammad Shafi and others 2016 SCMR 1403 rel.

Muhammad Qutb-uzzaman for Petitioner.

Shaikh Liaqaut Hussain, Assistant Attorney General along with Akhtar Hussain Incharge Admin PCSI for Respondents.

2019 P L C (C.S.) 940

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

SAADULLAH KHAN

Versus

AL BARAKA BANK (PAKISTAN) LIMITED

Suit No.1529 and C.M.As. Nos. 11409, 9546, 9565 and 15418 of 2017, decided on 25th October, 2018.

Specific Relief Act (I of 1877)---

----Ss. 21(b), 54 & 55---Master and servant---Injunction, refusal of---Employee of private Bank suspended for violating regulations of the State Bank of Pakistan---Employee filing suit for injunctive relief during internal inquiry proceedings---Held, that insofar as a private corporation or company was concerned, a servant could not be forced upon its master---Master could always refuse to continue with the employment of any of its employee and may come forward to pay compensation for breach of contract of services and could always say that the employee would not be re-engaged in services---Even otherwise in terms of S. 21(b) of the Specific Relief Act, 1877, a contract for personal services could not be specifically enforced---Whereas, a breach of contract in these circumstances could give rise to only two relief(s) i.e. specific performance and damages and if specific performance was barred in law, then the only relief(s) available were damages---Once the master allegedly in breach of his contract refused to employee the services, the only right which survived for the employee was the right to damages and nothing else---Since in the present case the "principle of master and servant" or "employer and employee" applied to the case of the plaintiff-employee who was in service of a private organization/Bank and had agreed to the terms and conditions of service as well as the rules of inquiry which even provided that the same could be kept confidential; hence, the plaintiff had not been able to make out a prima facie case---Balance of convenience also did not lie in favour of plaintiff and it was the defendant-Bank which would be caused irreparable loss if injunctive relief was granted---If any termination order was passed against the plaintiff, the appropriate remedy was claim of damages---Injunction applications were dismissed with the direction that the defendant-Bank shall conduct and proceed with inquiry in accordance with its own Standard Operating Procedures.

Sadiq Amin Rahman v. Pakistan International Airlines Corporation Limited and another 2016 PLC 335 and Shariq ul Haq and 3 others v. Pakistan International Airlines Corporation Limited and another 2018 PLC (C.S.) 975 distinguished.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531; Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519; Shakeel Ahmed Shaikh v. Agha Khan University 2017 PLC (C.S.) 1080 and Raja Iviz Mehmood and another v. Federation of Pakistan through Secretary M/o Information Technology and Telecommunication and others 2018 SCMR 162 ref.

Ali T. Ebrahim for Plaintiff.

Fayyaz Ali Metlo for Defendant.

2019 P L C (C.S.) 962

[Sindh High Court]

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

SIKANDAR ALI SHAH and 18 others

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others

Constitutional Petition No. D-1929 of 2014, decided on 7th September, 2018.

Teachers Recruitment Policy, 2012---

----Cl. 5 (b)(i)(ii) & (iii)---Recruitment against the post of Junior Science Teacher---Requirements---Contention of petitioners was that they had qualified the written test but they have not been appointed---Validity---Requirement for appointment on contract basis was 60% marks or more in the written test---Petitioners obtained less marks than the successful candidates who were selected for appointment on the posts in question---Criterion for selection and appointment provided under the Recruitment Policy, 2012 was fair, just and reasonable---Court was not to interfered with the policy matters of educational institutions---Mere passing of written test could not by itself vest a candidate with the Fundamental Right for enforcing constitutional jurisdiction of High Court---Competent authority had not issued any offer of appointment to the petitioners---Appointment to the posts in question was subject to fulfillment of conditions as mentioned in the Recruitment Policy, 2012---Appointment of the candidates was on contract basis for three years and such period had already expired---Petitioners were bound to point out that the action of authorities was in violation of the Rules and Regularizations, which they had failed to point out---Petitioners had failed to make out their case for appointment for the post in question---Constitutional petition was dismissed, in circumstances.

Salahuddin Dheraj v. Province of Sindh and others PLD 2003 Sindh 236 ref.

Shabbir Hussain v. Executive District Officer Education Larkana and others 2012 CLC 16 and Government College University, Lahore through Vice-Chancellor and others v. Syeda Fiza Abbas and others 2015 SCMR 445 rel.

Abdul Mujeeb Pirzada for Petitioners.

Waqarullah Korejo for Respondent No.4.

Shahryar Mehar, Assistant Advocate-General Sindh along with Ms. Shamim Imran and Ms. Humaira Parveen, Internees for Respondents Nos.1, 2 3 and 5.

2019 P L C (C.S.) 975

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

MS. SERWAT AZIM

Versus

SINDH BANK LIMITED through President/CEO and 7 others

Suit No.419 and C.M.A. No.3305 of 2019, decided on 23rd April, 2019.

Master and servant---

----Employee of Government Bank--- Injunction sought against pending inquiry, refusal of---Issue of opening of fake accounts---Plaintiff-employee sought a restraining order against the defendant-Bank from proceedings further on the basis of a charge sheet as well as a supplementary charge sheet---Held, that courts were always reluctant to interfere in matters pertaining to relationship of master and servant and that too, at the stage of inquiry and departmental proceedings---Plaintiff had only been asked to respond to the charge sheet and appeared before the inquiry committee as per the inquiry letter which stated that to give a fair chance to defend, the plaintiff may come forward and defend the case and may also lead her own evidence---For present purposes, in fact there appeared to be no justifiable cause to invoke the jurisdiction of the High Court---Plaintiff had come to the Court prematurely by impugning the charge sheet to which she had already filed a reply and inquiry was pending which she was avoiding to attend on one pretext or the other---No final / adverse order had been passed against the plaintiff---In fact it appeared that the plaintiff sensing an adverse order, filed instant suit with the application for injunctive relief to thwart inquiry proceedings---Perusal of the record reflected that plaintiff was being provided proper opportunity of contesting the allegations as mentioned in the charge sheet(s)---Plaintiff had been confronted with allegations of serious nature which emanated from the operating procedures of a Bank, and the plaintiff who was working as a Branch Manager, was required to have knowledge about the Bank's Regulations as well as directions of the State Bank of Pakistan---Plaintiff had failed to make out a prima facie case nor balance of convenience laid in her favour, whereas, it was the Bank which was going to suffer irreparable loss if any injunctive orders were passed---Application was dismissed accordingly.

Hotel Intercontinental, Karachi v. Vth Sind Labour Court PLD 1976 Kar. 301 and United Distributors Ltd., v. Zahid Hussain Khan and 2 others PLD 1976 Kar. 376 ref.

S. Ali Ahmed Tariq for Plaintiff.

Faisal Mehmood Ghani for Defendants.

2019 P L C (C.S.) 989

[Sindh High Court]

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

JAVED AKHTAR

Versus

SECRETARY, EDUCATION AND LITERACY DEPARTMENT GOVERNMENT OF SINDH and 2 others

C.P. No.D-2072 of 2017, decided on 4th September, 2018.

(a) Civil service---

----Contract appointment---Allegation of misconduct---Termination from service---Scope---Petitioner, a contract employee was alleged offensive and disrespectful behavior/attitude---Show-cause notices were issued to the petitioner and even FIR was lodged against him---Contract appointment could be terminated on the expiry of contract period or any extended period on the choice of employer or the appointing authority---Case of petitioner was governed by the principle of 'master and servant'---Petitioner had no vested right or Fundamental Right to seek reinstatement or even regularization of service---Petitioner had failed to establish vested right to remain on the temporary/contractual post---Petitioner had been afforded an opportunity of hearing---Constitutional petition was dismissed, in circumstances.

Muhammad Zaman and others v. Government of Pakistan 2017 SCMR 571 rel.

(b) Sindh Education Foundation Employees Service Rules, 1999---

----Preamble---Sindh Education Foundation Act (VII of 1992), S. 16---Determination as to when the Rules would be considered as statutory---Test.

Muhammad Zaman and others v. Government of Pakistan 2017 SCMR 571 rel.

(c) Constitution of Pakistan---

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

Imtiaz Mansoor Solangi for Petitioner.

Waqarullah Korejo for Respondent No.1.

Malik Altaf Jawed for Respondents Nos.2 and 3 along with Muhammad Nadeem Qureshi, Deputy Director Sindh Education Foundation.

2019 P L C (C.S.) 999

[Sindh High Court]

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

ALLAH DINO KHASKHELI

Versus

ZAKIR MEHMOOD and 3 others

High Court Appeal No. 239 of 2016, decided on 10th December, 2018.

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

----S. 9---Civil Court, jurisdiction of--- Substantive right of action---Scope---Civil Court is court of ultimate jurisdiction with regard to a civil right, duty or obligation, unless jurisdiction is either expressly or impliedly barred---Provision of S. 9, C.P.C. only confers jurisdiction upon court and does not grant a substantive right of action---Right of action is to be established by reference to substantive law.

(b) Master and servant---

----Dismissal from service---Domestic enquiry----Plaintiff was Bank employee and was aggrieved of his dismissal from service---Plaintiff assailed judgment and decree passed by Single Judge of High Court and confined his relief to extent of damages on account of his wrongful dismissal from service and claimed that he was entitled to salary for period he remained out of job from respondent Bank---Validity---Relationship between Bank and its employee was that of 'Master and Servant' and only a suit for damages could be filed and no relief for reinstatement of service could be claimed---Plaintiff was not entitled to sue for wrongful act of employer bank, if any, for damages on account of injury to his reputation due to dismissal of his service---Plaintiff had been non-suited through domestic inquiry proceedings as per record, allegations were proved against him---High Court could not call in question domestic inquiry proceedings at appellate stage---High Court declined to examine proceedings of domestic inquiry concluded against plaintiff and also declined to substitute its own conclusion on merits of case in place of findings of inquiry officer and Bank authorities---Dismissal of plaintiff from service as a consequence of inquiry proceedings was not open to any exception at appellate stage---No damages could be awarded for wrongful dismissal from service without proving wrongful act of employer Bank through concrete evidence which had not been done by plaintiff though ample opportunity was provided to him---Division Bench of High Court declined to interfere in the judgment and decree passed by Single Judge of High Court as there was no illegality, infirmity and material irregularity---High Court appeal was dismissed in circumstances.

Rashid Hussain Mangi v. Hon'ble Register, High Court of Sindh 2006 PLC (C.S.) 291; M.A. Rahman v. Federation of Pakistan and others 1988 SCMR 691; Muhammad Iqbal v. Assistant Commissioner, Jaranwala and another 2000 PLC (C.S.) 1053; Mehboob Ahmad Soomro v. Federation of Pakistan through Ministry of Finance and others C.R.P. No.171 of 2012 in C.P. No.338/2011; Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School 2004 CLC 1029 and Shahid Mahmood v. Karachi Electric Supply Corporation Ltd. 1997 CLC 1936 distinguished.

United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368; Aurangzeb through L.Rs and others v. Muhammad Jaffar and another 2007 SCMR 236; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 PLC (C.S.) 574; ABN-AMRO Bank v. Waseem Dar 2004 PLC 69; Muhammad Umar Malik v. The Muslim Commercial Bank and others 1995 SCMR 453; Monazza Obaid and others v. PIAC 2010 PLC (C.S.) 1436; Iqbal Ahmed v. MCB Limited 2009 SCMR 903; Shoukat Ali and others v. Allied Bank Pakistan Limited and others 2007 SCMR 198; Karamat Hussain v. Water and Power Development Authority and another 1998 SCMR 779; Ghulam Mustafa Channa v. MCB Limited and others 2008 SCMR 909; Pakistan Tobbaco Co. Limited v. Channa Khan and others 1980 PLC 981; UBL and 5 others v. Raja Ghulam Hussain and 4 others 1999 PLC 106 = 1999 SCMR 734; Syed Husnain Ammer v. Tehsil Municipal Officer Narowal 2007 PLC (C.S.) 348; PIAC v. Tanveer ur Rehman PLD 2010 SC 676; Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 and General Manager National Radio Telecommunication Corporation Haripur District Abbottabad v. Muhammad Aslam and others 1992 SCMR 169 rel.

Abdul Karim Khan Abbasi for Appellant.

Faisal Mahmood Ghani for Respondents Nos.1 to 4.

2019 P L C (C.S.) 1028

[Sindh High Court]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

IRRUDIYANADAN FRANCIS

Versus

DEUTSCHE BANK A.G.

High Court Appeal No.147 of 2007, decided on 15th February, 2019.

(a) Master and servant---

----Contracts not specifically enforceable---Contractual employment in private organizations / establishments---Principle of Master and Servant---Scope---Condition of the services of employees of a private organization/establishment were not regulated by the rules and regulations framed under a statute, in such like cases, relationship between the employer and employee would be governed by the principle of Master and Servant---Under general law, a private contract of service being a contract of "Master and Servant", was not capable of specific enforcement under S. 21 of the Specific Relief Act, 1877, and an aggrieved servant, at best, could sue for damages only for breach of such contract----Employee, even if he / she establishes that he / she had been wrongly dismissed/retired from service, still such a person was not entitled to remedy of an injunction or of specific performance in a contract involving his / her personal service under the Specific Relief Act, 1877.

Said Wali v. Ahmad Seed 1970 SCMR 623; Muhammad Masihuzzaman v. Federation of Pakistan PLD 1992 SC 825; Muhammad Sadiq v. Messrs American Express International Banking Corporation 1981 PLC 766; Azam Baig v. Pakistan National Shipping Corporation 1983 PLC 644; Muhammad Ali and others v. Messrs Bawany Sugar Mills Limited and others 2004 PLC 175; Mujeeb-ur-Rehman Siddiqui v. Messrs Independent Newspapers Corporation (Pvt.) Limited through Chief Secretary 2001 PLC 34; M.U. Shaikh v. Messrs Glaxo Laboratories (Pakistan) Limited 1981 PLC 771; Muhammad Akram and 2 others v. Karachi Transport Corporation, Karachi 1981 PLC 522; Pakistan Cycle Industrial Co-operative Society Limited v. Punjab Labour Appellate Tribunal and others 1983 PLC 1215; Pakistan Steel Mills Corporation Karachi v. Messrs Mustafa Sons (Pvt.) Limited, Karachi PLD 2003 SC 301; Aurangzeb v. Messrs Gul Bano Dr. Burjor Ankalseria 2001 SCMR 909; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Muhammad Yousuf Shah v. Pakistan International Airline Corporation PLD 1981 SC 224; General Investment Limited v. Karachi Municipal Corporation and 3 others 1993 MLD 1550 and A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748 ref.

(b) Administration of justice---

----Law helped those who were vigilant and careful enough to look after their interests and did not help those who slept over their rights and were indolent to seek redressal of their grievances.

Zahid Hamid for Appellant.

Khalid Rehman and Adeel Abid for Respondent.

2019 P L C (C.S.) 1050

[Sindh High Court]

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

AHSAN ALI SHAH and 10 others

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others

C.P. No. D-4257 of 2016, decided on 5th October, 2017.

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

----R. 3(2)---Sindh Public Service Commission Act (XI of 1989), S.7(ii)(a)---Pakistan Engineering Council Act (V of 1976), S. 2(j)---Assistant Engineers holding Bachelor Degree i.e. B.E. (Civil), Diploma Holder Assistant Engineers/Assistant Design Officer and Assistant Engineers having B. Tech. (Hons) Degree in Civil Engineering---Promotion against the posts of Executive Engineer, Design Officer and Research Officer---Procedure---Promotion Policy---Amendment in the Recruitment Rules---Effect---Government laid down method, qualification, experience and other conditions for appointment to the post of Executive Engineer, Design Officer and Research Officer (BPS-18) in Public Health Engineering Department according to which 80% vacancies had been reserved by promotion from amongst Assistant Engineer (BPS-17) holding degree of B. E. in Civil with at least five years' service in BPS-17 in their respective Technology on seniority-cum-fitness basis, 13% by promotion amongst Diploma Holder Assistant Engineer/Assistant Design Officer (BPS-17) in their respective Technology on seniority-cum-fitness and 7% by promotion from amongst Assistant Engineer (BPS-17) having B. Tech (Hons) Degree in civil with at least five years' service in BPS-17 in their respective Technology on seniority-cum-fitness basis---Contention of petitioners-employees was that Diploma or B. Technology in Engineering could not be equated with Bachelor Degree in Engineering---Validity---Present matter was with regard to Promotion Policy---Recruitment Rules had been amended to confer right of promotion to Diploma and B-Tech Degree holders in BS-18---No right of petitioners-employees had been infringed which could be enforced by constitutional jurisdiction of High Court---Government had right to make rules to raise the efficiency of services---If no vested right was denied to a party then High Court had no jurisdiction to interfere by means of constitutional petition---Public Service Commission had advised the Government on the matters with regard to qualification and recruitment to the posts connected with the affairs of the Province---Impugned Recruitment Rules had been framed in consultation with the Services General Administration and Coordination Department and Public Service Commission---High Court, in circumstances, could not sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulations making body merely because impugned Recruitment Rules would not serve the object of Pakistan Engineering Council Act, 1976---Government had power to change promotion policy and prescribe the qualification for a particular post through amendment in the relevant rules---Responsibility of deciding suitability of appointment, posting or transfer fell primarily on the Executive branch of the State which was a policy matter---Provincial Government had assured quota to Diploma and B. Tech (Hons) Degree Holders for promotion which did not amount to recognizing the Diploma and B. Tech (Hons) as having a degree equivalent to the Bachelor of Engineering---Impugned promotion quota did not violate any Fundamental Right of the petitioners---Petitioners-employees had no cause of action to file constitutional petition against Rules framed by the competent authority---Court was to refrain from interfering in the domain of the Executive---Fair and meritorious appointment to public office was requirement of law---Impugned notification had been issued in accordance with law---Civil servant would not be prejudiced if government framed policy of promotion in service matters---Determination of eligibility through rules would fall within the domain and policy decision of Government---No illegality, infirmity or irregularity had been committed while issuing the notification---Constitutional petition was dismissed in circumstances.

Muhammad Younus Arain v. Province of Sindh and others 2007 SCMR 134; Muhammad Hussain v. EDO (Education), 2007 SCMR 855; Bashir Ahmed v. Muhammad Aslam 2003 SCMR 1864; Ghulam Rasool v. Muhammad Hussain PLD 2011 SC 119; Abdul Latif v. Chairman Board of Intermediate and Secondary Education 1986 CLC 1908; Tasnimuddin v. Prudential Discount and Guarantee House 2005 MLD 1681; Zaheer Ahmed v. Government of Sindh 1999 MLD 2881; Nadir Khan v. Town Officer PLD 2004 Kar. 60; Ejaz Ahmed Shah v. Federation of Pakistan PLD 2010 Kar. 309; Pakistan Engineering Council v. Federation of Pakistan 1998 SCMR 811; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division Islamabad and others PLD 1995 SC 701; Pakistan Diploma Engineers Federation v. Federation of Pakistan 1994 SCMR 1807; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Pakistan Engineering Council and others v. Afzal Anwar Associates and others 1995 SCMR 802; Pakistan Engineering Council v. Federation of Pakistan and others 1998 SCMR 811; Muhammad Younus and Sons v. Ministry Water and Power Lahore and others PLD 2003 SC 488; Muhammad Azam v. Tufail and others 2011 SCMR 1871; Muhammad Iqbal and others v. Executive District Officer Revenue and others 2007 SCMR 682; Mrs. Munnawar Sani v. Director Army Education 1991 SCMR 135 and Secretary Revenue Division and others v. Muhammad Salim 2008 SCMR 948 ref.

Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others 2016 SCMR 1021 and Ghulam Rasool v. Government of Pakistan and others PLD 2015 SC 6 rel.

Salahuddin Ahmed for Petitioners.

Abdul Jalil Zubedi Assistant Advocate-General Sindh for Respondents Nos.1 to 3.

Ghulam Hyder Shaikh for Respondent No.4.

M.M. Aqil Awan for Respondents Nos.5 to 10.

2019 P L C (C.S.) 1067

[Sindh High Court]

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

Syed YAWAR HUSSAIN SHIGRI and another

Versus

FEDERATION OF PAKISTAN through Cabinet Secretary and others

C.P. No. D-6370 of 2016 and C.P. No. D-3411 of 2017, decided on 27th October, 2017.

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

----Ss. 13(5)(8) & 2(d)(f)---Employee of Civil Aviation Authority---Dismissal from service---Reinstatement of employee by Sacked Employees Review Board---Order passed by Sacked Employees Review Board was sought to be implemented---Validity---Sacked Employees (Re-instatement) Act, 2010 was a special law enacted as a beneficial legislation for reinstatement of sacked employees---Sacked Employees Review Board had been constituted to give power to its members who were senior officers of Federal Government having administrative control over the employer of sacked employee---Ultimate decision making power was with the representatives of Federal Government---Sacked Employees (Re-instatement) Act, 2010 was enacted to the extent of entities established or controlled by the Federal Government to provide relief of reinstatement in service to the sacked employees---Orders and decisions passed by the Sacked Employees Review Board were final and same could not be called in question in any Court, authority or tribunal---Sacked Employees Review Board made final decision on facts but not the law---Order passed by the Sacked Employees Review Board should have been implemented---Authorities were directed to implement the order passed by the Review Board accordingly---Constitutional petition was disposed of in circumstances.

Pakistan Defence Housing Authority v. Lt. Col. Javed Ahmed 2013 SCMR 1707 and Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---When any order or decision was without jurisdiction, coram non judice or tainted with mala fide, High Court could interfere with the same in constitutional jurisdiction.

Muhammad Jaffar Raza for Petitioner (in C.P. No.D-6370 of 2016) and Respondent No.2 (in C.P No.D-3411 of 2017).

Khalid Mehmood Siddiqui for the Petitioner (in C.P. No.D-3411 of 2017) and Respondents (in C.P. No.D-6370 of 2016).

Muhammad Aslam Butt, DAG.

2019 P L C (C.S.) 1084

[Sindh High Court]

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

FARAZ SHERWANI and another

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and 2 others

Constitution Petition No.D-253 of 2015, decided on 24th October, 2017.

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

----Preamble---National Accountability Ordinance (XVIII of 1999), S. 28(c)---Federal Service Tribunals Act (LXX of 1973), Ss. 4 & 2---Constitution of Pakistan, Art. 18---SRO No. 1106(1)/2015 dated 16-02-2016---Civil Servants Act (LXXI of 1973), S. 2---Promotion---National Accountability Bureau---Employees, Personal Assistants (BS-16), were promoted to the post of Private Secretary (BS-17)---Contention of petitioners employees was that they should be promoted as Assistant Director (BS-17) instead of Private Secretary as promotion of Personal Assistant in next grade was Assistant Director---Validity---Employees of National Accountability Bureau were not "civil servants" and they could not file appeal before Service Tribunal---National Accountability Bureau had statutory rules of service and an aggrieved person could invoke constitutional jurisdiction of High Court---Petitioners employees had failed to justify their eligibility for appointment by promotion as Assistant Director---Government had power to change the promotion policy and prescribe the qualification for a particular post through amendment in the relevant rules---Employees were not eligible to be considered for promotion to the post of Assistant Director as they had no length of three years' service in BS-16 or eight years' in BS-11 and above---Employees could not claim promotion as a matter of right---Petitioners had failed to point out any malice on the part of department or infringement of their rights warranting interference of High Court in its constitutional jurisdiction---Fair and meritorious appointment to public office was requirement of law---Civil servant could not be transferred from his cadre to another cadre and absorbed in another cadre post---No illegality, irregularity or infirmity had been pointed out in the impugned notification passed by the department---Constitutional petition was dismissed in circumstances.

Nasimul Haque Malik v. Chief Secretary Government of Sindh 1996 PLC (C.S.) 921 R 927; Federation of Pakistan v. Azam Ali 1985 SCMR 386 and I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 R 1086 ref.

Pakistan Defence Housing Authority v. Lt. Col. Javed Ahmed 2013 SCMR 1707; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Federation of Pakistan v. Ali Naseem and others 2016 SCMR 1744; Ghulam Rasool v. Government of Pakistan and others PLD 2015 SC 6 and Suo Motu Case No. 13 of 2016 (action against illegalities, contravention and violations in appointments within NAB) 2017 SCMR 838 rel.

(b) National Accountability Ordinance (XVIII of 1999)---

----S. 28(c)---Civil Servants Act (LXXI of 1973), S. 2---Federal Service Tribunals Act (LXX of 1973), Ss. 4 & 2---Employees of National Accountability Bureau---Employees of National Accountability Bureau were not "civil servants" and could not file appeal before the Service Tribunal---National Accountability Bureau had statutory rules of service and an "aggrieved person" could invoke constitutional jurisdiction of High Court.

(c) Civil service---

----Promotion---Criteria.

There is two pronged criteria, one being eligibility for promotion and the other being fitness for promotion, while the former relates to the terms and conditions of service, the latter is a subjective evaluation made on the basis of objective criteria. Promotion depends upon eligibility, fitness and availability of vacancy and no one can claim promotion as matter of right. It is for the Competent Authority, who could make appointments, determine, eligibility, fitness and promotion and other ancillary matters relating to the terms and conditions of the employees as prescribed under the Act and Rules framed there under.

(d) Civil service---

----Change of cadre---Scope---Civil servant could not be transferred from his cadre to another cadre and absorbed in another cadre post.

Muhammad Arshad Khan Tanoli for Petitioner.

Muhammad Aslam Butt DAG for Respondent No.1.

Ahsan Shahzad and Muhammad Akram Javed, Special Prosecutor NAB for Respondents Nos.2 and 3.

2019 P L C (C.S.) 1100

[Sindh High Court]

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

Dr. UZMA SHAHEEN PIRZADA

Versus

PROVINCE OF SINDH through Secretary and 2 others

Constitutional Petition No. D-3415 of 2017, decided on 4th October, 2017.

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

----S. 13---Sindh Civil Service Regulations, 1960, Arts. 161, 251 & 254---Sindh Civil Services Pension Rules, 1963, R. 3.5---Voluntary retirement from service on completion of twenty two years' service---Pension, grant of---"Compulsory" and "voluntary" retirement---Distinction---Petitioner employee applied for voluntary retirement from service on completion of twenty two years' service which was accepted by the department---Employee submitted pension papers but pension was declined to him---Contention of petitioner was that she was entitled to benefit under Sindh Civil Servants (Second Amendment) Ordinance, 2001 whereby S.13(i) of Sindh Civil Servants Act, 1973 had been substituted by the word 'twenty' instead of 'twenty five'---Validity---Civil servant could be allowed to retire from service after completion of "twenty years" under S. 13(i) of Sindh Civil Servants Act, 1973---Employee had opted to retire from service on voluntary basis on completion of twenty two years' service---Pension was to be granted to a civil servant who retired voluntarily or was required by government to retire after completing a prescribed period of duty and service or duty alone but before reaching the age of superannuation---Service of employee in the present case, was less than qualifying period of service (25 years) prescribed under Art. 254, Sindh Civil Service Regulations, 1960 for pension benefits---Civil servant was to retire from service on completion of twenty years of service to qualify for pension or other benefits when competent authority under S.13(i) of Sindh Civil Service Act, 1973 so direct in the public interest---Where no such direction was issued under S. 13(i), employee was to serve till the age if sixty years---Direction under S.13(i) of Sindh Civil Servants Act, 1973 was to be passed when civil servant had been informed in writing of the grounds on which it was proposed to make such direction and had been afforded a reasonable opportunity of showing cause against the direction---Section 13(i) of Sindh Civil Servants Act, 1973 related to 'compulsory retirement' and not 'voluntary retirement'---Employee's voluntary retirement had no relevance with compulsory retirement under S. 13(i) of Sindh Civil Servants Act, 1973---Voluntary retirement was covered under Art. 254(1) of Sindh Civil Service Regulations, 1960 and R. 3.5 of Sindh Civil Services Pension Rules, 1963 which stipulated that "twenty five" years was the qualifying service for pension benefits whereas with regard to compulsory retirement twenty years' service was the requirement of law---Government had option to retain or not to retain a civil servant in service after twenty years' of service---Department was competent to curtail the service period to twenty years which otherwise would have gone to sixty years of age (superannuation)---Retiring pension was granted to a civil servant who retired voluntarily after completing twenty five years period of service before reaching the age of superannuation and not twenty years which would apply to the case of "compulsory retirement"---Constitutional petition was dismissed in circumstances.

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

----S. 13---Compulsory retirement---Object and scope---Object of S. 13 of the Sindh Civil Servant Act, 1973 is to improve the efficiency and discipline in the Civil Service.

Legislature in its wisdom has not fixed any period for retirement but has left it to the discretion of the Competent Authority.

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

----S.13---Compulsory and voluntary retirement---Scope---"Compulsory retirement" was a punishment unlike "voluntary retirement".

(d) Civil service---

----'Pensionable service'---Meaning---Pensionable service was a service which qualified the civil servant to receive pension from General Revenue.

Ziaul Haq Makhdoom along with Moeen Qamar for Petitioner.

Abdul Jalil Zubaidi, AAG along with Khadim Hussain Mirani, Deputy Accountant General, Sindh and Zubair Aleem, Assistant Accounts Officer.

2019 P L C (C.S.) 1114

[Sindh High Court]

Before Adnan-ul-Karim Memon and Agha Faisal, JJ

Syed GHULAM ABBAS SHAH

Versus

PROVINCE OF SINDH through Chief Secretary and others

Constitution Petition No.D-1610 of 2018, decided on 13th August, 2018.

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

----S. 10---Sindh Service Tribunals Act (XV of 1973), Ss. 3(2) & 4---Constitution of Pakistan, Arts. 199 & 212---Post of Chief Inspector of Stamps---Appointment though transfer against the said post---Expression "terms and conditions"---Scope---Contention of petitioner was that post in question was a promotion post and no outsider could be appointed against the same---Validity---Held, High Court had no jurisdiction with regard to the matters pertaining to terms and conditions of service, which fell within the exclusive domain of Service Tribunal---Expression "terms and conditions" included transfer and posting of an employee---Petitioner being civil servant had right to file appeal against the impugned order before Service Tribunal---Government could make rules in the interest of expediency of service and for removal of anomalies in any service rules---Policy decision being an administrative matter fell within the exclusive domain of the Government---No vested right of employee was involved in the policy matters---Government had right to make rules to raise the efficiency of services---No right of petitioner having been infringed which could be called in question through constitutional petition---Civil servant had not vested right to remain on a particular post forever or for a stipulated period---Constitutional petition was dismissed in circumstances.

Ali Azhar Khan Balouch and others v. Province of Sindh and others 2015 SCMR 456; Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others 2016 SCMR 1021 and Peer Muhammad v. Government of Balochistan and others 2007 SCMR 54 rel.

(b) Constitution of Pakistan---

--­--Arts. 199 & 212---Constitutional petition---Maintainability---Constitutional petition with regard to the matters pertaining to terms and condition of civil servants was not maintainable.

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

Syed Aamir Ali Shah Jeelani for Petitioner.

Shahryar Mehar, AAG.

Respondent No.4 present in person.

2019 P L C (C.S.) 1124

[Sindh High Court]

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

Mir NAJEEB-UR-REHMAN JAKHRANI

Versus

THE PROVINCE OF SINDH through Chief Secretary and others

C.P. No. D-1443 of 2016, decided on 6th February, 2018.

Civil service---

----Employee having appeared in the departmental examination---Sought declaration of result---Amendment made in the rules---Effect---Employee appeared in annual departmental examination with permission of department for the post of Sub-Registrar---Department refused to declare result on the ground that employee was not eligible to compete in the departmental examination---Validity---Employee was erroneously allowed to appear in the examination who was not eligible for the post he appeared---Amendment made in R. 8(1) of Sindh Registration Rules, 1940 had prospective effect and not retrospective---Petitioner could not agitate its retrospective application---Constitutional petition was dismissed, in circumstances.

Samiullah Soomro for Petitioner.

Chaudhary Muhammad Rafiq Rajorvi, AAG.

2019 P L C (C.S.) 1139

[Sindh High Court (Hyderabad Bench)]

Before Aziz-ur-Rehman and Muhammad Faisal Kamal Alam, JJ

Mst. SHAHNAZ AKHTAR

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Director General and 2 others

Constitutional Petition No.D-804 of 2009, decided on 1st November, 2018.

Civil service---

----Up-gradation of post---Withdrawal of---Scope---Employee passed B.Ed. examination and she was granted BPS-15 from the date of acquiring said qualification but same was revised thereafter---Contention of employee was that impugned order was based on mala fide and was result of colourful exercise of authority---Validity---Departmental rules, regulations and instructions, even non-statutory, had to be adhered to by the employer---Employer could not deviate from such rules and instructions which were in nature of a contract and binding on the parties---Principle of policy was enforceable even in absence of a vested right---Authorities should not have issued the impugned order which had retrospectively affected the employee---Authorities had failed to justify the issuance of impugned order which was violative of policy decision of the department---Impugned order was set aside and grant of BPS-15 was restored with effect from acquiring B.Ed. qualification by the employee---Constitutional petition was allowed, in circumstances.

Nighat Yasmin v. Pakistan International Airlines Corporation, Karachi and another 2004 SCMR 1820 and Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650 rel.

Irfan Ahmed Qureshi along with Petitioner

Muhammad Arshad S. Pathan for Respondents.

Allah Bachayo Soomro, Addl. A.G.

2019 P L C (C.S.) 1145

[Sindh High Court]

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

IMTIAZ AHMED BARAKZAI

Versus

FEDERAL TAX OMBUDSMAN and 2 others

C.P. No. D-6911 of 2017, decided on 12th February, 2018.

Establishment of the Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 20----Contractual employment----Nature of appointment of advisers and other staff made by Federal Tax Ombudsman---Scope---Petitioner, who was employed on contractual basis by the Federal Tax Ombudsman, impugned termination of his employment before expiry of contract inter alia on the ground that said termination violated the law and was made without hearing the petitioner---Validity---Contract employee could not claim any vested right even for regularization of service and S. 20 of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 conferred power on Federal Tax Ombudsman to appoint advisor(s) for assistance at his discretion, which discretion could not be called into question by petitioner---Petitioner had no vested right to remain on temporary contractual post and impugned order could not be questioned by him---Constitutional petition was dismissed, in circumstances.

2005 SCMR 25 and 2013 SCMR 1159 ref.

Muhammad Junaid Farooqui for the Petitioner.

Asaf Fasihuddin Vardage for Respondents Nos. 1 and 2.

Shaikh Liaquat Hussain, Assistant Attorney General.

2019 P L C (C.S.) 1157

[Sindh High Court (Hyderabad Bench)]

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

ATTAULLAH KHAN CHANDIO

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and another

Constitutional Petition No. D-2268 of 2017, decided on 26th January, 2018.

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

----R. 11 (2)---Provincial police officer encadred into Police Service of Pakistan---Promotion and seniority---Determination of---Procedure---Appointment on acting charge basis---Employee seeking promotion on regular basis in Police Service of Pakistan---Scope---Petitioner being provincial police officer was encadred into Police Service of Pakistan and was promoted thereafter---Promotion of petitioner was withdrawn in accordance with the judgment of the Supreme Court---Contention of petitioner was that he was entitled for promotion on regular basis as allowed to the officer junior to him---Validity---Seniority of petitioner would be reckoned from the date he was encadred---Promotion on acting charge basis was a stopgap arrangement where selection was made pending regular promotion of an officer not available at the relevant time of selection---Acting charge promotion did not create vested right for promotion on regular basis against the post held---Length of service in provincial police cadre did not carry any weight for the purpose of seniority and promotion in Police Service of Pakistan cadre---Eligibility and fitness was the criteria for promotion---Promotion would depend upon eligibility, fitness, seniority and availability of vacancy in that cadre---Petitioner was in Police Service of Pakistan cadre and his service was governed by Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985; he was appointed on acting charge basis in Police Service of Pakistan which was temporary appointment in nature---Petitioner could not claim to be promoted on regular basis in Police Service of Pakistan---Acting charge could neither be construed to be an appointment by promotion on regular basis for any purpose including seniority nor did it confer any right for regular promotion from the date of such an appointment---Seniority of petitioner in Police Service of Pakistan was to be reckoned from the date of encadrement and was not eligible for regular promotion in Police Service of Pakistan cadre---Constitutional petition was dismissed, in circumstances.

Asim Gulzar and others v. Attaullah Khan Chandio and others 2015 SCMR 365; Nadir Shah, Sub-Divisional Officer Minor Canal Cell Irrigation Sub-Division, Dera Murad Jamali and 2 others v. Secretary, Irrigation and Power Department Balochistan, Quetta and 7 others 2003 PLC (C.S.) 961; Secretary, Government of Punjab and others v. Dr. Abida Iqbal and others 2009 PLC (C.S.) 431; Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others 2016 SCMR 1021; Province of Sindh and others v. Ghulam Farid and others 2014 SCMR 1189 and Secretary to Government of Punjab and others v. Muhammad Khalid Usmani and others 2016 SCMR 2125 rel.

Secretary to Government of Punjab Communication and Works Department v. Muhammad Khalid Usmani 2017 PLC (C.S.) 373 distinguished.

M.M. Aqil Awan for Petitioner.

Sheikh Liaquat Hussain, Assistant Attorney General for Respondents.

2019 P L C (C.S.) 1196

[Sindh High Court]

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

SHANKAR LAL

Versus

FEDERATION OF PAKISTAN through Secretary Defence Ministry of Industry and Production and another

C.P. No. D-7908 of 2015, decided on 20th February, 2018.

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

----Ss.9, 19 & 2(b)(d)(f)---Sacked employee of Pakistan Steel Mills seeking reinstatement into service---Review Board had reinstated the colleague of petitioner and Company had complied with the said order---Pakistan Steel Mills could not deny relief to the present petitioner by extending the same benefit, in circumstances---Petitioner had been discriminated which was a violation of Art.25 of the Constitution---Impugned order declining reinstatement of petitioner was erroneous and of no legal effect---Sacked Employees (Re-instatement) Act, 2010 was enacted for Government owned entities established or controlled by the Federal Government---Pakistan Steel Mills was funded by the Federal Government and was under dominative control of the State---Petitioner was sacked employee and he was entitled for the relief under Sacked Employees (Re-instatement) Act, 2010---Competent authority was directed to reinstate the petitioner in service---Petitioner was also entitled to all other benefits of which he might be expressly entitled to, under the Sacked Employees (Re-instatement) Act, 2010, however, subject to S.19 of the said Act and would not be entitled to any double benefit---Constitutional petition was disposed of, accordingly.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition against Pakistan Steel Mills---Maintainability---Pakistan Steel Mills could be regarded as a "person" performing functions in connection with the affairs of Pakistan under Art. 199 of the Constitution---Principles---Constitutional petition was maintainable against Pakistan Steel Mills.

Ramna Pipe and General Mills (Pvt.) Ltd v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274; Pakistan Defence Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Aitcheson College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326; Pakistan International Airlines v. Tanweer-ur-Rehman PLD 2010 SC 676; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 rel.

Imdad Khan for Petitioner.

Barrister Hussain Bohra for Respondent No.2.

Shaikh Liaquat Hussain, Assistant Attorney General.

2019 P L C (C.S.) 1209

[Sindh High Court]

Before Adnan-ul-Karim Memon and Agha Faisal, JJ

SHAH NAWAZ KUTRIO

Versus

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

Constitution Petition No.D-4132 of 2017, decided on 13th August, 2018.

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

---R.7-A---Proforma Promotion of an employee after superannuation---Withholding of promotion due to departmental proceedings---Effect---Petitioner was recommended for promotion by the departmental promotion committee but notification was not issued due to inquiry proceedings; in the meanwhile employee superannuated---Effect---Promotion of petitioner had been approved by the competent authority and same was communicated to the department---Civil servant was entitled for Proforma promotion once during his service his promotion was approved by the competent authority and in the meanwhile if he had superannuated---Inquiry proceedings against civil servant could be initiated and culminated during his tenure of service and after retirement said proceedings would abate---Matter was remitted to the competent authority for afresh decision on the issue of proforma promotion of the employee in accordance with law---Constitutional petition was allowed, in circumstances.

Iftikharullah Malih v. Chief Secretary and others 1998 SCMR 736 and Askari Hasnain v. Secretary Establishment and others 2016 SCMR 871 rel.

(b) Civil service---

----Inquiry proceedings could not be initiated and culminated against civil servant after superannuation.

(c) Civil service---

----No disciplinary proceedings could be initiated against retired civil servant.

Ahmed Ali Ghumro for Petitioner.

Shahryar Mehar, Assistant Advocate General for the State.

2019 P L C (C.S.) 1217

[Sindh High Court]

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

ANWER ALI

Versus

PROVINCE OF SINDH, through Chief Secretary and 10 others

C.P. No.D-1389 of 2016, decided on 21st July, 2017.

Civil service---

----Promotion---Eligibility and fitness---Employee seeking setting aside of out-of-turn promotion of respondents and for consideration of his promotion---Validity---Contention of petitioner was that he was entitled for consideration of promotion from the date of promotion of his juniors who had been promoted illegally---Validity---Claim and counterclaims of the parties could not be adjudicated by the High Court under constitutional jurisdiction---Promotion would depend on eligibility, fitness and availability of vacancy---No employee could claim promotion as his Fundamental and vested right---Government was directed by the High Court to scrutinize the service record of respondents and determine whether or not they had been legally promoted, upgraded and absorbed and whether directions of Supreme Court in respect of the issue had been adhered to or not---Constitutional petition was disposed of in circumstances.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456; Secretary, Government of Punjab and others v. Dr. Abida Iqbal and others 2009 PLC (C.S.) 431 and Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others 2016 SCMR 1021 rel.

Muhammad Arshad Khan Tanoli for Petitioner.

Abdul Jalil Zubedi, A.A.G. for Respondents Nos.1 to 3.

Anwar Ali Shah for Respondents Nos.4 to 6.

2019 P L C (C.S.) 1231

[Sindh High Court]

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

LAL BADSHAH and another

Versus

CHAIRMAN KARACHI PORT TRUST KARACHI and another

Constitution Petitions Nos.3491 of 2013 and D-2821 of 2014, decided on 21st February, 2018.

(a) Karachi Port Trust Officers Recruitment, Appointment, Seniority and Promotion Regulations, 2011---

----Preamble---Karachi Port Trust Act (VI of 1886), S.22---Minimum Wages for Unskilled Workers (Amendment) Act (VII of 2016), S.2(g)---Constitution of Pakistan, Art. 25---Office Memorandum No.13(10) Reg.6/2008/413 dated 16-05-2011---Retired employees of Karachi Port Trust seeking inclusion of cost of living allowance in pensionable emoluments---Minimum wages---Karachi Port Trust being a public sector statutory entity was a person performing functions in connection with the affairs of the Federation---Karachi Port Trust Officers Recruitment, Appointment, Seniority and Promotion Regulations, 2011 were statutory rules of service---Petitioners were seeking inclusion of cost of living allowance in their pensionable emoluments---Only remedy available to the petitioners was under Art.199 of the Constitution---Constitutional petition against Karachi Port Trust was maintainable, in circumstances---Variable dearness allowance was part and parcel of wages---Once rates of minimum wages had been prescribed whether as all inclusive or by combining basic plus dearness allowance then same were not amenable to split up---Competent authority was not required to bifurcate each component of the costs of each item taken into consideration for fixing minimum wages---Dearness allowance was part and parcel of cost of necessities of life---Minimum rate of wages was linked with variable dearness allowance---Office Memorandum No.13 (10)Reg. 6/2008/413 dated 16-05-2011 being a beneficial instrument was equally applicable to the retired employees of Karachi Port Trust---Denying increase of pension by inclusion of cost of living allowance to the pensioners who had retired from a particular date and giving the same to the other class of employees was discriminatory and violative of Art.25 of the Constitution---Impugned action of Authority could not be approved on any premises whatsoever---Matter was remanded to the competent authority for fresh decision in accordance with law within a specified period---Constitutional petition was allowed, accordingly.

Pakistan Defence Housing Authority v. Lt. Col. Javed Ahmed 2013 SCMR 1707; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 and I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 rel.

