PLCCS 2020 Judgments

2020 P L C (C.S.) 264

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

EHSAN UL HAQ

Versus

The PROVINCIAL GOVERNMENT GILGIT-BALTISTAN through Chief Secretary Gilgit-Baltistan, Gilgit and 8 others

W.P. No.189 of 2018, decided on 27th March, 2019.

(a) Civil service---

----Appointment on the post of Tehsildar---Scope---Petitioner was at serial No 29 of merit list and 33 candidates were required to be selected---Petitioner should have been selected on the initial merit list and not on any subsequent list---Candidate was serving as Naib Tehsildar since 2017 and had gained sufficient experience of administration in the field---Induction of petitioner as Tehsildar would be in the interest of State---Authorities were directed by the Chief Court to appoint the petitioner as Tehsildar instead of Development Officer against a vacant post and if no post of Tehsildar was available then he might be appointed as Tehsildar against minority quota as a special case which was lying vacant---Writ petition was allowed, in circumstances.

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

----Arts. 71(2) & 86(2)---Writ jurisdiction of Chief Court---Subsequent events, notice of---Scope---Chief Court could take notice of subsequent events and mould the relief according to the grounds realities even same had not been claimed.

2005 MLD 71 and 2005 YLR 327 rel.

Raja Shakeel Ahmed for Petitioners.

Assistant Advocate-Genera assisted by Rashid Ali, Islam-ud-Din and Naveed Hussain for Respondents.

2020 P L C (C.S.) 410

[Gilgit Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

MUHAMMAD MUNIR

Versus

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

Writ Petition No.125 of 2018, decided on 11th March, 2019.

Civil service---

----Termination of appointment---Termination of service---Appointment in violation of rules---Non-issuance of show-cause notice---Scope---Petitioner assailed order of department whereby his services were terminated---Contention of petitioner was that the department was required to issue show cause notice and provide opportunity of hearing to the petitioner---Validity---Petitioner had secured appointment through illegal means and by using back door channels---Since the appointments were made in clear violation of rules/regulations and without due process therefore, show cause notice was not required to be issued before passing termination order---Constitutional petition was dismissed.

2004 SCMR 303; 2001 SCMR 934; 2008 PLC (C.S.) 722 and 2008 PLC (C.S.) 715 ref.

Sahib Jan v. Provincial Government Writ Petition No.251 of 2017 rel.

Wazir Mazhar Hussain for Petitioner.

Assistant Advocate General for Respondents.

2020 P L C (C.S.) 552

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MIRZA KHAN

Versus

DIRECTOR GENERAL NADRA ISLAMABAD and another

Civil Revision No. 37 of 2018, decided on 5th March, 2019.

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

----R.12-A---Date of birth of employee---Correction of---Scope---Employee filed suit for declaration for correction of the name of his father and date of birth in his service book---Suit was decreed to the extent of correction of name of father but dismissed to the extent of date of birth---Validity---Date of birth once recorded at the time of joining of government service was final and thereafter, no alteration in the date of birth of employee was permissible---Date of birth of employee at the time of joining government service was wrongly recorded by the authorities---Employee had proved his claim by adducing cogent and reliable evidence---Authorities had failed to adduce a single oral or documentary evidence to controvert/rebut the evidence and averments of plaint---Impugned judgments passed by the Courts below were result of mis-reading and non-reading of evidence which were set aside and suit was decreed---Revision was allowed, in circumstances.

Zahid Ali Baig for Petitioner.

M.S. Khawar Advocate/Legal Advisor NADRA for Respondents.

2020 P L C (C.S.) 782

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, CJ and Ali Baig, J

ISRAR AHMAD and another

Versus

CHANCELLOR KIU/PRESIDENT OF PAKISTAN through Principal Secretary and 4 others

W.P. No.86 of 2018, decided on 21st November, 2019.

Civil service---

---Regularization of services---Scope---Petitioners sought regularization of their services on permanent basis---Validity---Petitioners were appointed on contract basis---Petitioners were entitled to be appointed on regular basis for having gained sufficient experience in the relevant field---Authorities had regularized the contract services of more than hundred employees against various posts, hence, the petitioners were also entitled to be regularized in the interest of justice---Writ petition was accepted.

Raja Shakeel Ahmed for Petitioners.

Zeshan Akhlaq Hussain, Advocate/Legal Advisor for Respondents.

2020 P L C (C.S.) 986

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

Mrs. SITARA KHANUM

Versus

PROVINCIAL GOVERNMENT, through Chief Secretary Gilgit-Baltistan and 5 others

Writ Petition No.240-A of 2018, decided on 29th April, 2019.

Civil service---

-----Appointment---Contingent employee---Petitioner was serving as contingent paid staff and she applied for appointment against the post of Aya (BPS-1)---Departmental Selection Committee recommended the appointment of petitioner but she was dropped from merit list---Contention of department was that posts were meant for local residents of the respective Union Council---Validity---Appointment from BPS-1 to BPS-5 were to be made without screening test---No contingent paid staff could be removed on the basis of non availability of the post---Petitioner was resident of the concerned Union Council and was at serial No. 6 of merit list and she was dropped when fresh list was issued which was unjust and improper---Authorities were directed to issue appointment order of the petitioner within a period of one month whereas appointment of respondent was declared illegal and without lawful authority---Writ petition was allowed, in circumstances.

Rehmat Ali and Najeebullah for Petitioner.

Assistant Advocate-General assisted by Raja Ibrahim-ud-Din LA Health for Responents Nos.1 to 4.

Mashal Khan for Respondent No.6.

2020 P L C (C.S.) 1029

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Muhammad Umer, JJ

RASHEED-UD-DIN and another

Versus

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

Writ Petitions Nos.66 and 68 of 2016, decided on 8th May, 2018.