(b) Constitution of Pakistan---

----Art.5---Public functionaries of the State were bound to abide by the Constitution and the law.

Javed Iqbal and Khalid Javed for the Petitioner (in C.P. No.D-3491 of 2013).

M.K Shikoh and Jawad Rizvi for the Petitioners (in C.P. No. D-2821 of 2014).

Javed Asghar Awan for Respondent No.1 (in C.P. No.D-3491 of 2013).

Khaleeq Ahmed for Respondents Nos.1 and 2 (in C.P. No.D-2821 of 2014).

Shaikh Liaquat Hussain, Assistant Attorney General.

2019 P L C (C.S.) 1245

[Sindh High Court]

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

RASHID ALI MEMON

Versus

The CHIEF SECRETARY, through Government of Sindh and others

C.P. No. D-2598 of 2016, decided on 26th February, 2018.

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

-----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Applicability---Laches, principle of---Contract employee---Regularization of service---Equal treatment of law---Scope---Contention of petitioner-employee was that he was relieved from service without any formal letter of termination---Validity---Exercise of constitutional jurisdiction under Art. 199 of the Constitution was discretionary---Relief granted in constitutional jurisdiction would be of an equitable nature---Lapse of time or question of laches in constitutional petition should be examined on equitable principles---If High Court concluded that inquiry was in favour of petitioner then discretion could be exercised in favour of such party---If any party in invoking constitutional jurisdiction was guilty of contumacious lethargy in action, laxity or gross negligence in the prosecution of a cause for enforcement of right then High Court would be justified in non-suiting such person on the premise of laches---Issue of delay or laches was to be considered with reference to the facts of each case and no hard and fast rule could be laid down in this behalf---Petitioner-employee was appointed on contract basis and his colleagues had been regularized in pursuance of order passed in the earlier constitutional petition---Case of petitioner-employee was identical to the case of his colleagues---Constitutional jurisdiction could be invoked against the department, in circumstances---Department could be directed for regularization, of contractual service of employee---Competent authority was directed to consider the case of employee without any discrimination for regularization of his service in accordance with law---Constitutional petition was disposed of accordingly.

Dr. Iqbal Jan and others v. Province of Sindh and others 2014 PLC (C.S.) 1153 and Hameed Akhtar Niazi's case 1996 SCMR 1185 ref.

Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmed Khan and another 2012 SCMR 6; 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.

Malik Naeem Iqbal for Petitioner.

Chaudhry Muhammad Rafiq Rajorvi, AAG.

2019 P L C (C.S.) 1258

[Sindh High Court]

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

MUHAMMAD AFZAL KOUSAR and others

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Ports and Shipping and others

C.Ps. Nos. D-3472, D-3019, D-3898 of 2012 and D-3600 of 2013, decided on 27th February, 2018.

Karachi Port Trust Officers Recruitment, Appointment, Seniority and Promotion Regulations, 2011---

----Preamble---Karachi Port Trust Act (VI of 1886), S. 22---Constitution of Pakistan, Art. 199---Constitutional petition against Karachi Port Trust---Maintainability---Karachi Port Trust Officers Recruitment, Appointment, Seniority and Promotion Regulations, 2011 were statutory rules of service---Aggrieved person could invoke constitutional jurisdiction of High Court against a Port Authority---Karachi Port Trust was "person" in terms of Art. 199(5) of the Constitution---Constitutional petition was maintainable against Karachi Port Trust, in circumstances.

Muhammad Yasin v. Federation of Pakistan through Secretary PLD 2012 SC 132; Irfan Naseer Baig and others v. Province of Punjab and others 2011 PLC (C.S.) 1537; Mushtaq Ahmed Mohal and others v. The Hon'ble Lahore High Court, Lahore and others 1997 SCMR 1043 and Dr. Naveeda Tufail and others v. Government of Punjab and others 2003 SCMR 291 ref.

Pakistan Defence Officers Housing Authority v. Lt. Col. Jawed Ahmed 2013 SCMR 1707 and Muhammad Rafi and others v. Federation of Pakistan and others 2016 SCMR 2146 rel.

Muhammad Arshad Khan Tanoli for Petitioner in all Petitions.

Shahzad Mehmood for Respondent (in C.P. No.D-3019 of 2012 and C.P. No.D-3600 of 2013).

Muhammad Rizwan Saeed for Respondent (in C.P. No.D-3019 of 2012).

2019 P L C (C.S.) 1278

[Sindh High Court]

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

MUSHEER AHMED and 2 others

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others

C.P. No.D-4930 of 2015, decided on 27th August, 2018

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

----S.3---Sindh Civil Servants Act (XIV of 1973), S.2(a)(b)(ii)---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R.10(1)(2)---Contract employee seeking regularization of service from the date of initial appointment---Scope---Seniority---Determination of---Procedure---Petitioners-employees were regularized with immediate effect on promulgation of Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013---Contention of petitioners was that they were to be regularized from the date of their initial appointment---Validity---Employees appointed on ad hoc and contract basis were to be deemed to have been validly appointed on regular basis immediately before the commencement of Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013---Petitioners were to be regularized in service with immediate effect i.e. from the date of issuance of notification under Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 as before the commencement of said Act they were not working against the sanctioned budgetary posts but on fixed period project posts---Contract employees could not be termed as civil servants---Petitioners before regularization of their service were not civil servants as they were working on particular project on contract basis---Seniority of civil servant was to be reckoned from the date of his regular appointment---Appointment made on ad hoc basis could not be regularized retrospectively---Contract/ad-hoc period of service could not be counted in seniority of a civil servant---Service of employees having been regularized with immediate effect were to be regularized from the date of promulgation of Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013---Service of petitioners could not be regularized with effect from their initial appointment on contract basis---Constitutional petition was disposed of accordingly.

Dr. Iqbal Jan and others v. Province of Sindh and others 2014 PLC (C.S.) 1153 ref.

Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmed Khan and another 2012 SCMR 6; 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.

(b) Civil service---

----Seniority of civil servant was to be reckoned from the date of his regular appointment.

Petitioners Present in Person.

Shehryar Mehar, Assistant Advocate-General along with Dhani Bux Bhutto, SO Legal, Planning and Development Department.

2019 P L C (C.S.) 1324

[Sindh High Court]

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

SAJJAD HUSSAIN and 15 others

Versus

FEDERATION OF PAKISTAN through Secretary and 2 others

C.P. No. D-608 of 2015, decided on 14th February, 2018.

(a) Civil service---

----Stock Auditors/Stock Verifiers of Port Qasim Authority---Up-gradation of post---Reversion---Scope---"Upgradation" and "promotion"---Distinction---Authority up-graded the post of Stock Auditors/Stock Verifiers from BPS-15 to BPS-17 by re-designation as Deputy Manager with the condition that same would be personal to the officers---Validity---Competent authority approved re-organization of Internal Audit Department and up-gradation of petitioners as Deputy Managers---Up-gradation was distinct from promotion---Up-gradation was restricted to the post and not with the person occupying the same and it could not be made to benefit a particular individual---Post was to be up-graded in the manner prescribed in the Recruitment Rules for that particular post---Petitioners' post had been up-graded which was person specific and certain conditions had been imposed---Conditions imposed through impugned order were unjustified and not sustainable in law---Once policy decision was taken by the competent authority then after fulfilling the pre-conditions the post could not be reverted back to its original position---Vested right had been created in favour of incumbents of post in question---Impugned order had been passed without providing an opportunity of hearing to the employees---Person specific up-gradation was not permissible under the law---Petitioners' post had been up-graded on completion of 18 years of required service---Subsequent insertion of adverse condition was uncalled for in circumstances---Condition so imposed was declared to be without any legal and lawful justification---Constitutional petition was disposed of, accordingly.

Pakistan Defence Housing Authority v. Lt. Col. Syed Javed Ahmed 2013 SCMR 1707; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 rel.

(b) Constitution of Pakistan---

----Art. 199---Port Qasim Authority Employees Service Regulations, 2011, Preamble---Port Qasim Authority Act (XLIII of 1973), S.51---Constitutional petition against Port Qasim Authority---Maintainability---Port Qasim Authority Employees Service Regulations, 2011 were statutory in nature---Aggrieved person could invoke constitutional jurisdiction of High Court against Port Authority.

Pakistan Defence Housing Authority v. Lt. Col. Syed Javed Ahmed 2013 SCMR 1707 and Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 rel.

Abdul Salam Memon for Petitioners.

Zubair Zia Siddiqui for Respondents Nos.2 and 3.

Shaikh Liaquat Hussain, Assistant Attorney General.

2019 P L C (C.S.) 1354

[Sindh High Court]

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

GHULAM ALI GOPANG

Versus

PROVINCE OF SINDH through Chief Secretary and others

Constitution Petition No.D-3238 of 2013, decided on 8th March, 2018.

Police Act (V of 1861)---

----S.12---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.11-A---Sindh Civil Servants Act (XIV of 1973), Preamble---Appointment as Assistant Sub-Inspector of Police on the basis of Shaheed quota---Inspector General of Police, powers of---Standing order issued by Inspector General of Police---Scope---Petitioner submitted application to the Deputy Inspector General of Police for appointment as Assistant Sub-Inspector on the basis of Shaheed quota----Petitioner was informed that post in question could only be filled through Public Service Commission---Validity---Inspector General of Police had powers to frame orders and rules with regard to recruitment, organization, classification and distribution of police force---Said orders and rules required approval of the Government---Standing Orders issued by the Inspector General of Police had to be approved by the Provincial Government and without the approval of the Government had no legal sanctity---Petitioner had not been assessed and declared successful candidate by the Public Service Commission---Candidate could not claim issuance of appointment letter as a matter of right, in circumstances---Recommendations in favour of petitioner, if any, made by the Police Department for appointment as Assistant Sub-Inspector on Shaheed quota in violation of law could not be given sanctity---Provision of R. 11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 did provide complete mechanism for appointment against the son quota---Petitioner had applied for the post of Assistant Sub-Inspector through Police Department and not through Public Service Commission---Candidate had to meet the eligibility criteria for the post in question which he had failed to meet under the law---Sindh Civil Servants Act, 1973 was an Act of general application and it had no constitutional status against Police Act, 1861---Police Act, 1861 and the Police Rules, 1934 framed thereunder were applicable to a disciplined Force only while Sindh Civil Servants Act, 1973 could not serve said purpose---Petitioner had to meet firstly the eligibility criteria for the post in question as provided under the Police Rules, 1934 before being appointed on a designated post---Authorities could not circumvent the law to make recruitment for the post of Assistant Sub-Inspector in Police Department against Shaheed quota by issuing Standing Orders or by invoking R. 11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Constitutional petition was dismissed, in circumstances.

Gul Hassan Jatoi and others v. Faqeer Muhammad Jatoi and others 2016 SCMR 1254; Mohammad Nadeem Arif and others v. IGP Punjab, Lahore and others 2011 SCMR 408 and Inspector General of Police, Punjab, Lahore and another v. Mushtaque Ahmed Waraaich and others PLD 1985 SC 159 rel.

Faizan Hussain Memon for Petitioner.

Sheryar Mehar, A.A.G.

2019 P L C (C.S.) 1381

[Sindh High Court]

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

Shaikh MUHAMMAD SULEMAN

Versus

PAKISTAN TELECOMMUNICATION COMPANYLIMITED through its General Manager and another

Constitutional Petition No.D-6251 of 2016 and Miscellaneous No.30291 of 2018, decided on 18th September, 2018.

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

----Rr.4 & 5---Government Servants (Conduct) Rules, 1964, R. 24---Sindh Local Government Act (XLII of 2013), S.36(1)(e)---Employee of Pakistan Telecommunication Company Limited having contested local bodies elections---Misconduct---Removal from service---Scope---Petitioner-employee had contested local bodies election for union council and he was elected against the seat of General Member of the Ward---Show cause notice was served upon the petitioner---Employee had committed misconduct in the present case---Competent authority after considering defense plea and providing personal hearing to the employee imposed penalty of removal from service upon him---Employee had no merit in the constitutional petition which was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition against a company performing functions in connection with affairs of the Federation was maintainable---Principles.

Ramna Pipe and General Mills (Pvt.) Ltd v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274; PTCL and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362 and Pir Imran Sajid and others v. Managing Director/General Manager Telephone Industries of Pakistan and others 2015 SCMR 1257 rel.

Syed Ansar Hussain Zaidi for Petitioner.

Altamash Faisal Arab for Respondent No.1.

2019 P L C (C.S.) 1408

[Sindh High Court (Hyderabad Bench)]

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

Mst. SAHIB KHATOON KEERIO

Versus

PROVINCE OF SINDH through Secretary and 3 others

M.As. Nos. 14152 of 2015 and 2262 of 2016 in Constitution Petition No.D-649 of 2013, decided on 22nd January, 2019.

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

----Rr.10-A & 11-A---Constitution of Pakistan, Art. 204---Contempt proceedings---Appointment on deceased quota---Petitioner sought initiation of contempt proceedings on plea that order passed by High Court was not complied with---Plea raised by authorities was that son of petitioner was offered appointment in compliance of order passed by High Court but he refused to accept the same---Validity---Department could not circumvent law to make recruitment to post on deceased quota by invoking R.11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 more particularly without resorting to proviso of R. 11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Explanation offered by the department was tenable under law as son of petitioner was offered post in compliance of order passed by the High Court but same was refused by son of petitioner---Explanation offered by the department was substantial compliance of order of the High Court in letter and spirit---High Court declined to proceed with contempt proceedings as no case was made out---Applications were dismissed in circumstances.

Asghar Khan v. Province of Sindh and others 2014 PLC (C.S.) 1292 and C.Ps. Nos.482-503-K of 2016 ref.

Ahsan Gul Dahri for Petitioner.

Allah Bachayo Soomro, Additional Advocate-General, Sindh.

2019 P L C (C.S.) 1459

[Sindh High Court (Sukkur Bench)]

Before Mohammad Iqbal Mahar and Irshad Ali Shah JJ

Mst. SHAMSHAD KHATOON

Versus

PROVINCE OF SINDH through Secretary to Government and 4 others

Constitution Petition No. D-42 of 2017, decided on 19th February, 2019.

(a) Sindh Shaheed Recognition and Compensation Act (XVI of 2014)---

----S.2(f)---"Shaheed"---Scope---Police Constable died after being hit by a vehicle---Shaheed compensation, grant of---Scope---Petitioner applied for grant of Shaheed compensation but his request was declined---Validity---Official might meet his natural death even while performing duties or even killed in result of personal enmity which would not be sufficient to declare him as 'Shaheed' which had its own concept---Declaration of one as 'Shaheed' was subject to certain conditions/situations---Employee did not lose his life in counter terrorism nor he became victim of an act of terrorism operation nor targeted and killed by a terrorist group---Declaration Committee was justified in not approving the case of deceased employee for his declaration as 'Shaheed'---Deceased employee could not be declared as 'Shaheed' by interpretation other than one which was prescribed by law---Petitioner had failed to make out a case of infringement of her rights---Constitutional petition was dismissed, in circumstances.

Ghulam Hyder and others v. Murad through legal heirs and others PLD 2012 SC 501 rel.

(b) Interpretation of statutes---

----Where plain language of a statute did admit no other interpretation then the intention of the legislature conveyed through such language was to be given its full effect.

Ghulam Hyder and others v. Murad through legal heirs and others PLD 2012 SC 501 rel.

Nisar Ahmed Bhanbhro for Petitioner.

Agha Ather Hussain Pathan, Asstt: A.G.

2019 P L C (C.S.) 1483

[Sindh High Court]

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

AFTAB MUHAMMAD KHAN

Versus

The FEDERATION OF PAKISTAN through Secretary Ministry of Commerce and 2 others

Constitution Petition No.D-2508 of 2018, decided on 9th April, 2018.

(a) Civil service----

----Deputation---Requisition of services of a government employee on deputation was prerogative of the competent authority.

Shafiq-ur-Rehman Afridi v. C.D.A. 2010 SCMR 378 rel.

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

----S.3(2)---Constitution of Pakistan, Arts.212 & 199----Constitutional jurisdiction of High Court----Civil Service---Transfer and postings---Petitioner sought direction of the High Court to the effect that his transfer order was illegal and the same be set aside---Validity---Petitioner was a civil servant and his service was governed by Civil Servants Act, 1973 and impugned transfer order fell within ambit of terms and conditions of his service---Per S.3(2) of the Sindh Service Tribunals Act, 1973 Constitutional jurisdiction of High Court was barred in the matter---Constitutional petition was dismissed, in circumstances.

Province of Sindh and others v. Ghulam Farid and others 2015 PLC (C.S.) 151 and Anita Turab's case PLD 2013 SC 195 ref.

Abdul Salam Memon for Petitioner.

Muhammad Arshad Khan Tanoli for Respondent No.3.

Shaikh Liaquat Hussain, Assistant Attorney-General.

2019 P L C (C.S.) 1503

[Sindh High Court (Hyderabad Bench)]

Before Aziz-ur-Rehman and Muhammad Faisal Kamal Alam, JJ

Mrs. RUBINA JUNEJO

Versus

COMMISSIONER HYDERABAD DIVISION, HYDERABAD and 2 others

Constitutional Petition No.D-2041 of 2013, decided on 19th November, 2018.

(a) Civil service---

----Allotment of government accommodation---Cancellation of---Scope---Allotment of accommodation of employee was cancelled by the authorities---Contention of petitioner/employee was that impugned order was illegal and unlawful---Validity---Employee was in service and she was paying the rentals of the subject house regularly along with utility bills---Nothing was on record with regard to default or any violation of terms and conditions of allotment---Subject house was never misused by the petitioner---Other government accommodations were lying vacant---Allotment of government accommodation was not a license revocable at any time---Subject house allotted in favour of employee could not be cancelled at the whims of authorities except through process of law---Petitioner had been discriminated in the present case---Impugned order had been passed in haste and without resorting to due process of law---Impugned order being illegal was set aside, in circumstances---Constitutional petition was allowed accordingly.

Dr. Syed Ashraf Ali Shah and 02 others v. Province of Sindh and others 2009 SCMR 249 rel.

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

----S.24-A---Government officials were to discharge their functions and exercise the authority and discretion in a fair, just and reasonable manner.

Muhammad Yousif Leghari along with for Petitioner.

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

2019 P L C (C.S.) 1533

[Sindh High Court]

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

MUHAMMAD AZAM CHANNA

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others

C.P. No.D-4997 of 2017, decided on 18th August, 2017.

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

----R.3(2)---Sindh Service Tribunal Act (XV of 1973), S.4(b)---Transfer of employee---Expression 'terms and conditions' of service---Scope---Contention of employee was that impugned transfer order was based on mala fide intention---Validity---Transfer order of a Civil Servant would fall within the ambit of "terms and conditions" of service---Expression 'terms and conditions' of service would include transfer of posting of employee---Service Tribunal had exclusive jurisdiction in the matter with regard to terms and conditions of service of civil servants---Employee had no vested right to be posted against a particular post---No question of infringement of right of employee would arise in the present case---Provisions of Art. 212 of the Constitution ousted the jurisdiction of all other Courts except Service Tribunal in the matters of "terms and conditions" of service---Order of departmental authority even though without jurisdiction or mala fide could be challenged only before Service Tribunal---Constitutional petition was dismissed in circumstances.

Ali Azhar Khan Baloch v. Province of Sindh and others 2015 SCMR 456; Peer Muhammad v. Government of Balochistan and others 2007 SCMR 54 and Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others 2016 SCMR 1021 rel.

Zubair Ahmed Abro for Petitioner.

Malik Naeem Iqbal along with Respondent No.4.

Muzaffar Ali Leghari Additional Advocate General Sindh along with Shafqat Ali Abro Section Officer I, S&GACD, Abdul Samad Sheikh Inchare Legal Section Agriculture Department.

2019 P L C (C.S.) 1

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Syed HUSSAIN HAIDER

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and others

Writ Petition No. 127600 of 2017, decided on 29th June, 2018.

(a) Constitution of Pakistan---

----Arts. 199, 9, 138, 139 & 268---Punjab Government Rules of Business, 2011, Preamble---Constitutional petition---Maintainability---Appointment of Chairman and Members of Planning and Development Board---Scope---Plea of petitioner was that Planning and Development Board was constituted for a period of one year and it could not continue to exist beyond that---Validity---Tenure for the office of Chairman Planning and Development Board was for a period of one year with effect from the date the post was filled---Punjab Government Rules of Business, 2011, had not designated any business to Planning and Development Board---Number of projects and schemes had been embarked upon the Planning and Development Board for which it had no mandate---Chief Secretary of the Province was responsible to go by the Rules of Business, 2011---All executive actions of the Provincial Government should be expressed to be taken in the name of Governor specifying the manner in which orders and other instruments were made and executed---Provincial Government should also make rules of allocation and transaction of its business---Provincial Assembly on the recommendation of Provincial Government might by law confer function upon officers or authorities subordinate to the Provincial Government---Provincial Government did not have the discretion to bypass the provisions of Punjab Government Rules of Business, 2011---Executive authority of the Province was subordinate to the constitutional scheme with regard to conferment of constitutional powers and responsibility on the three organs of the State---Any decision taken by the authority bypassing the Cabinet was ultra vires the Constitution---Even Ordinance making power could only be exercised after a prior consideration by the Cabinet---Ordinance or order issued without the prior approval of the Cabinet was not valid after enactment of Constitution---Planning and Development Department was required to execute the works of development being undertaken by Planning and Development Board---Running parallel board to perform the function of Planning and Development Department would lead to bad governance---Allocation of business of the Province could be made under the Rules of Business---National wealth/resources must remain protected whether they were under the control of a board or autonomous and semi-autonomous bodies---Illegal and unconstitutional act could not become constitutional by lapse of time nor could it vest with any kind of legal right to benefit from such an unconstitutional act---Any aggrieved person could approach the Court alleging violation of the Constitution or law---Any legislative instrument/order if found to be in derogation of any provision of Constitution could not be allowed to hold the field---High Court could consider not only the substance of law but also the competence of the authority---Formation of Planning and Development Board was not in conformity with the provisions of Art. 139 (3) of the Constitution and Punjab Government Rules of Business, 2011---Consequently, Planning and Development Board dissolved would stand after lapse of three months and its business would be transferred to Planning and Development Department unless necessary legislative measures were introduced to bring it in accordance with the Constitution and the Rules---Constitutional petition was allowed in circumstances.

Suo Motu case No.19 of 2016, 2017 SCMR 683; Dr. Shehla Waqar and another v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and others 2010 PLC (C.S.) 416; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Muhammad Bachal Memon and others v. Syed Tanveer Hussain Shah and others 2015 PLC (C.S.) 767; Shahab Usto v. Government of Sindh through Chief Secretary and others 2017 SCMR 732; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; Muhammad Idrees and 6 others v. Federation of Pakistan through Secretary, Ministry of Defence and 4 others 2015 PLC (C.S.) 183; The Federal Board of Revenue and others v. Messrs Chenone Stores Ltd. 2018 PTD 208 and Moazzam Habib and others v. Federation of Pakistan and others 2018 YLR 222 rel.

(b) Constitution of Pakistan---

----Art. 8---Any law inconsistent with the fundamental rights would be void.

(c) Interpretation of statutes---

----Order/instrument having status of law---Such Order/instrument had to be interpreted according to the words used therein---No provision of instrument was to be considered meaningless---Whole instrument was to be read in its context---No part or word thereof would be omitted from consideration---Intention behind the instrument had to be taken into consideration, which could be gathered from looking into the instrument/statute/Order as a whole, not in bits and pieces, or by picking and choosing a particular portion thereof---Redundancy would not be attributed to any part of the instrument.

(d) Order---

----Any order or instrument passed by an authority lacking jurisdiction or made in disregard of mandatory provision of law would be non-existent.

Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 13 others 1995 SCMR 1505; Ibrar Hussain and others v. Government of N.W.F.P. through Secretary, Board of Revenue and others 2001 SCMR 914; Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; National Bank of Pakistan and 117 others v. Saf Textile Mills Ltd. and another PLD 2014 SC 283; Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236 and Muhammad Ismail v. District Coordination Officer and 3 others 2018 PLC (C.S.) Note 49 rel.

Dr. A. Basit and S.M.J. Iqbal Jafree for Petitioner.

Khalid Waheed, Additional Advocate General, Muhammad Ejaz, Assistant Advocate General, Ata Muhammad Khan, Senior Law Officer and Mariyam Mustafa, Legal Expert for Respondents.

2019 P L C (C.S.) 25

[Lahore High Court (Multan Bench)]

Before Muzamil Akhtar Shabir, J

ABDUL SHAKOOR SHEIKH

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Aviation, Civil Aviation Division, Islamabad and 6 others.

W.P. No. 18389 of 2016 and (connected petition), decided on 27th February, 2018.

(a) Civil service---

----Non-statutory rules of service---Effect---Work charge employees---Regularization of service---Project employee---Scope---Service regulations of employer Authority were non-statutory in nature---Where service rules and regulations were non-statutory then constitutional petition was not maintainable---Petitioners were contract employees and had been appointed for a specific project; they had accepted the terms and condition of appointment before joining the service---Project employee could not claim employment beyond the period of completion of project---Contract employee even if dismissed from service could only claim damages to the extent of unexpired period of his service---Project employee could not claim even relief of allowing him for performance of remaining period of contract by reinstatement---Constitutional petition was dismissed in circumstances.

Abdul Jabbar Memon, case 1996 SCMR 1349 distinguished.

Muhammad Aslam Khan v. Federation of Pakistan and others 2013 SCMR 747; Muhammad Nawaz v. Civil Aviation Authority and others 2011 SCMR 523; Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan 2017 SCMR 2010; Government of Khyber Pakhtunkhwa through Secretary Energy and Power Department Peshawar and others v. Ihsan Ullah and others 2017 SCMR 1201; Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Ashraf Chattha 2013 SCMR 120 and Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan 2013 SCMR 13 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court while exercising constitutional jurisdiction could not alter the terms and conditions of service of the employees.

Chairman NADRA, Islamabad through Chairman, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979 rel.

Muhammad Bilal Butt, Wassem Shahab, Mumtaz Fazal Mirza, Bilal Mustafa Naqvi and Bilal Amin for Appellants.

Ch. Sagheer Ahmad and Mudassar Sagheer for Respondents.

Malik Kamran Nawaz, Legal Assistant MIAP, Civil Aviation Authority, Multan Interntional Airport, Multan in person.

2019 P L C (C.S.) 63

[Lahore High Court]

Before Amin-ud-Din Khan and Atir Mahmood, JJ

Prof. Dr. MUHAMMAD IQBAL ZAFAR

Versus

THE PROVINCE OF PUNJAB through Secretary to the Government of Punjab, Agriculture Department, Lahore and others

I.C.A. No.223243 in W.P. No. 217977 of 2018, heard on 5th July, 2018.

University of Agriculture Faisalabad Act (XII of 1973)---

----Ss. 15-A & 41---Professor of University of Agriculture nominated as Pro-Vice-Chancellor for the period of three years or till the date of superannuation whichever was earlier---Sought permission to work for three years from the date of appointment instead of being superannuated---Scope---Laches, principle of---Applicability---Petitioner was appointed as Pro-Vice Chancellor for three years period or till the date of his superannuation---Employee superannuated before expiry of three years---Constitutional petition was filed by the employee that he was entitled to work as Pro-Vice-Chancellor for three years from the date of his appointment which was dismissed---Validity---Petitioner was nominated as Pro-Vice-Chancellor amongst three senior most Professors---Appointment of petitioner was not against a tenure post---Professor who was nominated as Pro-Vice-Chancellor would remain a Professor and his appointment as Professor did not vanish upon nomination as Pro-Vice-Chancellor---Syndicate or Vice-Chancellor might assign any other functions to the Pro-Vice-Chancellor in addition to his duties as Professor---Nomination of petitioner as Pro-Vice-Chancellor, was at the most for additional duties only---When a Professor was nominated as Pro-Vice-Chancellor, he was no more a Professor on superannuation and no more a Pro-Vice-Chancellor---Petitioner had accepted the impugned notification and enjoyed the nomination as Pro-Vice-Chancellor for a period of one year---Intra-Court appeal was dismissed in circumstances.

Combind Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another PLD 2016 SCMR 183; Badar Munir v. Federation of Pakistan through Secretary Finance Ministry of Finance and 2 others 2015 PLC (C.S.) 1528; Ghulam Aulia v. Federation of Pakistan through Secretary and 2 others 2015 PLC (C.S.) 1149; Pakistan v. Fazal Rahman Khundkar and another PLD 1959 SC 82 and Dr. Abdul Rahman Chaudhry, Chairman, Punjab Textbook Board, Lahore v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and another 1998 PLC (C.S.) 419 ref.

Nazir ul Hasan and 2 others v. Syed Anwar Iqbal and others 2014 SCMR 1827; Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829; Professor Alaud Din Akhtar, Chairman Punjab Textbook Board v. Government of the Punjab through the Chief Secretary, Punjab, Lahore and another PLD 1979 Lah. 324 and Waris Ali and 5 others v. The State 2017 SCMR 1572 distinguished.

Mst. Sakina Bibi v. Crescent Textile Mills Ltd. and others PLD 1984 SC 241 rel.

Hafiz Tariq Nasim and Javaid Jabbar for Appellant.

Muhammad Shehzad Shaukat, Sardar Tariq Mehmood, Taha Asif, assisted by Awais Khalid Malik and Miss Iqra Riaz for Respondents Nos.3 to 5.

Rana Shamshad Khan, Additional Advocate General along with Irshad Ali, Law Officer, Agriculture Department.

2019 P L C (C.S.) 77

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MOHSIN ARIF and others

Versus

SECRETARY TO GOVERNMENT OF PUNJAB and others

W.P. No.10026 of 2018, decided on 29th June, 2018.

Civil service---

----Contract employee---Termination of service---Extension of tenure of contract sought---Scope---Department conveyed expiry of contract of employees to the concerned quarters---Validity---Alleged order was not an order terminating the contract of the employees rather intimation sent to the concerned authorities that contract of petitioners had expired---Authorities through impugned order had neither terminated the contract of employees nor imposed any stigma on them for not extending their contracts any further---Employees were not entitled to one month notice for termination of contract---Contract employee could not claim extension of the service contract as a right---Concerned authorities had prerogative to decide the matter of continuing the employee in service or dispensing with the same in accordance with the needs of employer---Petitioners were not governed by any statutory rules of service, therefore, principle of master and servant was applicable to their case---Employees had no cause of action to file the constitutional petition which was dismissed being not maintainable in circumstances.

Mubashir Majeed v. Province of Punjab and 3 others 2017 PLC (C.S.) 940; Dr. Abid Ali v. Chief Secretary, Government of Punjab and 3 others 2017 PLC (C.S.) 488 and Azhar Hayat v. Chairman Karachi Port Trust and others 2017 PLC (C.S.) 632 rel.

Allah Bakhsh Khan Kulachi for Petitioners.

2019 P L C (C.S.) 152

[Lahore High Court (Bahawalpur Bench)]

Before Jawad Hassan, J

RAZIA SULTANA and another

Versus

CHIEF EXECUTIVE OFFICER and 5 others

Writ Petition No.4000 of 2017, decided on 11th September, 2018.

Civil service---

----Contract appointment---Termination from service---Scope---Employee was appointed on contract basis due to non-availability of qualified candidate---Department directed the employee to obtain required academic qualification within three years but in the meantime her services were terminated---Contention of employee was that she filed an appeal before the higher authority which had been accepted but order for her reinstatement had not been implemented---Plea of department was that order for reinstatement of employee was fake and fabricated---Validity---Department conducted inquiries to probe the matter/reinstatement order---Inquiry committee submitted its report that reinstatement order was fake/bogus and self-managed---Department had initiated criminal proceedings against the employee for manipulating the reinstatement order---Employee was directed to appear before the inquiry committee for her defense but she did not appear before the said committee---Employee was provided an opportunity of hearing in circumstances---Employee had been relieved from the duty after the expiry of her contract and that too she could not enhance her requisite qualification---Constitutional petition was dismissed in circumstances.

Ms. Samina Qureshi for Petitioner.

2019 P L C (C.S.) 175

[Lahore High Court (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MAZHAR HUSSAIN

Versus

PRINCIPAL, NISHTAR INSTITUTE OF DENTISTRY, MULTAN and another

Writ Petition No.9594 of 2018, decided on 15th August, 2018.

Civil service---

----Transfer of employee---Delegated powers, exercise of---Contention of petitioner-employee was that impugned order was based on mala fide and was without jurisdiction---Validity---Employee had been transferred in the same Institute and against the same post---Transfer of petitioner was not disadvantageous to the employee---Plea of mala fide was not supported by any tangible material---Transfer in ordinary course should not be made till completion of tenure of three years but department could make transfer in the exigency of work before that period---Employee was liable to be transferred in the administrative exigencies from one place to another---Competent authority had prerogative to transfer any employee---Court was not to interfere in posting and transfer matters when there was no element of mala fide or such plea was taken without any substance---No right of the petitioner, in the present case, had been infringed, transfer and posting was part of service and it was for the authority to determine where services of any staff member were required---Department had exercised delegated powers while passing the impugned order which could not be termed as without jurisdiction or without lawful authority---Impugned order had been passed in the interest of department---Plea of mala fide of department while passing the impugned order was devoid of any merits---Constitutional petition was dismissed, in circumstances.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Tahir Mehmood Abbasi and another v. District Coordination Officer, Rawalpindi and another 2009 PLC (C.S.) 320 and Tariq Mehmood Malik v. Chief Executive Officer and others 2018 PLC (C.S.) 664 rel.

Sajjad Hussain Tangra for Petitioner.

Khalid Masood Ghani, Assistant Advocate-General Punjab.

2019 P L C (C.S.) 191

[Lahore High Court (Bahawalpur Bench)]

Before Jawad Hassan, J

IFRA ASJAD

Versus

GOVERNMENT OF PUNJAB and others

W.P. No. 7477 of 2018, decided on 5th September, 2018.

Civil service---

----Contract appointment---Termination from service---Scope---Contention of employee was that she had been terminated without affording any opportunity of personal hearing---Validity---Employee was appointed on contract basis, after accepting terms and conditions of contract employment she submitted her joining report---Employee remained absent from duty and she did not complete her training course which was mandatory---Employee, did not have the requisite qualification for the post in question and made tampering in the marks obtained by her in the qualification certificates---Department issued show cause notice for personal hearing but employee did not attend the Office on the date fixed---Relationship between employer and employee existed that of master and servant in case of contract employment---Constitutional petition would not be maintainable in such a case---No illegality or legal infirmity had been pointed out in the impugned order passed by the department---Constitutional petition was dismissed in limine.

Zulqarnain and 2 others v. Surbuland Khan and another 2004 SCMR 1084 and Messrs ARK Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976 distinguished.

Lt. Col. Rtd. Aamir Rauf v. Federation of Pakistan through Secretary M/o Defence and 3 others 2011 PLC (C.S.) 654; Nadeem Ahmed v. Pakistan State Oil Company Limited and another 2005 PLC (C.S.) 1447 and Dr. Abid Ali v. Chief Secretary, Government of Punjab and 3 others 2017 PLC (C.S.). 488 rel.

Syed Mujahid Ayub Wasti for Petitioner.

2019 P L C (C.S.) 220

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

GOVERNMENT OF PUNJAB through Secretary Planning and Development Department

Versus

ALI AMIR RAZA BUKHARI and others

I.C.A. No.188 of 2013, heard on 15th May, 2018.

Civil service---

----Project transferred from development side to non-development side---Contract and regular employees of the Project---Promotion---Criteria---Department advertised the posts for recruitment through Public Service Commission---Contention of petitioners who were contract employees was that they were entitled for regularization/ promotion against the said posts---Validity---Only 25% of the posts could be filled in through recruitment and remaining 75% posts had to be filled in through promotion---Contract employees were to be considered against 25% of the posts being available for their regularization---Permanent employees had right under the departmental Rules to be considered for promotion against available vacant seats as per the given ratio---Regular posts of the Project were subject to the departmental Rules---Constitutional petition was disposed of accordingly. [p. 223, 224] A, B & C

Kh. Salman Mahmood, Assistant Advocate General for Appellants (in I.C.A. No.188 of 2013 with Muhammad Tahir Ata SO(P&D) and Muhammad Saleem D.S. (Reg.) S&GAD).

Hafiz Tariq Nasim for Appellant (in I.C.A. No.189 of 2013).

Dr. A. Basit and Malik Muhammad Awais Khalid for Respondents/Petitioners (in W.P. No.22283 of 2016).

2019 P L C (C.S.) 253

[Lahore High Court]

Before Shams Mehmood Mirza, J

ABU SAEED AHSAN ISLAHI

Versus

NATIONAL BANK OF PAKISTAN through President and 2 others

W.P. No. 27686 of 2015, decided on 28th November, 2018.

Civil service---

----Employee of National Bank of Pakistan---Allegation of misconduct---Dismissal from service---Payment of interest was sought on the amount of provident fund from the date of dismissal till its realization---Scope---Employee was terminated from service on the allegation of misconduct on 04-07-1998 whereas he was paid provident fund on 30-08-2013---Contention of petitioner was that interest was applicable on the amount of provident fund till its realization---Validity---Petitioner earlier filed constitutional petition wherein subject matter and prayer were the same as had been agitated in the present petition---Constitutional petition earlier filed had been unconditionally withdrawn and petitioner was precluded from filing the present petition---Interest on amount standing in the books of the provident fund to the credit of the member would cease on the day he left the service of the Bank---Petitioner was not entitled to any interest on the amount of provident fund standing in his name after his dismissal---Petitioner instead of collecting the amount of provident fund when it matured filed various representations before different quarters and took legal action against his dismissal order---Said action did not entitle the petitioner to claim interest on the amount of provident fund from the date of his dismissal---Employer-Bank had paid profit as per usual interest rate to the petitioner on the amount of provident fund from the date of his dismissal---Constitutional petition was dismissed in circumstances. Muhammad Fahim Malik for Petitioner.

2019 P L C (C.S.) 258

[Lahore High Court]

Before Shujaat Ali Khan, J

UMAR HAYAT KHAWAJA

Versus

NATIONAL BANK OF PAKISTAN through President and 5 others

Writ Petition No. 2788 of 2017, decided on 5th December, 2018.

Civil service---

----Employees of National Bank of Pakistan retired from service under Golden Handshake Scheme---Post-retirement benefits, grant of---Scope---Contention of petitioners-employees was that they were entitled for post-retirement benefits as per Circular by the Bank---Validity---Petitioners had retired from the Bank service in the years starting from 2002 to 2014---Terms and conditions of service of employees were to be governed under the Circular which was prevalent at the relevant time---Circular in question was issued much prior to the retirement of petitioners and their post-retirement benefits were to be governed under the said Circular---Medical facilities of the retirees were to be governed under the policy in vogue at the relevant time---Appeal was filed before Service Tribunal by those employees who retired from Bank service prior to the issuance of said Circular---Petitioners had retired after the issuance of said Circular---Case of petitioners was not at par with the employees who filed appeal before Service Tribunal---Even benefit of Circular was not available to the persons who severed their relation with the Bank while adopting Golden Handshake Scheme---Constitutional petition was dismissed, in circumstances.

Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 ref.

Petitioner in person and for the petitioners in connected matters.

2019 P L C (C.S.) 266

[Lahore High Court]

Before Jawad Hassan, J

Malik MUHAMMAD BASHIR LAKHESAR, ASSISTANT ADVOCATE GENERAL, PUNJAB

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.14030 of 2018, decided on 12th November, 2018.

(a) Punjab Law Department Manual, 1938 ---

----Para. 1.18(4)---Punjab Government Rules of Business, 2011, Seventh Sched, Pt. I, Item No. 16---Assistant Advocate-General, office of---Pleasure post---Doctrine of pleasure---Scope---Continuous absence from duty---Misconduct---Removal from service---Under the doctrine of pleasure, all the posts of the Advocate-General Office were held at the pleasure of the Government and were terminable at its will---Appointments of the Additional and Assistant Advocate- General were made by the Chief Minister at his option and pleasure in terms of Item 16 of Part-I of Seventh Schedule of the Punjab Government Rules of Business, 2011---Furthermore sub-para (4) of para 1.18 of Law Department Manual, 1938 explicitly mandated that an Additional or Assistant Advocate-General shall hold the office during the pleasure of the Governor/Chief Minister and may liable to be removed from the office at any time without notice---By nature of his appointment and functions, an Assistant Advocate-General had no vested right to force continuation of his appointment against the wishes of the Government, particularly, when he no longer inspired confidence of the Government---Appointment letter of the petitioner, in the present case, vividly reflected that his appointment as Assistant Advocate-General was made especially in the "public interest", therefore, if due to his long absence from duty, such service was dispensed with by the competent authority, the same would also be considered to be done in the public interest---Since the petitioner had no vested right to post of Assistant Advocate-General, there was no need to issue any notice to him by the competent authority before his services were dispensed with vide the impugned order---Even then petitioner was given personal hearing at the office of Advocate General, but after that he again remained absent from office---When the pay of the petitioner was stopped and he moved various applications for medical leave, he was asked to attend the Office of the Advocate-General, and was given different options which the petitioner promised to consider but despite that he did not attend his office till date and remained absent---In such circumstances, the petitioner could not say that he has not been given any opportunity of hearing---Long and continuous absence of petitioner from duty was to be treated as gross misconduct due to which he had been rightly removed from service---Constitutional petition was dismissed in circumstances.

Muhammad Yousaf Javaid Phapra and others v. Ombudsman Punjab and 121 others PLD 2018 Lah. 269; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2009 PLC (C.S.) 161 ref.

(b) Civil service---

----Pleasure post---Doctrine of pleasure---Scope---Pleasure doctrine was not based upon any special prerogative [of the Government] but was based on public policy and was in public interest and for public good---Basis of the pleasure doctrine was that the public was vitally interested in the efficiency and integrity of civil services and, therefore, public policy required, public interest needed and public good demanded that civil servants who were inefficient, dishonest or corrupt or had become a security risk should not continue in service.

(c) Public interest---

----Scope---Where the public interest conflicted with private interest, the latter must yield to the former.

(d) Civil service---

----Dismissal from service----Long absence from duty without intimation was treated as gross misconduct which entailed dismissal from service. Director-General, Pakistan Rangers v. Federation of Pakistan and 3 others 2013 SCMR 887 ref.

(e) Punjab Law Department Manual, 1938 ---

----Para. 1.18---Punjab Government Rules of Business, 2011, Seventh Sched., Pt. I, Item No. 16---Constitution of Pakistan, Art. 260(1)---Office of Assistant Advocate-General---Service of Pakistan---Office of Assistant Advocate-General was clearly an office of profit and was included in the expression 'services of Pakistan'.

Muhammad Khursheed Khan v. Returning Officer and 4 others 1998 SCMR 425 and M. Ashraf Khan, Advocate Supreme Court of Pakistan v. Secretary Law and Parliamentary Affairs and Human Rights, Government of the Punjab, Lahore and 19 others PLD 2008 Lah. 312 ref.

Muhammad Ramzan Khalid Joiya and Barrister M. Rehan Khalid Joiya for Petitioner.

Mirza Muhammad Saleem Baig, Additional Advocate-General for Respondents.

Khalid Masood Ghani, Assistant Advocate-General for Respondents.

Wajid Ali Bhatti, Assistant Attorney-General for Respondents.

2019 P L C (C.S.) 300

[Lahore High Court]

Before Shujaat Ali Khan, J

AMJAD ALI KHAN

Versus

MINISTRY OF ENERGY (POWER DIVISION), ISLAMABAD through Secretary and 3 others

W.P. No. 65400 of 2017, decided on 28th June, 2018.

(a) Companies Ordinance (XLVII of 1984)---

----Ss. 202 & 199---Companies Act (XIX of 2017), Ss. 187(4) & 509---Employee of a company exclusively owned by Federal Government---Termination of service--- Federal Government, jurisdiction of---Petitioner was appointed second time as Managing Director of the said company on contract basis for three years pursuant to recommendations of Board of Directors---Federal Government issued notification of retirement of petitioner just after ten months of his appointment on grounds of petitioner attaining age of superannuation---Authorities raised plea that under Companies Act, 2017, Federal Government had jurisdiction to issue such notification---Validity---Appointment of petitioner was made under Companies Ordinance, 1984---Terms and conditions of petitioner regarding second tenure were to be governed under Companies Ordinance, 1984 irrespective of its repeal by Companies Act, 2017---Any right, privilege, obligation or liability acquired in favour of petitioner was not to be affected under S. 509(1)(d) of Companies Act, 2017---Exceptional output of petitioner was portrayed in minutes of meeting of the Board of Directors and he had lawful expectancy to complete his second term of three years especially when no omission or commission was pointed out on his part in office order in question---Federal Government had no jurisdiction to issue office order in question---Acclaimed ratification of office order by Board of Directors was not in consonance with spirit of S. 202 of Companies Ordinance, 1984---Termination of service of petitioner was result of political influence justifying interference by High Court in exercise of its Constitutional jurisdiction vested under Art. 199 of the Constitution---High Court declared the office order in question as illegal, unlawful and without lawful authority and set aside the same---Constitutional petition was allowed.

Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 and Secretary, Agriculture Government of the Punjab, Lahore and others v. Muhammad Akram 2018 SCMR 349 rel.

Punjab Cooperative Board of Liquidation through Chairman v. Muhammad Ilyas PLD 2014 SC 471; Crescent Sugar Mills and Distillery Ltd., Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2015 SCMR 43; Secretary Government of Punjab (C&W) and others v. Ikramullah and 5 others 2013 SCMR 572; Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190 and Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641 ref.

(b) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Employee of company exclusively owned by Federal Government---Status---Bar contained under Art. 212 of the Constitution is applicable in cases of civil servants only and is not attracted to employees of said Company.

(c) Constitution of Pakistan---

----Art.199(5)---Constitutional petition---Maintainability---Employee of company exclusively owned by Federal Government---Status---Said company being exclusively owned by Federal Government fell within definition of "person" as defined under Art. 199(5) of the Constitution.

Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Reasonable time---Laches---Applicability---Aggrieved person is supposed to approach High Court in terms of Art. 199 of the Constitution within reasonable time and such time has been defined as six months.

(e) Void Order---

----Superstructure built on void order---Scope---When basis of an action is held untenable, subsequent superstructure cannot be allowed to remain in field merely on account of ratification by competent authority.

Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others PLD 2018 SC 114 and Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 rel.

(f) Constitution of Pakistan---

----Art. 199---Judicial review---Principle---Superior courts rarely interfere in decisions of Executive---When act of executive is proved to be result of political victimization or is found to be tainted with malice, jurisdiction of superior courts to take care of such action cannot be abridged.

Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2015 SC 6 rel.

(g) Equity---

----Maxim---Person who seeks equity must do equity.

(h) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Act, doing of---Principle---When an act is required to be done in a particular manner, same should be done in that manner only---Any deviation in procedure provided in relevant statute amounts to incurable illegality justifying judicial review by superior courts.

Chaudhry Shujat Hussain v. The State 1995 SCMR 1249 rel.

Waqar A. Sheikh assisted by Babar Suhail and Syed Faisal G. Meeran for Petitioner.

Mian Irfan Akram, Deputy Attorney General assisted by Muhammad Nawaz Shah, Assistant Attorney General and Ch. Imtiaz Elahi, Standing Counsel with Dr. Aamer Ahmed, Additional Secretary, Power Division, Government of Pakistan, Ahmad Hussain Soomro, Section Officer (Law), Ministry of Energy, Power Division, Islamabad, for Respondents Nos.1 and 2.

Saad Rasool for Respondents Nos.3 and 4 assisted by M. Ali Saleemi and Shan Saeed Ghuman with Tahir Mahmood Hayat Acting M.D. NESPAK and Faisal Majeed, Company Secretary, NESPAK.

2019 P L C (C.S.) 339

[Lahore High Court]

Before Jawad Hassan, J

TAHIR PERVAIZ, DIRECTOR-GENERAL, LEGAL AFFAIRS, PAKISTAN RAILWAYS

Versus

FEDERATION OF PAKISTAN and 6 others

W.P. No.243662 of 2018, decided on 8th January, 2019.

(a) Constitution of Pakistan---

----Art. 199---Contract employee---Constitutional petition under Art.199 of the Constitution filed by a contractual employee for enforcement of terms of his contract---Such a petition was not maintainable---Where employment was on contract, there was a relationship of master and servant and in such like cases a constitutional petition under Art. 199 of the Constitution was not maintainable---Contractual employee could at best claim damages to the extent of unexpired period of his service.

Abdul Wahab and others v. Habib Bank Limited and others 2013 SCMR 1383; Chairman NADRA, Islamabad through Chairman Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979; Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120; Lt. Col. Retd. Aamir Rauf v. Federation of Pakistan through Secretary Ministry of Defence and 3 others 2011 PLC (C.S.) 654; Nadeem Ahmed v. Pakistan State Oil Company Limited and another 2005 PLC (C.S.) 1447 and Naweed Akhtar Cheema v. Chairperson, Teveta and others 2011 PLC (C.S.) 803 ref.

(b) Master and servant---

----Contract employee---Termination of contract---Acceptance of terms and conditions of service---Petitioner was appointed Director General (Legal affairs) in Pakistan Railways on contract basis---Petitioner, after accepting all the terms and conditions of his contract employment submitted his joining report---One of the clauses of the petitioner's employment contract specifically dealt with the termination of contract on one month's notice on either side or payment of one month's basic pay in lieu thereof---Impugned termination letter explicitly revealed that the termination of the petitioner's services was made with immediate effect with one month's basic pay in lieu of notice in accordance with said clause of the employment contract---As such, the impugned termination letter had been issued strictly in accordance with the terms and conditions of contract employment duly accepted by the petitioner at the time of joining and now at a belated stage he could not deviate from the same---Constitutional petition was dismissed accordingly.

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 and Muhammad Mohsin Ismail v. Managing Director Punjab Daanish Schools and 2 others 2018 PLC (C.S.) 722 ref.

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

----R. 4(2)---Contractual employment, termination of---Competent authority---Distinction between 'approval' and 'prior approval' of competent authority---Petitioner, who was appointed as Director General (Legal affairs) in Pakistan Railways on contract basis, challenged his termination on the grounds that the same was carried out without necessary approval of the competent authority i.e. the Prime Minister, and that if any approval had been made it was ex-post facto approval which was not permissible under the law---Validity---In terms of Sl. No. 140, Chapter 2 [Recruitment/Appointment/Seniority and Promotion] of ESTA Code, and R. 4 of the Federal Rules of Business, 1973, the competent authority to appoint the petitioner was the Selection Board headed by the Secretary of the Ministry/Division and not the Prime Minister, who was only the approving authority---Approving authority of the petitioner was undoubtedly the Prime Minister but it was noticeable that the word 'prior' was never mentioned in Sl. No. 140, Chapter 2 [Recruitment/Appointment/ Seniority and Promotion] of ESTA Code; meaning thereby that although the 'approval' of the Prime Minister for the appointment of the petitioner was essential yet 'prior approval' was not necessary for his appointment or termination---If the words used were "with the prior approval of the Prime Minister", the impugned termination order could not be issued without first obtaining the approval of the Prime Minister---Since the words used in the procedure provided were "Approving Authority", the impugned termination order could be passed after obtaining the approval of the Prime Minister subsequently and in case the Prime Minister did not grant approval subsequently, any action taken on the basis of the decision of the Board would be invalid and not otherwise---In the present case, the termination of the petitioner was approved by the Prime Minister subsequently---Constitutional petition filed by the petitioner against his termination was dismissed accordingly.

(d) Civil service---

----Constitutional employment---Termination of such employment---'Approval' and 'permission' of competent authority---Distinction---Permission to do something required its prior approval---When permission was required for an act, the act did not become effective till its permission was obtained - Whereas in cases where only 'approval' of an authority was required the act could be carried out and its approval obtained subsequently, and the act would only lose its force, if it was disapproved subsequently---Approval included ratifying of an action, and ratification could be given ex-post facto approval.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Employee not governed by statutory rules of service---Constitutional petition filed by such employee before the High Court agitating a service grievance was not maintainable.

Muhammad Shahzad Shaukat, Qalbe Hassan, Taha Asif, Talat Farooq Sheikh, Barrister Taha Shaukat and Muhammad Sharif Khokhar for Petitioner.

Ch. Ishtiaq Ahmad Khan, Additional Attorney-General.

Sadia Malik, Assistant Attorney-General.

Muhammad Zikriya Sheikh, on behalf of the Pakistan Railways.

Salman Kazi, Osman Khan and Khurram Shahzad, Legal Consultants on behalf of the Pakistan Railways.

2019 P L C (C.S.) 370

[Lahore High Court (Rawalpindi Bench)]

Before Muhammad Farrukh Irfan Khan, J

Ex-Colonel KHALID RASHID

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and others

Writ Petition No.3407 of 2009, decided on 6th November, 2017.

Constitution of Pakistan---

---Art. 199---Pakistan Army Act (XXXIX of 1952), S. 16---Army Regulations Rules, 1998, R. 269-A---Constitutional petition against Military authorities---Maintainability---Civil service---Petitioner, a Colonel of Pakistan Army---Allegations of tampering confidential service record---Dismissal from service---Dispensation from regular inquiry---Contention of petitioner was that no formal inquiry was conducted and impugned order was based on mala fide---Validity---Jurisdiction of High Court was not absolutely barred and it could examine any order of Military Authorities passed under Pakistan Army Act, 1952 on the grounds of mala fide, coram non judice and without jurisdiction---Military authorities might dispense with holding a formal inquiry or call for the officer's explanation if it was not expedient---Impugned order could not be declared to be based on mala fide and without jurisdiction due to the reason that formal inquiry was not conducted---When any provision of law prescribed a particular mode of action which had been duly adopted then no exception could be taken to the same---Military authorities had not deviated from any mandatory law and rules to render the impugned order as coram non judice and without jurisdiction---Petitioner had tampered his confidential service record on the basis of which he was considered for promotion---Nothing was on record to show that impugned order was based on mala fide, coram non judice or was passed without jurisdiction---High Court under constitutional jurisdiction could not reappraise the evidence produced before the competent forum or substitute the findings which were neither perverse nor result of lack of evidence---Power of judicial review against conviction and sentence awarded by the Military authorities was not equated with power of an appellate Court---Evidence produced could not be reassessed or analyzed in detail to substitute any reasonable and probable conclusion arrived at by the competent forum of Armed Forces---Constitutional petition was dismissed.

Mushtaq Ahmed and others v. Secretary Ministry of Defence PLD 2007 SC 405 rel.

Muhammad Akram along with for Petitioner.

Raja Faisal Mehmood, Assistant Attorney General, along with Lt. Col. Tahir Mehmood, Maj. Asad, from JAG's Department, GHQ and Maj. Bilal Ahmad Khan, from M.S Branch, GHQ for Respondents.

2019 P L C (C.S.) 395

[Lahore High Court (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

JAVED IQBAL

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION RAWALPINDI and 2 others

W.P. No. 1820 of 2016, decided on 17th October, 2017.

Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----S. 3(2)---Promotion of employee of Education Board---Non-statutory rules---Effect---Non-consideration for promotion due to pendency of departmental proceedings against the employee---Validity---Education Board was a body corporate which could sue and be sued---Regulations governing the employees of Education Board were non-statutory in nature---Constitutional petition being not maintainable against the Education Board was dismissed.

Haroon-ur-Rashid v. Lahore Development Authority and others 2016 SCMR 931; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Abdul Rauf v. Government of the Punjab through Secretary (Food), Civil Secretariat, Lahore and another 2016 PLC (C.S.) 1099 and Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 ref.

Zia Ghafoor Paracha v. The Chairman Board of Intermediate and Secondary Education, Rawalpindi and others 2002 PLC (C.S) 1571; Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education, Rawalpindi and others 2004 SCMR 35; Haroon-ur-Rashid v. Lahore Development Authority and others 2016 SCMR 931; Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484 and Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571 rel.

Moazzam Sajjad Kiani for Petitioner.

2019 P L C (C.S.) 427

[Lahore High Court (Rawalpindi Bench)]

Before Shakil-ur-Rehman Khan, J

Mst. SAIRA IRAM

Versus

CHIEF SECRETARY PUNJAB LAHORE and another W.P. No. 3322 of 2018, decided on 30th November, 2018.

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

----S. 4---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S. 16---Seeking direction for deciding appeal---Scope---Petitioner was government servant who was aggrieved of being compulsorily retired for not being able to justify her prolonged leave of absence by departmental inquiry---Petitioner sought direction to the authorities for decision of departmental inquiry to allow her (petitioner) to appeal before the Service Tribunal--- Validity--- Petitioner did not have original order with her and under provisions of clause (a) of proviso to S. 4(1) of Punjab Civil Service Tribunals Act, 1974 she was required to approach Service Tribunal within one month of expiry of 90 days, after having filed departmental appeal---Petitioner had approached the High Court in the year 2018 and sought direction to authorities to decide her departmental appeal which she had filed on 12-09-2014---Where departmental appeal is not decided within stipulated time period, aggrieved civil servant could approach Service Tribunal after expiry of 90 days and maximum period within which Service Tribunal could be approached were next 30 days--- High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612; Abdul Bari Khadim v. Government of Balochistan through Chief Secretary and 3 others 2016 PLC (C.S.) 177 and Sultan Khan and others v. Public Functionaries 2009 PLC (C.S.) 77 ref.

Muhammad Naeem v. Director Public Instruction (SE), Punjab and another 2018 PLC (C.S.) Note 52 and Province of Punjab v. Muhammad Hussain PLD 1993 SC 147 rel.

Moazzam Sajjad Kiani for Petitioner.

2019 P L C (C.S.) 503

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

ABDUS SALAM

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB and 2 others

W.P. No. 153913 of 2018, heard on 7th November, 2018.

Civil service---

----Appointment against the post of Constable---Criminal case registered against the petitioner-candidate---Effect---Words "either under trial or acquitted on multiple grounds"---Scope---Appointment of candidate was refused on the ground that he was involved in a criminal case which was concealed in the application form---Validity---Candidate was nominated in the criminal case but he was found innocent during investigation of said case---Involvement of candidate in the alleged occurrence was not proved during investigation; he was only found present at the place of occurrence---Candidate did not fall within the restriction imposed by the competent authority; he never faced any trial in the said criminal case---Nomination in criminal case could not be equated with involvement in the case---Any person could be nominated in a criminal case on mere statement/application of the complainant and contents of the same might be correct or incorrect and baseless---Facing trial and consequential acquittal on multiple grounds was a sine qua non for holding a person to be involved in a criminal case---Authorities had wrongly held the candidate to be involved in criminal case disentitling him to his legitimate right of appointment on merits---Candidate while submitting application form for appointment had not concealed any fact or given any wrong affidavit---Authorities were not justified in refusing the candidate his appointment as Constable on such grounds and reasons which were not sustainable in the eye of law---Authorities were directed to issue appointment letter to the candidate immediately---Constitutional petition of the candidate was allowed, in circumstances.

Rashid Javed Lodhi for Petitioner.

Malik Abdul Aziz Awan Additional Advocate General, Punjab along with Ilyas, S.I. for Respondents.

Date of hearing: 7th November, 2018.

2019 P L C (C.S.) 535

[Lahore High Court (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD HASSAN TAHIR

Versus

GOVERNMENT OF PUNJAB, SERVICES AND GENERAL ADMINISTRATION DEPARTMENT through Chief Secretary Punjab Civil Secretariat, Lahore and 4 others

Writ Petition No. 11573 of 2018, decided on 15th August, 2018.

Civil service---

----Compulsory retirement---Bar of jurisdiction contained in Art. 212 of the Constitution---Effect---Matter, in the present case, related to terms and conditions of service---High Court could not entertain constitutional petition in view of bar contained under Art. 212 of the Constitution---Petitioner had alternate remedy of filing departmental appeal and in case of failure to succeed in the same by approaching Service Tribunal---Absence of adequate and efficacious remedy was condition precedent for issuing a writ---Petitioner might avail alternate remedy before competent forum in accordance with law---Constitutional petition was dismissed in limine. [pp. 537, 538] A, B & C

Suo Motu action regarding Violation of Public Procurement Rules, 2004 2012 PLC (C.S.) 394; Faisal Sultan v. E.D.O. (Education) and others 2011 PLC (C.S.) 419 and Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672 ref.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 and Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37 rel.

M. Sohail Iqbal Bhatti for Petitioner.

Khalid Masood Ghani, A.A.G on Court's Call.

2019 P L C (C.S.) 582

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD SIDDIQUE

Versus

DISTRICT EDUCATION OFFICER, BHAKAR and others

Writ Petition No.14886 of 2017, decided on 24th April, 2018.

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

----R. 17-A---Qanun-e-Shahadat (10 of 1984), Art. 124---Government of Punjab Notification No. FD SR-II-4-109-/88 dated 22-07-1998---Missing civil servant---Appointment of Child of such Civil Servant---Scope---Father of petitioner being a civil servant disappeared and did not return home---Petitioner applied for appointment under R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 but his request was declined---Contention of department was that neither services of father of petitioner were regularized nor he died while in service or declared invalidated for further service therefore, R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was not applicable to him---Validity---Petitioner's father was missing since the year 1997 and till to date he had not been heard of---Under Art. 124 of Qanun-e-Shahadat, 1984 father of petitioner was to be presumed to be dead by operation of law---Civil servant disappeared while in service and he could not be presumed to be retired from service---Retirement notification had been issued on disappearance of petitioner's father with improper words 'retired' in place of appropriate status of 'dead'---Object of R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was to accommodate an unemployed child/wife/widow so as to decrease the miseries of the dependents of a deceased/invalidated employee---Narrow consideration that the benefit of the R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 could only be extended in favour of a civil servant whose death was natural would defeat the very purpose of the enactment---No distinction could be made between civil death and natural death for applying R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Father of petitioner disappeared while in service therefore, he should be considered to be dead while in service for the purpose of extending the benefit of R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Act of department for not adhering to the provisions of said Rule was declared illegal, mala fide and violative of the fundamental rights of the petitioner---Department was directed to issue appointment order under R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 to the son of missing employee forthwith---Constitutional petition was allowed in circumstances.

State Life Insurance Corporation of Pakistan v. Faisal Tahir and 3 others 2011 CLC 1959 rel.

(b) Words and phrases---

----'Remedial acts'---Meaning.

Statutory Construction by Crawford rel.

Zohaib Imran Sh. for Petitioner.

2019 P L C (C.S.) 590

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

MUNIR MASIH and others

Versus

SECRETARY LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT and others

Writ Petition No. 32515 of 2016, heard on 23rd January, 2019.

Civil service---

----Work charge/daily wages employees of Tehsil Municipal Administration---Regularization of service---Scope---Contention of employees was that they were performing their duties against the posts which were permanent in nature---Validity---Earlier constitutional petition filed by the similarly placed employees had been accepted by the High Court---Present petitioners were also entitled to the same relief---Despite resolving the issue of regularization of one set of employees of the same department the same relief had not been extended to the similarly placed employees without there being judicial order of High Court---Such tendency of public functionaries of different departments was increasing the rate of litigation in the Courts---Provincial Chief Secretary was directed by the High Court to convey to all Heads of Government Departments to decide the matters of regularization of their employees, if any, in the light of judgment of Supreme Court on their own rather to compel their poor employees to have recourse to the Courts for vindication of their right---Supreme Court had already issued directions for regularization of all the contract/daily wages/work charge employees but these directions were not being adhered to in letter and spirit---High Court observed that any inaction on the part of Government functionary in that regard in future might entail imposition of heavy fine on the defaulting authority/department---Authorities were directed to proceed for regularization of services of the petitioners immediately---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 ref.

Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547; Government of Punjab v. Sameena Parveen and others 2009 SCMR 1 and Secretary (Schools), Government of Punjab, Education Department and others v. Yasmin Bano 2010 SCMR 739 rel.

Ch. Abdul Razzaq for Petitioners.

Akhtar Javed, Additional Advocate General, Punjab for Respondents.

2019 P L C (C.S.) 632

[Lahore High Court]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD RAZI KHAN

Versus

The INSTITUTE OF CHARTERED ACCOUNTANT OF PAKISTAN and others

Writ Petition No. 238168 of 2018, decided on 15th February, 2019.

(a) Chartered Accountants Ordinance (X of 1961)---

----Ss. 9(b), 20-F & 20-K---Constitution of Pakistan, Art. 199---Constitutional petition filed against "The Institute of Chartered Accountants of Pakistan" ['the Institute']---Maintainability---Non-statutory service regulations/rules--- Irrespective of the fact whether the rules of an authority were statutory or non-statutory, the High Court had to come forward for rescuing a person if the act of the Authority was in sheer violation of the principles of natural justice, rules and law of the land---Constitutional petition filed by an Executive Director of the Institute against the termination of his services by the Institute was held to be maintainable.

Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 ref.

(b) Chartered Accountants Ordinance (X of 1961)---

----Preamble---Executive Director of "The Institute of Chartered Accountants of Pakistan" ['the Institute']---Fixed term appointment contract---Violation of terms and conditions of contract---Petitioner was appointed as 'Executive Director Operations' by the Institute through a fixed term contract for a period of three years and as such the petitioner took over the charge of the office---As per a clause of the contract, the petitioner reported to the President of the Institute functionally and to the Secretary, but subsequently the reporting structure was changed in an arbitrary manner and the petitioner was asked to administratively and functionally report to the Secretary only, which ultimately culminated with the termination of the petitioner---Such act undeniably was violative of terms and conditions arrived at between the parties through the appointment contract---Termination letter of petitioner was set-aside in circumstances---Constitutional petition was allowed.

(c) Chartered Accountants Ordinance (X of 1961)---

----Preamble---Executive Director of "The Institute of Chartered Accountants of Pakistan" ['the Institute']---Fixed term appointment contract---Termination from service conveyed through an e-mail without issuance of show cause notice---Legality---Institute admitted that services of petitioner were terminated without show-cause notice, but claimed that petitioner was informed about his termination through an e-mail---E-mail for purposes of termination of services was insufficient---E-mail would be sufficient for carrying out daily business, but the same could not be equated with the proper/requisite notice under the law before taking action of a serious nature---Termination letter of petitioner was set-aside in circumstances---Constitutional petition was allowed.

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

(d) Administration of justice---

----Technicality of law---Substantial justice---Technicality of law and rule should not operate as an absolute bar in the way of the court, as preference to technicality of law would defeat substantial justice.

Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others PLD 2015 SC 15 ref.

Barrister Haris Azmat and Barrister Maryam Hayat for Petitioner.

Malik Muhammad Asif Nissoana, Deputy Attorney General.

2019 P L C (C.S.) 658

[Lahore High Court (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MIAN ZAFAR HAIDER

Versus

DEPUTY COMMISSIONER and others

Writ Petition No. 5740 of 2018, decided on 19th April, 2018.

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

----Preamble---Absence from duty---Suspension---Scope---Contention of employee was that his attendance was marked in the office---Validity---Competent authority had proceeded against the employee under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---High Court could not resolve factual controversy while exercising its constitutional jurisdiction---Suspension was a temporary measure wherein employee received his all emoluments although no work during suspension was taken---Present matter was with regard to terms and conditions of service of employee---Suspension was not a punishment---If any final order was passed against the petitioner employee he would have remedy before the departmental authorities and the Service Tribunal---High Court in its constitutional jurisdiction could not consider the intermediate stage of proceedings with regard to terms and conditions of a civil servant when the same were to merge in the final order---Piecemeal decisions were not the intention of law---Constitutional petition was dismissed in circumstances.

Government of N.W.F.P. v. I.A. Sherwani PLD 1994 SC 72; Khawaia Wajid Ali v. District Coordination Officer and another 2017 PLC (C.S.) 749 and Mrs. Shah Jahan, Headmistress, Government Girls Elementary School, Pindi Bhattian v. Khushnood Akhtar Lashari, Education Secretary, Punjab, Lahore 2003 PLC (C.S.) 1416 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Factual controversy---High Court could not resolve factual controversy while exercising its constitutional jurisdiction.

Rana Muhammad Liaqat Ali for Petitioner.

2019 P L C (C.S.) 681

[Lahore High Court]

Before Amin ud Din Khan and Atir Mahmood, JJ

PUNJAB FOOD AUTHORITY through Assistant Director

Versus

ZEESHAN MUNAWAR and others

I.C.A. No. 224681 of 2018 in W.P. No. 25833 of 2017, heard on 5th December, 2018.

(a) Civil service---

----Contract employees---Regularization of service---Agreement as to non-regularization of contract employment---Effect---Discrimination---Employees filed constitutional petition for regularization of services which was accepted by the Single Judge of High Court with the direction to the department to constitute a committee to consider their case for regularization---Validity---Government had issued a letter whereby autonomous bodies were directed to make appointment on regular basis of the contract appointees in BS-1 to 15---Employers being autonomous body were required to comply with the said letter but they remained failed---High Court observed that agreement that contract appointment did not confer any right of regularization was an obstructive tool in the way of regularization of service of employees---Contract employees could not be deprived from their legal right of regularization in any way when a policy of regularization had been framed by the Government---Employee at the time of appointment on contract while signing the agreement had no position of bargaining with the employer and employer could coerce them to waive their legal protection and accept, contractual terms or face the risk of losing the jobs---Department was bound to implement the policy of Government with regard to regularization of contract employees---Employees were still working in department but employers had deprived them from their legal right---Departments could not be allowed to follow the policy of pick and choose rather they were bound to treat all employees equally qua their service as well as their benefits---Employers were to deal with the employees fairly, justly and honestly qua the matter of regularization of service---Employees were to be treated in accordance with law without any discrimination---In the present case posts against which employees had been appointed were of permanent nature---Employees had been discharging their duties entirely to the satisfaction of employers---Retaining services of employees on the contract instead of on permanent basis was mala fide and unfair---Employees had now become overage for further appointment---No one should be prevented from earning his livelihood---Employees were entitled for regularization of services in circumstances---Competent authority had not applied its mind while exercising its discretion to the grievance of employees rather it had resulted in pick and choose in the exercise of discretion---Intra-court appeal was dismissed in circumstances.

Chairman NADRA, Islamabad through Chairman, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979 distinguished.

Habibullah v. Government of the Punjab PLD 1980 Lah. 37; Pakistan v. Public at Large PLD 1987 SC 304; Qayyum Khan v. Divisional Forest Officer, Mardan and others 2016 SCMR 1602; Khyber Pakhtunkhwa through Secretary Agriculture and others 2016 SCMR 1375; Zulfiqar Ali v. The State 1998 SCMR 1016; Muhammad Akram Solangi and 17 others v. District Coordination Officer, Khairpur and 3 others 2013 PLC (C.S.) 121 and Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 rel.

(b) Constitution of Pakistan---

----Art. 4---Every individual had right to be dealt with in accordance with law.

Malik Muhammad Awais Khalid and Amir Shafiq for Appellant.

Mahmood Ahmad Qazi and Junaid Jabbar Khan for Respondents.

2019 P L C (C.S.) 692

[Lahore High Court]

Before Shujaat Ali Khan, J

MUHAMMAD KHALID

Versus

NATIONAL BANK OF PAKISTAN through President National Bank of Pakistan and others

Writ Petition No. 32316 of 2016, decided on 31st October, 2018.

Civil service---

----Promotion---Employee of National Bank of Pakistan---Seeking promotion after retirement---Scope---Promotion against a higher post in the relevant year was subject to evaluation in the shape of seniority, professional and educational qualification in addition to interview---Petitioner did not appear for interview and without his assessment he could not be promoted---Petitioner had failed to fulfill the pre-requisite for promotion under the Promotion Policy, 2015---Constitutional petition was dismissed, in circumstances.

Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan, Islamabad through Secretary and others PLD 2008 SC 395; Muhammad Aslam Sultan v. Federation of Pakistan through General Manager, Pakistan Railways, HQRs., Lahore and another 2006 SCMR 1465; Abid Hussain Sherazi v. Secretary M/o Industries and Production, Government of Pakistan, Islamabad 2005 SCMR 1742; Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110; Muhammad Alaingir v. National Bank of Pakistan through Regional Head Sialkot and 3 others 2017 PLC (C.S.) 896; Afzaal Anwar Baig v. President National Bank of Pakistan and 2 others 2016 PLC (C.S.) 932; Liqat Ali v. Government of N.-W.F.P. through Secretary Home and Tribal Affairs Department, Peshawar and 10 others 2014 PLC (C.S.) 982; Kokab Iqbal v. Manager National Bank of Pakistan, Lahore and 3 others 2014 PLC (C.S.) 876 and Muhammad Alamgir v. National Bank of Pakistan through Regional Head and others 2014 PLC (C.S.) 963 ref.

Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126; Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others PLD 1988 SC 155; The Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf 1973 SCMR 304; Munsif Shah v. PEPCO through Managing Director, Lahore and 4 others 2013 PLC (C.S.) 223; Mrs. Naseem M. Qadri v. Federation of Pakistan and another 2009 PLC (C.S.) 229 and Syed Altaf Hussain Bukhari v. Accountant General, Azad Jammu and Kashmir and 2 others 1999 PLC (C.S.) 1091 distinguished.

Umer Hayat Khawaja for Petitioner.

Ms. Babra Akram Jadoon, Assistant Attorney General.

2019 P L C (C.S.) 699

[Lahore High Court]

Before Abid Aziz Sheikh, J

MUHAMMAD RAFIQUE and others

Versus

SECRETARY SCHOOLS, GOVERNMENT OF PUNJAB, LAHORE and others

Writ Petition No.126194 of 2017, heard on 26th September, 2018.

(a) Recruitment Policy, 2017-18---

----Constitution of Pakistan, Arts. 9, 14, 18, 25, 25-A & 37---Appointment against the post of SESE-PET---Requisite qualification being M. A. (Physical Education)---Condition that candidate having any third division in his/her entire career would not be eligible to apply against the said posts--Effect---Reasonable restriction---Right to life---Scope---Petitioners applied for the posts in question but they were not called for test due to their third divisions in B.A.---Validity---Every citizen had right to enter upon any lawful occupation or profession subject to qualification as might be prescribed---Impugned condition which had restricted the petitioners having third division in their entire career was not prescribed by any Act of the Parliament nor same was backed by any provision of law---Said condition had been prescribed through an administrative decision by way of policy which was not permissible under Article 18 of the Constitution---Nature of rights infringed through any restriction should be proportionate to the urgency of the evil sought to be remedied by the said restriction---Constitution that any candidate who had secured third division once in his/her life time could never improve his/her educational career in future was unreasonable, harsh and irrational condition---Petitioners in the present case, who got third division in B. A. had got first in their M. A Physical Education which was prescribed qualification for the posts in question---Once a candidate having third division had been considered to have passed a particular academic class and was entitled to promote in the next class then imposing a condition that such candidate would not be eligible to apply for the post was irrational, unreasonable and harsh---Courts should not interfere in the policy matters but if policy was in conflict with any provision of law or was violative of the Fundamental Rights then same could be called in question in constitutional jurisdiction of High Court---Every citizen had a right of quality education---State was under an obligation to establish best educational institutions to enable its citizens to ensure the said right---State was neither providing best educational institutions nor it was in a position to meet the demand of quality education in entire country---No justification existed in circumstances to impose the impugned condition---Impugned condition had been imposed only in the Education Department and no other government department had imposed such condition---Impugned condition was violative of right of livelihood---Petitioners were not in a position to improve their past academic qualification due to overage or other circumstances beyond their control---Alleged condition was declared to be ultra vires of the Constitution and was struck down by High Court---Petitioners would be entitled to apply for the posts so advertised, however, their recruitment should be subject to fulfillment of other prescribed conditions---Constitutional petition was allowed, in circumstances.

Arshad Mahmood's case PLD 2005 SC 193; City School Private Limited v. Government of the Punjab and others PLD 2018 Lah. 509; 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; Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another PLD 2011 Lah. 120; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676 and Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236 rel.

(b) Constitution of Pakistan---

----Art. 18---Every citizen had right to enter upon any lawful occupation or profession subject to qualification as might be prescribed.

Arshad Mahmood's case PLD 2005 SC 193 rel.

(c) Constitution of Pakistan---

----Arts. 199---Constitutional jurisdiction of High Court---Scope---Policy matters---High Courts could not interfere in the policy matter but if policy was in conflict with any provision of law or was violative of the Fundamental Rights then same could be called in question in constitutional jurisdiction of High Court.

Muhammad Iqbal Mohal and Malik Muhammad Zarar Iqbal Awan for Petitioners (in Writ Petition No.126194 of 2017).

Saif ur Rehman Jasra (in connected Writ Petition No.127099 of 2017).

Muhammad Nasir Umer (in connected Writ Petition No.115197 of 2017).

Amar Sanaullah, AAG, Imran Aslam Kharal and Malik Muhammad Zarar Iqbal Awan for Respondents.

2019 P L C (C.S.) 717

[Lahore High Court (Bahawalpur Bench)]

Before Jawad Hassan, J

MUHAMMAD SALAH UD DIN and others

Versus

The ISLAMIA UNIVERSITY OF BAHAWALPUR and others

W.P. No.4639 of 2017, decided on 25th September, 2018.

(a) Islamia University of Bahawalpur Act (IV of 1975)---

----Ss. 11-A, 24 & 25---Islamia University Bahawalpur Officers (Appointment) Statutes, 1977, Clause 4 (2)---Islamia University Bahawalpur Ministerial Establishment (Recruitment) Statutes, 1975, Art. 5---Appointment against the post of Deputy Librarian---Petitioners were recommended for appointment against the posts of Deputy Librarian by the Selection Board but Board observed that decision had not been obtained from Syndicate with regard to method of recruitment and posts were re-advertised---Validity---University had streamlined the process of recruitment and petitioners had also applied for the same---Petitioners had filed their request to the Vice-Chancellor and Syndicate---Vice-Chancellor was also in the Syndicate which had decided the matter---Vice-Chancellor could not review its own orders being also member of the Syndicate---Petitioners had challenged the impugned decision before Chancellor---Chancellor was directed by the High Court to look into the matter and after affording opportunity of personal hearing to all the concerned decide the matter in accordance with law---Constitutional petition was disposed of in circumstances.

Usman Ghani and others v. Islamia University and others 2012 PLC (C.S.) 830 and Shaukat Khan v. Assistant Political Agency Landi Kotal Khyber Agency and others PLD 2002 SC 526 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Constitutional petition was not maintainable in presence of alternate remedy.

Shaukat Khan v. Assistant Political Agency Landi Kotal Khyber Agency and others PLD 2002 SC 526 rel.

Samina Qureshi for Petitioners.

2019 P L C (C.S.) 729

[Lahore High Court]

Before Muzamil Akhtar Shabir, J

SHAKEEL AHMED BHATTI

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 4 others

W.P. No.248029 of 2018, decided on 9th November, 2018.

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

----Ss. 9, 2(b) & 3---Constitution of Pakistan, Arts. 199 & 212---Civil service---Transfer of employee serving on deputation---Scope---Employee while serving on deputation was transferred with immediate effect---Contention of employee was that employee serving on deputation did not fall within the definition of civil servant and bar contained under Art. 212 of the Constitution was not applicable---Validity---Every civil servant was bound to serve anywhere within or outside the province in any post under the Provincial or Federal Government or local authority or corporation or any other body set up or established by any such government provided terms and conditions of his service as to pay should not be less than those to which he would have been entitled had he not been so required to serve---Petitioner was not only a member of civil service of the Province but was also holding a civil post---Petitioner was civil servant for all intents and purposes---Borrowing department borrowed the civil servant to be posted without mentioning as to against what post he would be posted on deputation---Transfer which was one of the terms and conditions of service of civil servant could only be challenged through remedies provided by relevant laws---Constitutional petition was not maintainable simply for the reason that the services of employee had been given to the department on the basis of deputation---High Court advised the employee to seek appropriate remedy before the proper forum in accordance with law---Constitutional petition was dismissed being not maintainable, in circumstances.

Haroon-u-Rasheed v. Lahore Development Authority and others 2016 SCMR 931 rel.

Rana Shahzad Khalid for Petitioner.

2019 P L C (C.S.) 764

[Lahore High Court (Bahawalpur Bench)]

Before Muzamil Akhtar Shabir, J

ABDUL MALIK

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No. 8626 of 2018, decided on 8th October, 2018.

Civil service---

----Suspension of employee---Scope---Petitioner employee had been suspended by department---Suspension was not a punishment---Suspension of a civil servant during the course of his service simply meant that no work was to be taken from him during the period of his suspension---Suspension was only a temporary measure, wherein employee was entitled to receive his full emoluments---Discretion to place a civil servant under suspension fell within the domain of competent authority---In case competent authority considered that during enquiry, employee could tamper with the evidence, influence the witness or act in any manner to prejudice the outcome of the enquiry, it could suspend such employee---Suspension order was a preliminary stage in the disciplinary proceedings initiated against a civil servant which culminated into a final order providing cause of action to seek remedy under relevant law---Constitutional petition challenging suspension was premature---Employee had an alternate efficacious remedy by approaching the departmental appellate authority and then Service Tribunal for redressal of his grievance---Constitutional petition was not maintainable in view of bar contained in Art. 212 of the Constitution and availability of alternate remedy to the employee---Constitutional petition was dismissed in limine.

Government of N.W.F.P v. I.A Sherwani PLD 1994 SC 72; Abdul Hameed v. Province of K.P.K. through Chief Secretary, Peshawar and 3 others 2016 PLC (C.S.) 424; Khawaja Wajid Ali v. District Coordination Officer and another 2017 PLC (C.S.) 749; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Imad Ali Khawaja v. The State and others 2016 SCMR 2057 ref.

Malik Javed Aslam Naich for Petitioner.

2019 P L C (C.S.) 783

[Lahore High Court]

Before Ali Baqar Najafi, J

KANWAL RASHEED

Versus

ACCOUNTANT GENERAL, PUNJAB and others

Writ Petition No.24111 of 2017, decided on 15th February, 2019.

(a) Civil service---

----Notification---Retrospective effect---Effect of a notification would start from the date it was issued particularly if it was to take away certain rights, unless it was stipulated otherwise in the notification itself.

Mozaffar Ahmed v. Anwar Ali and others PLD 1965 Dacca 296; Collector of Central Excise and Land customs and 3 others v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC 439; Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2015 SCMR 43; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630 and Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 ref.

(b) Words and phrases ---

----"Pension"---Definition. [p. 788] B

Khyber Zaman and others v. Governor, State Bank of Pakistan, Karachi and others 2005 SCMR 235 and Encyclopedia Britannica Vol.9, 15th Edition ref.

(c) Punjab Civil Services Pension Rules, 1963---

----R. 4.10(2A)---Notification No.FD-SR-III-4-471/2014, dated 11.9.2015---Family pension---Child of deceased parents who both were Government servants---Entitlement to two pensions simultaneously---In terms of the impugned Notification (No. FD-SR-III-4-471/2014 dated 11.09.2015) it was clarified that monthly family pension received by a pensioner was regular source of income, therefore, an unmarried daughter, such as the petitioner, could not draw the family pension of her father and mother simultaneously so as to grant her two family pensions --- Legality ---Relevant law on the subject of family pension [Punjab Civil Services Pension Rules, 1963] did not show that two pensions could not be withdrawn by a child of parents who both retired as government servants --- Withdrawal of pension was vested right of a child of a government servant, duly qualified, which could not be taken away through a notification that too with retrospective effect --- Two pensions were independent regardless of the fact that both deceased government servants were related inter-se---Withdrawal of pension was not a regular source of income in view of the fact that such entitlement would come to an end after certain changes in the status of the daughter---High Court set-aside impugned notification No. FD-SR-III-4-471/2014 dated 11.09.2015 and declared that child of deceased parents who were government servants was entitled to two pensions simultaneously according to their eligibility---Constitutional petition was allowed according.

Rule 54(11) of the Central Civil Servants Pension Rules, 1972 and Rukmani and Pradeep Kumar Kumawat v. The Union of India through its Secretary, Ministry of Home Affairs, New Delhi and others 211(4) SLR 257 ref.

Rana Asad Ullah Khan for Petitioner.

Raja Saleem Ullah Khan, Law Officer Finance Department.

2019 P L C (C.S.) 814

[Lahore High Court]

Before Jawad Hassan and Shams Mehmood Mirza, JJ

FEDERATION OF PAKISTAN and others

Versus

NADIA IQBAL and others

I.C.A. No. 1899 of 2019, decided on 18th February, 2019.

Civil service---

----Appointment against the posts of Corporal (Female)---Reserve list---Interview conducted by Single Judge of High Court---Scope---Petitioner filed constitutional petition which was allowed by Single Judge by showing dissatisfaction with the interview process conducted by the authorities---Single Judge of High Court had directed the authorities to appoint the candidate against one vacancy of Corporal (Female)---Validity---Single Judge in Chamber misdirected himself in assuming the mantle of selection committee---High Court in writ jurisdiction could not substitute its judgment with that of the administrative authorities---Courts should not interfere in the results of interview as same were subjective in nature---Single Judge had travelled in the realm of supposition which was not apt---Sixty five posts of Corporal (Female) had been filled up by the authorities and candidates at Serial Nos. 1 to 15 from reserve list were also accommodated in place of those candidates on general list who opted not to join the post or were declared medically unfit---Three candidates were ahead of petitioner on the reserve list and there was no vacancy available for the post in question---Even if there was a vacancy the petitioner could not be appointed to the post in question on account of three candidates being ahead of her in the reserve list---Impugned order passed by Single Judge was set aside---Intra court appeal was allowed, in circumstances.

Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157 rel.

Miss Hina Hafeez Ullah Ishaq Assistant Attorney General along with Ghulam Shabbir A.D. Legal, A.S.F. and Mian Badar Ehsan, S.D. Aviation Division.

Raja Naveed Azam for Respondent No.1.

Muhammad Sajjad Naeem Mohal for Respondent No.3.

2019 P L C (C.S.) 893

[Lahore High Court]

Before Ali Baqar Najafi, J

MUHAMMAD SAEED and others

Versus

SECRETARY FINANCE and others

W.P. No. 57182 of 2017, decided on 6th February, 2019.

Civil Service Rules (Punjab), Vol. I, Part I---

----R. 4.10---General Clauses Act (X of 1897), S.21---Grant of advance increments---Withdrawal of---Locus poenitentiae, principle of---Applicability---Advance increments granted to petitioners, were deducted from pension and gratuity after their retirement---Validity---No show-cause notice was served before recalling the advance increments---Advance increments could not be withdrawn in violation of principles of natural justice---Withdrawal of salary and allowances paid in excess was not legally correct as it was released on the basis of an order passed by the competent authority---Principle of locus poenitentiae was applicable in the present case as no fraud / misrepresentation was played by the employees for drawing advance increments---Withdrawal of advance increments of the employees was declared illegal, unlawful and void ab-initio---Constitutional petition was allowed, in circumstances.

Private Secretary to the Commissioner, Punjab Employees' Social Security Institution, Lahore v. The Punjab Employees' Social Security Institution and another 1989 PLC (C.S.) 332; Controlling Authority, N.W.F.P. Board of Technical Education, Peshawar and another v. Abdul Salam Secretary, N.W.F.P. Board of Technical Education (presently Chairman of the Board) PLD 1993 SC 200; Province of Punjab through the Chief Engineer, Highway Department and others v. Pervaiz Iqbal 2004 SCMR 309; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 and Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

Muhammad Ilyas Bhatti for Petitioners.

2019 P L C (C.S.) 932

[Lahore High Court]

Before Shahid Jamil Khan, J

QAMAR AZIZ and others

Versus

GOVERNMENT OF THE PUNJAB through Secretary and others

Writ Petition No.214219 of 2018, heard on 4th September, 2018.