Civil service---

----Advertisement for appointment of Assistant Director, Disaster Management Authority---Change of criteria for recruitment after commencement of its process---Effect---Contention of petitioner was that respondents had been appointed illegally---Validity---Criteria for recruitment had been changed by the Chief Minister after commencement of recruitment process and even after written test---New criteria for selection was in violation of advertisement made for appointment in question---Petitioner who was serving in the department had not been appointed due to change of criteria for appointment which was malpractice and dishonest act on the part of the authorities---Government officials were only bound to obey the legal orders of High Officials/Minister/Chief Minister and not bound to follow their direction blindly---Advertisement to fill up any vacancy was a firm and gentlemen commitment which was extended to all the individuals so that for the advertised post most suitable and eligible person would be chosen without any discrimination---No deviation from the rules / regulation was permissible to any one irrespective of his position---If authorities were interested to introduce any change in the recruitment process then same should have been published in the same newspaper when the initial advertisement was got published---Authorities, in the present case, had not exercised their powers in a fair and transparent manner which had deprived the most suitable candidate from employment---Appointment in public sector was the trust in the hands of public functionaries and it was their moral duty to discharge their trust with zeal, efficiency and fairness as per law---Chief Minister had exercised powers in excess of his domain/authority just to shower blessing on his own cronies---Petitioner who had secured high marks in the written test should be adjusted against a vacant post---Writ petition was allowed, accordingly.

2006 PLC (C.S.) 1238; 2008 SCMR 773; 2012 SCMR 96; PLD 2010 Lah. 546 and 2010 GBLR 27 ref.

2013 PLC (C.S.) 484 and 1997 PLC (C.S.) 855 rel.

Zeshan Akhlaq for Petitioner (in W.P. No.66 of 2016).

Assistant Advocate General assisted by Asdullah Khan Raja Zia-ur-Rehman for Respondents (in W.P. No.66 of 2016).

Amjad Hussain for Petitioner (in W.P. No.68 of 2016).

Assistant Advocate-General assisted by Asdullah Khan and Raja Zia-ur-Rehman for Respondents (in W.P. No.68 of 2016).

Fareed Ahmed, Director GDMA Gilgit in person (in W.P. No.68 of 2016).

2020 P L C (C.S.) 1148

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, CJ and Ali Baig, J

SAMREENA QAYUM and another

Versus

GOVERNMENT OF GILGIT BALTISTAN through Chief Secretary, Gilgit Baltistan and 26 others

Writ Petition No.7 of 2019, decided on 19th September, 2019.

Civil service---

----Appointment against the post of vaccinators---Quota reserved for females---Petitioners qualified test and interview but they were not appointed against the quota reserved for females---Validity---Authorities had not considered the petitioners for appointment against ten percent quota reserved for females as per advertisement and recruitment rules---Chief Minister Secretariat had directed all the departments to observe the quota of disabled, minorities and women to ensure their appointment against reserved quota---Department had violated recruitment policy framed by the competent authority---Authorities had deprived the petitioners from their legitimate rights by not observing special quota reserved for females which was against their fundamental rights---Authorities were directed by the Chief Court to appoint the petitioners against posts of vaccinators by observing ten percent quota reserved for females without disturbing respondents---Writ petition was allowed, in circumstances.

Himayatullah for Petitioners.

Assistant Advocate General assisted by Raja Ibrahim-ud-Din, Legal Advisor Health Department for Respondents Nos.1 to 5.

Wasal Khan for Respondent No.10.

Bashrat Ali for Respondents Nos.11, 12 and 23.

Respondent No.3 present in person.

2020 P L C (C.S.) 380

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

ADNAN KHURSHEED ASSISTANT DIRECTOR

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary Civil Secretariat Muzaffarabad and 5 others

Writ Petition No.1424 of 2014, decided on 14th November, 2019.

(a) Civil service---

----Service rendered by the employee due to status quo order of the Court---Effect---Entitlement for salary---Employee seeking direction from High Court in writ jurisdiction for shifting the project post on normal budget---Validity---Ad hoc/temporary/project appointment, did not confer any right of permanent induction upon the incumbent---Appointment of employee, in the present case, was made for a particular time which had elapsed---Government had prerogative to launch a scheme/project and eliminate the same---Court was not to interfere in the domain of Executive in such matter unless mala fide, arbitrariness or violation of any law had been shown---Government had power to shift any scheme on normal budge---No such direction was to be passed by the Court on the wishes of a person having some vested interest not recognized by law---Wish and desire of an individual could not be preferred upon the collective interest of the people and the Government---Employee's appointment order and the period of project had expired, he, at the time of issuance of status quo order, was not in service---Any service rendered by the employee after issuance of status quo order did not have any legal backing rather same had been performed by misinterpretation of the Court order---High Court could not protect ill-gotten gains or acts of the employee---Mere presence of a person at any office without existence of any job order by the competent authority and without existence of the post could not be termed as service for remuneration---If petitioner had performed any job with the collusion of any officer of the department then both were guilty of misconduct---High Court had not passed any order that employee should remain in service even after the expiry of contract period---Performance of any duty after expiry of appointment order by the employee was illegal---Illegal act or gain could not be protected by the Court of law---High Court was meant to protect and enforce the constitutional and statutory rights of the people if denied by any functionary/authority of the State---High Court could not be used to perpetuate an illegal act---Court could not create a new right which was not in existence under any law, custom or usage having the force of law at the institution of the case---Petitioner was not entitled for salary of the period when he was not holding any post in the department---Writ petition was dismissed, in circumstances.

Sardar Muhammad Razzaq v. Chairman Ehtesab Bureau and 4 others 2015 SCR 1156 and Muhammad Sadiq v. Azad Jammu and Kashmir Government and others 2016 SCR 709 rel.

(b) Administration of justice---

----Illegal act or gain could not be protected by the Court of law. [p. 384] D

Sardar M.R. Khan for Petitioner.

2020 P L C (C.S.) 421

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, CJ

ANDLEEB SAHIR BUTT, DEPUTY DIRECTOR, PUBLIC RELATION INFORMATION HEADQUARTER, MUZAFFARABAD

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 6 others

Writ Petition No.1087 of 2019, decided on 29th July, 2019.