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

----S. 10---Constitutional petition---Maintainability---Policy decision of government---Civil service---Appointment against the posts of ESE (Arts), SESE (Arts) and SSE (Arts)---Candidates having degree of graduation with Sanad of Shahadat-ul-Almia sought appointment against the posts in question on the basis of equivalence certificate---Expression "Individual Institutions"---Scope---Only employer knew the requirements and could determine the suitability of qualification for the post---Determination of an educational qualification or eligibility criteria for appointment against a particular post was a policy decision---Court could not interfere with the policy matter---Government had right to enhance qualification and standards for recruitment---Petitioners could not claim vested right against retrospective application of rules---Higher Education Commission was a regulator for maintenance and improvement of higher education under the Federation---Equivalence certificate issued by Higher Education Commission could not be taken as binding advice to the Government for recruitment against any post---Purpose of equivalence certificate was evaluation, promotion or improvement of higher education and not recommendation for appointment against any post---Expression "Individual Institutions" did exclude the Government, Schools and Colleges being run by the Government---Equivalence certificate granted in favour of petitioners-candidates might be a recommendation for individual educational institution and same could not be held as binding for recruitment by the Government---Petitioners applied for the posts of ESE (Arts), SESE (Arts) and SSE (Arts) which did not fall within the purview of equivalence certificate---Court could not call in question or replace the prescribed educational qualification by competent authority or Government under ordinary circumstances---Policy could only be called in question if it was violative of Fundamental Rights or was in conflict with any provision of law---Constitutional petition was dismissed, in circumstances.

Sanaullah Khan and others v. District Returning Officer, Mianwali and others PLD 2005 SC 858 distinguished.

Government of N.W.F.P., Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021; Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772; National Engineering Services Pakistan [NESPAK] (Pvt.) Limited and others v. Kamil Khan Mumtaz and others 2018 SCMR 211 and Messrs Al-Rahman Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621 rel.

Malik Saleem Iqbal Awan for Petitioner.

Ch. Sultan Mehmood, Assistant Advocate General Punjab, Bashir Ahmad Goraya, CEO, DEA, Gujranwala and Muhammad Jamil Nasar, A.D. (Lit) Office of CEO, DEA, Gujranwala for Respondents.

2019 P L C (C.S.) 952

[Lahore High Court (Bahawalpur Bench)]

Before Jawad Hassan, J

Syed ALI NAQI

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No. 5090 of 2018, decided on 6th March, 2019.

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

----R. 17-A---Constitution of Pakistan, Art. 10-A---Contract employee of a hospital---Allegation of making videos during operation of female patients in operation theater---Termination from service---Scope---Contention of employee was that major penalty of termination from service could not be awarded without conducting regular inquiry---Validity---Petitioner-employee was appointed on contract basis for three years---Show-cause notice was issued to the employee to which he filed reply and confessed his guilt---Employee was afforded personal hearing and he could not justify his innocence---Regular inquiry in the present matter was not necessary---Serious allegations had been leveled against the employee to which he had confessed---Impugned order had rightly been passed, in circumstances---Constitutional petition was dismissed accordingly.

Osman Ghani v. Federal Service Tribunal and others 1986 SCMR 1875; The Secretary, Government of the Punjab and others v. Riaz ul Haq 1997 SCMR 1552; Allem Jaffar v. WAPDA through its Chairman and others 1998 SCMR 1445; Syed Yaqoob Shah v. Xen PESCO and others PLD 2002 SC 667 and Federation of Pakistan and others v. Tahir Latif 2007 SCMR 152 distinguished.

Muhammad Hafeez Khan Mastoi for Petitioner.

2019 P L C (C.S.) 1020

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

MUNIR AHMED and others

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.830 of 2015, decided on 12th February, 2019.

Punjab Contract Appointment Policy, 2004---

----Preamble---Notification No. DS (O&M) 5-3/2004/CONTRACT (MF) dated 14-10-2009---Contract employees of Punjab Institute of Agriculture Marketing seeking regularization of service---Scope---Status of Punjab Institute of Agriculture Marketing and its employees had been converted from temporary to permanent---Petitioners were entitled to be regularized in service by giving the benefit of Notification No.DS (O&M) 5-3 / 2004 / CONTRACT (MF) dated 14-10-2009---Evaluation Committee had approved transfer of the project from time bound to permanent one and from development to non-development side---Notification No. DS (O&M) 5-3/2004/CONTRACT (MF) dated 14-10-2009 was applicable to the case of petitioners---Findings recorded in the impugned order were not based on application of judicial mind---Petitioners were recruited after adopting due process and their performance was found upto the marks during their contract period of seven years---Resorting to fresh recruitment process against the posts held by the petitioners would be against the norms of justice---Impugned order for refusing regularization of the petitioners was without any valid reason and ground, which was set aside---Authorities were directed to process the case of petitioners-employees for regularization of their service within specified period---Constitutional petition was allowed, accordingly.

Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others PLD 2011 SC 22; Pakistan Telecommunication Company Ltd. through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Muhammad Tanveer v. Government of Pakistan and others 2012 PLC (C.S.) 807; Muhammad Farooq v. Engineer-in-Chief ENC Branch, (GHQ), Rawalpindi and another 2012 PLC (C.S.) 1335; Muhammad Yasir Anwar v. Vice-Chancellor, Bahauddin Zakariya University and 3 others 2014 PLC (C.S.) 459; Province of Punjab and others v. Aftab Ahmad and others 2012 PLC (C.S.) 1402 and Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101 ref.

Muhammad Umar Riaz for Petitioner.

Malik Abdul Aziz Awan, Addl. A.G. along with Irshad Ali, Litigation Officer, Agriculture Marketing for Respondent.

2019 P L C (C.S.) 1077

[Lahore High Court]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Ms. NAZIA MUNIR

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and 2 others

Writ Petition No. 238429 of 2018, decided on 11th January, 2019.

Civil service---

----Ad-hoc appointment---Termination of service employee seeking regularization of service from date of initial appointment---Scope---Authority while terminating the service of employee had neither given him show-cause notice nor provided opportunity of hearing---Petitioner was offered job by the competent authority after evaluating her age besides academic as well as professional qualification---Authorities extended the tenure of service of employee for more than eight years---Services of employee were not only required for the department rather same were beneficial as well---No allegation or complaint existed against the employee with regard to carrying out official duties---Extension in the tenure of service of the employee had created a legitimate expectancy with reference to her retention in the service on regular basis---Petitioner had become over-age and had lost all the chances to get fresh appointment---Vacancy in question was still vacant in the department---Authorities by not regularizing the services of employee had acted in harsh manner despite the fact that she was not only eligible for the said post rather she had served the department more than eight precious years of her life---Petitioner was neither issued a notice nor provided an opportunity of hearing prior to termination of her services which was highhandedness of the authorities---Constitutional petition was allowed, in circumstances.

Rizwan Javed and others v. Secretary Agriculture Livestock and others 2017 PLC (C.S.) 712 ref.

Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Latif and others 2018 SCMR 325; Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405; Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467 and Pakistan and others v. Public at Large and others PLD 1987 SC 304 rel.

Zafar Iqbal Bhatti for Petitioner.

Asif Afzal Bhatti, Assistant Advocate-General.

2019 P L C (C.S.) 1167

[Lahore High Court]

Before Shakil-ur-Rehman Khan and Amin-ud-Din Khan, JJ

Dr. TAHIR MASUD

Versus

AMJAD ALI KHAN and 4 others

I.C.A. No. 225091 of 2018, in W.P. No.65400 of 2017, decided on 28th May, 2019.

(a) Administration of justice---

----Decision on priority basis---Preconditions---When question of jurisdiction goes to very root of case and renders entire proceedings coram non judice thereby vitiating the same and making judgment illegal and void and also when such question is of fundamental nature, in judicial proceedings, then same should be decided on priority basis. [p. 1178] A

D.G. Customs Evaluation, Karachi and another v. Messrs Trade International Lahore and others 2014 SCMR 15; Syed Muhammad Hussain Shah v. Abdul Qayyum and others 2011 SCMR 743; Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority and others 2007 SCMR 1126; Executive District Officer Schools and Literacy District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630; Mansub Ali v. Amir and 3 others PLD 1971 SC 124; Amanullah and others v. The State and others PLD 2004 Quetta 105; Ali Muhammad and others v. Muhammad Sham and others PLD 1996 SC 292; Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; Shagufta Begum v. The Income Tax Officer, Circle-XI, Zone-B, Lahore PLD 1989 SC 360 and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 rel.

(b) National Engineering Services Pakistan (Pvt.) Limited Chief Executive Service Rules, 1977---

----Rr.4, 5, 6 & 14---Laches, principle of---Contractual appointment---Non-statutory rules---Respondent was contractual employee of National Engineering Services Pakistan (Pvt.) Limited (NESPAK) who was retired before completion of his contract on attaining the age of superannuation---Single Judge of High Court, in exercise of Constitutional jurisdiction set aside such order of retirement---Validity---Terms and conditions of contractual appointment of respondent were governed by non-statutory rules of NESPAK therefore, Constitutional petition filed by him was not maintainable---Respondent accepted and acted upon his retirement order and in view of the same approached NESPAK to obtain his retirement benefits including but not limited to his gratuity etc.---Respondent, after having done so, filed Constitutional petition before High Court after about five months seeking his reinstatement--- Such conduct of respondent was sufficient to dismiss his Constitutional petition itself coupled with fact that his terms and conditions of service were not only contractual but were also governed by non-statutory service rules---Court could be approached by the respondent within ninety days---Division Bench of High Court set aside order passed by Single Judge of High Court and order passed by employer company was maintained---Intra Court Appeal was allowed in circumstances.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 distinguished.

Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571; Syed Nazir Gillani v. Pakistan Red Crescent Society and another 2014 SCMR 982; 2014 PLC (C.S.) 961; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; 2014 PLC (C.S.) 393; Asad I.A. Khan v. Federation of Pakistan and others 2014 SCMR 320; Muhammad Idrish v. East Pakistan Timber Merchants Group and another PLD 1968 SC 412; Syed Azhar Abbas Jafri v. HBFC Workmen Union of Pakistan and others 2017 PLC (C.S.) 1393; Engr. Ghazanfar Ali Khan and another v. F.O.P. and others PLD 2014 Lah. 375; I.C.I. Polyster Employees Union (C.B.A.) Registered v. Trustees Union and 2 others 2013 CLD 108; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278; Chairman, NADRA, Islamabad, through Chairman Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979; Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; PIA Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545; Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120; Zari Taraqiati Bank Ltd. and others v. Said Rehman and others 2014 SCMR 642 also reported as 2013 PLC (C.S.) 1223; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; 2011 PLC (C.S.) 623; Abdul Rashid Khan v. Registrar, Bahauddin Zakaria University, Multan and others 2011 SCMR 944; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education, Rawalpindi and others 2004 SCMR 35; Fidaullah v. Government of Khyber Pakhtunkhwa, through Secretary Worker Welfare Board, Khyber Pakhtunkhwa, Peshawar and 6 others 2019 PLC (C.S.) 58; Hassan Jawed and another v. Punjab Education Foundation and 4 others 2018 PLC (C.S.) 580; Manzoor Ahmad v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan and 4 others 2018 PLC (C.S.) 1224; Muhammad Naseer Khan v. General Manager (HR-Ops), Sui Northern Gas Pipelines Ltd., Lahore and 4 others 2013 PLC (C.S.) 698; Brig. (R.) Sakhi Marjan, CEO, PESCO, Peshawar v. Managing Director PEPCO, Lahore and others 2011 PLC (C.S.) 1007; Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377; Messrs Airport Support Services v. The Airport Manager, Quid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 ref.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches, principle of---Effect---If constitutional petition suffers from laches same has to be dismissed particularly when no justification or explanation for such delay has been given.

Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another 2016 SCMR 183; Prof. Dr. Muhammad Iqbal Zafar v. The Province of Punjab through Secretary to the Government of the Punjab, Agriculture Department Lahore and others 2019 PLC (C.S.) 63; Badar Munir v. Federation of Pakistan through Secretary Finance, Ministry of Finance and 2 others 2015 PLC (C.S.) 1528; Ghulam Aulia v. Federation of Pakistan through Secretary and 2 others 2015 PLC (C.S.) 1149; Pakistan International Airline Corporation and others v. Tanveer-ur-Rehman and others PLD 2010 SC 676; Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 and Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 rel.

Hafiz Tariq Nasim, Jalil-ur-Rehman, Usman Shafiq Butt and Hamzatt Asad for Appellant.

Ch. Ishtiaq Ahmad, Additional Attorney General for Pakistan and Rana Abdul Shakoor Khan, Deputy Attorney General for Appellant (I.C.A No.231179 of 2018).

Aurangzeb Mirza, Saad Rasool, Muhammad Irfan Hanjra, Jawad Tariq Nasim, Aitzaz Aslam Shah and Saeed Adeel Hassan for Appellant in connected (I.C.A. No.226487 of 2018)/respondent-NESPAK.

Waqar A. Sheikh, Nadeem Ahmad Sheikh, Syed Faisal G. Meeran and Miss Humaira Afzal for Respondent No.1.

2019 P L C (C.S.) 1203

[Lahore High Court (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

IRSHAD HUSSAIN

Versus

MUNICIPAL CORPORATION MULTAN through Mayor and 3 others

Writ Petition No.6054 of 2018, decided on 1st November, 2018.

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

----R.1.8(b)---Withholding of pension of an employee due to audit objections---Effect---Pension benefits of employee were withheld till settlement of audit objections---Validity---Petitioner-employee had retired from service but no action had been taken against him with regard to audit objections---Employee had not been afforded an opportunity of hearing and authorities had violated Civil Servants Pension Rules, 1963---No action had been taken before passing the impugned order fixing the liability of the petitioner or some other officer of the department---No inquiry could be conducted against an employee after one year of his superannuation---Impugned order passed by the department was set aside---Authorities were directed by the High Court to release the pension benefits of the employee forthwith---Constitutional petition was allowed, in circumstances.

Province of the Punjab through Secretary, Livestock and Dairy Development Department, Punjab, Lahore and others v. Syed Munir Hussain Shah 1998 SCMR 1326; Ehsan-ul-Haque v. Executive Engineer, Ahmadpur Canal Division Ahmadpur East and 2 others 2011 PLC (C.S.) 1523; Muhammad Siddique v. Divisional Forest Officer, Okara 2014 PLC (C.S.) 253; Khuda Bakhsh v. Board of Intermediate and Secondary Education, Faisalabad and others 2004 PLC (C.S.) 824; Chief Secretary, Government of Sindh and another v. Umar-ud-Din 2007 PLC (C.S.) 662; Naseer Hussain Chughtai v. The Secretary to Government of Punjab, Forestry, Wildlife and Fisheries Department and others NLR 2009 Service 53 and Haji Muhammad Ismail Memon, Advocate Complainant: In matter of Criminal Miscellaneous Application No.226 of 2006 PLD 2007 SC 35 rel.

(b) Civil service---

----No inquiry could be conducted against an employee after one year of his superannuation.

Abdul Salam Alvi for Petitioner.

2019 P L C (C.S.) 1241

[Lahore High Court (Multan Bench)]

Before Ch. Muhammad Masood Jahangir and Rasaal Hasan Syed, JJ

MUHAMMAD RASHID

Versus

GOVERNMENT OF PUNJAB and 4 others

I.C.A. No. 306 of 2018, decided on 18th December, 2018.

(a) Civil service---

----Contract employee---Detention of employee in criminal case---Absence from duty---Termination of service---Wilful absence---Scope---Employee was arrested in a criminal case---Employee was terminated due to wilful absence from duty---Constitutional petition filed by the employee was dismissed by the Single Judge of High Court---Contention of employee was that he had not willfully absented himself from duty but he was in police custody---Validity---Person who was physically prevented by reasons beyond his control from participating in a process could not be saddled with penalty entailing "willfulness"---Mere implication in criminal case from which petitioner was able to clear his name by demonstrating his innocence could not be used to deprive him of his employment---Proper course, when absence of the petitioner from duty was due to circumstances beyond his control, might be issuance of show-cause notice followed by an opportunity of reply and provision of personal hearing---Department should pass an impartial decision supported by valid reasons---Due process had not been adopted in the present case which had rendered the impugned action untenable---Impugned orders were set aside and employee was ordered to be reinstated in service forthwith---Department could hold inquiry for determination of facts in accordance with law---Intra-court appeal was allowed, in circumstances.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Superintending Engineer GEPCO, Sialkot v. Muhammad Yousaf 2007 SCMR 537 rel.

(b) Words and phrases---

----'Wilful'---Meaning.

Shorter Oxford English Dictionary (Oxford University Press - Edition 2007) rel.

Israr Hayat Sulehri for Appellant.

2019 P L C (C.S.) 1264

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

AQEEL AKRAM

Versus

LAHORE DEVELOPMENT AUTHORITY and others

W.P. No. 172651 of 2018, decided on 8th March, 2019.

Promotion Policy, 2010---

----Cl. 2(2)---Proforma Promotion---Failure of employee to submit Annual Confidential Reports before Departmental Promotion Committee---Effect---Employee was considered for promotion by the Departmental Promotion Committee and decision was in his favour subject to provision of Annual Confidential Reports for the missing period---Petitioner failed to submit his Annual Confidential Reports to the Departmental Promotion Committee---Had petitioner complied with the decision of Departmental Promotion Committee he would have been promoted---Civil servant had right to be considered for promotion if he was entitled to be promoted from a particular date but for no fault of his own---Employee was neither ignored nor any mala fide or illegality was on record against the department in granting him promotion to the higher cadre---Petitioner had failed to bring on record any departmental representation during the period when he was not promoted to the next grade---Nothing was on record that employee on department's failure to act on his representation approached any competent forum during the said period---Employee could not be granted proforma promotion when he was not prevented from being promoted or department was not negligent in discharging its responsibility---Constitutional petition was dismissed, in circumstances.

Mudassar Aftab Asif for Petitioner.

2019 P L C (C.S.) 1286

[Lahore High Court (Bahawalpur Bench)]

Before Jawad Hassan, J

ABDUL HADI

Versus

The SECRETARY FINANCE and 4 others

W.P. No. 4588 of 2017/BWP, decided on 18th March, 2019.

Civil service---

----Application by employee for retirement under Voluntary Separation Scheme---Withdrawal of---Effect---Employee moved an application for retirement under Voluntary Separation Scheme but before acceptance of the same another application for withdrawal of earlier application was submitted---Authorities ordered for retirement of employee under Voluntary Separation Scheme and thereafter dismissed the petition for withdrawal of application for retirement under Voluntary Separation Scheme---Validity---Employee could withdraw his voluntary retirement before it came into effect---Petitioner had applied for withdrawal of retirement under Voluntary Separation Scheme well within time and that too prior to acceptance of his earlier application---Authorities were bound to decide firstly application for withdrawal of retirement under Voluntary Separation Scheme either way and then proceed in accordance with law---Department had committed illegality while passing the impugned order, in circumstances---Receiving retirement benefits under protest could, not be considered that employee had exercised Voluntary Separation Scheme---Impugned order passed by the authorities was set aside and petition was remitted to the department with the direction to look into the matter and decide the same afresh after affording opportunity of hearing to all the concerned---Constitutional petition was disposed of, in circumstances.

The Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others 2019 SCMR 124 ref.

Government of Sindh through Secretary S&GAD and another v. Raja Muhammad Inayat Khan 2000 SCMR 1964 rel.

Rai Mazhar Hussain Kharal, Sardar Abdul Basir Balouch, Shakeel Ahmed Bobra, Muhammad Yaseen Ataal, Khalid Hafeez and Muhammad Rizwan for Petitioner.

2019 P L C (C.S.) 1299

[Lahore High Court (Bahawalpur Bench)]

Before Jawad Hassan and Shahid Jamil Khan, JJ

WASEEM AKRAM

Versus

The SECRETARY and others

I.C.A. No.44 of 2019, heard on 20th March, 2019.

(a) Punjab Medical and Health Institutions Act (IX of 2003)---

----S.6(1)---Administrative Committee---Jurisdiction---Administrative Committee cannot substitute Board of Management or Selection Committee, as its function under S.6(1) of Punjab Medical and Health Institutions Act, 2003, is to act temporarily, when Board of Management is non-functional.

(b) Punjab Medical and Health Institutions Act (IX of 2003-)--

----S.6(1)---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Act of government---Contract appointment---Cancellation of---Appellants were ad-hoc or temporary employees of Medical College and Hospital and their contract had been renewing for many years---Authorities terminated all such employees and the relevant notification was maintained by the Single Judge of High Court in exercise of Constitutional jurisdiction---Validity---No one could be prejudiced or victimized for an act or omission on the part of government---Appellants participated in recruitment process bonafidely and were appointed against posts in question after competing---No action was taken against management or a particular person in the management for alleged irregularities, illegalities or misuse of power---Action of withdrawing appointments of appellants through notification in question was an attempt to camouflage irregularities by authorities---Re-appointments of appellants were carried out by departing from procedure under the law, when term of contract and ad-hoc existing employees were expiring---Board of Management and Selection Committee were not in existence, therefore, Principal of the College in his wisdom adopted procedure of re-employment or fresh employment---Such procedure could be placed for approval only before Board of Management, after its constitution by the Government, who was competent authority under para (4)(ii) of Third Schedule, on recommendation of Selection Committee---Division Bench of High Court declared withdrawal of contract appointments as without lawful authority and set aside notification in question---Intra-court appeal was allowed in circumstances.

Muhammad Farooq Warind, Muhammad Qasim Shah and Muhammad Siddiq Chohan for Appellants.

Mian Muhammad Akbar, Assistant Advocate General Punjab.

Khurram Shahzad, Advocate/Legal Advisor along with Dr. Mubarak Ali, Principal, Sheikh Zayed Medical College/Hospital, Rahimyar Khan for Respondents.

2019 P L C (C.S.) 1345

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi and Muzamil Akhtar Shabir, JJ

SAIFULLAH

Versus

INSPECTOR GENERAL, PUNJAB POLICE, LAHORE and 21 others

I.C.A. No. 133400 of 2018, decided on 7th March, 2019.

Civil service---

----Advertisement for appointment of Police Constable/DC Operator---Re-designation of post---Effect---Authorities advertised the post of Police Constable/DC Operator against which petitioners applied---Petitioners-candidates were declared successful in the terms of merit list but no appointment letter was issued---Department created new post of Police Communication Specialist/Communication Officer and appointment was made against the said post---Petitioners filed constitutional petition for issuance of appointment letters against the post of Police Constable/DC Operator but same was dismissed---Validity---Right to employ vested with the employer---Employee, had not vested right to claim that the employer be directed to complete the recruitment process---Mere qualifying in written examination and interview did not vest a candidate with a Fundamental Right for appointment enforceable in exercise of constitutional jurisdiction of High Court unless competent authority had approved such selection---Nothing was on record that competent authority had approved the appointment of the petitioners against the post in question---Alleged list could not be considered as final merit list---Re-designation of post and fixing of a different criterion for appointment against the same was within the executive policy making domain of the Authority (Provincial Government) which should not be interfered with unless some illegality or violation of law was pointed out---Intra court appeal was dismissed, in circumstances.

Dr. Mubashar Ahmed v. P.T.C.L. through its Chairman, Islamabad and another 2004 SCMR 1673; Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534; Riaz Gul and 5 others v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and 36 others 2016 PLC (C.S.) 350; Muhammad Farid Khattak and others v. Chief Secretary, Government of N.W.F.P. and others 2009 SCMR 980; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021 and Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another 2011 SCMR 1864 rel.

Saif Ullah Maan for Appellant.

2019 P L C (C.S.) 1414

[Lahore High Court]

Before Asim Hafeez, J

MUHAMMAD SHAHID JAVED and others

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Punjab and others

W.P. No.194370 of 2018, decided on 18th April, 2019.

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

----S.21(2)---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Promotion---Terms and conditions of service---Bar of jurisdiction contained in Art. 212 of the Constitution---Effect---Eligibility, determination of---Contention of petitioner was that respondent was not eligible for promotion---Validity---Question with regard to eligibility of a candidate did fall outside the jurisdiction of High Court in view of Art. 212 of the Constitution---Present matter was not with regard to determination of fitness of respondent for promotion but it was determination of eligibility relating to the terms and conditions of service---Question of eligibility of a civil servant did fall within the domain of Service Tribunal---Issue of eligibility of candidate was outside the ambit of judicial review of High Court---Petitioners had failed to meet the minimum threshold for promotion---Nothing was on record that recommendations of Provincial Selection Board were result of colourable exercise of authority---High Court could not substitute the opinion/findings of competent authority mere on the basis of bald assertions---High Court could review the opinion of competent authority, if its decision was based on colourable exercise of authority, arbitrary and affected civil servant had been non-suited on the basis of personal likes or superseded on the basis of undisclosed adverse material/information---Impugned decision did not suffer from any illegality or defect---Constitutional petition was dismissed in circumstances.

Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak Secretariat, Islamabad v. Government of Pakistan through its Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others 2003 PLC (C.S.) 503; Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Ahmed Saeed Siddiqui and others v. Pakistan through Secretary Establishment and others 2015 PLC (C.S.) 923; Federation of Pakistan through Secretary, Establishment Division and others v. Dr. Muhammad Arif and others 2017 SCMR 969 and Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126 distinguished.

Abdul Ghafoor, Supervisor/Inspector, N.H.A. v. National Highway Authority and 12 others 2002 SCMR 574; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Fazali Rehmani v. Chief Minister, N.W.F.P, Peshawar and others PLD 2008 SC 769 and Abid Mahmood v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 241 others 1997 SCMR 1154 rel.

Mian Mahmood Hussain for Petitioners.

Noman Qaiser for Respondent No.4.

Anis Ali Hashmi, Assistant Advocate-General.

2019 P L C (C.S.) 1433

[Lahore High Court]

Before Ayesha A. Malik, Shahid Karim andMuhammad Sajid Mehmood Sethi, JJ

NOOR BADSHAH through L.Rs.

Versus

UNITED BANK LIMITED through its President and others

I.C.A. No. 37 of 2015, heard on 8th March, 2019.

Constitution of Pakistan---

----Art.199---Civil service---Claim of pensionery benefits by employee of private Bank---Constitutional petition---Maintainability---Employee filed constitutional petition against private Bank for payment of pensionery benefits but same was dismissed being not maintainable---Validity---Constitutional petition was maintainable against any person including body politic or corporate for the purpose of enforcement of any of the Fundamental Rights conferred by the Constitution---Claim of employee, in the present case, was with regard to pensionery benefits which was a dispute of private character with the employer Bank regarding terms and conditions of service contract governed under non-statutory rules---Remedy of constitutional petition was not available against private wrongs---Where dispute was of a private character and not for enforcement of Fundamental Rights as of public duty then constitutional petition was not maintainable for resolution of such private dispute---Directions under Art.199(1)(c) of the Constitution could be made to any person which might include a private person for enforcement of Fundamental Rights conferred by the Constitution---Enforcement of any right qua service benefits arising out of non-statutory rules or contract was not amenable to constitutional jurisdiction of High Court---Impugned order passed by the Single Judge of High Court was well reasoned---Intra-court appeal was dismissed in limine, in circumstances.

Pakistan Olympic Association v. Nadeem Aftab Sindhu 2019 SCMR 221; Suo Motu Action regarding non-payment of retirement benefits by the relevant departments and others 2018 SCMR 736 and Human Rights Commission of Pakistan and others v. Government of Pakistan and others PLD 2009 SC 507 distinguished.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278; Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; Pakistan Telecommunication Corporation Ltd. Through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; PIA Corporation and others v. Tanveer-ur-Rahman and others PLD 2010 SC 676; Chairman State Life Insurance Corporation and others v. Hamayun Irfan and others 2010 SCMR 1495; Raziuddin v. Chairman P.I.A.C. PLD 1992 SC 531; Anwar Hussain v. Agricultural Bank 1992 SCMR 1112; K.D.A. v. Wali Ahmed Khan 1991 SCMR 2434; Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar 1990 SCMR 1404; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; Agricultural Development Bank v. Muhammad Sharif 1988 SCMR 597; Nisar Ahmad v. The Director, Chiltan Ghee Mill 1987 SCMR 1836; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170; Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275; Muhammad Yousuf Shah v. P.I.A.C. PLD 1981 SC 224; R.T.H. Janua v. National Shipping Corporation PLD 1974 SC 146; Shahid Khalil v. P.I.A.C. 1971 SCMR 568; Lt.-Col. Shujauddin Ahmed v. Oil and Gas Development Corporation 1971 SCMR 566; Chairman of East Pakistan Development Corporation v. Rustam Ali PLD 1966 SC 848; Zainul Abedin v. Multan Central Cooperative Bank Ltd. PLD 1966 SC 445; Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah PLD 1959 SC 210; Rana Naveed Ahmad Khan v. Province of Punjab through Secretary LG and CD PLD 2014 Lah. 436; Syed Nazir Gillani v. Pakistan Red Crecent Society and another 2014 SCMR 982; Habib Bank Ltd. v. State 2013 SCMR 840; Executive Council, Allama Iqbal Open University, Islamabad v. M. Tufail Hashmi 2010 SCMR 1484; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Salahuddin v. Taj Muhammad Khanzad PLD 1975 SC 244; Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. and others PLD 1975 SC 244; Praga Tools Corporation v. Shri C.A. Imanual and others AIR 1969 SC 1306; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others 2011 PLC (C.S.) 623; United Bank Limited Pensioners Welfare Association of Pakistan through President v. United Bank Limited through President and others 2011 CLC 831; UIMCB Ltd. through Authorized representative v. State Bank of Pakistan through Governor and others 2010 CLD 338; Abdul Rehman v. President Habib Bank Limited and others 2009 PLC (C.S.) 888; Abdul Malik v. Habib Bank Ltd. 2008 CLC 339 and Izhar Hussain and 18 others v. Khalid Sherwani and others 2004 PLC (C.S.) 945 rel.

Ahmad Awais for Appellant.

Muhammad Raza Qureshi, Ch. Muhammad Yaqoob and Imran Raza Chadhar for Respondents.

Sahibzada Anwar Hameed of the State Bank of Pakistan.

Mushtaq Ahmad Tahir Kheli for Applicant (in C.M. No.01 of 2018).

2019 P L C (C.S.) 1452

[Lahore High Court (Multan Bench)]

Before Shakil-ur-Rehman Khan, J

MST. ALLAH RAKHI

Versus

COMMISSIONER SAHIWAL DIVISION/CHAIRMAN COMPLAINT REDRESSAL CELL, SAHIWAL and 3 others

Writ Petition No.447 of 2019, decided on 11th January, 2019.

Constitution of Pakistan---

----Arts.199 & 212---Constitutional petition---Maintainability---Civil service---Transfer and posting of employee---Bar of jurisdiction contained in Art. 212 of the Constitution---Effect---Jurisdiction of High Court was barred with regard to terms and conditions of service of employee in view of Art.212 of the Constitution---No direction could be issued to the authorities against the impugned order for transfer and posting of an employee---Impugned order could not be set aside as prayed for by the employee---Employee had already approached the authorities through application and which would have been decided on merits---Employee could even approach the appellate forum against the order passed on his application---Constitutional petition was dismissed, in circumstances.

Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948 and Muhammad Saleh Asim v. Secretary Schools Education 2009 PLC (C.S.) 44 distinguished.

National Assembly Secretariat through Secretary v. Manzoor Ahmed and others 2015 SCMR 253; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Rai Ahmad Ali v. Province of Punjab and others 1999 SCMR 1832; Faiz Ahmed v. Government of the Punjab and others 1998 SCMR 436; Ayyaz Ajum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Fazal Ahmad Ranjha and 28 others v. Government of the Punjab through, Secretary Education (Schools), Lahore and 39 others 2016 PLC (C.S.) 1209; Shahzad Tariq v. Secretary Schools (Education Department) Government of Punjab and 9 others 2012 PLC (C.S.) 284, Dr. Muhammad Shahid v. Government of Punjab through Secretary (Health), Punjab, Lahore and 5 others 2012 PLC (C.S.) 323; Muhammad Nadeem Shakir v. Government of Punjab, Communication and Works Department, Lahore through Secretary and 5 others 2012 PLC (C.S.) 606; Mulazim Hussain v. Director General Agricultural Research, A.A.R. Institute Faisalabad and 3 others 2010 YLR 1032 and Dr. Ghazanfarullah and 2 others v. Secretary Health, Government of the Punjab, Lahore and 6 others 2010 PLC (C.S.) 51 rel.

Tariq Zulfiqar Chaudhry for Petitioner.

2019 P L C (C.S.) 1467

[Lahore High Court (Multan Bench)]

Before Asim Hafeez, J

SHABAZ WALI KHAN and others

Versus

GOVERNMENT OF PAKISTAN, ESTABLISHMENTDIVISION REGIONAL BOARD FEDERAL EMPLOYEES

Writ Petition No.4167 of 2012, decided on 7th February, 2019.

(a) Succession Act (XXXIX of 1925)---

----S.372---Benevolent fund and group insurance of the deceased employee---Succession certificate, issuance of---Only such benefits were inheritable which became receivable by the deceased during his lifetime i.e. payable to the employee before his death---Service benefits given to an employee as grant/compensation in lieu of death and made payable to a nominee or family were not heritable and could not be treated as Tarka-estate of the deceased---Benevolent fund and group insurance could not be treated as heritable being specie of grant/compensation accrued after death of an employee.

(b) Succession Act (XXXIX of 1925)---

----S. 372---Accommodation Allocation Rules, 2002, R.2(f)---House rent allowance of the deceased employee---Succession certificate, issuance of---House rent allowance was not heritable as Tarka---Payment of house rent allowance was in the nature of compensation intended to provide assistance and shelter to the widow and minor children of the deceased employee---Petitioners (legal heirs of the deceased) were not entitled to claim house rent allowance as Tarka, in circumstances---Department had rightly denied the claim of house rent allowance to the petitioners---Constitutional petition was dismissed, in circumstances.

Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512; Mirza Muhammad Amin and others v. Government of Pakistan PLD 1982 FSC 143; Muhammad Mumtaz v. Mst. Umra Bevi 1999 CLC 806 and Mst. Riffat Yasmeen v. Hassan Din and another 2014 CLC 126 ref.

Federal Government of Pakistan v. Public-at-Large PLD 1991 SC 731; Muhammad Tariq Badar and another v. National Bank of Pakistan and others 2013 SCMR 314; Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539; In re: Succession of the Assets Securities, Properties and Accounts of late Javed Iqbal Ghaznavi PLD 2010 Kar. 153; Zaheer Abbas v. Pir Asif and 6 others 2011 CLC 1528 \and Liaquat Ali v. Mst. Huma Faiz and another PLD 2018 Sindh 251 rel.

Kashif Nadeem for Petitioners.

Ms. Fouzia Kausar, Assistant Attorney General for Pakistan

Mian Abdul Basit for Respondent No.3.

2019 P L C (C.S.) 1487

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Prof. Dr. IJAZ AHMED and others

Versus

PROVINCE OF PUNJAB and others

Writ Petition No. 12857 of 2019, decided on 13th March, 2019.

Constitution of Pakistan---

----Art.199---Constitutional petition Public University---Criteria for appointment of Vice-Chancellor of the University---Scope---Petitioners assailed the process of recruitment for the post of Vice-Chancellor of the University---Contention of petitioners was that in "Prof. Dr. Zafar Iqbal v. Province of Punjab and others [2018 PLC (C.S.) 267]" High Court had set aside the recommendations of the previous Search Committee and had passed a direction for constitution of new Search Committee and that new Search Committee endorsed the recommendations of the previous Search Committee in a mechanical manner which was illegal, unlawful, void ab initio and in contravention of the aforementioned judgment---Validity---High Court had constituted new Search Committee in the said case which was free to restart the process of appointment if it was not satisfied with the earlier advertisement---Act of endorsement of earlier committee's recommendations could not be termed in derogation of the said judgment---Present constitutional petition was a classic example of abuse of process of law, as it was devoid of any merit or question of law which could be raised afresh before the court---Constitutional petition was dismissed with costs.

Punjab Higher Education Commission v. Aurangzeb Alamgir and others PLD 2017 Lah. 489 ref.

Prof. Dr. Zafar Iqbal v. Province of Punjab and others 2018 PLC (C.S.) 267 fol.

Dr. Khalid Ranjha for Petitioners.

Malik Muhammad Awais Khalid and Shah Saeed Ghumman for Respondents.

2019 P L C (C.S.) 1527

[Lahore High Court (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

SHAUKAT ALI KHAN

Versus

FEDERATION OF PAKISTAN through Secretary and 5 others

Writ Petition No.4149 of 2019, decided on 8th May, 2019.

(a) Revised Leave Rules, 1980---

----Rr. 16, 17 & 18-A---Leave Preparatory to Retirement (LPR), encashment of---Principle---Petitioner wanted encashment in lieu of LPR but authorities granted him LPR instead---Validity---Encashment in lieu of LPR was a monetary benefit and law had bestowed same on a civil servant who preferred to perform duty instead of proceeding on LPR---Such fiscal benefit could not be withheld by authorities without any cogent or valid reason---Discretion vested with authorities under R.18-A of Revised Leave Rules, 1980 were to be exercised fairly, honestly and not arbitrarily or fancifully--- High Court set aside order in question as there was no cogent and valid reason to sustain the same and remanded matter to authorities for decision afresh---Constitutional petition was allowed accordingly.

(b) Interpretation of statutes---

----Fiscal matter---Principle---Fiscal legislation, 'Statutes', 'Memos', 'Letters' and 'Circulars' were to be interpreted in such a way as to grant more benefits to subjects/employees than government because those were persons who were hard-hit by financial worries and problems and employees should not be made to suffer for fault of department.

Mst. Riffat Naheed, Lady Medical Technician v. District Health Officer, Bahawalpur and 2 others 2004 PLC (C.S.) 1081; Noor Wali Khan and others v. Federation of Pakistan and another 2017 PLC (C.S.) 1113 and Pakistan International Airlines Corporation v. S.M. Ismail Naqvi and others 2010 SCMR 42 rel.

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

----S. 24-A---Speaking order---Scope---Non-disclosure of any cogent reason for any order makes such order flimsy, tainted with mala fide and non-speaking---Such order is violative of S.24-A of General Clauses Act, 1897 and is nullity in eyes of law.

Sheikh Javed Rashid for Petitioner.

2019 P L C (C.S.) 12

[Peshawar High Court]

Before Waqar Ahmad Seth, C.J and Muhammad Nasir Mahfooz, J

SHER ALAM and 9 others

Versus

GOVERNMENT OF PAKISTAN through Secretary Safron, Pak Secretariat Islamabad and 5 others

Writ Petition No. 4283-P of 2017, decided on 28th June, 2018.

Civil service---

----Contract employee---Termination of service---Scope---Employees earlier filed constitutional petition against their termination order but same was dismissed by the High Court---Petition for leave to appeal to Supreme Court was disposed of for sympathetic consideration by the department---Employees were again dismissed from service---Validity---Employees were initially appointed for a Project for a period of three years and they continued to perform their duties till their services were dispensed with/terminated through the impugned order---Authority issued letter and requested to reinstate all the employees whose services had been dispensed with---Employee were still performing their duties on their respective posts and had unblemished service record; they had served for about fifteen years but with no job security till date---Impugned order was declared as without jurisdiction and without lawful authority---Constitutional petition was allowed in circumstances.

Asad Jan for Petitioners.

Ms. Samreen, A.D. Litigation on behalf of Respondents.

2019 P L C (C.S.) 58

[Peshawar High Court (Bannu Bench)]

Before Abdul Shakoor and Shakeel Ahmad, JJ

FIDAULLAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Worker Welfare Board Khyber Pakhtunkhwa, Peshawar and 6 others

W.P. No.47-B of 2018, decided on 30th January, 2018.

Civil service---

----Contract appointment---Termination from service---Scope---Petitioner was terminated from service before expiry of contractual period on the ground that his qualification was not relevant---Validity---Petitioner was appointed on contract basis for a period of three years on the terms and conditions mentioned in appointment letter---Department had its own service rules but same were non-statutory---Relationship between employee and employer was that of master and servant---Constitutional petition was not maintainable which was dismissed in limine.

Shahid Khalil v. P.I.A.C. 1971 SCMR 568; Muhammad Yousuf Shah v. P.I.A.C. PLD 1981 SC 224; Raziuddin v. Chairman P.I.A.C. PLD 1992 SC 531; Lt.-Col. Shujauddin Ahmed v. Oil and Gas Development Corporation 1971 SCMR 566; Chairman of East Pakistan Development Corporation v. Rustam Ali PLD 1966 SC 848; Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah PLD 1959 SC 210; Zainul Abedin v. Multan Central Cooperative Bank Ltd. PLD 1966 SC 445; R.T.H. Janua v. National Shipping Corporation PLD 1974 SC 146; Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170; Nisar Ahmad v. The Director, Chiltan Ghee Mill 1987 SCMR 1836; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar 1990 SCMR 1404; K.D.A. v. Wali Ahmed Khan 1991 SCMR 2434; Anwar Hussain v. Agricultural Bank 1992 SCMR 1112; Agricultural Development Bank v. Muhammad Sharif 1988 SCMR 597; PIA Corporation and others v. Tanveer-ur-Rahman and others PLD 2010 SC 676; Chairman State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495; Pakistan Telecommunication Corporation Ltd. Through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 and A. Georgie v. Pakistan International Airlines Corporation PLD 1971 Lah. 748 rel.

Muhammad Tariq Qureshi for Petitioner.

Qudrat Ullah Khan Gandapur Asst. A.G. for Respondents.

2019 P L C (C.S.) 70

[Peshawar High Court]

Before Waqar Ahmad Seth and Ijaz Anwar Khan, JJ

MASUD UR REHMAN, SUPERINTENDENT, CENTRAL PRISON, PESHAWAR

Versus

AMJAD ALI KHAN and 3 others

C.O.C. No.437-P/2016 in W.P. No.629-P/2014, decided on 29th March, 2017.

Constitution of Pakistan---

----Arts. 199 & 204---Constitutional petition---Civil service---Promotion---Contempt proceedings, initiation of---Scope---Employee filed constitutional petition for seeking direction to consider him for promotion which petition was disposed of with the direction to the department to consider the employee for promotion---Petitioner-employee was considered for promotion but was deferred on the ground that he had not done "Senior Management Course"---Validity---Constitutional petition was disposed of with the direction to the department to convene meeting of Provincial Selection Board/Departmental Promotion Committee and consider the employee for promotion---Case of employee was considered for promotion but he was deferred for promotion---Judgment passed in the constitutional petition had been complied with---Deferment was not a punishment nor could be called in question in constitutional jurisdiction i.e. contempt of Court proceedings---Employer had prerogative to enhance the standards of recruitment and promotion in order to maintain efficiency in service---Petition for contempt of Court had become infructuous in circumstances---Employee was required to undergo Senior Management Course and his case had been deferred till then and post had been reserved for him---Contempt petition was dismissed in circumstances.

Government of NWFP Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321; Muhammad Saddique v. Secretary to Government of Pakistan, Ministry of Education and others PLD 1996 SC 197; Zafar Iqbal and others v. Director Secondary Education Multan Division and others 2006 SCMR 1427 and Executive District Officer (Revenue) District Khushab at Jauharabad and others v. Ijaz Hussain and another 2011 SCMR 1864 rel.

Khushdil Khan Mohmand for Petitioner.

Syed Qaiser Ali Shah, AAG along with Muhammad Anwar Khan, S.O., (Litigation) Establishment Department for Respondents.

2019 P L C (C.S.) 170

[Peshawar High Court]

Before Waqar Ahmad Seth C.J. and Ms. Musarrat Hilali, J

SAREER AHMAD and others

Versus

THE SECRETARY, GOVERNMENT OF KHYBER PAKHTUNKHWA HEALTH DEPARTMENT, PESHAWAR and others

Writ Petition No. 1038-P of 2018, decided on 3rd October, 2018.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R. 10---Notification No. SO(R-VI) E&AD/ 1-3/2015 dated 19-04-2016---Appointment made without advertisement---Effect---Plea of petitioners was that authorities had made appointments against the posts in violation of law, rules and policy---Validity---If any post did fall within the purview of Public Service Commission, same was to be made through Commission and if it did not fall within the purview of the Commission then in the manner as determined by the authorities---Initial appointment in the pay scales 3 to 5 was to be made on the recommendations of Departmental Selection Committee through District Employment Exchange concerned or when in a District, office of the Employment Exchange did not exist then after advertising the post in the leading newspapers---Neither advertisement, in the present case, had been made while making appointments in question nor letter was issued requisitioning the registered persons from the Employment Exchange---Selectees provided photocopies of registration card issued by Employment Exchange along with their applications---Selectees were near and dear ones of the persons involved in the selection process---High Court directed that every department of Government including the Employment Exchange in case of vacant posts in BPS-3 to 5 advertise the posts and if the vacant posts were to be filled in through Employment Exchange then letter in writing from requisitioning department should be addressed to the Manager Employment Exchange containing the number of posts in each specified category and Employment Exchange should provide list based on the date of registration by excluding the expired registration as per eligibility criteria for the post---High Court referred present matter to National Accountability Bureau for proper investigation and fixation of responsibility in that respect---Managers of Employment Exchange of each district were directed to create their respective website on the address of their respective districts---Selectees had failed to produce any document showing that they were the reasonable candidates and were selected out of lot---Appointments in question were set aside, in circumstances---Competent authority was directed to re-initiate the selection process in the prescribed manner---Constitutional petition was allowed, in circumstances.