Civil service---

----Appointment---Contention of petitioner was that appointment of respondent was against law---Validity---Appointment of respondent having already been declared valid could not be reopened under the law---Employee whose appointment had been challenged through writ of quo warranto must be holding office when said petition was filed before the Court---Respondent was not holding the post in question at the time when present petition was filed before the Court rather he was holding another post---Petition being false was dismissed in limine with special cost, in circumstances.

2017 SCR 87; Mushtaq Ahmed v. Engineer Muhammad Khalid and 04 others 1998 PLC (C.S.) 140 and Mujahid Hussain Naqvi, Advocate and others v. Justice (R) Basharat Ahmed Sheikh, Mohtasib and others PLJ 2002 (AJ&K) 49 ref.

M. Maqsood Ahmed Sulehria for Petitioner.

Raja Jalil Umer, Legal Advisor of Information Department for Official for Respondents.

2020 P L C (C.S.) 13

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

RAO ABDUL WAHEED

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others

W.P. No.3084 of 2011, decided on 19th June, 2019.

Civil Servants Act (LXXI of 1973)---

----S.13(1)(i)---Frequency Allocation Board Employees (Service) Regulations, 2014, Regln. 181(4)---Frequency Allocation Board Employees Service Regulations, 2007, Para. 5.21---Fundamental Rule No. 114---Deputationist---Terms and conditions of---Scope---Petitioner, a government servant was aggrieved of compulsory retirement without payment of salary and other benefits---Plea raised by authorities was that petitioner was posted to other departments and could not claim salary from parent department for duration of deputation---Validity---Provisions of Fundamental Rule No. 114 made it imperative for pay of deputationist to be fixed by lending and borrowing departments---If terms and conditions of deputation of employee were not settled between borrowing and lending department, salary of deputationist etc., payable to him by his parent department could not be varied to his detriment---Under no circumstances could a deputationist be made to suffer for omissions of his parent and lending department to settle terms of his deputation---High Court declared that from time when petitioner joined duties as deputationist at borrowing department and when petitioner was repatriated by borrowing department, differential in amount actually paid to petitioner by borrowing department and amount under pay certificate of petitioner along with permissible increase during such period be paid by borrowing department---High Court further declared that for period when petitioner reported for duty at borrowing department and after said department issued his repatriation notification and when called upon lending department to take petitioner on its strength, salary of petitioner etc., would be paid by borrowing department in amount as payable to an officer of lending department---High Court directed that for period when lending department first called to take petitioner on its strength and when major penalty of compulsory retirement was imposed on petitioner, salary of petitioner etc., would be paid by lending department in amount as payable to an officer his grade---Constitutional petition was allowed accordingly.

Chairman NADRA, Islamabad v. Muhammad Ali Shah 2017 SCMR 1979; Irfan Ahmed v. Federation of Pakistan 2016 PLC (C.S.) 491; Mazhar Abbas Shah v. Managing Director, Punjab Seed Corporation 2015 PLC (C.S.) 1440; Ghulam Umar Kazi v. General Manager 2006 PLC (C.S.) 1143; Metropolitan Corporation, Lahore v. Imtiaz Hussain Kazmi PLD 1996 Lah. 499; Qazi Khan v. The State of Pakistan PLD 1965 (W.P.) Pesh. 41 and Muhammad Anwar v. Government of Pakistan PLD 1962 Lah. 443 ref.

Muhammad Umair Baloch for Petitioner.

Muhammad Nadeem Khan Khakwani, Learned Assistant Attorney-General for Respondent.

Hafiz Mazhar Maken for Respondent No.6.

Hafiz Arfat Ahmad Ch., Learned Amicus Curiae.

Ghulam Safdar, Litigation Assistant, Finance Division.

2020 P L C (C.S.) 86

[Islamabad High Court]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

FIRST WOMEN BANK LTD. through Attorney

Versus

MUHAMMAD TAYYAB and others

I.C.A. No.510 of 2016, decided on 22nd March, 2018.

(a) Master and servant----

----Regularization of employees of Government owned Bank---Master and servant, relationship of---Statutory service rules, non-availability of---Effect---Bank was aggrieved of orders passed by Single Judge of High Court in exercise of Constitutional jurisdiction directing it to regularize services of employees who were working as contract employees---Validity---Notice of termination of service could not be declared by High Court under Art. 199 of the Constitution to be unlawful nor High Court could hold that employment contracts of employees continued to subsist after termination notices---No statutory rules existed governing relationship of contract employees with Bank and till filing of constitutional petitions before High Court, employment of said employees was contractual in nature--- Such arrangement made their relationship with appellant bank as "master and servant"---If said employees were aggrieved by termination of their employment contracts they could have filed suits for damages as contractual employees could not file constitutional petition seeking reinstatement in service---High Court observed that an employee of company whose majority shareholding was owned by the Federal Government, in absence of any violation of law or statutory rules could not press into service Constitutional jurisdiction of High Court in order to seek relief with respect to his employment---Division Bench of High Court set aside judgment passed by Single Judge of High Court as contract employees could not point out any law under which contractual employment could be regularized---Intra-court appeal was allowed in circumstances.

Imran Sajid v. Managing Director/General Manager, (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257; Chairman NADRA, Islamabad v. Muhammad Ali Shah 2017 SCMR 1979; Pakistan Telecommunication Company Limited v. lqbal 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; Muhammad Qasim and others v. Federation of Pakistan through Secretary, Ministry of Overseas Pakistanis and Human Resource Development and another I.C.A. No.108 of 2017; Samiullah Narago v. Federation of Pakistan 2012 PLC (C.S.) 1205 and Pakistan International Airline Corporation v. Tanveer-ur-Rehman, PLD 2010 SC 676 ref.

(b) Constitution of Pakistan---

----Art. 199---Master and servant---Constitutional jurisdiction of High Court---Scope---Where conditions of service of employee of a body performing functions in connections with affairs of Federation were governed by statutory rules, any action prejudicial against such employee in derogation or in violation of statutory rules could be set aside by High Court in exercise of Constitutional jurisdiction.

Shahid Anwar Bajwa and Faiza Naseer Chaudhry for Appellant.