Khushdil Khan Mohmand for Petitioners.

Muhammad Arif Jan and Rab Nawaz Khan AAG along with Khurram Shehzad for Respondents.

2019 P L C (C.S.) 224

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Arshad Ali, JJ

SALEEM WAZIR PROFESSOR COMMUNITY MEDICINE and 6 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health Peshawar and 2 others

Writ Petition No. 1224-A of 2017, decided on 7th February, 2018.

(a) Delegation of powers---

----Principle---In order to enable a person to delegate powers and functions, there must be an authority, express or implied, to delegate---When power is conferred on a particular person, then that person alone has to exercise powers and cannot transfer its exercise to another person.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Ch. Allah Ditta v. Muhammad Azeem Bhatti and 15 others 2017 CLC 776; Meraj Din Bhatti v. Chairman, Punjab Board of Technical Education, Lahore and 4 others 2005 PLC (C.S.) 551 and Oil and Gas Development Company Ltd., through Manager (Pricing) v. Federal Board of Revenue through Chairman and 2 others 2016 PTD 1675 rel.

(b) Civil service---

----Major penalty, imposition of---Requirements---Any disciplinary proceedings relating to misconduct of an employee/officer of any department which entails major penalty of removal/dismissal from service must be inquired through regular inquiry which cannot be dispensed with in matter where controversial facts and ticklish questions are involved.

Muhammad Naeem Akhtar v. Managing Director Water and Sanitation Agency LDA, Lahore 2017 SCMR 356; Muhammad Abdul Moied v. Government of Pakistan 2010 SCMR 1546; Government of Punjab v. Tauqeer Mazhar Bukhari 2008 SCMR 1362; Zulfiqar Ali v. District Health Officer, Okara 2014 PLC (C.S.) 856; Syed Sajjad Haider Kazmi v. Director-General (S&GAD) WAPDA 2007 SCMR 1643 and Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences Jamshoro 2014 SCMR 1263 rel.

(c) Civil service---

----Misconduct---Petitioner was issued show-cause notice containing serious allegations and without waiting for detailed reply from her, major penalty of dismissal from service was imposed on the petitioner---Validity---Such slipshod and hasty decision not only lacked reasons but was contrary to established principles of natural justice---High Court declared show-cause notice as well as termination letter as illegal and without lawful authority---Authorities could initiate any action for removal of petitioner in accordance with law---Constitutional petition was allowed in circumstances.

Sajjad Ahmed Abbasi and Tahir Hussain Lughmani for Petitioners.

Raja Muhammad Zubair, AAG for Respondents Nos.1 and 2.

Sardar Nasir Aslam Khan, Nasrullah Khan Jadoon and Muhammad Arshad Khan Tanoli for Respondent No.3.

2019 P L C (C.S.) 255

[Peshawar High Court]

Before Waqar Ahmad Seth and Muhammad Younis Thaheem, JJ

SAEEDULLAH KHAN

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE, MARDAN and another

Writ Petition No.1620-P of 2017, decided on 14th February, 2018.

Civil Service Regulations, 1960---

----Art. 194---Civil service---Employee charged for a criminal offence---Dismissal from service---Employee was arrested in a criminal case due to which he was dismissed from service---Validity---If civil servant had been charged for a criminal offence, he was to be considered under suspension from the date of his arrest and could not be dismissed from service---In the present case, decision of FIR/trial was pending and employee was on bail---Department was to suspend the employee till the decision of criminal case registered against him---Law had not been followed as penalty of dismissal from service could only be imposed after serving show-cause notice and holding an inquiry---Impugned order was set aside and service of employee was restored with all the back benefits---Constitutional petition was allowed in circumstances.

Habib Bank Ltd v. Ghulam Mustafa Khairati 2007 PLC (C.S) 997 rel.

Khalid Rehman for Petitioner.

Rabnawaz Khan AAG for Respondents.

2019 P L C (C.S.) 380

[Peshawar High Court]

Before Abdul Shakoor and M. Attique Shah, JJ

MUHAMMAD USMAN KHAN 8 and others

Versus

SECRETARY HOME DEPARTMENT, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and 5 others

W.P. No. 3126-P of 2017, decided on 24th August, 2017.

Civil service---

----Appointment against the post of Assistant Sub-Inspectors---Dispute as to age relaxation of candidates---Appointments held in abeyance till the decision about other candidates---Petitioners got relaxation in upper age limit and notification for their appointment was issued---Notification for appointment of petitioners was held in abeyance by the department till the decision of cases of other candidates with regard to age relaxation by the Provincial Government---Validity---Employees in case of violation of terms and conditions of service could not invoke constitutional jurisdiction of High Court---Keeping of appointment notification/order in abeyance did not fall within the purview of "terms and conditions" of service of petitioners and such order was abuse of authority and powers---Department had not dealt the petitioners in accordance with law---If something was wrong on the part of petitioners-employees, they were to be issued charge sheet or explanation letter in accordance with Rules---Authorities could not act in violation of the provisions of Constitution and law of the land---Department had no lawful authority and jurisdiction to hold the notification/order of appointment of employees in abeyance---Impugned order was set aside---Constitutional petition was allowed accordingly.

Syed Haziq Ali Shah for Petitioner.

Mujahid Ali, Addl: AG for Respondents.

2019 P L C (C.S.) 392

[Peshawar High Court]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

MUHAMMAD KHURSHID KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others

W.P. No. 3839-P of 2017, decided on 27th February, 2018.

Civil service---

----Advocate General---Terms and conditions of appointment---Scope---Contention of petitioner, an Advocate, was that the perks and privileges granted to the Advocate General equal to a Judge of the High Court was burden on the financial sources of Provincial Government and said allowances and benefits had not been extended to the other Law Officers working in the office of Advocate General which was discrimination on the part of Provincial Government---Validity---Petitioner had no locus standi to file the present constitutional petition as he was not "aggrieved person" within the meaning of Art. 199 of the Constitution---Provincial Government had enhanced different allowances of other Law Officers in the office of Advocate General---Settlement of terms and conditions of appointment of Advocate General was the prerogative of Provincial Government---Terms and conditions of appointment were person specific keeping in view the knowledge and experience in field of Advocate General---Constitutional petition being bereft of merit and substance was dismissed in circumstances. [pp. 394, 395] A & B

PLD 2011 SC 7 and PLD 2017 SC 121 rel.

Petitioner in person.

Waqar Ahmad Khan, AAG for Respondent.

2019 P L C (C.S.) 449

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Faez Isa and Sajjad Ali Shah, JJ

CHAIRMAN, FBR through Member Administration

Versus

MUHAMMAD ASFANDYAR JANJUA and others

Civil Appeal No. 322 of 2018, decided on 30th May, 2018.

(Against the order dated 4.11.2018 passed by the Federal Service Tribunal in Appeal No. 161(K)CS/2015)

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

----S. 25(2)---Office Memorandum, issued under S. 25(2) of Civil Servants Act, 1973--- Such memorandum had the force of law. [p. 454] A

Azra Riffat Rana v. Secretary Minister of Housing and Works and others PLD 2008 SC 470 and Fazali Rehmani v. Chief Minister N.W.F.P. Peshawar and others PLD 2008 SC 769 ref.

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

----Ss. 8(3) & 9---Civil Servants (Seniority) Rules, 1993, R. 2(3)(b)---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, R. 7(1)---Seniority, determination of---Question as to whether in cases where length of service was provided for promotion, the time spent in litigation prior to the first appointment of civil servant could be counted towards such length of service---Respondent passed civil services examinations conducted by the Federal Public Service Commission in the year, 1996, however, he was treated to be domiciled of Punjab, instead of Sindh (Urban) and consequently could not be declared successful on account of high merit list of Punjab---Respondent in the year 1997 challenged such treatment by filing a Constitutional petition before the High Court of Sindh, which was allowed upon his furnishing an undertaking that he would not claim the seniority---Said order was maintained by the Supreme Court and the respondent was finally allowed to proceed for training in Sindh Civil Service Academy from where he passed the mandatory final passing out examination on 1-9-2009---After requisite training and on completion of five years mandatory service, the respondent was promoted from BS-17 to BS-18---Respondent was aggrieved when the Departmental Selection Board in its meeting did not recommend his name for promotion from BS-18 to BS-19 for want of 12 years mandatory service in BS-17 and above, which length of service according to the department, the respondent would complete in future on 26-8-2019---Contention of respondent that it was the Board's fault that he was treated as Punjab domiciled and was declined his due right to join service and was made to litigate for a period of ten years, therefore, he could not be denied the benefit of such promotion, merely for want of length of service---Held, that provision of subsection (3) of S. 8 of Civil Servants Act, 1973 if read in conjunction with R. 2(3)(b) of the Civil Servants (Seniority) Rules, 1993 left no doubt that the seniority of a civil servant on initial appointment to a service, cadre or post had to be reckoned from the date of his joining the post after being recommended by the Selection Authority and not from a date prior thereto---Even Rule 7 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 empowered the Government to determine the seniority of the probationers after Final Passing Out Examination---No section of law or rule framed thereunder was brought to the court's notice which could empower the Government in cases of initial appointment to fix the seniority of a civil servant from a date prior to his induction in civil service upon successful completion of training---Respondent on account of certain acts or omissions on the part of the Board could not maintain his seniority with officers of his Common Training Programme (CTP) with whom he had cleared CSS examination and neither he completed his necessary training with officer of his CTP nor, he could be inducted in service with them---Remedy to such act or omission at the most could be induction in service by rectifying the wrong---In the present case, no mala fide on the part of the Board has been alleged but, even in cases where such act or omission was found to be tainted with mala fide the remedy could be anything but not seniority without actual length of service---Impugned order of Federal Service Tribunal whereby respondent was given benefit of placement of his seniority with officers of Common Training Programme (CTP) with whom he had cleared CSS examination, was set aside---Appeal was allowed accordingly.

Chairman Federal Board of Revenue v. Iqbal Hussain Shaikh 2016 SCMR 773; Haroon Muhammad Khan and others v. Rukhsana Yasmeen and others 2014 SCMR 358; Ghulam Rasool and others v. Government of Balochistan and others 2002 PLC (C.S.) 47 and G.C. Gupta v. N.K. Pandev AIR 1988 SC 654 distinguished.

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

----Ss. 8 & 9---'Seniority' and 'Promotion'---Not vested rights---Neither any seniority nor any promotion could be claimed or granted without actual length of service on account of vested rights. [p. 458] D

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Appellant.

Respondent No.1 in person.

Date of hearing: 30th May, 2018.

2019 P L C (C.S.) 470

[Supreme Court of Pakistan]

Present: Faisal Arab and Ijaz ul Ahsan, JJ

The SECRETARY PUNJAB PUBLIC SERVICE COMMISSION, LAHORE and others

Versus

AAMIR HAYAT and others

Civil Petition No. 1058-L of 2018, decided on 27th November, 2018.

(On appeal against the judgment dated 15.02.2018 passed by the Lahore High Court, Lahore in Writ Petition No. 31278 of 2016)

(a) Punjab Public Service Commission Regulations, 2016---

----Regln. 59---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Merit list---Discretion of appointing authority to provide substitute candidate from merit list---Scope---Posts of Sub-Inspector---Posts left vacant after recruitment process---Re-advertisement for posts left vacant--- Legality---Advertisement for recruitment of Sub-Inspectors was published by the petitioner-concerned department in the year 2015---After the requisite test and interview, respondent was placed at Serial No. 32 of the merit list---Last person who was appointed was at Serial No.31 of the merit list---Since the said person did not join, the respondent expected that he would be appointed against the available position---When the respondent was not appointed, he filed a representation and thereafter preferred a constitutional petition before the High Court, which was allowed, it was directed that since the merit list was valid for one year, the respondent should be appointed on the basis of the existing merit list and there was no need for the concerned department to re-advertise the said post---Plea of concerned department that the competent authority could send a request for a substitute candidate and on such request being received a substitute could be recommended by the competent department, however, in the present case since no request was received, the vacant posts were re-advertised---Validity---After completion of appointment process 3 seats from the region of the respondent, and 17 in total remained unfilled, which were re-advertised against the posts of Sub-Inspectors---Re-advertisement process was undertaken in a transparent and fair manner by the competent department, through an open competitive process, a written examination and interview---Persons qualifying in the process and appearing high on the merit list had since been appointed and such process had been repeated for three years---Respondent however did not bother to participate in the process initiated in the subsequent years i.e. 2016, 2017 and 2018, therefore, all posts available during the subsequent years were filled---Under Regln. 59 of the Punjab Public Service Commission Regulations, 2016, a substitute could be provided from the merit list during its validity period, if so requested by the competent authority in its discretion---In the present case, no such request was made---Said exercise of discretion was not withheld unreasonably because a large number of posts had become available and the department wished to re-advertise the posts in order to attract better candidates---Neither mala fides nor ulterior motive were involved and the competent department had valid grounds and lawful justification to opt to re-advertise the posts---High Court exceeded its jurisdiction by issuing a direction to the competent department that an appointment letter be issued to the respondent against post of Sub-Inspector on the basis of merit list---By doing so, the High Court arrogated itself to the position of an appointing authority which was obviously and clearly beyond the scope of its jurisdiction under Art. 199 of the Constitution---Order of the High Court being unsustainable was set aside---Petition for leave to appeal was converted into an appeal and allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Government departmental decisions---Courts could not interfere in lawful exercise of discretion by the concerned departments and substitute lawful decisions of the departments, by their own.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Interference in decisions of State functionaries---Jurisdiction of the High Court under Art. 199 of the Constitution was limited to the extent of ensuring that state functionaries did what they were required by law to do and refrain from doing what they were prohibited by law to do---Unless an act or omission of a state functionary fell within the said parameters it was not liable to be interfered with---Such interference would constitute the High Court overstepping its jurisdiction and entering the domain of the executive which was contrary to the concept of trichotomy of powers as per the scheme of the Constitution.

Tariq Mehmood Butt, AAG, Muhammad Saleem, DSP (Legal) and Muhammad Ashraf, DSP (Legal) for Petitioners.

Mahmood Ahmed Qazi, Advocate Supreme Court for Respondent No.1.

Date of hearing: 27th November, 2018.

2019 P L C (C.S.) 484

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

YAQUB ALI KHAN

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and another

Civil Petition No. 2982 of 2016, decided on 19th December, 2018.

(On appeal against the Order dated 1.6.2016 passed by the Islamabad High Court, Islamabad in F.A.O. No. 94 of 2015)

Civil service---

----Divisional Forest Officer, post of---Requisite experience of candidates---Petitioner (unsuccessful candidate) challenged appointment of respondent to post of Divisional Forest Officer on the ground that the latter did not have the requisite experience in the relevant field for being appointed---High Court had directed the Federal Public Service Commission (FPSC) to make the requisite inquiry from the Chief Secretary, about the length of the experience claimed by respondent---Chief Secretary, after having made all requisite inquiries, confirmed to the FPSC that respondent indeed had the requisite experience in the relevant field and thereby validated the experience certificate of respondent---Record also showed that in addition to experience gained while working in the subject area, respondent had also worked in a 'joint venture entity' formed on the basis of an agreement between the Forest Department and an organization---Such work also fell within the definition of the experience in the relevant field---Further when the respondent applied for the post in question he held an M.Phil degree, and according to rules of FPSC, a candidate possessing an M.Phil degree was entitled to claim two years' experience in the relevant field on the basis of such degree---In total respondent had about four years' experience working in the subject area, two years' experience working with the joint venture entity, and two years' experience by virtue of having an M.Phil degree at the time of his application---Aggregate of such experience came to about eight years which was much in excess of the five years' experience required for selection to the post in question---Respondent had held the post in question for more than 10 years now and presently also held a PhD degree in the relevant field---Respondent amply fulfilled the requirement for the post for which he was selected---Petition for leave to appeal was dismissed accordingly.

Sardar Muhammad Aslam, Advocate Supreme Court for Petitioner.

Nemo for Respondent No.1.

M. Shoaib Shaheen, Advocate Supreme Court for Respondent No.2.

Date of hearing: 19th December, 2018.

2019 P L C (C.S.) 488

[Peshawar High Court]

Before Yahya Afridi, C.J and Shakeel Ahmad, J

ABDUL WADOOD

Versus

ADDITIONAL CHIEF SECRETARY FATA and 3 others

Writ Petitions Nos.2734-P, 2959-P and 3157-P of 2017, decided on 11th January, 2018.

Civil service---

----Transfer of employee---Matter with regard to terms and conditions of service---Bar of jurisdiction contained in Art. 212 of the Constitution---Alternate remedy---Effect---Service Regulations were applicable to the petitioners---Matters with regard to terms and conditions of service would come within the domain of Service Tribunal---Constitutional jurisdiction of High Court in such matters had been ousted under Art. 212 of the Constitution---If transfer order was passed on the basis of mala fide or was coram non judice or was in violation of any rules even then same could only be challenged before Service Tribunal---Matter regarding transfer of a civil servant was one of the incident of terms and conditions of service which could not be agitated before the High Court---Petitioners-employees had alternate adequate and efficacious remedy before Service Tribunal for redressal of their grievance---Constitutional petition being not maintainable was dismissed in circumstances.

Khalid Mahmood Watto v. Government of Punjab 1998 SCMR 2280; Government of Punjab v. Muhammad Zafar Bhatti and others PLD 2004 SC 317; Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad 2004 SCMR 521 and Syed Imran Raza Zaidi v. Government of Punjab and others 1996 SCMR 645 ref.

Muhammad Yaseen v. Chairman, Pakistan Telecommunication and others PLD 2002 Lah. 268; Miss Rukhsana Ijaz v. Secretary Education, Punjab and others 1997 SCMR 167; Secretary Education NWFP Peshawar and two others v. Mustamir Khan and another 2005 SCMR 17; Pir Muhammad v. Government of Baluchistan through Chief Secretary and others 2007 SCMR 54 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 rel.

Sardar Ali Raza for Petitioner.

Waqar Ahmad AAG for Respondents.

Date of hearing: 11th January, 2018.

2019 P L C (C.S.) 500

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J. and Ijaz ul Ahsan, J

DIG, NH & MP, KARACHI

Versus

GHULAM MUSTAFA MAHAR and another

Civil Petition No. 2248 of 2017, decided on 25th October, 2018.

(Against judgment dated 07.04.2017 of Federal Service Tribunal, Karachi, passed in Appeal No. 1(K)CE of 2014)

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

----R. 4(b)(iv)---Dismissal from service---Habitual absence from duty---Failing to respond to official communication---Respondent, who was employed as a junior clerk in the National Highways and Motorway Police, had a long history of unauthorized absence from duty for which various show cause notices had been issued to him from time to time---Respondent did not bother to file a response to the notices, where after, he was summoned to the orderly room and granted personal hearing---Respondent's plea that he was unwell was found to be implausible and not supported by documentary evidence---Accordingly he was dismissed from service in terms of R. 4(b)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 on account of misconduct, unauthorized absence from duty and failing to respond to the official communications which had admittedly been received by him---Even after his reinstatement into service pursuant to the orders passed by the Service Tribunal, respondent did not improve his conduct and continued to remain absent from duty without permission or authorization for which a number of show cause notices had been issued to him---Conduct of respondent who was part of a disciplined force was detrimental to the discipline of the force, and his past and present conduct indicated a casual, careless and non-serious attitude---Supreme Court set aside the impugned judgment of the Service Tribunal in circumstances and order of the competent authority dismissing respondent from service was restored.

Sajid Ilyas Bhatti, DAG and M. Iqbal, DSP Legal, NH&MP for Petitioner.

Ex parte for Respondent No.1.

Date of hearing: 25th October, 2018.

2019 P L C (C.S.) 507

[Peshawar High Court]

Before Qaiser Rashid Khan and Muhammad Nasir Mahfooz, JJ

MAJEED ULLAH

Versus

The DISTRICT EDUCATION OFFICER (MALE) AND PESHAWAR and 2 others

W.P. No.3561-P of 2017, decided on 31st May, 2018.

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

----S. 4---Inter-districts transfer---Seniority, determination of---Promotion---Equal protection of law---Scope---Employee was transferred from one district to another district with the condition that his seniority would be determined at the bottom of seniority list under the rules---Name of petitioner was not mentioned at proper place of seniority list and he filed representation which was allowed but same was not implemented---Validity---Every citizen had right to be treated in accordance with law---Where availability of alternate remedy was a question before entertaining a constitutional petition, impugned action of officials should be considered first---If actions of department were not within the confines of law or were based on some extraneous reasons, petitioner might be granted such relief as prayed---Petitioner, in the present case, had sought issuance of writ to implement the order of authorities---Consideration for promotion did not fall within the terms and conditions of service as eligibility was still to be considered by the Departmental Promotion Committee---Right of seniority of petitioner-employee to be considered qua his colleagues had been made less secure due to the actions of authorities---Grievance of employee could be redressed in under the constitutional jurisdiction by directing the authorities to abide by the decision of their senior officers and treat the petitioner at par with his other colleagues for the purpose of seniority as well as promotion---Constitutional petition was allowed accordingly.

Muhammad Ijaz Khan Sabi for Petitioner.

Syed Sikandar Hayat Shah, AAG for Respondents.

2019 P L C (C.S.) 516

[Supreme Court of Pakistan]

Present: Mushir Alam and Faisal Arab, JJ

SECRETARY M/O DEFENCE, GOVERNMENT OF PAKISTAN and others

Versus

GHUFRAN ALI

Civil Petition No. 608-K of 2018, decided on 27th July, 2018.

(On appeal against the judgment dated 04.04.2018 passed by the Federal Service Tribunal, Karachi in Appeal No.113(K)CS/2015)

(a) Civil service---

----Corruption---Removal from service---Confession during inquiry---Plea of duress and pressure for making confessional statement---Respondent was unable to demonstrate from the record that he had made any grievance as to his confessional statement being made under duress and pressure---Award of major penalty of removal from service against the respondent was restored.

(b) Civil service---

----Corruption---Removal from service---Confession during inquiry---Raising technical plea to dispel effect of a confession---Service Tribunal set aside the order of removal of respondent-civil servant and ordered de-novo inquiry in consideration of the fact that the witness who deposed against the respondent during inquiry was not examined in presence of the respondent---Legality---Merely raising a technical question that the witness who deposed against the respondent was not examined may alone not be sufficient to dispel the effect of a confession made by him before the inquiry officer---Service Tribunal had misdirected itself by taking a too lenient view in the matter of corruption (committed by the respondent) in a disciplined force---Petition for leave to appeal was converted into appeal and allowed and impugned judgment of Service Tribunal was set aside.

Asim Mansoor, DAG and A.S.K. Ghori, Advocate-on-Record for Petitioners.

Sanaullah Noor Ghori, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

Date of hearing: 27th July, 2018.

2019 P L C (C.S.) 565

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

MUHAMMAD MUSHTAQ QURESHI and others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

W.P. No. 666-A of 2013, decided on 31st January, 2018.

(a) Provincial Urban Development Board Service Rules, 1978---

----Preamble---Khyber Pakhtunkhwa Urban Planning Ordinance (IV of 1978), S.9---Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011, Preamble---Employees of Provincial Urban Development Board---Termination from service under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011---Validity---Provincial Urban Development Board Service Rules, 1978 had been made applicable to the employees of dissolved/defunct Board---Employees were to be dealt with under the Provincial Urban Development Board Service Rules, 1978 and not under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011---Mere adopting Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 by the department the status of employees would not change to be civil servants---Services of petitioners were only to be governed under Provincial Urban Development Board Service Rules, 1978---Disciplinary proceedings initiated against the employees and their dismissal order passed under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 were illegal and without lawful authority---Impugned orders were set aside however, competent authority would be at liberty to proceed under Provincial Urban Development Board Service Rules, 1978---Constitutional petition was allowed accordingly.

(b) Administration of justice---

----When law required a thing to be done in a particular manner, it must be done in that manner or not at all. [p. 570] A

Atta Muhammad Qureshi's case PLD 1971 SC 61; Mughal Sugical's case 2005 PLC 634; Raja Hamayun Sarfraz Khan's case 2007 SCMR 307 and Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 rel.

Abdus Saboor Khan for Petitioners.

Yasir Zahoor Abbasi, A.A.G. and Muhammad Faheem Khan Yousafzai and Sabah-ud-Din Khattak for Respondents.

Date of hearing: 22nd January, 2018.

2019 P L C (C.S.) 587

[Peshawar (Abbottabad Bench)]

Before Syed Afsar Shah and Syed Arshad Ali, JJ

MEHBOOB SULTAN

Versus

MANAGING DIRECTOR, FDC, PHASE-V, HAYATABAD, PESHAWAR and 3 others

Writ Petition No.429-A of 2012, decided on 10th July, 2017.

Civil service---

----Petitioner-employee was transferred and posted to higher post but in his own pay and scale---Petitioner claimed salary of higher post for the duties he perform on the higher post---Validity---If employee was promoted to officiate in a higher post involving higher responsibilities then he would be entitled to the minimum pay of that grade---Nothing was on record that petitioner-employee requested for the higher post nor there was an assertion by the department that employee was not eligible to hold the higher post---Incorporation of condition in civil servant's posting order that he had been adjusted against his own pay and grade, would not be a bar to claim pay for the higher grade---Petitioner was entitled to the pay of higher post during the period he worked against the same---Constitutional petition was allowed in circumstances.

Islamic Republic of Pakistan v. Qazi Abdul Karim 1978 SCMR 289; Sh. Amar Maftoon v. Government of Punjab 1992 SCMR 1869; Abdul Humid and others v. Chief Secretary, N.W.F.P. and others 1998 PLC (C.S.) 1468; Khursheed Anwar v. Province of N.W.F.P. through Chief Secretary and another 1999 PLC (C.S.) 225 and Abdul Sattar v. District Accounts Officer, Bahawalpur 2012 PLC (C.S.) 65 rel.

Haji Sabir Hussain Tanoli for Petitioner.

Sardar Shoukat Ali for Respondents.

2019 P L C (C.S.) 645

[Peshawar High Court]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

GUL MUNIR

Versus

The GOVERNMENT OF PAKISTAN through Secretary, Ministry of States and Frontier Regions (SAFRON), Islamabad and others

Writ Petition No.354-P of 2017, decided on 1st March, 2018.

Federal Levies Force (Service) Rules, 2016---

----R. 11---Federal Levies Force Regulation, 2012, Regln. 10---Khyber Pakhtunkhwa Constabulary Act, (XII of 1915), Preamble---Civil Servants Act (LXXI of 1973), S. 2 (1) (b)---Service Tribunals Act (LXX of 1973), S. 4---Employees of Frontier Constabulary---Terms and conditions of service---Alteration---Bar of jurisdiction contained in Art. 212 of the Constitution---Effect---Federal Levies Force (Service) Rules, 2016 were promulgated which adversely effected terms and conditions of service of petitioners-employees---Contention of authority was that constitutional petition was not maintainable---Validity---Employees of Frontier Constabulary were civil servants having direct connection with the affairs of the Federation and Defence of Pakistan---Terms and conditions of service of petitioners-employees were regulated by Federal Levies Force Regulations and Rules made thereunder---High Court had no jurisdiction to determine and decide controversial issues with regard to terms and conditions of a civil servant---Service Tribunal had exclusive jurisdiction to determine all the issues arising out of terms and conditions of service of civil servant---Petitioners-employees had right of appeal against the impugned amendment within thirty days of communication of such order---Petitioners-employees could prefer their individual appeal before the competent authority within statutory period of limitation commencing from the date of issuance of copy of present judgment---Constitutional petition was disposed of in circumstances.

Khaled Rehman for Petitioner.

Faraz Khan for Respondents.

Mansoor Tariq A.A.G for Respondents.

2019 P L C (C.S.) 695

[Peshawar High Court]

Before Qaiser Rashid Khan and Qalandar Ali Khan, JJ

SADAQATULLAH

Versus

The FEDERATION OF PAKISTAN through Secretary and 3 others

Writ Petition No.3293-P of 2017, decided on 9th October, 2018.

Pakistan Air Force Act (VI of 1953)---

----Ss. 38(1) & 65---Constitution of Pakistan, Art. 199---Constitutional petition---Desertion and aiding desertion, violation of good order and Air Force discipline---Petitioner was employee in Pakistan Air Force and was charged in a criminal case, but acquitted by the Trial Court---After acquittal, he surrendered himself to the Air Force Authorities but was charge sheeted by the Commanding Authorities under Ss. 38(1) & 65 of Air Force Act, 1953 for deserting the service and acting in a manner prejudicial to good order and Air Force discipline---Petitioner was again tried by the District Court Martial and was punished with rigorous imprisonment with dismissal from service---Petitioner had approached the court of appeal, which partially accepted the appeal and reduced the sentence of imprisonment, whereas punishment of dismissal from service was maintained---Petitioner had admitted the fact of desertion in his petition that the said desertion was neither intentional nor deliberate but due to the circumstances beyond his control---Scope---Record showed that the petitioner remained deserter for seven years and three months and was, therefore, tried by the District Court Martial under Ss. 38(1) & 65 of Pakistan Air Force Act, 1953---Petitioner had already undergone the punishment of imprisonment, but sought his re-instatement into service along with back benefits in terms of paras. 4 & 5 of the circular dated 13.12.1992---Said circular was issued on the subject of discharge from service/re-instatement/retention in service of personnel involved in criminal cases tried by Civil Court and had no relevancy to trial and conviction of the petitioner by the District Court Martial---Petitioner was not subjected to trial again on the same criminal charges, but tried for deserting the service, which was outside the ambit of circular dated 13.12.1992---Jurisdiction of High Court in the present matter was barred under the barring clause of Art. 199(3) of the Constitution for the reason that not only present Constitutional petition had been filed by a member of the Armed Forces, but the petition was also in respect of terms and conditions of his service, and in respect of action taken in relation to him as a member of the Armed Forces---Constitutional petition being misconceived, was dismissed, in circumstances.

Khalid Rehman Khan for Petitioner.

Kifayat Ullah, Deputy Attorney General for Respondent.

2019 P L C (C.S.) 721

[Peshawar High Court (Abbottabad Bench)]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

ZULFIQAR AHMED and another

Versus

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

Writ Petition No.156-A of 2016, decided on 22nd November, 2017.

(a) Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S. 4---Notification No. FD/SO (FR) 10-22/2014, dated 20-05-2014---Secondary School Teachers (BS-16)---Recommendation of Provincial Assembly for up-gradation of Secondary School Teachers from BPS-16 to BPS-17---Implementation of---Resolution passed by the Provincial Assembly without placing before the cabinet---Effect---Provincial Assembly passed resolution for up-gradation of Secondary School Teachers from BPS-16 to BPS-17 but same was not implemented---Contention of petitioners-employees was that post of Secondary School Teachers had been up-graded from BPS-16 to BPS-17 in other Provinces and they had been discriminated---Validity---Matter with regard to up-gradation of post did not constitute the terms and conditions of civil servants---Said grievance was not amenable to the jurisdiction of Service Tribunal---Petitioners had sought direction to the authorities to place the recommendations of Provincial Assembly before Cabinet/Provincial Government for giving effect to it---No order with regard to enforcement of terms and conditions of civil servants had been challenged---Relief claimed being in the nature of a command to departmental authority could not be issued by the Service Tribunal having limited jurisdiction---Resolution of Provincial Assembly involved financial implications and expenditure from the Provincial consolidated fund or withdrawal from public accounts of the Province---Powers of Provincial Assembly had been restricted to enact any bill which would involve expenditure from Provincial consolidated fund or withdrawal from public accounts of the Province unless said bill was introduced with the consent of Provincial Assembly---Alleged resolution which had been passed by the Provincial Assembly without placing before the cabinet having implication on Provincial consolidated fund could not be made binding on the Provincial Government---Department had no authority to halt the process of placing the recommendations of Provincial Assembly before the Cabinet---Cabinet had to decide the issue keeping in view all the circumstances---Other Provinces had allowed BPS-17 to the Secondary School Teachers---Disparity in the pay scale of similarly placed teachers of different Provinces was on record---Grievances of petitioners-employees had not been redressed through speaking order---Conduct of authorities by withholding the recommendations of Provincial Assembly and not placing the same before Provincial Government/Cabinet was not warranted under the law---Authorities were directed to place the case of petitioners with detailed working papers stating therein the financial implications and status of similarly placed teachers in the other Provinces to the Provincial Government/Cabinet in accordance with law---Constitutional petition was allowed in circumstances.

Zafar Iqbal v. Director Secondary Education Multan 2006 SCMR 1427; Mumtaz Ali Bohio v. Federal Public Service Commission 2002 SCMR 772; Sheikh Ansar Ahmed v. Federation of Pakistan 2010 PLC (C.S) 1018 and Mustafa Impex Karachi v. Government of Pakistan through Secretary Finance PLD 2016 SC 808 ref.

Regional Commissioner Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali and others 2016 SCMR 859; Executive District Officer School and Literacy District Dir Lower v. Qamar Dost Khan 2006 SCMR 1630 and Pakistan International Airlines Corporation v. Samina Masood PLD 2005 SC 831 rel.

(b) Constitution of Pakistan---

----Art. 199---Mandamus, writ of---Writ of mandamus could only be issued by the Constitutional Courts.

Executive District Officer School and Literacy District Dir Lower v. Qamar Dost Khan 2006 SCMR 1630 and Pakistan International Airlines Corporation v. Samina Masood PLD 2005 SC 831 rel.

(c) Interpretation of statutes---

----Rule which offended the parent Act or Constitution had no force in the eyes of law.

Muhammad Shafiq Awan for for Petitioners.

Yasir Zahoor Abbasi, Assistant A.G. for Respondents.

2019 P L C (C.S.) 808

[Peshawar High Court]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

SHAH SAUD and 2 others

Versus

KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION through Chairman and another

W.P. No. 4182-P of 2017, decided on 27th February, 2018.

(a) Khyber Pakhtunkhwa Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008---

----R. 2(2)---Appointment against the post of Civil Judge-cum-Judicial Magistrate---Relaxation in upper age limit---Expression "excluded" and "relaxation"---Petitioners-candidates sought relaxation in upper age limit but same was refused by the Public Service Commission on the ground that they had already availed two years relaxation in upper age limit granted by the High Court and they were not entitled to further age relaxation beyond two years already allowed to them---Validity---Candidate for the post of Civil Judge-cum-Judicial Magistrate was not entitled to two relaxations in the upper age limit under R.2(2) of Khyber Pakhtunkhwa Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 but a maximum period of two years was to be 'excluded' from the upper age limit of every candidate for the post who had practiced at Bar for a period not less than two years---Word 'excluded' had different connotation from the word 'relaxation'---Candidate having already availed one relaxation would still be entitled to the benefit of 'exclusion' of two years of his practice at the Bar from his/her age under R.2(2) of Khyber Pakhtunkhwa Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008---Constitutional petitions were allowed in circumstances.

(b) Khyber Pakhtunkhwa Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008---

----R. 2(2)---Appointment against the post of Civil Judge-cum-Judicial Magistrate---Requirements---Seeking relaxation in the mandatory period of two years practice at the Bar---Scope---Petitioner-candidate was declared falling short of the requisite two years experience at the Bar by the Public Service Commission---Validity---Candidate in absence of any provision with regard to relaxation in the mandatory period of two years practice at Bar was not entitled to the said relief---Constitutional petition was not maintainable which was dismissed in circumstances.

Alam Khan Adenzai for Petitioner.

Rab Nawaz Khan, AAG for Respondents.

2019 P L C (C.S.) 828

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

MS. KALSOOM BEGUM and others

Versus

ABDUL WALI KHAN UNIVERSITY, MARDAN through Vice-Chancellor and others

W.P. No. 3490-P of 2018, decided on 18th October, 2018.

Civil service---

----Contract appointment---Termination from service---Illegal appointment---Scope---Inquiry committee was constituted which recommended termination of services of petitioners-employees---Services of employees were terminated on the ground of being illegal against the posts which were not sanctioned---Validity---Number of posts were not specified in the advertisement---Nothing was on record with regard to available vacancies---Surplus appointments had already been made by the authorities---Appointments of employees were made on probation which could be terminated during probationary period without serving show cause notice---Appointments in question were made against non-sanctioned and non-vacant posts---Impugned order whereby services of petitioners were terminated did not call interference by the High Court in its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

2003 PLC (C.S.) 1421 and 2003 PLC (C.S.) 285 rel.

Qazi Muhammad Anwar, Khalid Rehman and Muhammad Asif Yousafzai for Petitioners.

Mansoor Tariq, Zartaj Anwar and Ali Gohar for Respondents.

2019 P L C (C.S.) 842

[Peshawar High Court (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Shakeel Ahmad, JJ

GHANI-UR-REHMAN

Versus

KHUSHHAL KHAN KHATTAK UNIVERSITY, KARAK, through Vice-Chancellor and others

W.P. No.703-B along with C.M. No. 297 and 388 of 2018, decided on 11th December, 2018.

Khushal Khan Khattak University Karak Consolidated Statutes, 2016---

----S. 2---Appointment of lecturer on contract basis sought regularization of service---Scope---Petitioner-employee had been appointed according to the rules of University---Khushal Khan Khattak University Karak Consolidated Statutes, 2016 was not in field at the time of appointment of the employee---Services of employee was to be governed by the Rules adopted at the time of appointment---Khushal Khan Khattak University Karak Consolidated Statutes, 2016 would come into force at once and no retrospective effect had been given thereunder---No relevant provision from the Statutes of University had been pointed out by the authorities to negate the contention of petitioner that his services were required to be regularized after having served continuously and without interruption from the last 4/5 years---If the petitioner had opted to appear in the EATA exams then his past service could not be dispensed with on this score alone---Department was directed to regularize the service of employee---Constitutional petition was allowed, in circumstances.

2018 SCMR 157 and 2016 SCMR 1375 ref.

2018 SCMR 157 and 2018 SCMR 1405 rel.

Ahmad Ali for Petitioner.

Ahmad Farooq Khattak for Respondents.

2019 P L C (C.S.) 901

[Peshawar High Court]

Before Waqar Ahmad Seth, C.J.

WAZIR AHMAD KHAN and others

Versus

REAYAT KHAN KHATTAK and others

R.F.A. No.196 of 2005, decided on 19th November, 2018.

Khyber Pakhtunkhwa Government Servants (Conduct) Rules, 1987---

----R. 31---Defamation Ordinance (LVI of 2002), Ss. 3, 13 & 15---Defamation---Suit for damages by government servant---Government Servant filing suit for defamation and damages without seeking permission from the government---Maintainability---Plaintiff was a government servant who filed suit against defendants under Defamation Ordinance, 2002 and sought recovery of compensation through damages---Trial Court decreed suit in favour of plaintiff---Validity---Provisions of R. 31 of Khyber Pakhtunkhwa Government Servants (Conduct) Rules, 1987 was applicable to the parties before court---Decree-holder was civil servant/government servant and allegations levelled against him were directly connecting to his post/position which according to him disgraced him in the society etc.---Government servant/civil servant could not under any circumstances had recourse to any court for vindication of his public acts and character etc., except with prior permission of government---High Court set aside judgment and decrees passed by the Trial Court as no permission was sought by plaintiff before filing suit---Appeal was dismissed under circumstances.

Karachi, Khalid Taqi Khan v. The State and 2 others 1982 PCr.LJ. 1313 and Aslam Akbar Kazi and 3 others v. Gulzar Ahmad Channa and another 2003 PCr.LJ 1892 rel.

Muhammad Amin Khattak Lachi for Appellants.

Nasir Mehmood for Respondent No.1.

Adnan Khattak for Respondents Nos.2 to 5.

Arshad Jamal Qureshi for Respondent No.6.

2019 P L C (C.S.) 969

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

FAYAZ AHMAD

Versus

KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION, through Chairman and 2 others

W.P. No. 1137-P of 2018, decided on 21st February, 2019.

Civil service---

----Appointment against the posts of Subject Specialist and Lecturer---Allegation of discrepancies in the multiple-choice questions of papers for test by the Public Service Commission---Effect---Contention of petitioner was that two multiple choice questions did not have right answers in the given options---Validity---Petitioner out of thousands candidates for the posts in question was only one raising objection to two multiple choice questions on the ground that correct answers were not provided in the given options---Awarding marks to the petitioner for the un-attempted "so-called wrong multiple choice questions" and allowing him to appear in the interview and sending recommendation in his favour to the Government would jeopardize the entire selection process---Appointments had been made on the recommendations of Public Service Commission---Complaints with regard to incorrect answers of said multiple choice questions had been entertained by the Public Service Commission but no such discrepancies had been detected by the concerned authorities---Objection of petitioner with regard to only a couple of multiple choice questions was not tenable, in circumstances---High Court in its constitutional jurisdiction could not assume the role of overseeing the process of examination conducted by the Public Service Commission---Public Service Commission had the mandate to undertake the exercise of conducting examination/test for various positions in the Government and make recommendations for appointment---Constitutional petition was dismissed in circumstances.

Asif Ali Shah for Petitioner.

Arshad Ahmed, A.A.G. for Respondents.

2019 P L C (C.S.) 1065

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

SHER AFZAL KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education Khyber Pakhtunkhwa, Peshawar and 2 others

Writ Petition No. 627-A of 2018, decided on 18th December, 2018.

(a) Civil service---

----Pensionary benefits, grant of---Denial of pensionary benefits, legality of---Petitioner had served government department for 20 years and on attaining the age of superannuation, retired from service but department refused to pay the pensionary benefits---Constitutional petition was accepted with direction to employer department to pay all the pensionary benefits to the petitioner by counting his service from the date of his appointment.

Writ Petition No. 19-A/2014 rel.

Writ Petition No. 3394-P of 2016; Writ Petition No. 551-A of 2017 and Writ Petition No. 1035-A of 2017 ref.

(b) Civil service

----Pension---Vested right---Right to pension cannot be arbitrarily abridged or reduced except in accordance with law, as it is the vested right and legitimate expectation of a retired civil servant.

Kamran Gul for Petitioner.

Yasir Zahoor Abbasi, AAG for Respondent.

2019 P L C (C.S.) 1095

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

SAEED AKHTAR CHUGHTAI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Civil Secretariat Peshawar and 4 others

Writ Petition No. 5166-P of 2018, decided on 24th January, 2019.

Civil service---

----Contract appointment---Termination from service---Scope---Contention of petitioner was that his services were terminated prior to period of completion of contract---Validity---If a person was employed on contract basis and terms of his/her employment did provide the manner of termination of service then he/she could be terminated in terms thereof---Competent authority, in the present case, had terminated the services of employee according to condition of contract---Impugned termination letter did not suffer from any infirmity, in circumstances---Master had right to retain or dispense with services of an employee on the basis of satisfactory performance or otherwise---Employee after having accepted the conditions of service had no locus standi to file constitutional petition seeking writ of mandamus to authority to refrain from terminating his service and to retain him on his existing post---Constitutional petition was dismissed.

The Secretary Government of the Punjab through Secretary Health Department, Lahore and others v. Riaz ul Haq 1997 SCMR 1552; Agha Salim Khurshid and another v Federation of Pakistan and others 1998 SCMR 1930; Brig (R.) Sakhi Marjan, CEO, PESCO, Peshawar v. Managing Director PEPCO, Lahore and others 2009 SCMR 708; Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642; Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others 2011 PLC (C.S.) 623 and HRC No.44517-K/2010 regarding Regularization of the Contract Employees of Zakat Department 2013 SCMR 304 rel.