Chaudhry Muhammad Arif for Respondent No.1. (I.C.As. Nos.510 to 515 of 2016).

2020 P L C (C.S.) 186

[Islamabad High Court]

Before Athar Minallah, C.J.

SHAHINA MASOOD and 9 others

Versus

FEDERAL OMBUDSMAN SECRETARIAT through Federal Ombudsman and 2 others

W.P. Nos.1665, 1101, 55 of 2019 and 4985 of 2018, heard on 24th May, 2019.

(a) Protection against Harassment of Women at the Workplace Act (IV of 2010)--

----Ss. 7 & 2 (h)---Harassment of an employee---Complaint, filing of---Employees filed complaints due to conduct and attitude of their employer---Validity---Jurisdiction and powers of Ombudsman were confined to the express language used by the legislature in S. 2(h) of Protection Against Harassment of Women at the Workplace Act, 2010---Acts, attitude, conduct or gestures in the present case were not of a sexual nature and same did not fall within the jurisdiction of Ombudsman---Complaints should not have been entertained by the Ombudsman as alleged acts, conduct and attitude were not sexual in nature---Proceedings conducted by the Ombudsman were declared as illegal and without lawful authority and jurisdiction---Complainants would be at liberty to approach the competent forum for seeking remedies---Constitutional petition was allowed, in circumstances.

(b) Interpretation of statutes---

----Definition clause in a statute---Purpose and significance.

When the definition of a particular expression has been given in a statute then its ordinary dictionary meaning becomes irrelevant nor can it be considered. The legislature is not expected to use an expression in a statute unnecessarily. If an enactment has defined an expression then it has to be construed by confining the interpretation solely to the language used therein. The purpose of a definition clause is to give certainty to the expression defined. The definition may either be extensive or restricted and exhaustive. It is extensive when the phrase 'includes' is used and exhaustive when it explicitly states what an expression 'means.'

(c) Protection Against Harassment of Women at the Workplace Act (IV of 2010)---

----S.2(h)---"Harassment"---Definition and scope.

The expression harassment has been defined in section 2(h) of the Act. The definition is exhaustive and not extensive. It explicitly refers to various phrases such as "unwelcome sexual advance", "request for sexual favours", "physical conduct of a sexual nature", "sexually demeaning attitudes". The later portion of the definition i.e. "other verbal or written communications causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply with such a request" cannot be read in isolation. It inevitably has a nexus with the nature of acts referred to in the earlier part of the exhaustive definition. The act, conduct or attitude essentially has to be sexual in nature to be covered under the definition of 'harassment' for the purposes of the Act. As an adjective, the expression sexual is related to 'the instincts, physiological processes and with physical attraction or intimate physical contact between two individuals'. It is, therefore, obvious that a gesture made towards another person with the intention of gaining sexual gratification would fall within the definition of 'harassment' in the context of the Act. For physical conduct to attract the consequences described in the Act it has to be of a sexual nature. The legislature, through unambiguous language, has defined the expression 'harassment' and its exhaustive meaning has been confined to acts, advances, requests, attitudes, conduct etc which are of a sexual nature. Depending on the facts and circumstances, harassment for the purposes of the Act can be of different forms, verbal, non verbal or physical. The legislature has obviously not intended to extend the scope of the Act to the expression 'harassment' as it is understood in its ordinary sense explained in the dictionaries.

Ms. Raheema Khan, Awais Awan and Osama Azeem Ch. for Petitioners.

Muhammad Haider Imtiaz, Amir Wakeel Butt, M. Fayyaz Law Officer, OPF and M. Saifullah Gondal, Asstt. Attorney General for Respondents.

2020 P L C (C.S.) 249

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. MUHAMMAD AMIN

Versus

ZARAI TARAQIATI BANK LIMITED through Board of Director and 3 others

W.P. No.1057 of 2018, decided on 29th May, 2018.

Zarai Taraqiati Bank Limited Officers Service (Efficiency and Discipline)

Regulations, 1975---

----Reglns. 2(2) & 9---Dismissal from service--- Misconduct---Absence from duty--- Proof--- Petitioner was employee of respondent Bank and was aggrieved of his dismissal from service on grounds of non-compliance of orders--- Plea raised by petitioner was that his inquiry and subsequent dismissal was contrary to law--- Validity--- Inquiry against petitioner was not conducted under Zarai Taraqiati Bank Limited Officers Service (Efficiency and Discipline) Regulations, 1975 but show-cause notice issued to him explicitly provided that same was issued under Zarai Taraqiati Bank Limited Officers Service (Efficiency and Discipline) Regulations, 1975 read with Circular dated 8-9-2015---Office Memorandum whereby petitioner was dismissed from service showed that same was issued under Zarai Taraqiati Bank Limited Officers Service (Efficiency and Discipline) Regulations, 1975--- Petitioner was not proceeded against under Staff Service Regulations, 2005 but he was proceeded under Zarai Taraqiati Bank Limited Officers Service (Efficiency and Discipline) Regulations, 1975 and there was no document to suggest that petitioner was proceeded against under Staff Service Regulations, 2005--- Petitioner did not point out any requirement in procedure for conducting an inquiry under Zarai Taraqiati Bank Limited Officers Service (Efficiency and Discipline) Regulations, 1975 that were violated by authorized officer while conducting inquiry against him--- Stance of petitioner was that he was marked as absent on dates when he claimed to be performing his duties in field or working in home but petitioner ought to have submitted application for rectification of attendance register on said ground--- Petitioner could certainly not have accessed attendance register and marked himself present on dates that he had been marked absent by Chief Manager of branch in question and such conduct of petitioner justified charge of misconduct on him--- High Court declined to interfere in proceedings conducted against petitioner as same did not have any jurisdictional irregularity or infirmity--- Constitutional petition was dismissed in circumstances.