Qazi Jawad Ehsan Ullah for Petitioner.

Fayaz Khan for Respondents.

2019 P L C (C.S.) 1109

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

ALI AZIM AFRIDI ADVOCATE DISTRICT COURTS PESHAWAR

Versus

Syed WAQAR SHAH and another

Writ Petition No. 2512 of 2018, decided on 13th November, 2018.

Khyber Pakhtunkhwa Provincial Secretariat (Recruitment) Rules, 1974---

----R. 5(b)---Appointment against the post of Special Secretary to Speaker of Provincial Assembly---Transfer on deputation---Scope---Respondent working in Pakistan International Airlines Corporation was transferred on deputation for three years and was appointed as Special Secretary to Speaker of Provincial Assembly and thereafter was absorbed against the said post---Validity---Respondent did not meet the essential requisites for transfer on deputation while serving outside the secretariat in connection with the affairs of the Federation or the Province---Transfer of respondent was in violation of Khyber Pakhtunkhwa Provincial Secretariat (Recruitment) Rules, 1974---High Court observed that post of Special Secretary to the Speaker of Provincial Assembly was created in haste for a specific person on the orders of Speaker---Transfer of respondent from the very inception was void ab initio and superstructure of his appointment on deputation and subsequent absorption built on such a void order was not sustainable---Impugned notification for absorption of respondent was declared illegal and without any lawful authority---Constitutional petition was allowed in circumstances.

2010 SCMR 1886; 2018 SCMR 54; 2018 SCMR 48; 2017 SCMR 2051 and 2015 SCMR 456 rel.

Petitioner in Person.

Qazi Muhammad Anwar for Respondents.

2019 P L C (C.S.) 1119

[Peshawar High Court (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

MUHAMMAD QURESHI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and 5 others

W.P. No. 818-D of 2015, decided on 10th October, 2018.

(a) Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R. 10---Advertisement/Print Media Policy, 2009, Clause V---Appointment without advertisement against the post of Work Supervisor---Effect---Locus poenitentiae, principle of---Applicability---Contention of petitioner was that respondent maneuvered the selection process and succeeded to get the appointment order in his favour---Validity---Filling of post in question was required to be preceded by an advertisement in the press notifying availability of said post, inviting applications from all the eligible candidates and the consequent recommendations of Departmental Selection Committee as a result of requisite test of all the qualified applicants---Post in question was never advertised in two newspapers i.e. one provincial and one local of the target area---Neither Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 nor Government approved policy had been followed in the present case---Alleged post had been advertised only in one local newspaper---No written test and interview was conducted by the Departmental Selection Committee---Father of appointee was serving in the department at the relevant time---Impugned post was advertised in the local newspaper on 05-09-2014 and same fell vacant on 14-09-2015 and appointment was approved on the same day---Respondent had maneuvered his appointment to the post in question by exerting the influence of his father in disregard of law and requirement of merit and transparency---Appointment of respondent was illegal and plea of locus poenitentiae was not available to him---High Court observed that action should be taken against those who were guilty of making illegal appointment---Object of Court was to dispense and foster justice and to right the wrong---Appointment in question was illegal and unlawful and void ab initio and same was laid to rest---Authorities were directed to fill post in question afresh through advertisement in accordance with law---Constitutional petition was allowed, in circumstances.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 at 350; Syed Nazim Ali and others v. Syed Mustafa Ali and others 1981 SCMR 231; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; Tufail Muhammad and others v. Raja Muhammad Ziaullah and others PLD 1965 SC 269; Khiali Khani v. Haji Nazir and others PLD 1997 SC 304; Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907 and Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 rel.

(b) Administration of justice---

----Object of court---Object of Court was to dispense and foster justice and to right the wrong---Said object could not be achieved unless the injustice done was undone and unless the court stepped in and refused to perpetuate what was patently illegal, unjust, unfair and unlawful.

Muhammad Waheed Anjum for Petitioner.

Adnan Ali, Assistant Advocate General.

Muhammad Ismail Alizai for Respondents.

2019 P L C (C.S.) 1129

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

AMJAD ALI ARBAB

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 6 others

Writ Petition No.2824-P of 2018, decided on 20th November, 2018.

Civil service---

----Appointment against the post of Managing Director of Government owned Bank---Allegation of mala fide---Non-participation of one of the members of Selection Committee in the recruitment process---Effect---Contention of petitioner was that respondent had been appointed against the post in question with mala fide of authorities---Validity---High Court while considering the process of Selection Committee could not sit as a Court of Appeal having limited scope under constitutional jurisdiction to interfere and to settle that either selection was actuated with mala fide or statutory or settled provisions had not been followed by the Committee---Selection Committee had recommended the respondent and finance department had proposed for placing the matter before the Provincial Cabinet for his appointment who had achieved highest score---Procedure adopted by the Selection Committee could not be found to be arbitrary or discriminatory or illegal---Mere letter of one of the members of Selection Committee having reservations against one of the candidates was not sufficient to give power and jurisdiction to High Court to sit as an Appellate Authority over the Selection Committee---Selection process had been placed before the Provincial Government which was scrutinized and approved---Recommendations of Selection Committee having been approved by the Provincial Government could not be set aside or vitiated on the ground of dissenting note of one of the members of Selection Committee who had otherwise awarded highest marks to the selectee than the petitioner---High Court could not play the role of Selection Committee---Recruitment process had been conducted in accordance with the criteria laid down by the Provincial Government for the appointment against post in question---Petitioner had failed to show any mala fide on the part of the authorities or any discriminatory treatment meted out to him---Petitioner was below in merit not only than the respondent but from other candidates---Proper criteria for appointment of Managing Director of the Bank was formulated and approved by the Competent Authority on the basis of which credentials and experience of the candidates were assessed and determined---Eligibility criteria and terms of appointment had been given wide publication in different daily newspapers---Petitioner having low merit position determined on the basis of said criteria was not recommended for appointment---Majority of the members of Selection Committee had participated in the process of recruitment and had unanimously recommended the respondent for appointment against the post in question---Mere non-participation of one of the members of the Committee which had not prejudiced the petitioner would not vitiate the entire process of recruitment---Constitutional petition was dismissed, in circumstances.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 rel.

Qazi Jawad Ehsanullah Advocate Supreme Court for Petitioner.

Abdur Rauf Rohail for BOK, Qazi Muhammad Anwar, SASC for added Respondent No.11

Wiqar Ahmad, AAG Provincial Government.

2019 P L C (C.S.) 1143

[Peshawar High Court (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

SHAFIULLAH

Versus

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

Review Petition No. 1107-D of 2018 in W.P. No. 879-D of 2017, decided on 5th December, 2018.

Constitution of Pakistan---

----Art.199---Constitutional petition---Review---Error on the face of record---Discovery of new facts---Scope---Petitioner sought review of order passed in constitutional petition with the plea that he being a disabled person was entitled to be considered for appointment as primary school teacher against the reserved quota of disabled persons---Validity---Ground raised in review petition was available to petitioner when the petition was argued but he did not raise the said contention at the relevant point of time---Petitioner had not sought appointment on the plea of disability---Petitioner was precluded from urging the contention in review proceedings which was not urged at the time of hearing---Assertion of petitioner did not constitute either an error apparent on the face of record or discovery of new and important facts and evidence on record, which grounds were sine qua non for exercising review jurisdiction---Review petition was dismissed in limine.

Mian Rafique Saigal and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865; Mst. Kalsoom Maliki and others v. Assistant Commissioner and others 1996 SCMR 710 and Daewoo Corporation v. Zila Council Jhang and 2 others 2004 SCMR 1213 ref.

2019 P L C (C.S.) 1191

[Peshawar High Court]

Before Rooh-ul-Amin Khan, Syed Afsar Shah and Muhammad Ayub Khan, JJ

MUHAMMAD ISRAR

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education and 6 others

Writ Petition No.1998-P of 2017, decided on 14th September, 2018.

Civil service---

----Advertised posts----Educational criteria for candidates---Equivalency of educational certificates---"Inter Grade Drawing Examination (IDE) Certificate issued by the Controller Inspector of Drawing Grade Examinations for Sindh Directorate of Schools Education---Said "IDE Certificate" was equivalent to "Drawing Master (DM) one year Certificate" of Registrar Departmental Examination (RDE),Peshawar---Drawing Mater (DM) Certificates issued by the recognized Institutions of Sindh and Khyber Pakhtunkhwa had the same status, as there was no law and rules to prove that certificates of both the Institutions were not equivalent---Petitioner-candidate had done his Drawing Master (DM) certificate from Sindh which was equivalent to one year DM certificate of Khyber Pakhtunkhwa Directorate of Curriculum Teaching in Education---High Court directed appointing authority to consider appointment of the petitioner against one of the vacant posts---Constitutional petition was allowed accordingly.

1, held to be incorrect view of law.

Barrister Kamran Qaisar and Asif Ali Shah for Petitioner.

Malik Akhtar, AAG for Respondent.

2019 P L C (C.S.) 1215

[Peshawar High Court (Bannu Bench)]

Before Abdul Shakoor and Shakeel Ahmad, JJ

SANAULLAH KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary of Education, Peshawar and 4 others

Writ Petition No.688-B of 2017, decided on 19th December, 2017.

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

----S.4---"Promotion"---Matters with regard to terms and conditions of service---Scope---Bar of jurisdiction contained in Art. 212 of the Constitution---Alternate remedy---Effect---Petitioner-employee was refused promotion by the department on the ground that he did not fulfill criteria prescribed by the Government---Employee filed departmental appeal and requested for promotion but same was rejected---Contention of department was that employee could not invoke jurisdiction of High Court under Art. 199 of the Constitution in view of embargo placed by Art 212---Validity---Petitioner was a civil servant and was aggrieved of having not been promoted to the next higher scale---Such matter had arisen from a final order of departmental authority---Where any administrative Court or Tribunal was established, no Court would grant an injunction, make an order or entertain any proceedings with regard to any matter to which jurisdiction of such administrative Court or Tribunal extended---Case of employee did not fall within the exception contained in S.4 of Khyber Pakhtunkhwa Service Tribunal Act, 1974---Jurisdiction of High Court was barred under Art. 212 of the Constitution to take cognizance in the matter relating to the terms and conditions of service of a civil servant---Constitutional petition was not maintainable in circumstances which was dismissed in limine. [pp. 1216, 1217] A, B, C & D

Fauzia Siddiqui Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 SCMR 521; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Ali Azhar Khan Baloch's case 2015 SCMR 456 rel.

Muhammad Nisar Khan Sokari for Petitioner.

2019 P L C (C.S.) 1223

[Peshawar High Court (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

MUHAMMAD NAVEED

Versus

DISTRICT EDUCATION OFFICER and 3 others

W.P. No. 255-M of 2017, decided on 10th December, 2018.

(a) Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011)---

----S.3---Appointment against the post of Primary School Teachers---Condition applying only against five schools in a particular union council---Locus poenitentiae, principle of---Applicability---Policy whereby a restriction had been imposed upon the candidates only to apply against five seats in a particular union council had resulted into anomalies, irregularities and discrimination in the process of appointment against the post of Primary School Teachers---Even said policy contradicted itself that if required seats could not be filled owing to non-availability of eligible candidates then candidate from adjoining union council could be considered against the said post---If a candidate was not allowed to apply against more than five available posts then he should not be considered against the post which was available in the adjoining union council for which the candidate had never applied---Provision of S.3 of Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 did not impose restriction that a candidate could only apply against five seats in any union council---When parent statute did not cast any restriction on the candidate to apply against a certain number of posts then subordinate authority or executive could not formulate any policy or rule restricting a candidate to apply only against limited number of schools---Present policy of respondents was not only against the merit but it also did offend S.3 of Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011---Policy restraining a candidate only to apply against five seats within a union council was discriminatory, irrational, unreasonable and contrary to S.3 of Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 which was struck down---Candidate who belonged to a particular union council was also eligible to apply against any post of Primary School Teachers in the adjoining union council and he should be considered only against the said post of adjoining union council when no eligible candidate in the said union council was available---Post in question had been filled under the prevalent policy and respondent was not at fault on any account and his appointment should not be disturbed under the principles of locus poenitentiae---District Education Officer concerned was directed to prepare a combined merit list of the candidates who had applied against the post of Primary School Teachers of all schools in a particular union council and fill all the posts on merit---Said merit list should also be considered for appointment against the posts of Primary School Teachers in adjoining union council---Such merit for adjacent union council should be prepared by considering all the candidates from other union councils which were adjacent to the union council where the posts of Primary School Teachers could not be filled owing to the availability of the eligible candidates---Constitutional petition was disposed of, accordingly.

Tariq Aziz-ud-Din's case 2011 PLC (C.S.) 1130; Chairman Selection Committee-Principal, King Edward Medical College Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Mst. Attiya 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) Interpretation of statutes---

----Any rule or policy made by any authority under a particular statute had no jurisdiction to either enlarge or restrict the scope of the section of law under which said policy or rules had been framed.

Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petrol Chemical Industries (Pvt.) Ltd., Peshawar and others 2003 SCMR 370; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550; The United Industrial Bank Limited v. Mohan Bashi Saha and another PLD 1959 SC 296 and 1985 SCMR 369 rel.

Shams-ul-Hadi for Petitioner.

Rahim Shah, Astt. A.G. and Iftikhar Ahmad Nasir for Respondents.

2019 P L C (C.S.) 1306

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Arshad Ali, JJ

MUHAMMAD RIAZ SWATI DISTRICT EDUCATION OFFICER (MALE) BATTAGRAM.

Versus

KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION through Chairman and 3 others

W.P. No.15-A of 2017, decided on 25th April, 2018.

Khyber Pakhtunkhwa Public Service Commission Regulations, 2003---

----Regln. 29(k)---Appointment against the post of Executive District Officer/Additional Director (BPS-19)---Additional qualification---Grant of additional marks by the Public Service Commission after recommendation for appointment---Scope---Public Service Commission awarded two additional marks to the respondent after recommendation for his appointment---Validity---Two additional marks were added after recommendations were issued by the Public Service Commission to the Provincial Government---Public Service Commission at the relevant time had no jurisdiction to add two additional marks to the respondent when similar request was earlier declined---Public Service Commission (Commission) had awarded additional marks when it was functus officio, however, record showed that respondent was legally entitled for grant of said additional marks---Public Service Commission, therefore, had not caused any injustice to the parties rather had cured/rectified its irregularity---High Court refused to issue any writ for setting aside the impugned order passed by the Commission---Mere delay in filing a constitutional petition per se was no ground to dismiss the same if impugned action of Commission was based on mala fide and against law---Impugned action in the present case was not based on mala fide rather was passed to grant a person what was his due right---Constitutional petition was dismissed, in circumstances.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner PLD 1973 SC 236 and Messrs Best Buy Computers, Lahore v. Director, Intelligence and Investigation (Customs and Excise), Lahore and others 2009 SCMR 19 rel.

Khurram Ghias Khan for Petitioner.

Yasir Zahoor Abbasi, Assistant A.G. for Respondents.

Abdul Saboor Khan for Respondent No.3.

2019 P L C (C.S.) 1334

[Peshawar High Court (Bannu Bench)]

Before Abdul Shakoor and Shakeel Ahmad, JJ

NAFEES ULLAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Director of Elementary and Secondary Education and 2 others

Writ Petition No.505-B of 2017, decided on 19th June, 2018.

Civil service---

----Appointment---Non-joining of service by the successful candidate---Effect---Department advertised five posts of Junior Clerk for appointment---Petitioner secured 6th position however candidate at Serial No. 5 did not join the service---Contention of petitioner was that he was entitled for appointment against the post left by the candidate who stood at Serial No.5 whereas department contended that vacant post should be re-advertised to be filled through open competition---Validity---Petitioner secured 6th position in the open competition held by the department and candidate at Serial No. 5 of merit list did not join the service---Petitioner candidate had substituted him being next on the merit list prepared by the department---Petitioner had earned legitimate expectancy and was entitled to be appointed against the post applied for---If department was permitted to fill the vacant post through fresh advertisement then it would deprive the petitioner from his acquired right and defeat the principles of fairness, reasonableness and justness---Petitioner had fulfilled the requisite qualification and criteria and he had successfully passed all the stages of selection---Petitioner had been deprived of appointment to the post applied for by him on untenable grounds---Action of department refusing to appoint the petitioner against the post applied for was declared illegal and of no legal effect---Department was directed to consider the petitioner for appointment against the post applied for with immediately effect---Constitutional petition was allowed, in circumstances.

Government of NWFP through Secretary Education Department Peshawar and others v. Qasim Shah 2009 SCMR 382; Sumara Umar Awlan v. Chancellor Gomal University, D.I. Khan and 4 others 2014 PLC (C.S.) 526; Muhammad Ismail and others v. Secretary Education Government of Punjab and another 2000 PLC (C.S.) 112; Secretary of Government of NWFP C&W Deptt: and 3 others v. Jamal Abdul Nasir 2003 PLC (C.S.) 977; Muhammad Naeem Sadiq v. Board of Intermediate and Secondary Education Gujranwala through Chairman and others 2003 PLC (C.S.) 1309 and Ikramullah Saeed v. Chief Secretary Government of NWFP Peshawar and 3 others 2004 PLC (C.S.) 626 rel.

Masood Iqbal Khattak for Petitioner.

Shahid Hameed Qureshi Addl. A.G. along with Sultan Supdt. DEO for Respondents.

2019 P L C (C.S.) 1370

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Abdul Shakoor, JJ

PROFESSOR REHMATULLAH KHAN

Versus

THE GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others

Writ Petition No. 3464-P of 2017, decided on 27th February, 2019.

General Clauses Act (X of 1897)---

----S.21---Khyber Pakhtunkhwa Government Rules of Business, 1985, R. 5---Khyber Pakhtunkhwa Boards of Intermediate and Secondary Education Act (V of 1990), Preamble---Appointment of Chairman Board of Intermediate and Secondary Education---Cancellation of---Scope---Nomination of petitioner as Chairman Board of Intermediate and Secondary Education was recalled on the recommendations of Minister for Education---Validity---Chief Minister or his nominee being controlling authority had powers to appoint Chairman of Education Boards of the Province---Summary for appointment of petitioner as Chairman Board of Intermediate and Secondary Education was approved by the Chief Minister but it was reconsidered in pursuance of reservations of Minister for Education and respondent was appointed as Chairman Board of Intermediate and Secondary Education---Minister for Education was sole competent authority for framing policies for the department---Minister-in-charge, in case of any deviation from the law or incorrect fact, was not debarred to rectify and bring into the notice of Chief Minister/Controlling Authority---Authority which passed the order was competent to vary, rescind, or cancel the same unless acted upon---No final order in the present matter had been issued or acted upon---Chief Minister while reviewing his earlier order on subsequent summary re-submitted by the Minister-in-charge had committed no illegality or irregularity---Appointment of employee on deputation did not create vested right in favour of the recommendee---No violation of law or jurisdictional defect had been pointed out in the impugned order---Constitutional petition was dismissed, in circumstances.

Isa Khan for Petitioner.

Abdul Latif Yosafzai A.G. and Ms. Shakila Begum for Respondents.

2019 P L C (C.S.) 1426

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

SHAHID HABIB

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education Department Peshawar and 3 others

W.P. No.27-A of 2018, decided on 4th October, 2018.

Civil service---

----Appointment of a candidate from waiting list---Scope---Authorities withdrew the appointment order of a candidate due to submission of forged documents---Petitioner being next on the merit list approached the department for appointment but his request was declined---Validity---Nothing was on record that selectee had already undergone training prior to withdrawal of his appointment order---Authorities were to appoint the petitioner-candidate on the post which fell vacant on account of withdrawal of appointment order of selectee candidate---High Court directed the authorities to issue appointment order of the petitioner accordingly---Constitutional petition was allowed, in circumstances.

Musa Wasir v. N.W.F.P Public Service Commission 1993 SCMR 1124 rel.

Raja Muhammad Taimur for Petitioner.

Sardar Muhammad Asif, Assistant AG for Respondents.

2019 P L C (C.S.) 1443

[Peshawar High Court (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

RIZWAN ULLAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

W.P. No. 67-M of 2018 (with Interim Relief (N)), decided on 12th November, 2018.

(a) Khyber Pakhtunkhwa Boards of Intermediate and Secondary Education Act (V of 1990)---

----Chap. XXVIII---Superintendent of Board of Intermediate and Secondary Education---Promotion against the post of Assistant Controller---Discretion, exercise of---Requirements---Authority in case of available vacant posts was bound to first fill two posts by promotion from the next lower grade on the basis of seniority-cum-merit or on deputation and the third being a selection post should be filled from the employees of the Board---When authority had been conferred with the powers of discretion then same was to be exercised in a judicious, transparent and impartial manner---Equal opportunity was to be provided to the employees of the Board as well as other civil servants in the service of Pakistan/Province---No post of Assistant Secretary / Controller so far had been filled from the employees of the Board---Board authorities were directed to immediately fill one third of the posts of Assistant Secretary/Controller by selecting the employees of Board and remaining posts on promotion from the employees in their respective cadres on the basis of seniority-cum-merit or deputation---Constitutional petition was disposed of, accordingly.

Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Tariq Aziz-ud-Din's case 2010 SCMR 1301 and Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 rel.

(b) Discretion---

----Government functionary---Exercise of discretion----Principles--- Government functionaries are expected to use the discretionary powers in such a way that the person(s) against whom that discretion is exercised faces certain appreciable disadvantages which he would not have faced otherwise as improper use of discretionary powers can lead to discrimination.

M.Q.M. and others v. Province of Sindh and others 2014 CLC 335 rel.

Barrister Dr. Adnan Khan for Petitioner.

Rafiq Ahmad, Asst: A.G. for Respondents Nos.1 and 2.

Abdul Ghaffar for Respondents Nos.3 and 4.

Sabir Shah along with Respondent No.5 in person.

2019 P L C (C.S.) 1463

[Peshawar High Court (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

Mst. MARYAM and another

Versus

MANAGING DIRECTOR ELEMENTARY EDUCATION FOUNDATION KHYBER PAKHTUNKHWA, PESHAWAR and 3 others

Writ Petition No.264-M of 2017 (with Interim Relief(N)), decided on 22nd October, 2018.

Khyber Pakhtunkhwa Elementary Education Foundation Employees (Terms and Conditions of Service) Regulations, 2012---

----Reglns. 10, 11 & 2(f)---Teachers of Elementary Education appointed on contract basis seeking regulation of services---Khyber Pakhtunkhwa Elementary Education Foundation Employees (Terms and Conditions of Service) Regulations, 2012 did not draw any distinction between regular and project employees of the Elementary Education Foundation---Authorities by not regularizing the services of petitioners/employees had violated Khyber Pakhtunkhwa Elementary Education Foundation Employees (Terms and Conditions of Service) Regulations, 2012---Petitioners were eligible to hold the posts of Community School Teachers established by Elementary Education Foundation---Authorities even otherwise were bound to provide free and compulsory education to all children of the age of five to sixteen years---Impugned orders for closing the Community School concerned and termination of agreement with the petitioners employees were set aside---Authorities were directed by the High Court to regularize the services of petitioners in the Elementary Education Foundation corresponding to their pay scales with immediate effect---Constitutional petition was allowed, in circumstances.

BISE Faisalabad v. Tanveer Sajid and others 2018 SCMR 1405; Abdul Sattar and another v. SNGPL and others 2001 SCMR 1935; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; Diamond Industries Limited v. M. Zafar-ul-Haq Hijazi and 2 others PLD 2003 SC 124; Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others PLD 2011 SC 22; Ikram Bari and 524 others v. National Bank of Pakistan 2005 SCMR 100 and Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 rel.

Aziz-ur-Rahman for Petitioners.

Rahim Shah, Asst: A.G. for Respondents.

2019 P L C (C.S.) 1497

[Peshawar High Court (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

Dr. MUHAMMAD MUNIB

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION through Chairman and 5 others

Writ Petition No. 371-M with C.M. No. 521-M of 2018, decided on 11th February, 2019.

Civil service---

----Appointment of Assistant Professor---Petitioner and respondent passed written test for the post in question---Respondent was not allowed to participate in interview due to lack of teaching experience---Respondent filed constitutional petition which was accepted with the direction to Public Service Commission to conduct interview of respondent---Petitioner moved application before Public Service Commission against respondent for inquiry with regard to false representation and concealment of information---Said application was dismissed and respondent being top on the merit list was recommended for appointment against the post in question---Validity---Respondent, on merit, was higher than the present petitioner---Petitioner had levelled allegation that one of the Member of Interviewing Panel was relative of respondent---Petitioner had not made the said Member as party in the present petition---Nothing was on record with regard to allegation made by the petitioner, which had been denied by the respondent---Public Service Commission was not aware with regard to the fact that alleged Member of interviewing panel remained supervisor of respondent while he was pursuing his M. Phil program---Petitioner had levelled bald allegation without any substance---High Court had no jurisdiction to determine factual controversy between the parties requiring recording of evidence---Constitutional petition was dismissed, in circumstances.

Syed Asif Majeed and 5 others v. ADC. (C)/SC (L), Lahore and 15 others 2000 SCMR 998 rel.

Liaquat Ali for Petitioner.

Wilayat Ali Khan, A.A.G. for Official Respondents.

Khawaja Salahuddin for Respondent No.6.

2019 P L C (C.S.) 1511

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

YAMEEN KHAN

Versus

INSPECTOR GENERAL OF POLICE, KHYBER PAKHTUNKHWA PESHAWAR and 2 others

Writ Petition No.1061-A of 2017, decided on 3rd October, 2018.

Civil service---

----Advertisement for appointment of Police Constable---Equal treatment---Appointment of petitioners were recommended but authorities refused to issue appointment order---Validity---Petitioners having qualified the requisite test and interview were recommended by the selection committee for appointment---Authorities, without assigning any cogent and plausible reason declined appointment to the petitioners despite they obtained higher marks than those who had been appointed---Petitioners being similarly placed should have been given similarly treatment---Authorities were directed to adjust the petitioners against the vacant posts---Constitutional petition was allowed, accordingly. [p. 1515] A & B

Abdul Saboor Khan for Petitioners.

Yasir Zahoor Abbasi, Assistant Advocate General along with Matloob Khan, DSP, Shatial Circle, Upper Kohistan for Respondents.

2019 P L C (C.S.) 797

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar CJ and Muhammad Ejaz Swati, J

SHAH BAKHSH and others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others

C.Ps. Nos. 212, 788, 620 of 2014, C.Ps. Nos. 483, 883, 912, 1115 of 2015 and C.P. No.481 of 2016, decided on 26th November, 2018.

(a) Balochistan Provincial Employees Group Insurance Act (X of 2009)---

----Ss. 3 & 14---Grant of higher grade on the basis of time scale---Scope---Group Insurance, grant of---Procedure---Employees were granted higher grade on the basis of time scale---Contention of employees was that they were entitled for Group Insurance according to the Substantive Pay Scale---Validity---Sum assured should be paid to an employee or his family at the time of retirement or death according to his Last Pay Scale/Grade---Employees had been allowed financial benefit by granting higher pay scale---Employees were not promoted to higher post nor any such order had been issued by the competent authority---Time scale grant/post could not be considered as a higher post---Petitioners had opted grant of time scale on the basis of time scale policy issued by the Government---Employees after attaining monitory benefits of time scale could not be allowed to approbate and reprobate in the same breath nor they could challenge the said notification---Petitioners were estopped by their conduct---Constitutional petition was dismissed, in circumstances.

2012 PLC (C.S.) 1450; 1996 SCMR 1185; 1980 SCMR 972; 2009 SCMR 4; 2003 SCMR 1030; 1986 SCMR 991; 2002 PLC 52; 1993 PLC (C.S.) 1261; 1987 SCMR 96; 2009 SCMR 1; PLD 1988 Quetta 70; 2004 PLC (C.S.) 586; 1995 PLC (C.S.) 586 and 2005 SCMR 590 ref.

Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 rel.

(b) Civil service---

----"Promotion" and "time scale grant"---Distinction.

There is clear distinction between time scale grant and promotion. The promotion involves advancement in rank or grade or both is always step towards advancement to higher position, grade, while time scale does not involve promotion to a higher position and the pedestal of the employee remain the same and the employee is merely conferred some financial benefits by granting higher pay scale to overcome stagnation. In the present case an element of policy is involved in granting time scale because there was no automatic promotion to the time scale grade. Time scale allowed for the purpose of granting some monetary relief to those who had spent considerable length of service and have very limited avenue of granting promotion to a higher post that is why a high pay scale was granted in the same post, but its very nature, a time scale grant/post cannot be considered as a higher post. The beneficiary of a time scale does not thereby occupy a post which is higher in rank than the posts earlier occupied by him.

Manzoor Ahmed Rehmani and Surat Khan for Petitioner (in C.P. No.212 of 2014).

Muhammad Rauf Atta, Advocate General and Zahoor Ahmed Baloch, Assistant A.G. for Respondents (in C.P. No.212 of 2014).

Muhammad Riaz Ahmed and Mazhar Ilyas Nagi Amici Curiae (in C.P. No.212 of 2014).

Manzoor Ahmed Rehmani and Surat Khan for Petitioner (in C.P. No.788 of 2014).

Muhammad Rauf Atta, Advocate General and Zahoor Ahmed Baloch, Assistant A.G. for Respondents (in C.P. No.788 of 2014).

Muhammad Riaz Ahmed and Mazhar Ilyas Nagi Amici Curiae (in C.P. No.788 of 2014).

Manzoor Ahmed Rehmani and Surat Khan for Petitioner (in C.P. No.620 of 2014).

Muhammad Rauf Atta, Advocate General and Zahoor Ahmed Baloch, Assistant A.G. for Respondents (in C.P. No.620 of 2014).

Muhammad Riaz Ahmed and Mazhar Ilyas Nagi Amici Curiae (in C.P. No.620 of 2014).

Manzoor Ahmed Rehmani and Surat Khan for Petitioner (in C.P. No.483 of 2015).

Muhammad Rauf Atta, Advocate General and Zahoor Ahmed Baloch, Assistant A.G. for Respondent (in C.P. No.483 of 2015).

Muhammad Riaz Ahmed and Mazhar Ilyas Nagi Amici Curiae (in C.P. No.483 of 2015).

Manzoor Ahmed Rehmani and Surat Khan for Petitioner (in C.P. No.883 of 2015).

Muhammad Rauf Atta, Advocate General and Zahoor Ahmed Baloch, Assistant A.G. for Respondent (in C.P. No.883 of 2015).

Muhammad Riaz Ahmed and Mazhar Ilyas Nagi Amici Curiae (in C.P. No.883 of 2015).

Abdul Rahim Mengal for Petitioner (in C.P. No.912 of 2015).

Muhammad Rauf Atta, Advocate General and Zahoor Ahmed Baloch, Assistant A.G. for Respondents (in C.P. No.912 of 2015).

Muhammad Riaz Ahmed and Mazhar Ilyas Nagi Amici Curiae (in C.P. No.912 of 2015).

Manzoor Ahmed Rehmani and Surat Khan for Petitioner (in C.P. No.1115 of 2015).

Muhammad Rauf Atta, Advocate General and Zahoor Ahmed Baloch, Assistant A.G. for Respondents (in C.P. No.1115 of 2015).

Muhammad Riaz Ahmed and Mazhar Ilyas Nagi Amici Curiae (in C.P. No.1115 of 2015).

Manzoor Ahmed Rehmani and Surat Khan for Petitioner (in C.P. No.481 of 2016).

Muhammad Rauf Atta, Advocate General and Zahoor Ahmed Baloch, Assistant A.G. for Respondents (in C.P. No.481 of 2016).

Muhammad Riaz Ahmed and Mazhar Ilyas Nagi Amici Curiae (in C.P. No.481 of 2016).

2019 P L C (C.S.) 1272

[Balochistan High Court]

Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ

MUHAMMAD SALEEM MALIK

Versus

GOVERNMENT OF PAKISTAN through its Secretary Finance Division, Regulation Wing, Pakistan Islamabad and 3 others

C.P. No.287 of 2011, decided on 21st March, 2019.

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

----Ss.35(2) & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9---Employee of Pakistan Telecommunication Company having opted Voluntary Separation Scheme sought similar pensionary benefits as extended to other retired employees of the Company---Validity---Petitioner remained in the service of Company for more than thirty two years---Terms and conditions of service of employee were guaranteed by virtue of S.9 of Pakistan Telecommunication Corporation Act, 1991 and S.35(2) & 36 of Pakistan Telecommunication (Re-Organization) Act, 1996---Petitioner neither approached the competent authority for redressal of his grievance nor brought on record any order of competent authority passed adversely---Employee was no more civil servant except protection of terms and conditions of his service guaranteed under S.9 of Pakistan Telecommunication Corporation Act, 1991 and Ss.35(2) & 36 of Pakistan Telecommunication (Re-Organization) Act, 1996---Petitioner having alternate and efficacious remedy to approach the competent authority for redressal of his grievance, constitutional petition was dismissed, in circumstances.

Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783; Pakistan Telecommunication Employees Trust (PTET) v. Muhammad f 2015 SCMR 1472; Masood Ahmed Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152 and P.T.C.L. and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362 rel.

Petitioner in person.

Alla ud Din Baloch, Assistant AG for Respondents Nos.1 and 2.

Shahid Anwar Bajwa for Respondents Nos.3, 4 and 5.

Sabira Islam, Additional Advocate General.

2019 P L C (C.S.) 1291

[Balochistan High Court]

Before Muhammad Noor Meskanzai, CJ and Muhammad Ejaz Swati, J

AQEEL AHMED and others

Versus

LASBELLA UNIVERSITY OF AGRICULTURE and others

C.Ps. Nos.1038 of 2015 and 207 of 2016, decided on 25th August, 2016.

Civil service---

----Advertisement for appointment against the post of Deputy Registrar (BPS-18) of the university---Petitioners had applied against the post of Deputy Registrar which was advertised by the University but same was filled up through promotion---Validity---First post while calculating the ratio of posts for promotion and initial recruitment would fall to the share of promotion quota---Official (respondent) had already been appointed as Deputy Registrar and second post was meant for initial recruitment---Petitioner having applied in response to the public advertisement stood first---Impugned notification for appointment through promotion had been issued after advertisement---Post for promotion had already been filled by the University---Advertisement for appointment of Deputy Registrar through initial recruitment had neither been withdrawn nor there was any post for promotion---Appointment of Deputy Registrar through promotion instead of initial recruitment was a mala fide said promotee lacked experience of five years and his appointment was not sustainable, in circumstances---Notification appointing said promotee was declared without lawful authority having no effect, which was set aside---University was directed to decide the fate of advertised post of Deputy Registrar as per merit of test already held---Constitutional petition was disposed of, in circumstances.

Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others 2006 SCMR 129; Syed Mehmood Akhtar Naqvi and others v. Federation of Pakistan PLD 2013 SC 195; Muhammad Yasir v. Federation of Pakistan PLD 2012 SC 132 and 2004 SCMR 639 rel.

Mazhar Ilyas Nagi for Petitioner (in Constitutional Petition No.1038 of 2015).

Khalid Ahmed Kubdani for Respondents Nos.1 and 2 (in Constitutional Petition No.1038 of 2015).

Ghulam Mustafa Buzdar for Respondent No.3 (in Constitutional Petition No.1038 of 2015).

Amanullah Kanrani for Petitioner (in Constitutional Petition No.207 of 2016).

Khalid Ahmed Kubdani for Respondents Nos.3 and 4 (in Constitutional Petition No.207 of 2016).

Nizamuddin Advocate General for Respondents (in Constitutional Petition No.207 of 2016).

Ghulam Mustafa Buzdar for Respondent No.5.

2019 P L C (C.S.) 1475

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar, C.J.and Muhammad Ejaz Swati, J

Eng. SAEED AHMED and others

Versus

CHAIRMAN NATIONAL HIGHWAYAUTHORITY, ISLAMABAD and others

Constitutional Petitions Nos. 363, 913 of 2013 and 41 of 2014, decided on 14th May, 2019.

Constitution of Pakistan---

----Art. 199---Saked Employees (Re-instatement) Act (XXII of 2010), S.4(b)---Re-instatement on orders of the High Court---Issuance of writ by the High Court against another High Court---Scope---High Court could not issue a writ against another Bench of same High Court or against another High Court with regard to an order regarding re-instatement in service passed in judicial capacity.

PLD 1976 SC 315 and 2011 PLC (C.S.) 1465 rel.

Mazhar Ilyas Nagi for Petitioner (in C.P. No.363 of 2013).

Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.363 of 2013).

Zahoor Ahmed Baloch for Petitioner (in C.P.No.913 of 2013).

Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.913 of 2013).

Zahoor Ahmed Baloch for Petitioner (in C.P. No.41 of 2014).

Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.41 of 2014).

2019 P L C (C.S.) 83

[Punjab Service Tribunal]

Before Muhammad Yar Wallana, Member-I

PARVEEN SHAD and 36 others

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB and 13 others

Appeals Nos. 3719, 3720, 3827 to 3840, 3857 to 3862, 3979 to 3982, 4464 to 4469 and 4765 to 7469 of 2015, decided on 16th April, 2018.

(a) Civil service---

----Regularization of service---Scope---Regularization of service is not to be construed as initial recruitment rather it is to be construed as confirmation of existing employment---On confirmation of existing employment, period already served by employees would entitle them to benefit of pay in form of increments, seniority and upgradation etc., as normally available to civil servants.

2014 SCMR 1289; Muhammad Altaf's case PLJ 2017 Tr.C. (Service) 176; 2017 TD (Services) 335 and 2014 PLC (C.S.) 1068 rel.

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

----S. 4---Pay protection---Contract service---Appellants were aggrieved of pay protection for period they remained serving on contract basis---Validity---Government of Punjab in cases of employees of other departments granted such benefit to contract employees on regularization of their service---Unlawful discrimination against appellants was made out from divergent position of same government vis-à-vis employees of different departments for granting right of pay protection on regularization of services of their employees---Service Tribunal declared orders in question of no legal effect and set aside same as appellants were entitled to benefits of pay protection, treating them at par with similarly placed civil servants of other departments to whom same benefits had been allowed by Government of Punjab and no valid reason existed for exclusion of appellants from same benefit of pay protection---Appeal was allowed in circumstances.

2008 SCMR 14; 2014 PLC (C.S.) 1068 Service Appeals Nos.3732, 3735 and 3736 of 2015 ref.

2014 SCMR 1289; Muhammad Altaf's PLJ 2017 Tr.C. (Service) 176; 2017 TD (Services) 335 and 2014 PLC (C.S.) 1068 rel.

Rizwana Anjum Mufti for Appellants.

M. Yasin Bajwa, District Attorney, Zubair Khan Shahid, Deputy Secretary along with Ms. Ayesha Yasmin, Law Officer for Secretary School Education Department for Respondents.

2019 P L C (C.S.) 103

[Punjab Service Tribunal]

Before Justice (R) Abdul Sami Khan, Chairman

FAREEHA REHMAN and others

Versus

PROVINCE OF PUNJAB through Secretary Higher Education and others

Service Appeals Nos. 2730 to 2742, 2946 to 2978 and 4058 to 4065 of 2016, decided on 19th July, 2018.

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

----S. 4---Constitution of Pakistan, Art.25---Regularization in service---Back benefits---Discrimination---Appellants were lecturers appointed on contract basis for a period of 3 years---Grievance of appellants was that similarly placed other lecturers had been regularized---Validity---Appellants were appointed as female lecturers through departmental selection committee on contract basis for a period of 3 years---Contract services of appellants were extended from time to time without any break for about 15 years---Appellants were met with discriminatory treatment as same was established from facts and documentary evidence relied upon by appellants that other employees of Government of Punjab through different orders/notifications were regularized---Claim of appellants that their employments should have been regularized from date of initial appointments was refused which showed that they had been dealt with discrimination---Service Tribunal set aside orders passed by authorities as appellants were entitled for regularization from date of initial appointment as lecturers---Appeal was allowed in circumstances.

Muhammad Aslam Awan, Advocate Supreme Court v. Federation of Pakistan and others" reported as 2014 SCMR 1289 rel.

Muhammad Sajid Khan Tanoli for Appellant (in Appeals Nos.2730 to 2742 of 2016 and 2946 to 2978 of 2016).

Rizwana Anjum Mufti for Appellant (in Appeals Nos.4058 to 4065 of 2016).

2019 P L C (C.S.) 55

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Munib Akhtar, JJ

Syeda SAKINA RIAZ

Versus

FEDERATION OF PAKISTAN and another

Civil Appeal No. 1189 of 2017, decided on 1st June, 2018.

(On appeal against the judgment dated 13.03.2017 passed by the High Court of Sindh, Karachi in C.P. No. D-4291/2015)

University of Karachi Service Pension Statute, 1972---

----S. 26---Employee of University of Karachi---Entitlement of employee's widow to receive family pension---Minimum qualifying service---Claim of employee's widow for grant of family pension was denied for the reason that her husband had not put in the minimum qualifying service of ten years as envisaged under S. 26 of the University of Karachi Service Pension Statute, 1972---Legality---Right to claim pension was a right connected with the tenure of service which under the applicable pension rules had to be served by an employee in order to make him eligible for pension---Where a deceased employee had put in pensionable service, only then his family became entitled to pension---In order to claim pension, a minimum qualifying service was the threshold that had to be first crossed which would then entitle an employee or his family after his death to claim pension---Principle of completing minimum qualifying service was ingrained in every law that granted pension to the employees or after their death to their families---Said principle was based on 'quid pro quo', which mandated that an employee must put in minimum qualifying years of service before he became entitled to claim pensionary benefits---In the present case, admittedly the late husband of the appellant (widow) had put in only about five years of service, well short of rendering qualifying length of service to entitle her to family pension or any concession granted towards the quantum of pension---Appeal was dismissed accordingly.

Syed Fiaz Ahmed Shah, Advocate Supreme Court for Appellant.

Sohail Mahmood, DAG for Respondent No.1.

Shoaib M. Ashraf, Advocate Supreme Court for Respondent No.2.

2019 P L C (C.S.) 67

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Sardar Tariq Masood and Faisal Arab, JJ

WAPDA through Chairman and another

Versus

Mst. PARIZADA Civil Appeal No. 1203 of 2014, decided on 11th July, 2018.

(On appeal against the judgment dated 18.10.2012 passed in the Peshawar High Court, D.I. Khan Bench in Writ Petition No. 841 of 2010)

Pakistan Water and Power Development Authority Pension Rules, 1977---

----R. 6---Pension---Entitlement of employee's widow to pension---Deceased employee was appointed as office chowkidar in appellant-department---Deceased died during service after putting in 9 years and 8 months of service, and after his death, his widow was paid group life insurance and other financial benefits but was denied pension on the ground that he was a work-charge employee---Widow claimed that her husband being chowkidar had died after serving for a period of about 10 years, thus, she was entitled to get pension under Pension Rules of the department---Validity---Deceased employee was appointed as chowkidar, which was a permanent post and that was the reason that he had been given annual increments and upon his death, his wife was given all financial benefits including group life insurance etc.---From the nature of job and the period the deceased employee had served, it could not be said that he was a work charge employee, and there was every likelihood that he would have continued to serve had he lived longer---Serial Number 2 of paragraph 2(c)(5) of Volume-II of WAPDA Compendium of Important Directives/Office Orders issued by the Authority clearly provides that "pension as well as commutation (25%) is to be paid, if service is 9-1/2 years or more."---In the present case, the deceased employee had admittedly put in 9 years and 8 months service, hence, he being on a permanent post until his death, his widow was entitled to receive pension---Appeal was dismissed accordingly.

Mian Shafaqat Jan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Arshad Zaman Kayani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

2019 P L C (C.S.) 74

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Sardar Tariq Masood and Faisal Arab, JJ

Syed LIAQAT SHAH

Versus

VICE-CHANCELLOR, UNIVERSITY OF ENGINEERING AND TECHNOLOGY, PESHAWAR and others

Civil Petitions Nos. 3728 and 4385 of 2017, decided on 9th July, 2018.