Zarai Taraqiati Bank Limited v. Said Rehman 2013 SCMR 642; General Manager, Pearl Continental Hotel v. Farhat Iqbal PLD 2003 SC 952; Sardar Hussain v. Mst. Parveen Umer PLD 2004 SC 357; Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore PLD 1964 SC 260 and Kaleem Iftikhar v. Secretary Cooperative Government of Punjab 2003 YLR 1736 ref.

Syed Iqbal Hashmi along with petitioner in person.

Barrister Alayar Sindhu and Ch. Shafiq-ur-Rehman Z.T.B.L. for Respondent.

Toqeer Riaz and Tahira Rashid, Law Officers Z.T.B.L. for Respondent.

Malik Tariq Mehmood Noon, Deputy Attorney-General and Sadaqat Ali Jahangir, State Counsel with Asif Raza, A.S.I.

2020 P L C (C.S.) 297

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD YAAR NADEEM and others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and others

Writ Petitions Nos. 868, 429, 431, 494, 974, 1915, 2064, 2131, 2134, 2275, 2475, 2516, 2575, 2586, 2602, 3046, 3047, 3053, 3133, 3198, 3366, 3411, 3527, 4252 of 2017 and 561 of 2018, heard on 20th April, 2018.

(a) Constitution of Pakistan---

----Arts. 199 & 212--- High Court, jurisdiction of--- Scope--- High Court is under an obligation to decide question of its jurisdiction in view of mandate contained in Art. 212(2) of the Constitution.

Asadullah Rashid v. Muhammad Munir 1998 PLC (C.S.) 1371 rel.

(b) Constitution of Pakistan---

----Arts. 199 & 212--- High Court, jurisdiction of--- Interim relief--- Scope--- Jurisdiction of High Court is ousted in matters that fall within jurisdictional domain of Service Tribunal--- Even if High Court has to grant interim relief to any civil servant as a stopgap measure until he is in a position to agitate his grievance before Service Tribunal, such relief amounts to assuming jurisdiction over lis and in doing so High Court would be going against mandate of Art. 212(2) of the Constitution.

Dr. Ghazanfar Ullah v. Secretary Health, Government of Punjab 2010 PLC (C.S.) 51 rel.

(c) Constitution of Pakistan---

----Arts. 199 & 212(2)---Civil service---Out of turn promotions---High Court, jurisdiction of---Petitioners were employees of Islamabad Capital Territory Police and were aggrieved of cancellation/withdrawal of their promotion by department---Validity---Jurisdiction of High Court was barred under Art. 212(2) of the Constitution even if an order assailed before High Court or proceedings that a civil servant was aggrieved by or were alleged to be mala fide, coram non judice, without jurisdiction or were assailed on ground of violation of Fundamental Rights of civil servant--- High Court declared that Constitutional petition was not maintainable regardless of views on question as to whether requirements of due process were fulfilled before issuance of orders in question given bar contained in Art. 212(2) of the Constitution---Constitutional petition was dismissed in circumstances.

2013 SCMR 1752; 2015 SCMR 456 and Shahid Parvaiz v. Ejaz Ahmed 2017 SCMR 206 ref.

Syed Arshad Ali and others v. Pakistan Telecommunication Company Ltd. and others 2008 SCMR 314; Peer Muhammad v. Government of Baluchistan through Chief Secretary and others 2007 SCMR 54; Noor Badshah Khattak v. Government of N.W.F.P. and others 2004 PLC (C.S.) 1084 and Khalid Mehmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 rel.

Ch. Saifullah Warraich, Yasir Rahim Bhatti, Arshad Mehmood, Mirza Waqas Qayyum, Raja Shahzad Javed and Muhammad Waqas Chath for Petitioners.

Rashid Hafeez, Deputy Attorney-General, Ms. Sitwat Jehangir, Standing Counsel and Javed Atta, Prosecutor Sub-Inspector for Respondents.

2020 P L C (C.S.) 427

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

TARIQ AHMAD LODHI, EX DEPUTY ASSISTANT DIRECTOR, AIRPORT SECURITY

Versus

FEDERATION OF PAKISTAN through Secretary, Aviation Division, Government of Pakistan and 2 others

Writ Petition No.3807 of 2016, decided on 3rd September, 2019.

Airports Security Force Act (LXXVII of 1975)----

----S. 7-A---Employee of Airport Security Force---Allegation of misconduct---Dismissal from service---Scope---Contention of employee was that he was not afforded an opportunity of hearing---Validity---Personnel of Airport Security Force were governed under Pakistan Army Act, 1952---Government could amend or change the terms and conditions of service under the law---Constitutional jurisdiction could be exercised in exceptional cases where authorities had acted without jurisdiction or order passed was coram-non-judice---Employee had been afforded an opportunity of hearing and all the requirements had been followed---No illegality had been pointed out in the impugned order passed by the authorities---Constitutional petition was not maintainable which was dismissed, in circumstances.

Force Commander, ASF, Karachi v. Haji Muhammad Rashid and another 1996 SCMR 1614 and Syed Tarab Arif Fatimi v. President of Pakistan and others PLD 1994 SC 562 distinguished.

Mrs. Mushtar Jahan v. Prime Minister of Pakistan and others 2005 SCMR 866; Rana Muhammad Naveed and others v. FOP 2013 SCMR 596; Federal Government Ministry of Defence Rawalpindi v. Lt. Col. Munir Ahmed Gill 2014 SCMR 1530 and Brig. (Rtd.) F.B. Ali and another v. The State PLD 1975 SC 506 rel.

Muhammad Bashir Khan for Petitioner.

Barrister Mumtaz Ali, A.A.G. for Respondents.

S. Iftikhar ul Hassan, Dy. Director (Legal) ASF for Respondents.

2020 P L C (C.S.) 460

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

VADIYYA S. KHALIL and others

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others

W.P. No. 4149 of 2018, decided on 3rd February, 2020.

Competition Act (XIX of 2010)---

----Ss.14, 17 & 19---Fundamental Rules, R.9(30-A)---Tenure appointment---Premature termination from service of officials---Chairman and Members of Competition Commission of Pakistan were aggrieved of premature termination of their services by Federal Government---Validity---Tenure for which petitioners were appointed were fixed by statute and their appointments could be revoked and they could be removed from office by Federal Government if it was found that they had become disqualified under S.14(6) of Competition Act, 2010--- Petitioners did not suffer from any disabilities enumerated in S.14(6) of Competition Act, 2010 or failed to exercise or exceeded or abused any powers conferred on them by Competition Act, 2010--- Issuance of notifications in question had effect of prematurely cutting short of tenure of petitioners for which they were appointed under S.14(2) of Competition Act, 2010--- Tenure of three years for which petitioners were appointed was fixed by statute and such statutory tenure could not be curtailed by Federal Government by terminating appointments of petitioners---High Court set aside notifications in question terminating appointments of petitioners as same were without any lawful consequence---Petition was allowed in circumstances.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; District Coordination Officer, District Dir Lower v. Rozi Khan 2009 SCMR 663; Federation of Pakistan v. Gohar Riaz 2007 PLC (C.S.) 727; Province of Punjab v. Zulfiqar Ali 2006 SCMR 678; Collector of Customs and Central Excise, Peshawar v. Abdul Waheed 2004 SCMR 303; Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airline Corporation 2002 SCMR 1034; Secretary to the Government of N.-W.F.P, Zakat/Social Welfare Department, Peshawar v. Saadullah Khan 1996 SCMR 413; Managing Director, Public Procurement Regulatory Authority v. Muhammad Zubair 2019 PLC (C.S.) 1348; Muhammad Jameel v. Taluka Nazim, Taluka Municipal Administration, Khairpur 2014 PLC (C.S.) 479; Noor Zeb Khan v. Government of Khyber Pakhtunkhwa 2014 PLC (C.S.) 1007; Ghazanfar Abbas v. District Education Officer (Colleges) Sialkot 2011 PLC (C.S.) 331; Muhammad Shoaib v. Government of N.-W.F.P 2005 SCMR 85; Muhammad Akhtar Shirani v. Punjab Text Book Board 2004 SCMR 1077; Water and Power Development Authority v. Abbas Ali Malano 2004 SCMR 630 and Managing Director, Sui Southern Gas Company Ltd. v. Ghulam Abbas PLD 2003 SC 724; Homeopathic Dr. Jamil Akhtar Ghauri v. Federation of Pakistan and others 2017 CLC 575; Babar Sattar v. Federation of Pakistan 2015 CLD 134; Mrs. Jamshed Naqvi v. Azad Jammu and Kashmir Government 2013 PLC (C.S.) 1037; Dr. Aftab Ahmad Malik v. University of Engineering and Technology 2005 PLC (C.S.) 80; Allauddin Akhtar v. Government of Punjab 1982 CLC 515; Moazzam Husain Khan v. Government of Pakistan and others PLD 1958 (W.P.) Kar. 35; P. Venugopal v. Union of India (2008) 5 SCC 1; L.P. Agarwal v. Union of India AIR 1992 SC 1892 and P.L. Dhingra v. Union of India AIR 1958 SC 36 ref.

Jahanzeb Sukhera for Petitioner.

Arshid Mehmood Kiani, learned Deputy Attorney-General.

Khurram M. Hashmi, Advocate for respondent No.4.

Noman A. Farooqi, Chief Prosecutor General, C.C.P.

Syed Farhan Shah, Deputy Prosecutor, C.C.P.

Aish K. Khan, Management Executive, C.C.P.

Sajeel Sheryar Swati and Ch. Hassan Murtaza Mann, Advocates/Amici Curiae

2020 P L C (C.S.) 510

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MADIHA ISHAQ and another

Versus

ESTATE OFFICER and another

Civil Revision No.268 of 2017, decided on 27th January, 2017.

Accommodation Allocation Rules, 2002---

----Rr. 15(2)(b) & 2(g)---Suit for declaration---Serving daughter of a retired employee---Allotment of official accommodation---Conditions---Official accommodation was allotted to the father of employee who retired from service---Employee applied for allotment of said accommodation but her request was not responded she filed suit for declaration to the effect that she was entitled for allotment of official accommodation allotted to her father---Suit was dismissed concurrently---Validity---Service of employee had been regularized when her father retired from service---Employee (plaintiff) was "Federal Government Servant" within the meaning of R.2(g) of Accommodation Allocation Rules, 2002---Plaintiff was living at the suit accommodation with her father at the time of his retirement and she had applied for allotment within a period of six months from the date of her father's retirement---Plaintiff employee was entitled to be given the benefit of R.15(2) of Accommodation Allocation Rules, 2002---Impugned judgments and decrees passed by the Courts below were not based on correct appreciation of law as well as evidence on record, which were set aside---Plaintiff employee was entitled for allotment of suit accommodation---Revision was allowed, in circumstances.

Ashraf Ali Awan for Petitioners.

2020 P L C (C.S.) 541

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ZAFAR IQBAL, EX-EQUIVALENCE AND ATTESTATION CLERK

Versus

FEDERATION OF PAKISTAN through Secretary Inter Board Committee of Chairman (IBCC) and another

W.P. No.2823 of 2018, decided on 10th May, 2019.

(a) Civil service---

----Appointment on contract basis---Allegation of misconduct---Termination from service---De novo inquiry---Effect---Departmental appeal of employee against order for termination of service had been allowed by the appellate authority while passing order for de novo inquiry---No order for removing or dismissing the employee after de novo inquiry was on record---When order for a de novo inquiry had been passed then earlier order whereby petitioner's services were terminated stood washed out---Mere recommendation of an inquiry committee could not be equated with an order passed by a competent authority against the employee---Department was directed to dispose of petition of employee for restoration of his services and payment of his unpaid salaries/benefits pending before it in accordance with law and facts through speaking order after affording an opportunity of hearing to both the parties---Constitutional petition was disposed of accordingly.

2015 PLC (C.S.) 1320 and 2017 SCMR 2010 ref.

(b) Civil service---

----Acquittal of civil servant in a criminal case, would not constitute a bar for the initiation of disciplinary proceedings---Criminal proceedings and departmental proceedings against the civil servant were entirely different.