(On appeal against the judgment dated 03.10.2017 passed by the Peshawar High Court, Peshawar in writ petition Nos. 3013-P and 3318-P of 2017)

Master and Servant---

----Contractual employee relieved from service---Inquiry proceedings for wrong-doings---Termination of contractual employment simplicitor was no defence either against taking a criminal or civil action against such employee that might be warranted on account of any wrong-doing committed during the contractual period---If found involved in any wrong-doing, he could still face civil liability or criminal action or both, notwithstanding the fact that he had been relieved from his contractual post---Only where the tenure of service of an employee was protected under a law, it could not be curtailed without first initiating and completing disciplinary proceedings against him---Where wrong-doing of a contractual employee came to light, who was governed by the principle of "Master and Servant", he could be relieved of his service first and inquiry into his wrongdoings could commence thereafter.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmad Nawaz Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2019 P L C (C.S.) 111

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan andFaisal Arab, JJ

SECRETARY ESTABLISHMENT DIVISION and others

Versus

Dr. IMDAD ALI RAZA SEEHAR Civil Petition No. 589 of 2017, decided on 1st March, 2018.

(On appeal against the judgment dated 9.1.2017 passed by the Federal Service Tribunal, Karachi in Appeal No. 92/(K)CS/2013)

Civil service---

----Removal from service---Absence from duty---Unblemished service of more than 21 years---Effect---Removal from service converted to compulsory retirement---Respondent-employee at the relevant time was eligible to avail leave with full pay for upto 387 days and extraordinary leave up to five years, but without extension of leave he could not stay away from his duty even for a day let alone weeks and months---Respondent went abroad for higher education and then his mother allegedly fell ill for which the respondent required extension in his extraordinary leave---Questions whether respondent's mother was suffering from a disease which was incapable of being treated in the country and if he was alone in the family to attend to his mother had not been answered---Respondent, in the circumstances, could not go unpunished, but at the same time his unblemished service of more than 21 years could not be allowed to go unrequited---Supreme Court converted respondent's removal from service into compulsory retirement, and observed that it had become routine for high ranking officers to go abroad on different pretexts and stay there for good without knowing that their country, which had spent a great deal on them while holding examination for Civil Superior Service and providing them training in the academies, needed their undivided and whole hearted service more than any other entity; and that such a casual and even callous attitude towards the civil service could not be ignored lightly.

Rashid Hafeez, DAG for Petitioners.

Abid S. Zuberi, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent.

2018 P L C (C.S.) 126

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

MUHAMMAD RASHID BHATTI

Versus

The DIRECTOR GENERAL FIA, HEADQUARTERS, ISLAMABAD and others

Civil Petition No. 631-K of 2016, decided on 21st December, 2017.

(Against the judgment dated 14.07.2016, passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.151(K)CS/2010)

(a) Civil Servants (Seniority) Rules, 1993---

----R. 3(c)---Fundamental Rules, Pt. II, R. 17(1), proviso---Inter-se seniority---Grant for seniority in case of supersession and subsequent promotion---Petitioner, who was working as sub-Inspector in BPS-14 in the Federal Investigation Agency, was superseded by several sub-Inspectors of BPS-14 on two separate occasions---Such supersession was not challenged by the petitioner at that time---Subsequently the petitioner was promoted as Inspector (BPS-16) and on assumption of such promoted office, he made representation to the department for inter-se seniority as Inspector (BPS-16)---Service Tribunal declined request of petitioner for inter-se seniority by observing that he was considered twice for promotion by the Department Promotion Committee, but superseded on each occasion by the Committee on account of many factors; that such supersession was approved by the Department Promotion Committee in its successive meetings and resultantly the petitioner could not regain his inter se seniority---Plea of petitioner that proviso to R. 17(1) of Fundamental Rules made express provision for granting of seniority in case of supersession and subsequent promotion---Validity---Proviso to R. 17(1) provided for a situation where the civil servant who was entitled to be promoted from a particular date but for no fault of his own was wrongfully prevented from rendering services in the higher post was to be paid the arrears of pay and allowances of such higher post through proforma promotion or upgradation by ante-dated fixation of seniority---Present case, however, was neither of a tenure post nor a deferment case nor that of petitioner being not promoted from a particular date for no fault of his own---Petitioner was deliberately superseded and such supersession was also endorsed by the Departmental Promotion Committee---Rule 17(1) of Fundamental Rules as relied upon by the petitioner therefore, was not applicable to the facts and circumstances of the present case---Petition for leave to appeal was dismissed and leave was refused accordingly.

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

----S. 3(2)---Constitution of Pakistan, Art. 212(3)---Appeal against judgment of Service Tribunal before the Supreme Court---Pleadings---Scope--- Contention challenging vires of a service rule not raised before the Service Tribunal raised for the first time before the Supreme Court---Such plea could not be allowed by the Supreme Court.

Sanaullah Noor Ghouri, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Asim Mansoor Khan, D.A.G. for Respondents.

2019 P L C (C.S.) 194

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and another

Versus

ZAEEM AZIZ QURESHI and another

Civil Appeals Nos. 144-K and 145-K of 2016, decided on 6th September, 2018.

(Against the judgment dated 02.11.2015 passed by High Court of Sindh, Karachi in C.P. No. D-1595 of 2006)

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

----Ss. 3(1) & 8---Employee of National Airline Corporation ('Corporation')---Financial impropriety---Compulsory retirement from service---Competent authority---Independent decision/opinion of competent authority---Scope---Plea of employee that the decision to compulsorily retire him from service was not taken independently by the competent authority/Chairman---Validity---Decision was taken by the Chairman and CEO in presence of the other members of the Board of Directors and minutes of the meeting were duly signed by the Chairman and CEO---Even otherwise the Chairman had independently endorsed the decision of compulsory retirement of employee at the footnote of the minutes of the meeting, which was substantial compliance of subsection (1) of S. 3 of the Removal from Service (Special Powers) Ordinance, 2000---Employee was not able to point out any prejudice caused to him by the order of competent authority taken in the Employee Leadership Team meeting, meaning thereby the decision was even concurred by a larger and higher forum, and was communicated by H.R. Manager which practice was common in a corporate environment---Even in the representation made by the employee impugning decision of the competent authority he admitted that order was made by a competent authority---Appeal was dismissed accordingly.

Maharashtra State Mining Corporation v. Sunil son of Pundikarao Pathak (2006) 5 Supreme Court Cases 96; GOA Shipyard Ltd. v. Babu Thomas (2007) 10 Supreme Court Cases 662 and Balbir Chand v. Food Corporation of India Ltd. (1997) 3 Supreme Court Cases 371 ref.

Khalid Javed, Advocate Supreme Court for Appellants (in C.A. No.144-K of 2016).

Salahuddin Ahmed, Advocate Supreme Court for Appellant (in C.A. No. 145-K of 2016).

Salahuddin Ahmed, Advocate Supreme Court for Respondent (in C.A. No.144-K of 2016).

Khalid Javed, Advocate Supreme Court for Respondents (in C.A. No. 145-K of 2016).

2019 P L C (C.S.) 263

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ZAHID HUSSAIN MAKHDOOM

Versus

The SECRETARY/CHAIRMAN, RAILWAY BOARD, MINISTRY OF RAILWAYS, GOVERNMENT OF PAKISTAN, ISLAMABAD and others

Civil Petition No. 194-K of 2017, decided on 20th December, 2017.

(Against the judgment dated 30.01.2017, passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.37(K)CS/2013)

Civil service---

----Dismissal from service---Employee remaining absent from duty for about 16 months---Unblemished record of 35 years of service---Effect---Dismissal from service converted into compulsory retirement---Plea of railway employee/petitioner that he had applied for leave for 720 days, which was not allowed to him and owing to a tribal dispute the petitioner and his family members, due to danger, had to leave place of report and thus was unable to report for duty---Service Tribunal did not accept such explanation of the petitioner on the ground that he has not lodged any FIR in respect of threat to his life or to that of his family members---Held, that imposition of major penalty of dismissal was not proportionate to the misconduct of the petitioner more so when Railway authorities themselves had been taking lenient view on such matters---Fact that petitioner remained absent on account of threat to his life and life of his family members, though was not substantiated by the petitioner ­through documentary proof but such fact had also not been disputed by the Railway authorities---Petitioner had unblemished record of 35 years of service with the Railway department and his absence in question was the first occasion on which he remained absent from duty---In such circumstances penalty of dismissal from service imposed on petitioner was converted into that of compulsory retirement from the date of his dismissal.

Malik Naeem Iqbal, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Syed Abdul Waheed, Advocate Supreme Court and Aijaz Ahmed Burriro, Divisional Superintendent, Pak. Railways, Karachi for Respondents.

2019 P L C (C.S.) 282

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Sardar Tariq Masood, JJ

MAULA BUX SHAIKH and others

Versus

CHIEF MINISTER SINDH and others

C.P. No. 78-K of 2015, decided on 3rd October, 2018.

(On appeal against order dated 21.11.2014 passed by the Sindh Service Tribunal, Karachi, in Appeal No. 195 of 2014)

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

----Ss. 2(ii), 2(xxiii), 2(xxv), 2(xxvii) & 10(1) & First and Second Sched.---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974, R. 3(2)---Promotion---Criteria/education qualification for promotion to next grade---Domain of Executive---Notification for promotion to post of Executive Engineer (BS-18)---Said notification provided 13% promotion quota to Diploma holders and 7% promotion quota to B.Tech (Hons.) degree holders---Plea of petitioner/Assistant Engineer (BS-17) that work of Executive Engineer BS-18 was strictly that of a Professional Engineer, who had an engineering degree from an Accredited Engineering Institution in the country or abroad as included in the First and Second Schedule of the Pakistan Engineering Council Act, 1975, and that Diploma holders and B.Tech (Hons.) degree holders were not professional engineers and could not perform work of a Professional Engineer---Validity---Deciding whether a particular academic qualification of a civil servant/employee was sufficient for promotion from one grade to another higher grade fell under the domain of the Government, whereas it is in the domain of the Pakistan Engineering Council to decide whether a particular academic qualification could be equated with another academic qualification but it had no power to say that a civil servant/employee holding particular academic qualification could not be promoted from a particular grade to a higher grade---Impugned notification could not be validly or justifiably challenged on the ground that it impinged or infringed upon any of the provisions of the Pakistan Engineering Council Act, 1975, and thus would be ultra vires---Provisions of said Act nor the rules and regulations made under it would operate as bar on Government to prescribe for qualification and other conditions of service of civil servants/employees for promotion to higher grade---Supreme Court dismissed the petition and refused leave with the direction that the Government shall not allow or permit any person to perform professional engineering work as defined in the Pakistan Engineering Council Act, 1975, who did not possess accredited engineering qualification from the accredited engineering institution and his name was not registered as a registered engineer or professional engineer under the said Act.

Pakistan Diploma Engineers Federation (Registered) through its Chairman v. Federation of Pakistan through Secretary Ministry of Water and Power, Government of Pakistan, Islamabad and 9 others 1994 SCMR 1807; Muhammad Azim Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railways and 33 others 1992 PLC (C.S.) 637; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another PLD 1995 SC 701; Muhammad Younus Aarain v. Province of Sindh through Chief Secretary, Sindh, Karachi and 10 others 2007 SCMR 134 and Nazir-ul-Hasan and 2 others v. Syed Anwar Iqbal and others 2014 SCMR 1827 ref.

Salah-ud-Din Ahmed, Advocate Supreme Court for Petitioner No. 1.

Rasheed A Rizvi, Senior Advocate Supreme Court for Petitioner Nos. 2 - 3.

Sabtain Mehmood, Assistant A.-G. Sindh for Respondent Nos. 1 - 4.

Ghulam Haider Shaikh, Advocate Supreme Court for Respondent No.5.

Nemo for Respondents Nos. 6, 7 and 9.

Dr. Muhammad Farough Naseem, Advocate Supreme Court for Respondents Nos. 8 and 12.

M. Aqil Awan, Senior Advocate Supreme Court for Respondents Nos. 10, 11, 13 to 17.

Date of hearing: 24th April, 2018.

2019 P L C (C.S.) 333

Supreme Court of Pakistan [Shariat Appellate Bench]

Present: Mushir Alam, Sardar Tariq Masood and Dr. Muhammad Khalid Masud, JJ

MAQBOOL AHMAD QURESHI, ADVOCATE

Versus

GOVERNMENT OF PAKISTAN through Secretary Law and Justice and others

C. Sh. A. 1 of 2012 and C.M.A. 3726 of 2012, decided on 19th September, 2018.

(Against the order dated 30-10-2012 passed by Federal Shariat Court in Sh. Mis. Application No.7/1 of 2012).

Civil Servants Act (LXXI of 1973)---

----S. 17, Proviso II---Sindh Civil Servants Act (XIV of 1973), S. 18, Proviso II---Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973), S. 17, Proviso II---Punjab Civil Servants Act (VIII of 1974), S. 16, Proviso II---Balochistan Civil Servants Act (IX of 1974), S.17, Proviso II---Constitution of Pakistan, Art. 203-F---Repugnancy to Injunctions of Islam---Order of dismissal, removal from service or reduction in rank set aside---Entitlement to back benefits/ arrears on reinstatement---Plea of appellant before the Federal Shariat Court was that civil servants who were dismissed and or removed from service did not render any service during the intervening period till their restoration and or reinstatement; that Proviso II to S.17 of Civil Servants Act, 1973, Proviso II to S.18 of Sindh Civil Servants Act, 1973), Proviso II to S.17 of Khyber Pakhtunkhwa Civil Servants Act, 1973), Proviso II to S.16 of Punjab Civil Servants Act, 1974), and Proviso II to S.17 of Balochistan Civil Servants Act, 1974, which provided the concerned authority with the discretion to grant back benefits on reinstatement, were misused and abused by the reinstated civil servants, therefore such provisions, were repugnant to the Injunctions of Islam and should not be allowed to remain on the statute book---Federal Shariat Court dismissed the petition by holding that the impugned provisions did not provide for automatic grant of arrears of the intervening period between dismissal/removal/reduction in rank and restoration to the original position; that the authority vested under the law to make such an order, depending upon law, facts and circumstances, may determine, inter alia, question relating to reinstatement, etc., including restoration to original position, in seniority, cadre, and post, treatment of intervening period as duty or on leave and its kind---Held, that appellant did not cite any Nass of the Holy Quran and Sunnah of Holy Prophet (PBUH), which was sine qua non to seek declaration of the kind sought by the appellant---No exception could be taken to the view formed by the Federal Shariat Court in the impugned judgment---Ayah 188 of Surah Baqrah [2-188: Holy Quran] relied upon by the appellant, was not relevant to the point in issue nor the appellant was able to explain the same---Shariat Appeal was dismissed in circumstances with costs of Rs.10,000.

Appellant In person.

Zahid Yousaf Qureshi, AG, KP, Muhammad Ayaz Swati, AG Balochistan, Sharial Qazi, AG Sindh, Barrister Qasim Chohan Addl. AG, Punjab and Ilyas Bhatti, Addl.AG for Pakistan for Respondents.

2019 P L C (C.S.) 365

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Faisal Arab and Syed Mansoor Ali Shah, JJ

Civil Appeal No. 700 of 2016

(On appeal from judgment of Lahore High Court, Lahore dated 10.12.2014, passed in W.P. No. 2596 of 2014)

and

Civil Petition No. 3832 of 2016

(On appeal from judgment of Lahore High Court, Lahore dated 29.11.2016, passed in W.P. No. 30770 of 2016)

Mian SHAUKAT ALI and another---Appellant/Petitioner

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others---Respondents

Civil Appeal No. 700 and Civil Petition No. 3832 of 2016, decided on 14th November, 2018.

Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 8(1)---Competitive examination for post of Deputy Prosecutor General---Psychological assessment---Rounding off of marks to next whole number---Permissibility---Maxim expressio unis est exclusious alterius---Scope---Policy Decision No. 19.18 relating to Interviews by the Punjab Public Service Commission (PPSC) specifically provided that average scores of the members of the Interview Committee could be 'rounded off', while Policy Decision No. 19.16 relating to psychological assessment did not expressly provide such concession---Maxim expressio unis est exclusious alterius i.e., the express mention of one thing implies the exclusion of the other thing, was applicable to the present case---Mentioning of rounding off in case of average marks obtained in the interview and the absence of such a concession for the marks obtained in psychological assessment clearly showed that the Punjab Public Service Commission never intended to extend the benefit of rounding off to the marks obtained in psychological assessment---Clear exclusion of rounding off in the case of psychological assessment under the relevant Policy also stood on a logical plane, as a total of only 5 marks were allocated for the psychological assessment, and rounding off, either up or down by a value of 0.5 amounted to 10% change in the total marks---Such change was a sizable percentage and could unfairly bridge the well-earned distinction between competitive candidates and weaken the credibility of the result---Supreme Court observed that any number could be round up to the next whole number or round down to the same whole number, depending on the value being 0.5 or more or less, however, the rule of rounding off, being a rule of convenience, must be applied with caution, so as not to give an unfair advantage to a candidate who had scored low or to disadvantage a candidate who had scored high.

N.S. Bindra's - Interpretation of the Statutes, 10th Edition, p.770 ref.

Malik Muhammad Qayyum, Senior Advocate Supreme Court along with Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A.No. 700 of 2016).

Razzaq A. Mirza, Additional A.-G. for Respondent No. 1 (in C.A. No. 700 of 2016).

Nemo for Respondent No. 2 (in C.A. No. 700 of 2016).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondents Nos. 3 and 5 (in C.A. No. 700 of 2016).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Petitioner (in C.P. No. 3832 of 2016).

Nemo for Respondents (in C.P. No. 3832 of 2016).

2019 P L C (C.S.) 384

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Sajjad Ali Shah and Munib Akhtar, JJ

NATIONAL INSURANCE COMPANY LIMITED

Versus

AHMED ALI BHAMBHRO and others

Civil Appeal No 80-K of 2017, decided on 21st June, 2018.

(Against the order dated 10.5.2017 passed by the High Court of Sindh in C.P. No. D-4428/2014)

National Insurance Corporation Employees' Pension Funds Regulation, 1986---

----Regln. 6(3)--- Pensionary benefits of transferred employee---Respondent-employee was transferred from Pakistan National Produce Company Limited to the National Insurance Corporation Limited ("the Insurance Corporation") under an administrative order of the competent authority on the basis that the former company had been wound up---At the time of his retirement, question arose about the pensionary benefits of the respondent for the period he spent in his erstwhile company i.e. Pakistan National Produce Company Limited (PNPCL)---On the refusal of his pensionary benefits, the respondent approached the High Court, which through the impugned order granted him the pensionary benefits for the period for which he had been serving in the erstwhile company---Plea of Insurance Corporation that pensionary benefits were not available to the respondent under the rules of his erstwhile company and besides Regulation No. 6(3) of National Insurance Corporation Employees' Pension Funds Regulation, 1986 prohibited pensionary benefits until and unless expressly and unequivocally granted to an employee---Validity---Respondent was not working in Insurance Corporation on deputation rather in compelling circumstances he had been transferred, therefore, provisions of Regln. 6(3) had no relevance to the present case---Record did not show whether the erstwhile company did not carry a pension scheme, therefore, respondent's pensionary benefits for the period he had served in the erstwhile company could not be denied---Appeal filed by Insurance Corporation against judgment of High Court was dismissed accordingly.

Zahid Ebrahim, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Sanaullah Noor Ghori, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.1.

Respondents Nos. 2 to 4 ex parte.

2019 P L C (C.S.) 539

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Maqbool Baqar, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN through Chairman and another

Versus

MUHAMMAD SAJID and others

Civil Petitions Nos. 2702-2704, 3115-3118 and 3879 of 2018, decided on 13th December, 2018.

(Against the judgments dated 14.05.2018, 29.05.2018, 12.09.2018 of the Lahore High Court, Multan Bench passed in I.C.As. Nos. 149, 150, 186, 196, 187, 188, 189 and 190 of 2018)

Civil service---

----Daily wage workers/contract employees of Board of Intermediate and Secondary Education---Regularization in service---Artificial breaks in service period by re-employing workers after every 89 days---Respondents (daily wage workers) had been working with the petitioner-Board since long, however, in an attempt to break the continuity of their service, the Board had been employing them for 89 days only, and re-hired them for the next 89 days, and thus continued to avail their service for a long period by creating artificial breaks in their service period---Fact that the respondents had continuously served the Board for a long period of time, albeit the breaks created by Board clearly showed that they had been performing job of permanent nature and had not been serving on casual posts---Admittedly, similarly placed employees of Boards of other cities had been regularized in pursuance of orders of the High Court, which were upheld by the Supreme Court---Respondents were rightly found eligible and entitled for regularization of their service with the Board by the High Court---Petitions for leave to appeal were dismissed accordingly.

Civil Petition No. 2509 of 2006, Judgment dated 7th March, 2018 ref.

Shakeel Javed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Respondent No.1 in person (in C.P. No. 2702 of 2018).

Nemo for Respondent No.1 (in C.P. No. 2703 of 2018).

Malik Noor Muhammad Awan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents Nos. 1-30 (in C.P. No. 2704 of 2018).

Abdul Razzaq Mirza, Advocate Supreme Court for Respondents (in C.Ps. Nos. 3115 and 3118 of 2018).

Tanveer Iqbal, Advocate Supreme Court for Respondents (in C.Ps. Nos. 3116 and 3117 of 2018).

Nemo for Respondents (in C.P. No. 3879 of 2018).

Date of hearing: 13th December, 2018.

2019 P L C (C.S.) 740

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Mushir Alam and Sajjad Ali Shah, JJ

ABU BAKAR FAROOQ through Chairman and others

Versus

MUHAMMAD ALI RAJPAR and others

Civil Appeals Nos. 845-846 of 2010 and C.As. Nos. 596-L to 599-L of 2013 along with C.M.As. Nos. 4548 of 2014 and 3891 of 2015, decided on 31st January, 2019.

(On appeal against the judgment dated 26.10.2009 passed by Federal Service Tribunal, Islamabad in Appeal No. 751(R) CS/2007)

Civil Servants Act (LXXI of 1973)---

----Ss. 8 & 11(3)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 10 & 19---Federal Public Service Commission (Functions) Rules, 1978, R. 3---Ad hoc appointment---Regularization in service---Seniority, reckoning of---Scope---Whether ad hoc employee, who was switched to contract employee and then finally regularized in service could be granted seniority with effect from the date of his ad hoc appointment---Since the appointment on ad hoc basis was a "stop gap" arrangement, therefore, as provided in S. 11(3) of the Civil Servants Act, 1973, it stood terminated either on the expiry of the period for which such ad hoc appointment was made or on the appointment of a person recommended by the Commission---Such ad hoc appointee did not acquire a right to claim his seniority in accordance with S. 8 of the Civil Servants Act, 1973 vis-a-vis the civil servants who were appointed on regular basis on the recommendation of the Commission after going through the selection process---Ad hoc employee neither had right to hold the post beyond the period for which he was appointed nor the government had a right to continue with such ad hoc appointee for a long period of time---Extended appointment on ad hoc basis only arose where the government violated the provision of R. 3 of the Federal Public Service Commission (Functions) Rules, 1978 and without placing a requisition before Commission for regular appointment filled the post on ad hoc basis and then kept on extending the period of such ad hoc appointment---In such a situation the ad hoc appointee clung on to his post knowing fully well that his ad hoc appointment was not in accordance with the prescribed method of appointment and was only a "stop gap" arrangement, till recruitment in accordance with the prescribed method of appointment was made---Such conduct of the government had always been deprecated by the Courts, however, such shortcoming/non-adherence to the legal requirements by the competent authority could earn no benefit for the ad hoc appointee for the simple reason that bestowing the benefits of regular appointment upon an ad hoc employee would not only amount to regularizing unlawful appointment and providing premium to the beneficiary of such wrong but would also amount to opening another door of entry into service of Pakistan by frustrating the only prescribed mode of appointment through the Commission---Appeals were allowed accordingly.

Muhammad Afzal v. Government of the Punjab 1982 SCMR 408; Naila Khalid v. Pakistan PLD 2003 SC 420; Muhammad Wasay Tareen v. Chief Justice of Balochistan 2005 SCMR 464 and Naveeda Tufail v. Government of Punjab 2003 SCMR 291 ref.

Abdul Rahim Bhatti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.A. No. 845 of 2010).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent No. 1 (in C.A. No. 845 of 2010).

Muhammad Abbas Mirza, Advocate Supreme Court for Respondents Nos. 2 and 3 (in C.A. No. 845 of 2010).

Muhammad Abbas Mirza, Advocate Supreme Court for Appellants (in C.A. No. 846 of 2010).

Respondent No. 1 in person (in C.A. No. 846 of 2010).

Muhammad Abbas Mirza, Advocate Supreme Court for Appellants (in C.As. Nos. 596-L and 598-L of 2013).

Nemo for Respondent No. 1 (in C.As. Nos. 596-L and 598-L of 2013).

Muhammad Munir Paracha, Advocate Supreme Court for Applicant (in C.M.A. No. 3891 of 2015).

Muhammad Siddique Awan, Advocate Supreme Court for Appellants (in C.A. No. 599-L of 2013).

Respondent No. 1 in person (In C.A. No. 599-L of 2013).

Muhammad Abbas Mirza, Advocate Supreme Court for Respondents Nos. 2 and 3 (In C.A. No. 599-L of 2013).

2019 P L C (C.S.) 811

[Supreme Court of Pakistan]

Present: Faisal Arab and Ijaz ul Ahsan, JJ

DIRECTORATE GENERAL EMERGENCY RESCUE SERVICE 1122 KHYBER PAKHTUNKHWA, PESHAWAR

Versus

NIZAKAT ULLAH

Civil Petition No. 733 of 2018, decided on 22nd February, 2019.

(Against the judgment dated 17.01.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 4783-P of 2016)

Khyber Pakhtunkhwa Emergency Rescue Services Regulations, 2015---

----Reglns. 43, 45(2) & 50---Dismissal from service---Due process not followed---No permission provided to cross-examine witnesses---Where an employee was to be removed from service, which action obviously carried a stigma with it, he was entitled to due process which included fair opportunity to defend himself, cross-examine the witnesses and produce evidence in his defence---Further, he must be confronted with the material on the basis of which he had been issued show cause notice---Employee in question was deprived of his due process rights; he was not confronted with the material on the basis of which the show cause notice had been issued to him and he was not permitted to cross-examine the witnesses who were produced by his employer---Allegation against the employee was that he had quarrelled with his seniors and sent abusive and threatening SMS messages to them, and generally indulged in disorderly behavior---Neither evidence of any obnoxious SMS messages allegedly sent by the employee to his senior officers was placed on record nor was he provided an opportunity to cross-examine any witness that the employer may have produced---Further, there was no evidence that the employee had misbehaved with anybody or refused to perform his duty---Process followed by the employer in dismissing the employee was sketchy, one sided, non-transparent and not supported even by the Khyber Pakhtunkhwa Emergency Rescue Services Regulations, 2015 and the law---High Court had rightly reinstated the employee in service with all back benefits---Petition for leave to appeal was dismissed and leave was refused.

Sikandar Rashid, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2019 P L C (C.S.) 821

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed, Faisal Arab and Ijaz ul Ahsan, JJ

Dr. TARIQ IQBAL and 8 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Administration Peshawar and others

Civil Petition No. 2108, C.M.A. No. 4937 of 2018 in C.P. No. 2108 of 2018, C.P. No. 2299, C.M.A. No. 5180 of 2018 in C.P. No. 2299 of 2018, C.P. No. 3749 of 2018 and C.Ps. Nos. 3785 to 3790 of 2018, decided on 27th February, 2019.

(On appeal from the judgments dated 02.5.2018, 13.9.2018 of the Peshawar High Court, Peshawar passed in W.Ps. Nos. 1715-P/2015, 1714-P/2015, 2345-P/2018, 2909-P/2018, 2910-P/2018, 2911-P/2018, 3776-P/2018, 3777-P/2018 and 3778-P/2018, respectively)

(a) Interpretation of statutes---

----Purposive rather than a literal approach of interpretation of a statute was to be adopted.

Federation of Pakistan through Ministry of Finance and others v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710; Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others PLD 1998 Lah. 90 and Saif-ur-­Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885 ref.

(b) Interpretation of statutes---

----Statute beneficial in nature---Where the tone and tenor of a statute was beneficial in nature, its provisions must necessarily be interpreted liberally so as to advance the benefit rather than curtail it.

Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885; Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others PLD 2000 SC 207 and Pakistan Engineering Co. Limited, Lahore through Managing Director v. Fazal Beg and 2 others 1992 SCMR 2166 ref.

(c) Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 16---Allotment of Government accommodation under the legal dispensation that existed prior to the promulgation of the Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act, 2018 ('the Act of 2018')---In terms of S. 16 of the Act of 2018, all allotments of residential accommodation made prior to the promulgation of the Act of 2018 must pass the test of being consistent and subject to the provisions of the said Act.

(d) Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 7(5)---Allotment of Government accommodation---Special quota for son, daughter or spouse of retired/dead public office holder---Scope---In terms of S. 7(5) of the Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act, 2018, offspring and spouses of retired or deceased public office holders, if otherwise, eligible may be allotted or could retain official residential accommodation in such capacity, if the residential accommodation in question was part of the quota reserved.

(e) Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 7(3)---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018, R. 18---Management and Allotment of residential accommodation---Scope---Government department, office or agency having its own accommodation---Section 7(3) of the Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act, 2018 ('the Act of 2018') provided that a public office holder could either be entitled to or eligible for allotment in the general pool (under the Act of 2018) or in the pool of his own department, office or agency, if it had such a pool---Public office holder not eligible for allotment under the pool of his own department, office or agency, was eligible for allotment in the general pool, in terms of Act of 2018---In case of subsequent transfer or promotion of public office holder to a designation, making him eligible/entitled to the official residential accommodation in the pool of his own department, office or agency, his rights would be governed by R. 18 of the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018.

Naveed Akhtar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.P. No. 2108 of 2018).

M. Younis Thaheem, Advocate Supreme Court for Petitioners (in C.P. No. 2299 of 2018).

Malik Manzoor Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.Ps. Nos. 3749, 3785-3790 of 2018).

M. Shahid Kamal, Advocate Supreme Court for Applicants (in C.M.A. No. 10119 of 2018 in C.P. No. 3749 of 2018 and C.M.A. No.10133 of 2018 in C.P. No. 3785 of 2018).

Barrister Qasim Wadood, Additional A.-G. Khyber Pakhtunkhwa, Taimoor Khattak, DS, KPK and Noor Rehman, Estate Officer for Respondents (in all cases).

2019 P L C (C.S.) 835

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Faisal Arab and Ijaz ul Ahsan, JJ

RIFFAT SHAHEEN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others

Civil Appeal No.1459 of 2018, decided on 7th March, 2019.

(Against judgment dated 13.09.2018 of Peshawar High Court, Peshawar, passed in Writ Petition No. 4125-P of 2017)

Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act (II of 2018)---

----S. 7---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018, Rr. 11 & 37---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2015, R. 7 [since repealed]---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980, R. 4 [since repealed]---Allotment of Government accommodation---Right of spouse to retain government accommodation allotted to husband after his retirement---Petitioner, who was employed as a PTC teacher resided with her husband in a government accommodation---Husband was working as an Assistant Director in a Provincial training institute---Upon retirement of husband, a grace period of six months was allowed, where after, the Provincial Government issued a vacation notice to the petitioner and her husband---Petitioner applied for transfer of the accommodation in her name under R. 4 of the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980---Said request was not acceded to---In the meantime, Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 was promulgated which repealed and substituted the previous Rules---Consequently, the petitioner's application was not accepted which prompted her to approach the High Court in its constitutional jurisdiction---Said constitutional petition was also dismissed---Petitioner contended that under the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980, a vested right had accrued in her favour which could not be taken away through a subsequent change in law/rules---Held, that the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980 ('Rules of 1980') as well as the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2015 ('Rules of 2015') were repealed by the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018 ('Rules of 2018')---Rules of 2018 specifically provided that the Rules of 1980 and 2015 stood repealed except to the extent as were not inconsistent or in conflict with the Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 ('the Act') and the Rules of 2018---Rules of 2015 did not provide for out of turn allotment to the spouse of a retired civil servant---Further, the Act and Rules of 2018 did not provide an automatic benefit to the spouse or children of a deceased or retired civil servant to retain the government accommodation on retirement/demise of the original allottee, however, their rights had been safeguarded by providing a special quota in the available government housing which was based on seniority of applications---List of eligible children and spouses of retired/deceased employees was accordingly maintained by the concerned department---Petitioner would be entitled to allotment of an official accommodation at her own turn and she could not rely upon the Rules of 1980 and or of 2015 in order to advance her claim---Further, she had already retained the government accommodation for a grace period of six months whereafter she and her husband were obliged to vacate the government accommodation and utilize house rent allowance which was paid by the government---Petitioner's name appeared at Sr. No.13 of the waiting list maintained by the Provincial Government for allotment of government accommodation---Petitioner did not have a legitimate right to retain the government accommodation originally allotted to her husband on the basis of 1980 Rules because the same had been repealed, and her case was governed by the Act and the Rules of 2018 and no legally enforceable vested right existed in her favour---Appeal was dismissed accordingly.

Nasir Mehmood, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Barrister Qasim Wadood, Additional A.G., Khyber Pakhtunkhwa for Respondents.

2019 P L C (C.S.) 860

[Supreme Court of Pakistan]

Present: Faisal Arab and Syed Mansoor Ali Shah, JJ

Civil Appeal No.805 of 2016

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 06.1.2016, passed in Appeal No.482(R)CS/2013).

and

Civil Appeals Nos.1438 and 1443 of 2016.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 18.2.2016, passed in Appeal No.1031(R)CS/2013).

and

Civil Appeals Nos.1439 and 1442 of 2016.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 16.2.2016, passed in Appeal No. 507(R)CS/2013).

and

Civil Appeals Nos.1440, 1444 and 1445 of 2016.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 11.2.2016, passed in Appeals Nos.2088, 1984 and 2088(R)CS/2012).

and

Civil Appeal No.1441 of 2016.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 19.2.2016, passed in Appeal No.3029(R)CS/2012).

and

C.M.As. Nos.2841 and 2842/2016 in C.As.1438 and 1439 of 2016.

(stay applications)

and

Civil Petitions Nos.124 to 128, 269 to 271 of 2017.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 02.11.2016, passed in M.Ps No. 1920

in Appeal No.831(R)CS/2012 etc.)

and

Civil Petitions Nos.3446 and 3447 of 2016.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 20.1.2016, passed in Appeals Nos.1519 and 2118(R)CS/2015).

FEDERATION OF PAKISTAN through Secretary Finance and others

Versus

MUHAMMAD SHARIF

Civil Appeals Nos. 805, 1438, 1443, 1439, 1442, 1440, 1444, 1445, 1441, C.M.As. Nos. 2841, 2842 of 2016 in C.As. Nos. 1438, 1439 of 2016, Civil Petitions Nos. 124 to 128, 269 to 271 of 2017 and Civil Petitions Nos. 3446 and 3447 of 2016, decided on 16th April, 2019.

Civil service---

----Salary and pension, increase in---Increase of Rs.300/- per month in salary and 10% in pension, entitlement to---Prime Minister announced ad hoc relief for the government employees including an increase of Rs.300/- per month in their salaries w.e.f. 01-03-1997 and an increase in the pension by 10% (ten percent)---Such announcement was officialized through Office Memoranda, wherein it was clarified that benefit of an increase in pension was admissible to those Government servants who were retired prior to 01-03-1997---Respondents (government employees), who admittedly retired after 01-03-1997, claimed that they were entitled to 10% increase in the pension after they had already availed the benefit of increase in monthly salary of Rs.300/- while they were in service---Held, that ad hoc relief was extended by the then Prime Minister by granting an increase of Rs.300/- in the salary of government employees and an increase of 10% in the pension of the employees who retired prior to the date 01-03-1997---Relevant Office Memoranda showed that two distinct reliefs were granted, one for the employees in service through increase in salary and the other for retired employees through increase in pension--- Retired employees were those who retired prior to 01-03-1997, as had been clarified in one of the Office Memoranda---Ad hoc relief of 10% increase in pension was only admissible to employees who stood retired prior to 01-03-1997---Respondents, thus, could not claim both the benefits; one of increase in the monthly salary by Rs.300/- while in service; and the other of increase in pension after retirement---Cutoff date of 01-03-1997 was critical and had relevance, as it split the employees into two broad categories of in service employees on the cutoff date and retired employees on the cutoff date for the purposes of the ad hoc relief---Extending 10% increase in pension to the employees who were in service on 01-03-1997 went against the scheme of the ad hoc relief as it created an imbalance between the two classes of employees by extending unjust advantage to one class of employees i.e., the in service employees on the cutoff date, who would walk away with two distinct ad hoc reliefs (i.e., increase in salary and increase in pension after retirement) when they had been promised only one.

Sohail Mehmood, DAG for Appellants (in C.As. Nos. 805, 1441 to 1445 of 2016 and C.Ps. Nos. 3446 and 3447 of 2016).

Hafiz S.A. Rehman Senior Advocate Supreme Court for Appellants (in C.As. Nos. 1438 to 1440 of 2016).

Syed Ishtiaq Haider, Advocate Supreme Court for Appellants (in C.Ps. 124 to 128 and 269 to 271 of 2017).

Ishtiaq Haider, Advocate Supreme Court along with Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1 (in C.A. No. 805 of 2016).

2019 P L C (C.S.) 896

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

ABDULLAH NAWAZ CHEEMA

Versus

FEDERAL PUBLIC SERVICE COMMISSION (FPSC), ISLAMABAD and another

Civil Petition No. 2350 of 2015, decided on 17th December, 2018.

(On appeal from the Judgment/Order dated 24.06.2015 of the Islamabad High Court, Islamabad passed in F.A.O. No. 93 of 2013)

Rules for Competitive Examination (CSS), 2012---

----R. 25 & Appendix II, Para. 7---Open merit quota and Women's quota---Where a female candidate secured sufficient merit to be allocated a group on the Open merit, she may opt for a better group, if that was available in the Women quota---Once she had opted for a better group, the one she had previously been allocated in Open merit would be left vacant---Said vacant group seat was then transferred to the Women quota which was short a seat when the candidate had opted for the then available better seat; this allowed for there to be a constant number of reserved seats in the Women quota without depriving deserving female candidates, higher on the merit list, better group seats---Male candidates otherwise not qualifying for allocation on open merit could not be given the benefit of allocation in the result of upgradation permissible to Open merit female candidates.

FPSC and others v. Ms. Nargis Shazia Chaudhry Civil Petition No. 941 of 2010 ref.

G.M. Chaudhry, Advocate Supreme Court for Petitioner.

Nayyab Hassan Gardazi, DAG and Haroon-ur-Rashid, Dy. Dir. for Respondents.

2019 P L C (C.S.) 928

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Faisal Arab and Ijaz ul Ahsan, JJ

Qazi MUNIR AHMED

Versus

RAWALPINDI MEDICAL COLLEGE AND ALLIED HOSPITAL through Principal and others

Civil Petitions Nos. 606 and 607 of 2018, decided on 6th March, 2019.

(Against the Judgment dated 07.12.2017 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Intra Court Appeals Nos. 181 and 196 of 2012)

(a) Limitation---

----Void order---No period of limitation ran against a void order.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

(b) Appeal---

----Aggrieved person---Scope---Any aggrieved person whether or not he was a party in a lis had the right to approach an appellate forum.

H.M. Saya and Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Competency---Necessary and proper party i.e. Provincial Government not impleaded---Where petitioner did not implead the Provincial Government as a party in the constitutional petition, despite the fact that the said Government was a necessary and proper party in the case, the constitutional petition was not competent and was liable to be dismissed.

Government of Balochistan v. Mir Tariq Hussain Khan Magsi 2010 SCMR 115 ref.

(d) Constitution of Pakistan---

----Art. 199---Contract employment---Constitutional petition filed by a contract employee---Maintainability---Contract employee was debarred from approaching the High Court in its constitutional jurisdiction---Only remedy available to a contract employee was to file a suit for damages alleging breach of contract or failure to extend the contract.

Federation of Pakistan v. Muhammad Azam Chatha 2013 SCMR 120 ref.

(e) Master-servant---

----Contract employee---Contract employee could not press for reinstatement to serve for the left-over period and could at the best claim damages to the extent of unexpired period of his service.

Federation of Pakistan v. Muhammad Azam Chatha 2013 SCMR 120 ref.

Sardar Abdul Raziq Khan, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner (in both cases).

Mian Abdul Rauf, Advocate Supreme Court for Respondents.

2019 P L C (C.S.) 982

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Qazi Faez Isa and Munib Akhtar, JJ

COMMANDANT, ELITE FORCE, KHYBER PAKHTUNKHWA and others

Versus

JAMSHED ALI

Civil Appeal No.699 of 2017, decided on 4th April, 2019.

(On appeal from the judgment/order dated 27-1-2017 of the Khyber Pakhtunkhwa Service Tibunal, Peshawar passed in S.A. No.881 of 2014).

Per Umar Ata Bandial, J; Qazi Faez Isa, J agreeing;

(a) Civil service---

----Government servant convicted for criminal offence---Acquittal on basis of compromise---Reinstatement in service---Legality---Both parties (i.e. the relevant department and the respondent-government servant) were interested in the holding of a proper inquiry in relation to the allegations leveled by the department against the respondent---Service Tribunal in the impugned judgment had overlooked such aspect of the case and directed reinstatement of respondent as an immediate consequence of merely the compromise between the parties---Supreme Court directed that the department was to conduct a fresh inquiry in accordance with the provisions of law, which inquiry shall be completed within two months, and that the respondent shall have no entitlement to back benefits unless the allegations against him were dismissed in the inquiry [Majority view].

Per Qazi Faez Isa, J: Munib Akhtar, J dissenting.

(b) Supreme Court Rules, 1980---

----O. XI---Constitution of a larger Bench, request for---Powers of the Chief Justice of the Supreme Court---Scope---[Per Qazi Faez Isa, J]: When the Supreme Court passed a judicial order and referred the case to the Chief Justice for the constitution of a larger Bench then the Chief Justice did not have the discretion not to constitute a large Bench; his discretion in such a situation was limited to administratively determining the constitution of such bench]---[Per Munib Akhtar, J (dissenting): Any request made to the Chief Justice for constitution of a larger Bench, howsoever phrased or expressed, could not be tantamount to an "order" that mandatorily required the Chief Justice to constitute a larger Bench---Position of the Chief Justice was not, and could not be, reduced to a mere administrative conduit in such circumstances---Any inclination not to accede to a request for constituting a larger Bench was not binding on any subsequent holder of the office of Chief Justice---Matter rested, and must necessarily rest, in the hands of the Chief Justice alone.

Per Qazi Faez Isa, J: Munib Akhtar, J dissenting.

(c) Criminal Procedure Code (V of 1898)---

----S. 345(6)---Penal Code (XLV of 1860), Ss. 302 & 324---Constitution of Pakistan, Art. 189---Compounding of offence---Scope---Question as to whether acceptance of a compromise submitted under S.345(6), Cr.P.C resulted in the automatic acquittal of a convict-murderer or only had a bearing on the sentence part of his conviction---[Per Qazi Faez Isa, J]: Such question needed to be decided as it affected a large number of pending cases and would also have a bearing on future compromises---Since applications under S.345(6), Cr.P.C were also submitted before the High Courts and Session Courts throughout the country, therefore, the answer to the said question of law needed to be clearly enunciated in terms of Art.189 of the Constitution]---[Per Munib Akhtar, J (dissenting): Law regarding effect of a compromise continued to be that laid down in the judgment reported as Suo Motu Case No. 3 of 2017 (PLD 2018 SC 703) regardless of the (apparently so far unattended) request for a larger Bench made by the majority in the judgment reported as Shafqat v. State (PLD 2019 SC 43)---For purposes of stare decisis such request, as a matter of law, was not to be taken into account either by the Supreme Court or any other court in the country.

Suo Motu Case No.3 of 2017 PLD 2018 SC 703 and Shafqat v.State PLD 2019 SC 43 ref.