Amir Abdullah v. Superintendent of Police 1989 SCMR 333; Deputy Inspector General of Police v. Anisur Rehman PLD 1985 SC 134; Muhammad Ayub v. Chairman Electricity Board WAPDA, Peshawar PLD 1987 SC 195; Talib Hussain v. Anar Gul Khan 1993 SCMR 2177; Rashid Mehmood v. Additional Inspector-General of Police 2002 SCMR 57; Khalid Dad v. Inspector General of Police 2004 SCMR 192; Syed Muhammad Iqbal Jafri v. Registrar Lahore High Court, Lahore 2004 SCMR 540; Muhammad Shafique v. Deputy Director Food 2005 SCMR 1067; Syed Aqleem Abbasi Jaffari v. Province of Punjab through Secretary, Irrigation Department 2005 SCMR 1901; Falak Sher v. Inspector-General of Police, Lahore 2005 SCMR 1020; Sami Ullah v. Inspector-General of Police 2006 SCMR 554 and Asif Mehmood Butt v. Regional CEO, NBP 2011 PLC (C.S.) 1462 rel.

Muhammad Asif Gujjar for Petitioner.

Hassan Rashid Qamar for Respondent No.1.

2020 P L C (C.S.) 573

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

AKHTAR HUSSAIN SHAH

Versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED through Managing Director/Chief Executive and another

W.P. No.3364 of 2013, decided on 17th January, 2020.

Oil and Gas Development Company Limited (Reorganization) Ordinance (XXVIII of 2001)---

----S.5(1)---Oil and Gas Development Corporation Employees (Service) Regulations, 1994, Reglns. 10 & 51---Oil and Gas Development Corporation Pension and Gratuity Regulations, 1985, Reglns. 2(b) & 14---Re-fixation of pay---Determination of pension---Petitioner was employee in Oil and Gas Development Company Limited (OGDCL) who assailed Office Memorandum dated 01-08-2013 which withdrew grant of additional pay and advance increments given to him--- Plea raised by OGDCL was that petitioner was accused of mala fide in gaining such benefits--- Validity---No written order or a decision by Board or Managing Director, OGDCL existed recalling decisions/approvals regarding grant of advance increments to petitioner--- Pay of petitioner was re-fixed through Office Memorandum dated 01-08-2013 which was after his retirement--- Calculations in Office Memorandum in question omitted advance increments that were approved in favour of petitioner---OGDCL could not explain as to how grant of such advance increments was in violation of Oil and Gas Development Corporation Employees (Service) Regulations, 1994--- Board of OGDCL took a decision that petitioner was not involved in any manner in 'process of approval' of advance increments, it implied that advance increments (which OGDCL had not taken into account while calculating pension of petitioner and re-fixing his pay) were granted after due approval--- High Court declared non-consideration of increments approved in favour of petitioner while calculating pension was declared unlawful as with grant of increments, basic pay of an employee was enhanced--- High Court directed OGDCL to re-calculate pension of petitioner by taking into consideration advance increments that were granted to him after approval---Term emoluments was defined in Regln. 2(b) of Oil and Gas Development Corporation Pension and Gratuity Regulations, 1985 to include basic pay, special pay, technical pay and officiating pay received by an employee--- High Court set aside Office memorandum issued by OGDCL to the extent of non-inclusion of annual increments approved by competent authority---Constitutional petition was disposed of accordingly.

Dr. Habib-ur-Rehman v. Secretary to Government of Khyber Pakhtunkhwa 2018 PLC (C.S.) Note 110 and Province of Punjab v. Pervaiz Iqbal 2004 SCMR 309 rel.

Abdul Rahim Bhatti, Yasser Rahim Bhatti and Muhammad Amin for Petitioner.

Syed Mudassir Ali Rizvi for Respondents.

2020 P L C (C.S.) 605

[Islamabad High Court]

Before Aamer Farooq, J

RIZWAN ASHRAF and another

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and 2 others

Writ Petitions Nos.1528, 1224, 1622, 1725, 2570, 3043, 3047, 3054, 3057, 3068, 3073, 3086, 3089, 3099, 3100, 3134 and 3239 of 2019, decided on 31st January, 2020.

(a) Rules of Business, 1973---

----R.15---Constitution of Pakistan, Art. 27---Recruitment policy---Eligibility criteria, determination of---Petitioners were aggrieved of Standard Operating Procedures (SOPs) for selection of candidates for United Nations Peacekeeping Missions prepared by National Police Bureau, the same were violative of guidelines given by United Nations---Validity---Mere drafting of policy did not make it ultra vires however, it was authority which accorded approval of the same that mattered---Federal Ministry of Interior under Rules of Business, 1973 did not have authority to devise any such policy and it was incumbent upon the ministry or division to have forwarded same to the office of Prime Minister for its due sanction or approval--- Even if guidelines were to be drafted by National Police Bureau, they were to be sanctioned by Ministry of Interior with approval from Prime Minister--- Courts did not interfere with policy decisions of executive however, if policy was in violation of any provision of law or Constitution then policy could be struck down--- High Court set aside SOPs made by National Police Bureau as same were illegal and without lawful authority---Constitutional petition was allowed in circumstances.

Nazar Muhammad Qureshi and 12 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 5 others 2012 PLC (C.S.) 90; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 PLC (C.S.) 1223; Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186; Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others 2003 SCMR 370; New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan Karachi PLD 1999 SC 1126 and Haider Abbas v. Federal Public Service Commission through Chairman 2017 SCMR 612 rel.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Abdullah Nawaz Cheema v. Federal Public Service Commission (FPSC), Islamabad and another 2019 SCMR 622; Suo Motu Case No.01 of 2014 PLD 2014 SC 699; Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad 2008 SCMR 773; Muhammad Rafique and others v. Secretary Schools, Government of Punjab, Lahore and others 2019 PLC (C.S.) 699; Amjad Ali v. Province of Sindh, through Secretary Education and Literacy Department, Sindh Secretariat Karachi and 2 others 2019 PLC (C.S.) 846; Sajjad Ali v. Vice-Chancellor through Registrar University of Malakand at Chakdara, Dir Lower and others 2020 SCMR 124 and Mrs. Naseem Firdous v. Punjab Small Industries Corporation through Managing Director and 3 others PLD 1995 Lah. 584 ref.