Qasim Wadood, Addl.A.G. for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents.

2019 P L C (C.S.) 1014

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Maqbool Baqar, JJ

MUHAMMAD AAMIR KHAN

Versus

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

Civil Petition No. 29 of 2017, decided on 25th April, 2019.

(On appeal against the judgment dated 17.11.2016 passed by the Peshawar High Court, Peshawar, in Writ Petition No. 1032-P of 2016)

(a) Practice and procedure---

----Precedent---Constitution of larger Bench---Where there already existed in the field an order/ judgment of the Division Bench (of the High Court) on the subject which was being dealt with and considered (by the High Court) in subsequent cases, said earlier order/judgment had to be adhered to and a different opinion from the one taken in the earlier order/judgment could not be expressed---In such circumstances the matter was to be referred to the Chief Justice for constitution of a larger Bench.

(b) Administration of justice---

----Judges were expected in all circumstances to know the law and such was their hallmark as entrenched in the principle that 'a Judge must wear all laws on sleeve of his robes'.

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

----S.26---Khyber Pakhtunkhwa Revenue and Estate Department (Tehsildar, Naib-Tehsildar/Subordinate Revenue Service) Rules, 2008---Patwari, post of---Upper age limit, relaxation in---By way of a notification an amendment was made in the Khyber Pakhtunkhwa Revenue and Estate Department (Tehsildar, Naib-Tehsildar/ Subordinate Revenue Service) Rules, 2008 ('the Rules') and upper age limit for the post of Patwari was extended to 35 years and it was clearly stated that no provision for age relaxation over 35 years would be allowed under any circumstances by any Authority---Held, that age of petitioner at the time of his turn for being appointed as Patwari was beyond maximum upper age limit of 35 years---Court had no power to further relax the upper age limit for that the jurisdiction of the Court was to apply the law and rules as they appeared on the statute book---Vires of law itself had not been challenged by the petitioner, thus, no deviation from the amending notification could be made on any principle of law---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Iqbal Khan Mohmand, Advocate Supreme Court for Petitioner.

Zahid Yousaf Qureshi, Additional A.-G., Khyber Pakhtunkhwa for Respondents Nos. 1 - 5.

Nemo for Respondents Nos. 6 - 7.

2019 P L C (C.S.) 1039

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Yahya Afridi, JJ

Syed IMTIAZ ALI

Versus

CHAIRMAN, IMPLEMENTATION TRIBUNAL FOR NEWSPAPER EMPLOYEES (ITNE), ISLAMABAD and others

Civil Appeal No.651 of 2012, decided on 9th April, 2019.

(On appeal against order dated 29-5-2012 passed by the Islamabad High Court, Islamabad in I.C.A. No.257-W of 2012).

(a) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 11, 12-A & 13---Industrial Relations Ordinance (XXIII of 1969), S. 51(2)---Industrial Relations Act (X of 2012), S. 52(2)---Claim of a newspaper employee---Wage Board award---Implementation Tribunal, jurisdiction of---Scope and purpose---Essential aim of constituting the Implementation Tribunal was to provide a forum for redressal of the grievances of newspaper employees regarding the payment of the wages fixed by the Wage Board---In doing so effectively, the legislature had, in its wisdom, vested the Implementation Tribunal with the authority to enforce its directions upon the newspaper establishments---Adjudicatory power of a Labour Court provided under S. 51(2) of the Industrial Relations Ordinance, 1969 and presently under S. 52(2) of the Industrial Relations Act, 2012, was not expanded to the Implementation Tribunal under the deeming provisions of S. 13 of the Newspaper Employees (Conditions of Service) Act, 1973 ('the Act')---Intention of the legislature was thus clear that apart from the trial of the offences stipulated under S. 13 of the Act, and the implementation of the Wage Board Award under S. 11, no other pecuniary claim of a newspaper employee came within the jurisdictional sphere of the Implementation Tribunal constituted under S. 12-A of the Act.

Matri Publication's case 2001 PLC 662 and All Pakistan Newspapers Society's case PLD 2012 SC 1 ref.

(b) Partnership Act (IX of 1932)---

----S. 4---Nature of partnership, determination of---Dominant test---Control and dependency test---Scope---Terms of the agreement stipulated that the parties agreed to set-up a weekly journal; that the terms of the Agreement were for a period of five years; that the profits of the weekly journal, after deduction of the actual expenses of running the venture, would be distributed amongst the parties, and the appellant was to receive 80% of the profits, while the respondent was to receive 20% of the same; that the appellant would invest in setting up the venture, and retain its ownership, while the respondent shall assume responsibilities as its Editor and be paid a sum of Rs. 40,000 per month; that the appellant, in case of terminating the agreement, shall give the respondent a three months' notice (whereby monthly remuneration shall not be discontinued) and shall pay an additional sum of Rs. 800,000 at departure; that the parties in order to resolve any dispute arising out of the agreement shall take recourse to the arbitration clause---Question as to whether said agreement was a partnership or a master-servant relationship---Held, that the venture intended to be carried out by the parties was a 'partnership', as it fulfilled the three precedent conditions for a partnership set out in S. 4 of the Partnership Act, 1932; 'firstly', the parties agreed to set up a business of publication of a weekly journal; 'secondly', the parties were to share the profits of that business; and 'finally', the said business of publication was to be carried out by both the parties, as their individual responsibilities were clearly defined in the agreement---Relationship between the parties under the agreement provided therein elements of both Master and Servant and of a partnership firm; it had attributes of Master and Servant as the respondent was appointed as the Editor of the journal with a monthly stipend of Rs.40,000, and features of a partnership firm, as the parties were to share the profits that were to accrue from the business of the venture in the ratio of 80:20---Applying the "dominant test" to the terms of the agreement, (an exclusive) relationship of Master and Servant could not be conceived when the profits accruing from the business venture undertaken by the Master were to be shared with the servant, however, it was possible for a partner in a partnership firm to be paid in addition to his pre-determined share of profits for the services he rendered in furtherance of the business venture of the partnership firm, as was in the present case---In pith and substance, the attributes of a partnership dominated those of Master and Servant governing the relationship of the parties under the agreement---Even if the relationship of the parties under the agreement was examined on the touchstone of the "test of control and dependency" [as undertaken in other Commonwealth jurisdictions], the respondent, under the agreement, had complete control as the editor of the journal, and that too, with no interference from the appellant in his working---Judged from every angle, intention gathered from the terms of the agreement revealed that the parties were to be partners in a partnership firm and their relationship was not to be governed by the principles of Master and Servant---Appeal was allowed in circumstances.

Backman v. Canada [2001] 1 SCR 367; McCormick v. Fasken Martineau DuMoullin LLP [2014] 2 SCR 108; Clackamas Gastroenterology Associates, P.C. v. Wells, 538 US 440 (2003) and Nationwide Mut. Ins. Co. v. Darden, 503 US 318 (1992) ref.

M. Habib Ullah Khan, Advocate Supreme Court and Nazir Ahmed Bhutta, Advocate Supreme Court for Appellants.

Ex-parte for Respondent No.1

Qausain Faisal Mufti, Advocate Supreme Court for Respondent No.2.

2019 P L C (C.S.) 1375

[Supreme Court of Pakistan]

Present: Gulzar Ahmed,Mushir Alam and Sajjad Ali Shah, JJ

ASIF HASSAN and others

Versus

SABIR HUSSAIN and others

Civil Petition No. 673-K of 2018, decided on 25th July, 2019.

(Against the judgment dated 23.5.2018 passed by the High Court of Sindh in C.P. No. D-389 of 2012).

(a) Constitution of Pakistan---

----Arts.185(3) & 199---Civil service---Appointment---Suitability of a candidate---Jurisdiction of the Supreme Court and Constitutional jurisdiction of the High Court---Scope---Court could not take upon itself the function of the appointing authority in order to judge the suitability of a candidate.

(b) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Writ of quo warranto---Scope---Writ in the form of quo warranto was an extraordinary discretionary jurisdiction and the Court was not bound to exercise such jurisdiction in each and every case specially where on account of laches the matter had lost its significance or in cases of minor discrepancies or sheer curable technicalities or where the approach was doctrinaire unless it was shown that non-interference would result in grave injustice or would amount to endorsing the retention of illegal gains.

(c) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Writ of quo warranto---Scope---Civil service---Appointment criteria---Prescribed qualification and experience---Candidate appointed to post lacking the prescribed qualification and experience at time of appointment but fulfilling the same during pendency of writ (of quo warranto) filed against him---Where the eligibility of a public servant was under attack on the ground that such public servant did not fulfil the substantive condition of eligibility to such office on the cutoff date prescribed in the process, then such violation of the substantive statutory requirement could not be overlooked merely on the ground that pending action in the Court such government servant had met the required condition of such office.

Ammad Ahmad v. National Highway Authority 2018 PLC (C.S.) Note 187; M.A. Jabbar and others v. Federation of Pakistan 1999 PLC (C.S.) 686 and Sajid Hussain v. Shah Abdul Latif University Khairpur PLD 2013 Sindh 232 not approved.

M. M. Aqil Awan, Senior Advocate Supreme Court for Petitioners.

Ahmed Ali Ghumro, Advocate Supreme Court for Respondent No.1.

Khalid Mahmood Siddiqui, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-record for Respondent No.3.

2019 P L C (C.S.) 1388

[Supreme Court of Pakistan]

Present: Umar Ata Bandialand Munib Akhtar, JJ

CHIEF COMMISSIONER INLAND TAX, through RTO,Zone-I, Federal Board of Revenue, Hyderabad and others

Versus

GHULAM MUSTAFA MARI, EX-INSPECTOR, INCOME TAX, REVENUE DIVISION, FBR, HYDERABAD

Civil Appeal No. 1226 of 2016, decided on 12th March, 2019.

(On appeal from the order dated 15.10.2015 passed by the FST, Ibd. in A. No. 3214(R)CS/2012)

Civil service---

----Re-instatement, matter of---Res judicata---Past and closed transaction---Re-opening of a case in violation of judgment of the Supreme Court---Respondent was appointed in the Income Tax Department in the year 1994 on the recommendation of the Prime Minister Secretariat---Respondent was removed from service on 15.1.2003 for failure to produce his Bachelor Degree which was a condition of eligibility for appointment to his post---Respondent's recourse to departmental authorities, the Federal Service Tribunal and the Supreme Court failed to find any favour in the matter of his re-instatement---Supreme Court in its judgment held that the respondent without having the requisite qualification for the post, obtained appointment in an improper manner and consequently no right could be created in his favour to retain an illegal gain by mere efflux of time---Judgment of Supreme Court attained finality and thereafter the matter became a past and closed transaction inter se the parties to the lis---Again on the initiative of the Prime Minister Secretariat in the year 2008, case of respondent was re-opened and he was reinstated in service---After remaining in service for some 2½ years the respondent was informed in the year 2012 that he stood removed from service by restoration of the erstwhile penalty imposed on him on 15.1.2003---Federal Service Tribunal granted the respondent a right of de novo inquiry---Legality---Question was as to how the executive authorities could re-open a case after it had been decided finally by a judgment of the Supreme Court delivered inter parties in the respondent's case---Further action in the matter was barred by res judicata and the doctrine of past and closed transaction---Federal Service Tribunal's order for de novo inquiry was set aside in circumstances---Appeal was allowed accordingly.

Sajjad Ahmed Javed Bhatti v. Secretary, Establishment Division, Islamabad and others 1996 SCMR 628 distinguished.

Imran Fazal, Advocate Supreme Court, Muhammad Siddique Mirza, Advocate Supreme Court and M. Amin Shah, FBR for Appellants.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondent.

2019 P L C (C.S.) 16

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

INDUSTRIAL DEVELOPMENT BANK LIMITED through Attorney

Versus

SAJID HAMEED and 8 others Civil Appeal No.14 of 2014, decided on 4th April, 2017.

(On appeal from the judgment of the High Court dated 18.9.2013 in Writ Petition No.185 of 2006)

Azad Jammu and Kashmir Service Tribunals Act, 1973---

----Ss. 2-A & 2(b)---Azad Jammu and Kashmir Industrial Relations Ordinance, 1974, S.30---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.2, 47(a) & 49---Employee of "Industrial Development Bank"---Allegation of fictitious transaction---Dismissal from service---Grievance petition---Maintainability---Persons holding the posts or service in connection with the affairs of Azad Jammu and Kashmir---Terms and conditions of service---Determination of---Procedure---Grievance petition was dismissed on the ground of jurisdiction but High Court remanded the case for decision afresh after recording the evidence of the parties---Validity---Azad Jammu and Kashmir Council or the Legislative Assembly could legislate for the establishment of Administrative Courts or Tribunals with regard to the terms and conditions of the persons who were or had been in the service of the Azad Jammu and Kashmir---Employees of "Industrial Development Bank" were not holding the civil posts in connection with the affairs of the Azad Jammu and Kashmir---Question of availing the remedy of appeal by the said employees before Service Tribunal would not arise in circumstances---Neither Azad Jammu and Kashmir Legislative Assembly nor the Azad Jammu and Kashmir Council was empowered to legislate for determination of terms and conditions of such persons---Employees had statutory right to raise any point before the proper forum and same should be attended and resolved according to law---Employees of "Industrial Development Bank" were not civil servants and remedy of appeal was not available to them before the Service Tribunal---Appeal was disposed of in circumstances.

Mian Sultan Mehmood for Appellant.

M. Riaz Tubassam for Respondents.

Khalid Rasheed Chaudhry, M. Reaz Alam and Sheikh Masood Iqbal forAmicus Curiae:

2018 P L C (C.S.) 155

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, JZULFIQAR AZAM and others

Versus

AZAD GOVERNMENT through Chief Secretary, Muzaffarabad and others

Civil Appeals Nos.141 and 142 of 2016, decided on 28th April, 2017.

(On appeal from the judgment of the High Court dated 01.07.2016 in Writ Petitions Nos. 104, 170, 220 and 2009 of 2016).

Civil service---

----Contractual employees---Principle of estoppel---Scope---Appellants impugned order of High Court, whereby their writ petition against the termination of their contract of service, was dismissed---Contention of appellants, inter alia, was that their termination before expiry of their contract of service, was illegal and unconstitutional---Validity---Perusal of the notification of appointment, which was accepted by appellants, revealed that the contract of service could be terminated without assigning of any reason either on 30 days' prior notice or payment of one month's salary---Appellants, therefore, by their own conduct, were estopped from challenging their termination orders, as a person who accepted the conditions of a notification and assumed charge of his office, subsequently could not turn around and claim relief in negation of such conditions---No illegality existed in impugned order---Appeals were dismissed, in circumstances.

Azad Government and others v. Dr. Muhammad Amin 2014 SCR 258 rel.

Sheikh Masood Iqbal, Advocate for Appellants (in Civil Appeal No.141 of 2016).

Raza Ali Khan, Advocate-General and Raja Inamullah, Advocate for Respondents (in Civil Appeals Nos.141 and 142 of 2016).

Masood A. Sheikh, Advocate for Appellants (in Civil Appeal No.142 of 2016).

2019 P L C (C.S.) 355

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

QADEER HUSSAIN

Versus

THE APPOINTING AUTHORITY/CHIEF JUSTICE OF HIGH COURT/HIGH COURT OF AZAD JAMMU AND KASHMIR through Registrar and 2 others

Civil Appeal No.265 of 2017, decided on 18th January, 2018.

(On appeal from the judgment of the Subordinate Judiciary Service Tribunal dated 04.07.2017 in Service Appeal No.09 of 2011).

(a) Azad Jammu and Kashmir Judicial Service Rules, 1999---

----Service Tribunal---Jurisdiction---Scope---Superintendent in the subordinate judiciary---Promotion as Civil Judge---Selection Board, opinion of---Scope---Seniority---Determination of---Procedure---Respondent being superintendent in the subordinate judiciary was promoted as Civil Judge against the departmental promotion quota---Appellant filed appeal that he was senior and more experienced than the respondent---Service Tribunal observed that nothing was available on record to show as to why the Selection Board ignored the appellant for promotion as Civil Judge however opinion of Selection Board could not be substituted and dismissed the appeal---Validity---When Service Tribunal had reached to the conclusion that there was no reason for ignoring the appellant for promotion, it should have accepted the appeal and cured the illegality committed by the Authority---Service Tribunal on appeal might confirm, set aside, vary or modify the order appealed against---If order appealed was found issued on the recommendations made arbitrarily by the Selection Board, Service Tribunal was empowered to set aside, vary or modify the said order---When Service Tribunal came to the conclusion that employee had been superseded without any justification then mere recommendations made by the Selection Board were not hurdle in the way of Service Tribunal to perform its legal duty---Civil servant had vested right to approach the proper forum for redressal of grievances---When any Court or Tribunal was of the opinion that some illegality or perversity was found in the order impugned before it, said Court or Tribunal was bound to cure such illegality or perversity---Findings recorded by the Service Tribunal were against the spirit of law which could not be upheld---Post of Civil Judge was sensitive in character in the judicial system and selection against such post in an arbitrary manner was alarming for the cause of administration of justice---Appellant and respondent were promoted in BS-16 with effect from 27-02-2002---Appellant before his promotion was working as Senior Scale Stenographer, BS-15, whereas private respondent was working as Stenographer, BS-12---Appellant joined service in judicial department prior to the respondent---Seniority had to be determined according to the Rules---No provision was available in the relevant Rules that an incumbent by acquiring LL.B degree would become senior to the others---Appellant was eligible for promotion when selection was made and he could not be considered junior to respondent merely on the ground that respondent had acquired requisite degree of LL.B prior to the appellant---Post of Stenographer was upgraded to BS-16 with effect from 27-02-2002---When an employee was senior in lower grade to the other and both were promoted in the next higher grade then the employee who was senior in lower grade was to retain his seniority---Appellant senior in lower grade was also senior to respondent after promotion in the equal grade---Post in question was to be filled in on the basis of merit and not on the basis of seniority-cum-fitness---Selection Board had not considered the relevant factors requisite for determining the merit---Seniority was not the sole criterion to determine the merit but same was considered as one of the relevant factors for determining the merit and could not be ignored entirely---When all other credentials/qualities were equal then seniority would play vital role in the determination of merit---Credentials of contestants in the present case were equal---Nothing adverse was available against the appellant---Appointment of respondent was made without adopting the proper course and appellant had been ignored without any reason---Court should not preempt the jurisdiction of Selection Board---Matter was remanded to the High Court by the Supreme Court with the direction to place the matter before the respective Selection Board for re-examination---Selection Board/Authority while revisiting the matter was to look into all the aspects of the case---Appeal was disposed of in circumstances.

Raja Javid Ahmad Khan v. Pervaiz Akhtar Abbasi and 5 others 1999 PLC (C.S.) 1156; Tanveer Ahmad v. Director-General, Pakistan Public Works Department, Islamabad and 6 others 1994 PLC (C.S.) 887; Chaudhry Muhammad Zaman v. Azad Government and 4 others 1996 PLC (C.S.) 901 and Mrs. Shaheen Ashai v. Muhammad Anwar Chaudhry and 5 others 2014 SCR 1169 rel.

(b) Civil service---

----Subordinae Judiciary---Service Tribunal, powers of---Service Tribunal on appeal might confirm, set aside, vary or modify the order appealed against.

(c) Civil service---

----Seniority, determination of---When an employee was senior in lower grade to the other and both were promoted in the next higher grade, the employee who was senior in lower grade would retain his seniority.

Barrister Humayun Nawaz Khan, Advocate for Appellant.

Sardar Javed Naz Khan, Additional Advocate General and Syed Sarosh Gillani, Advocate for Respondents.

2018 P L C (C.S.) 435

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, CJ Raja Saeed Akram Khan, Ghulam Mustafa Mughal and Sardar Abdul Hameed Khan, JJ

AZAD JAMMU AND KASHMIR COUNCIL through Chairman and 2 others

Versus

Raja GUL MUHAMMAD and 6 others

Civil Appeal No.165 of 2017, decided on 22nd December, 2017.

(On appeal from the judgment of the High Court dated 15.03.2017 in Writ Petition No.1207 of 2014).

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

----Ss. 3(1), 3(3), 3(3)(b), 3(4) & 3(7)---Service Tribunals (Qualification of Members) Rules, 1974, R.2---Federal Service Tribunal Chairman and Members Service Rules, 1983, R.1---Writ petition---Members of Azad Jammu and Kashmir Council Service Tribunal---Appointment of Members of Azad Jammu and Kashmir Council Service Tribunal on contract basis---Termination from service---Fundamental rights---Scope---Principles of natural justice---Applicability---Independence of judiciary---Scope---Members of Azad Jammu and Kashmir Council Service Tribunal were appointed on contract basis for a period of three years but their services were terminated before stipulated period---Writ petition filed by the said Members was accepted with the observation that they were entitled to remuneration for the remaining period if they had served as Members of Tribunal---Validity---Employees were appointed as Members Service Tribunal for a period of three years but before the expiry of stipulated period the Chairman Azad Jammu and Kashmir Council terminated their services---Director General (Audit), Commissioner Inland Revenue and Deputy Secretary (Council) were appointed as Members of Service Tribunal---Persons appointed as Members of Tribunal were directly subordinate to the authority of Azad Jammu and Kashmir Council which was stigma on their impartiality---Mode adopted for termination of employees' services and new appointments were contrary to the law and concept of independence of judiciary---Power of Authority to terminate the services of an employee without assigning any reason or providing an opportunity of hearing was also violative of principles of natural justice---Public functionaries were to exercise their powers in good faith in the public interest and not on the basis of personal like or dislike or on the basis of whims and fancies---If any rule, policy or instruction authorized the Authority to act in an arbitrary manner then such rule, policy or instruction was ultra vires the Constitution and even ab initio void---Impugned judgment was modified in the term that termination orders passed by Authority were contrary to law---Present formation of Service Tribunal was against the concept/spirit of independence of judiciary---Azad Jammu and Kashmir Council had adopted the Federal Service Tribunals Act, 1973---Supreme Court of Pakistan had declared Ss. 3(1), 3(3), 3(3)(b), 3(4) & 3(7) of Federal Service Tribunals Act, 1973 along with R. 2 of Service Tribunals (Qualification of Members) Rules, 1974 and Federal Service Tribunal Chairman and Members Service Rules, 1983 as ultra vires the Constitution with direction to the Government to make legislation and implement the judgment by making fresh appointment of Chairman/Members of Service Tribunal---Amendments had been made in the Federal Service Tribunals Act, 1973 as well as relevant Acts and Rules of Provincial Service Tribunals---Azad Jammu and Kashmir Council had failed to take necessary steps in this regard in view of the provisions of S. 3(2) of Azad Jammu and Kashmir Adaptation of Laws Act, 1979---Fresh appointments of Members of Service Tribunal were declared contrary to law however acts done by them were declared valid under the principle of defecto doctrine---Government was directed to make fresh appointments in the light of judgment passed by the Supreme Court of Pakistan---Appeal was disposed of accordingly.

Sh. Riaza-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Bashir Ahmed Mughal v. Azad Government and others PLD 2015 SC (AJ&K) 31; Azad Jammu and Kashmir Government and 2 others v. Syed Khalid Hussain Gillani 2016 SCR 228 and Pakistan Defence Officers Housing Authority v. Mrs. Itrar Sajjad Khan and others 2017 SCR 2010 rel.

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

----Ss. 3(1), 3(3), 3(3)(b), 3(4) & 3(7)---Service Tribunals (Qualification of Members) Rules, 1974, R.2---Federal Service Tribunal Chairman and Members Service Rules, 1983, R.1---Members of Azad Jammu and Kashmir Council Service Tribunal---Appointment of Members of Azad Jammu and Kashmir Service Tribunal---Termination of services---Independence of judiciary---Scope---Service Tribunal was a judicial forum---Members of Service Tribunal decided matters with regard to terms and conditions of service of civil servants---Said members of Tribunal were to be impartial and independent from external pressures so that they might decide the cases fairly and in accordance with law---Members of Service Tribunal should protect the rights of civil servants against unlawful acts of Authority and they must be independent in their authority---Judicial independence was important as it guaranteed that judges were free to decide the matters honestly, impartially and in accordance with law without any concern or fear of interference, control or improper influence from anyone---Persons appointed as Members of Tribunal were directly subordinate to the Authority of Azad Jammu and Kashmir Council which was stigma on their impartiality---Present formation of Service Tribunal was against the concept/spirit of independence of judiciary---Azad Jammu and Kashmir Council had adopted the Federal Service Tribunals Act, 1973---Supreme Court of Pakistan had declared Ss.3(1), 3(3), 3(3)(b), 3(4) & 3(7) of Federal Service Tribunals Act, 1973 along with R. 2 of Service Tribunals (Qualification of Members) Rules, 1974 and Federal Service Tribunal Chairman and Members Service Rules, 1983 as ultra vires the Constitution---Amendments had been made in the Federal Service Tribunals Act, 1973 as well as relevant Acts and Rules of Provincial Service Tribunals---Azad Jammu and Kashmir Council had failed to take necessary steps in this regard in view of the provisions of S.3(2) of Azad Jammu and Kashmir Adaptation of Laws Act, 1979---Amendments made in Federal Service Tribunals Act/Rules had automatically been adopted by the Azad Jammu and Kashmir Council and no further legislation was required---Appeal was disposed of accordingly.

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

----S. 42-A---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLIII---Inherent powers of Supreme Court---Scope---Supreme Court had ample powers to take up and resolve the points which had not been raised by the parties in the public interest and for doing complete justice.

(d) Public functionaries---

---Public functionaries were to exercise their powers in good faith in the public interest and not on the basis of personal like or dislike or on the basis of whims and fancies.

Farooq Hussain Kashmiri, Advocate for Appellants.

Kh. Ansar Ahmed, Advocate for Respondents.

Raza Ali Khan, Advocate General, Raja Muhammad Hanif Khan and Ch. Shabbir Ahmed, Advocates as Amici Curiae.

Date of hearing: 6th December, 2017.

2019 P L C (C.S.) 512

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

MAQBOOL HUSSAIN, EXCISE CONSTABLE

Versus

COMMISSIONER INLAND REVENUE (COMPETENT AUTHORITY) MIRPUR AZAD JAMMU AND KASHMIR and 8 others

Civil Appeal No.220 of 2017, decided on 27th June, 2018.

(On appeal from the judgment of the Azad Jammu and Kashmir Council Service Tribunal dated 14.6.2017 in Appeal No.03 of 2015).

Azad Jammu and Kashmir Service Tribunal Act, 1973---

----S. 4 (1) (a)---Misconduct---Removal from service---Appeal without availing the remedy of departmental appeal---Competency---Employee filed direct appeal without availing the remedy of departmental appeal, which was dismissed being not competent---Validity---No appeal would lie to Azad Jammu and Kashmir Council Service Tribunal unless civil servant had preferred an appeal or application or review or representation to the departmental authority and a period of ninety days had elapsed from the date on which such appeal, application or representation was preferred---Appellant, in the present case, had filed appeal before Service Tribunal without availing remedy of departmental appeal---Direct appeal filed by the employee against original order was not competent in circumstances---Service Tribunal having dismissed the appeal on the sole ground of competency Supreme Court declined to discuss the merits of the case---Appeal was dismissed in circumstances.

Chairman Azad Jammu and Kashmir Council and 2 others v. Muhammad Munir Raja and another 2017 SCR 1168 and Haqnawaz Abbasi v. Chairman Azad Jammu and Kashmir Council and another 2018 SCR 156 rel.

Javed Iqbal Satti, Advocate for Appellant.

Babar Ali Khan, Advocate for Respondents.

Date of hearing: 25th June, 2018.

2019 P L C (C.S.) 579

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

NASEEB AZAD

Versus

CHAIRMAN EHTESAB BUREAU OF THE STATE OF AZAD JAMMU AND KASHMIR and 4 others

Civil Appeal No. 23 of 2017, decided on 11th May, 2018.

(On appeal from the judgment of the High Court dated 14.4.2017 in Writ Petition No. 15 of 2017).

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

----Ss. 42 & 44---Writ petition was dismissed in limine by the High Court---Appeal to Supreme Court with leave of the court---Scope---Background of the appeal was that appellant had filed a writ petition before High Court alleging that respondent who was appointed as Private Secretary (B-17) to the Chairman Ehtesab Bureau---Lacked the required qualification and that his office be declared as vacant and the authorities be directed to fill the post in accordance with the Rules---High Court dismissed the writ petition on the grounds that petitioner did not come within the ambit of aggrieved person and had not appended certified copies of the documents---Validity---Departmental Rules revealed that for appointment against the post of Private Secretary (B-17), 2nd class Bachelor degree from a recognized university along with one year post graduate diploma in computer science was required---Question of lacking qualification had not been considered by the High Court---Points involved in the writ petition could only be resolved after admitting the same for regular hearing---Dismissal of writ petition in limine on technical grounds without taking into consideration the legal questions involved therein could not be approved---Appeal was accepted by the Supreme Court by setting aside the impugned order and the writ petition was admitted for regular hearing and the case was remanded to the High Court for decision on merits.

Ahmed Nawaz Tanoli's case 2016 SCR 961 and Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 rel.

Sardar Ejaz Khan, Advocate for Appellant.

Sardar Amjid Aslam, Advocate for Respondents.

2019 P L C (C.S.) 643

[Supreme Court (AJ&K)]

Present: Ghulam Mustafa Mughal, J

ARSHAD MEHMOOD ABBASI

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through its Chief Secretary Civil Secretariat, Muzaffarabad and 3 others

Civil P.L.A. No. 288 and Civil Miscellaneous No.145 of 2018, decided on 9th August, 2018.

(On appeal from the judgment of the High Court dated 4-6-2018 in Writ Petition No. 25 of 2018).

Civil service---

----Employee filed writ petition before the High Court with the plea that authorities were inclined to cancel the notification of his posting and he was without posting in the department for a long time---High Court dismissed the writ petition in limine on the ground that matter related to terms and conditions of service and proper forum was Service Tribunal---Validity---No legal question of public importance was involved in the matter---Supreme Court observed that employee should be adjusted on the post to which he was entitled under the relevant rules as leaving a permanent employee without any post for an indefinite period was neither desirable nor the policy of the Government---Appeal was dismissed, accordingly.

Ch. Shoukat Aziz, Advocate for Petitioner.

Sardar M.R. Khan, Advocate for Respondent.

2019 P L C (C.S.) 733

[Supreme Court (AJ&JK)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

COMPETENT AUTHORITY FOR MEMBERS OF THE SUBORDINATE JUDICIARY through Registrar and 3 others

Versus

RASHID IFTIKHAR HASHMI

Civil Appeal No. 19 of 2018, decided on 23rd April, 2018.

(On appeal from the judgment of the Subordinate Judiciary Service Tribunal dated 10.11.2017 in Service Appeal No.4 of 2015).

Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----S. 3---Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, R. 4(1)(a)---Registration Act (XVI of 1908), S. 6---Senior Civil Judge performing additional duty of Sub-Registrar---Allegation of negligence and irregularities in receipt and deposit of registration fee---Withholding of promotion for five years by the Chief Justice of the High Court---Competent authority---Independence of judiciary---Inquiry was conducted and officer was awarded major penalty of withholding of promotion for five years by the Chief Justice of the High Court---Service Tribunal accepted the appeal of judicial officer on the ground that the Chief Justice of the High Court was not competent to initiate proceedings against Sub-Registrar---Validity---No new appointments of Registrar and Sub-Registrar were made nor fresh terms and conditions of service were determined rather only additional charge was assigned to the judges of subordinate judiciary---Basic appointment of the officer had been made as a judicial officer subordinate to High Court and only an additional charge of Sub-Registrar was assigned to him by the Government---If the officer had committed any illegality/irregularity while performing additional duty then appointing authority under whose subordination he was performing duty was competent to proceed against him---Chief Justice of the High Court was performing the duty of Inspector General of Registration---Government had delegated powers of Inspector General of Registration to the Chief Justice the High Court which did not mean that he had become subordinate to the Government---If the Chief Justice of the High Court while performing the function as Inspector General of Registration committed any illegality/irregularity then Government was not vested with the powers to proceed against him rather matter had to be referred to the Supreme Judicial Council---Chief Justice was not supposed to be the subordinate of Government merely on the ground that it had delegated to him the powers of Inspector General of Registration---Registrars/Sub-Registrars, at present, were judicial officers---Observation of Service Tribunal that Government was competent authority with regard to judicial officers performing their duties as Registrars or Sub-Registrars was against the spirit of independence of judiciary---Only the Chief Justice of the High Court was competent authority to proceed against judicial officers or employees of subordinate judiciary---Service Tribunal had not decided the case of judicial officer on merits and it would be proper to remand the same to the Service Tribunal for decision on merits---Impugned judgment passed by the Service Tribunal was set aside and case was remanded to the Service Tribunal for decision afresh on merits---Appeal was allowed in circumstances.

Muhammad Yousaf Haroon v. Competent Authority and others 2014 SCR 1180 and Abdul Raheem Zubair Butt v. Azad Jammu and Kashmir High Court and others 2003 PLC (C.S.) 664 ref.

The State v. Mr. Justice Akhlaque Hussain, Judge of the High Court of West Pakistan PLD 1960 SC 26 and Azad Government and 3 others v. Mrs. Jamshed Naqvi and 2 others 2014 SCR 13 rel.

Raza Ali Khan Advocate-General for Appellant.

Abdul Rashid Abbasi, Advocate for Respondent.

2018 P L C (C.S.) 767

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, CJ

FARHAT AZIZ

Versus

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

Civil PLA No.482 of 2017, decided on 11th December, 2017.

(On appeal from the judgment of the High Court dated 19.09.2017 in Writ Petition No.1593 of 2016).

Civil service---

----Absence from duty---Termination from service---Scope---Petitioner-employee availed ex-Pakistan leave and thereafter applied for medical leave but same was refused---Department initiated disciplinary proceedings and terminated services of employee---Contention of employee was that due to health problem he applied for medical leave---Writ petition filed by the petitioner-employee was dismissed---Validity---Petitioner-employee could not justify his four years absence from duty---Initiation of disciplinary proceedings were in the knowledge of employee as he challenged the same through writ petition which was dismissed---Civil servants as well as employees of statutory body were bound to follow the law in the prescribed manner---No one could opt to remain absent for years' period and thereafter approach the Court for relief---Relief in the extraordinary writ jurisdiction was discretionary---Party for said relief had to approach the Court with clean hands---Remedy under writ jurisdiction could not be granted to justify the illegal acts of a person who approached the Court with unclean hands just to misuse the process of law and the Courts---Impugned judgment passed by the High Court was in accordance with law---Petitioner had failed to make out any valid ground for grant of leave---Petition for leave to appeal was dismissed in circumstances.

Dr. Ashiq Hussain Bhatti v. Azad Government and others 2016 SCR 365 and Azad Jammu and Kashmir Government and others v. Mehr-un-Nisa and others 2016 SCR 594 rel.

Raja Sajjad Ahmed Khan, Advocate for Petitioner.

Nemo for Respondents.

2019 P L C (C.S.) 995

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia CJ and Raja Saeed Akram Khan, J

ZAFFAR IQBAL KHAN ECG TECHNICIAN CMH, RAWALAKOT and 52 others

Versus

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

Civil Appeal No. 118 of 2018, decided on 5th October, 2018.

(On appeal from the judgment of the Service Tribunal dated 27-02-2018 in Service Appeal No.592 of 2015).

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

----S. 4---Azad Jammu and Kashmir Health Department (Paramedics and Medical Assistants Dying Cadre (4 tiers formula) Service Rules, 2015---Employees filed appeal wherein vires of Azad Jammu and Kashmir Health Department (Paramedics and Medical Assistants Dying Cadre (4 tiers formula) Service Rules, 2015 were challenged on the ground that it had curtailed their right of promotion---Service Tribunal dismissed the appeal on the ground that it had no jurisdiction to pass any direction---Validity---Government had prerogative to frame/amend the rules---Rules could not be framed/amended at the sweet-will of any civil servant---Rules could only be abolished if it was proved that same had been enacted in conflict with the provisions of parent Act or the Constitution---Civil servant could not claim promotion to a particular post as a vested right with the claim that rules be framed in such a manner so that he might be promoted---Court was not to interfere with the powers legally exercised by the Government---Vires of rules could be challenged before Service Tribunal---Appeal was dismissed, in circumstances.

Syed Rasheed Hussain Shah v. Azad Government and 6 others 2014 SCR 883 rel.

Syed Shahid Bahar, Advocate for Appellant.

Raja Akhlaq Hussain Kiani, Additional Advocate General and Muzaffar Hussain Mughal, Advocate for Respondents.

Sardar M.R. Khan, Advocate for Intervener.

2019 P L C (C.S.) 1062

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

NASIR AZIZ

versus

PRINCIPAL MOHTARMA BENAZIR BHUTOO SHAHEED MEDICAL COLLEGE, MIRPUR, AZAD KASHMIR and 3 others

Civil Appeal No.110 of 2018, decided on 26th October, 2018.

(On appeal from the judgment of the High Court dated 16.04.2018 in Writ Petition No.363 of 2018).

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

----S. 44---Writ petition---Laches, principle of---Applicability---Civil service---Appointment of respondent was assailed through writ petition but same was dismissed in limine on the ground of laches---Validity---Respondent had not controverted the assertion made by the petitioner by filing comments which was supported by an affidavit---No counter affidavit was filed by the respondent---Writ petition, in such circumstances, could not be dismissed in limine---Proper course for the High Court was to admit the writ petition for regular hearing and decide the same on merits---Explanation offered by the petitioner for condonation of delay was plausible or not, could only be judged in the light of affidavit or pleading of the other side---Writ petition was admitted for regular hearing by the Supreme Court---High Court was directed to proceed further in accordance with law---Appeal was allowed, accordingly.

2016 SCR 960 and 2015 SCR 15 ref.

Ch. Muhammad Ajaib v. Azad Government and others 1996 SCR 357 rel.

Raja Inamullah Khan, Advocate for Appellant.

Sh. Masood Iqbal, Advocate for Respondents.

2019 P L C (C.S.) 1252

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

FARZANA BASHIR

Versus

JAVED ANWAR and 3 others

Civil Appeal No. 77 of 2018, decided on 11th October, 2018.

(On appeal from the judgment of the Service Tribunal dated 23.12.2017 in Appeal No. 687 of 2016).

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

----S. 4---General Clauses Act (X of 1897), S. 9---Appeal---Assistant Director Industries holding post on officiating basis---Promotion on regular basis with retrospective effect---Appellant was holding post of Assistant Director Industries on officiating basis which became vacant due to promotion of employee holding the said post---Appeal was filed by the appellant for regular promotion on the said post which was accepted---Validity---Post in question was to be deemed to be available on the day following the notification of regular promotion of employee holding the said post---First date of series of regular promotion had to be excluded---Regular promotion of employee holding the post in question should be deemed as from the day following the notification of his promotion---Impugned judgment passed by the Service Tribunal was modified to the effect that retrospective promotion granted to the appellant was to be given effect from the day following the day of regular promotion of employee holding the said post----Appeal was disposed of, accordingly.

Sardar Pervaiz Akhtar, Advocate for Appellant.

Raja Gul Majeed Khan, Advocate for Respondent No.1.

Raja Akhlaq Hussain Kiani, Addl. Advocate-General for Respondents.

2019 P L C (C.S.) 1339

[Supreme Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

SECRETARY AZAD JAMMU AND KASHMIR LEGISLATIVE ASSEMBLY and another

Versus

Mian MUHAMMAD SHAFIQUE and 2 others

Civil PLA No.394 of 2018 and Civil Miscellaneous No.205 of 2018, decided on 5th September, 2018.

(On appeal from the judgment of the High Court dated 2-7-2018 in Writ Petition No.1984 of 2015).

(a) Azad Jammu and Kashmir Legislative Assembly Procedure and Conduct of Business Rules, 1975----

----R. 178---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 44 & 30-B---Employees of Legislative Assembly appointed without approval of Finance Department---Non-payment of salary to said employees---Employees were refused salary on the ground that their appointments had been made without approval of the Finance Department---High Court accepted writ petition and directed the authorities to pay emoluments to the employees forthwith---Validity---Posts had been created by the Finance Committee of Azad Jammu and Kashmir Legislative Assembly---Appointments had been made on merits which would be deemed to have been made after following the due process of creation of posts---Withholding of salary of employees was not justified, in circumstances---One of the employees who was party before High Court in writ petition had not been impleaded in Civil Petition for Leave to Appeal---Present petition was liable to be dismissed due to absence of necessary party---Petition for leave to appeal was dismissed, in circumstances.

Tanveer Fatima v. Divisional Director School and others 2016 SCR 714; Muhammad Irfan Ali Gorsi v. Azad Government and 6 others 2014 SCR 710 and Mohammad Maqsood Khan v. Raja Mohammad Naseer Khan and 4 others 2011 SCR 1302 ref.

Ahmed Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and another PLD 1994 Lah. 3; Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation Karachi and others 2002 SCMR 1034 rel.

(b) Administration of justice---

----No one should suffer for the fault/lapse committed by the authority.

Raja Ayyaz Ahmed Khan Assistant Advocate-General for Petitioners.

Nasir Masood Mughal, Advocate for Respondents.

2019 P L C (C.S.) 1404

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Ghulam Mustafa Mughal, J

MUHAMMAD LUQMAN JARRAL

Versus

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

Civil Appeal No.145 of 2018, decided on 15th October, 2018.

(On appeal from the judgment of the High Court dated 15-5-2018 in Writ Petition No.74 of 2017).

Civil service---

----Public Service Commission---Appointment against the post of Assistant Superintendent of Police---Contention of appellant was that he had qualified against the post in question but some of the posts had been withheld by the department---Writ petition filed by the appellant was dismissed by the High Court---Validity---Nothing was on record to show that any post had been withheld by the department---Mere bringing on record the facsimile copy of budget book could not be treated as a proof that the post was withheld---Petitioner had sought relief that department be directed to send the requisition of the vacant post of Assistant Superintendent of Police to Public Service Commission and Commission be directed to approve the said post---Relief sought by the petitioner was against law as after sending requisition by the department, the Public Service Commission advertise the same and hold fair and transparent test and interview and after completion of such process could recommend the candidate on merit---High Court was not empowered to pre-empt the jurisdiction of Public Service Commission and without advertisement of the post or determination of merit, Public Service Commission, could not be directed to recommend any specific person---Advertised vacancies of Assistant Superintendent Police had been filled in by appointment of the candidates selected on merits---None of the candidates had failed to join or any vacancy out of advertised posts became available within 180 days due to any other reason---No direction could be issued for appointment of any candidate against such post which had neither been advertised nor became available within 180 days of the selection---Impugned judgment passed by the High Court did not suffer from any illegality or infirmity---Appeal was dismissed, in circumstances.

Khalid Rasheed Chaudhry, Advocate for Appellant.

Raja Saadat Ali Kiani Addl. Advocate-General for Respondents.

2019 P L C (C.S.) 1479

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Ghulam Mustafa Mughal, J

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

Versus

Dr. MEHBOOB SHEIKH and 25 others

Civil Appeal No.252 of 2017, decided on 17th October, 2018.

(On appeal from the judgment of the High Court dated 27-4-2018 in Writ Petition No.3131 of 2016).

Career Structure for Health Personnel Scheme Ordinance (VI of 2011)---

----Preamble---Employees of Health department---Grant of health allowance---Health personnel---Health allowance was not granted to the petitioners-employees on the ground that they were not rendering services in the hospitals---Writ petition filed by the employees was allowed---Validity---Health personnel in Health Department of Azad Jammu and Kashmir were entitled for health allowance as admissible to health personnel in the Federal Government---Azad Jammu and Kashmir Government had granted health allowance to the health personnel in health Department of Azad Jammu and Kashmir---Petitioners-employees were serving in health department and they were delivering services in health sector---Petitioners were health personnel, in circumstances, and were entitled for health allowance---Impugned judgment did not suffer from any illegality or infirmity---Appeal was dismissed, in circumstances.

Asghar Ali Malik, Advocate for Appellants.

Nasir Masood Mughal, Advocate for Respondents.