(b) Constitution of Pakistan---

----Art. 27---Safeguard against discrimination in services---All regional quotas under Art. 27 of the Constitution are to be done away with eventually---Legislature, in order to give protection to people from a certain part of country could legislate regarding providing them a due representation.

Nusrat Baig Mirza v. Government of Pakistan and another PLD 1992 FSC412 and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 rel.

Hafiz Noor Muhammad for Petitioners (in Writ Petitions Nos.1528, 1622, 3043, 3047 and 3057 of 2019).

Irfan Javed Abbasi for Petitioners (in Writ Petition No.1224 of 2019).

Raja Inaam Ameen Minhas and Ch. Waqas Zameer for Petitioners (in Writ Petitions Nos.1725 and 2570 of 2019).

Adil Aziz Qazi, Saad Ahmed Rajput, Raja Amir Shahzad, Zopash Khan and Mr. Haseeb Hassan for Petitioners (in Writ Petitions Nos.3054, 3068 and 3089 of 2019).

Syed Hassan Abbas for Petitioners (in Writ Petition No.3073 of 2019).

Malik Awais Haider for Petitioners (in Writ Petition No.3086 of 2019).

Ms. Chand Bibi for Petitioners (in Writ Petitions Nos.3099, 3100 and 3239 of 2019).

Bilal Hassan Sabri and Muzammil Hussain Shad for Petitioners (in Writ Petition No.3134 of 2019).

Raja Khalid Mehmood Khan, learned Deputy Attorney-General.

Raja Saad Sultan, learned Assistant Attorney-General.

Muhammad Imtiaz Shah, Director NPB.

Muhammad Shahid, A.D. NPB.

2020 P L C (C.S.) 701

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. ANWAR HUSSAIN ALIZAI and another

Versus

FEDERATION OF PAKISTAN, through Secretary, Establishment Division and others

W.P. No.2010 of 2019, decided on 24th January, 2020.

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

----S.4 --- Promotion --- Eligibility for--- Determination of--- Scope ---Contention of petitioners-employees was that they had requisite length of service for promotion---Validity---Whether petitioners had requisite length of service for their promotion was a matter not with regard to fitness but their eligibility for promotion---Question of eligibility for promotion did relate to the terms and conditions of service and fell within the jurisdictional domain of Service Tribunal---Having requisite length of service in a particular pay scale for promotion to a higher scale, had nothing to do with the fitness of the employee---Employees should agitate their grievance before competent forum---Constitutional petition being not maintainable was dismissed, in circumstances.

Aamir Khurshid Mirza v. The State 2006 CLD 568; Shabbir Jan Sarhandi v. Province of Sindh through Chief Secretary and 3 others 2006 PLC (C.S) 955; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui 1991 SCMR 1129; Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456; National Assembly Secretariat v. Manzoor Ahmed 2015 SCMR 253; Zafar Ullah Baloch v. Government of Balochistan 2002 SCMR 1056; Jalaluddin v. Board of Trustees of the Port of Karachi 2000 PLC (C.S.) 1061; Syed Badar-ud-Din v. Government of N.-W.F.P. PLD 1994 SC 345; Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa 2015 PLC (C.S.) 215; Fazali Rehmani v. Chief Minister, N.-W.F.P. PLD 2008 SC 769; Muhammad Iqbal v. Executive District Officer (Revenue) 2007 SCMR 682; Peer Muhammad v. Government of Balochistan 2007 SCMR 54; Government of the Punjab v. Muhammad Zafar Bhatti PLD 2004 SC 317; Khalid Mahmood Wattoo v. Government of Punjab 1998 SCMR 2280; Muhammad Anees v. Abdul Haseeb PLD 1994 SC 539; Iqan Ahmad Khurram v. Government of Pakistan PLD 1980 SC 153; S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, Ministry of Housing and Works and others 2013 SCMR 338; Messrs Voyage de Air, General Sales Agent, Shaheen Air International v. Shaheen Air International (Pvt.) Ltd. 2006 CLC 173 and Yousuf A. Haroon v. Custodian of the Karachi Hotel Project 2004 CLC 1967 rel.

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

Muhammad Nadeem Khan Khakwani, learned Assistant Attorney-General for Respondents.

2020 P L C (C.S.) 775

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD IQBAL MEHSOOD

Versus

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

W.P. No.182 of 2016, decided on 3rd May, 2016.

Pakistan Mineral Development Corporation Employees Service Rules, 2012---

----Preamble---Companies Ordinance (XLVII of 1984), Preamble---Employee of Pakistan Mineral Development Corporation---Non-statutory rules of service---Effect---Pakistan Mineral Development Corporation was not the creature of a statute and had been incorporated under the provisions of Companies Ordinance, 1984---Role of Federal Government was only to nominate the members of the Board of Pakistan Mineral Development Corporation---Board of Pakistan Mineral Development Corporation had made Pakistan Mineral Development Corporation Employees Service Rules, 2012---Said Rules had not been made in exercise of any statutory power---Constitution of Pakistan Mineral Development Corporation did not require these Rules to be either vetted or approved by the Federal Government---Relationship of master and servant existed between the parties---Constitutional petition was not maintainable in circumstances.

Aamir Khurshid Mirza v. The State 2006 CLD 568; Shabbir Jan Sarhandi v. Province of Sindh through Chief Secretary and 3 others 2006 PLC (C.S.) 955; Syed Nazir Gillani v. Pakistan Red Crescent Society 2014 SCMR 982 and Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707 rel.

Muhammad Shabbir Nasir for Petitioner.

Raja Ahsan Mahmood Satti, Standing Counsel.

Ghulam Mustafa Qureshi for Respondents Nos.2 and 3.

2020 P L C (C.S.) 796

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. SHAMAILA SAJJAD

Versus

HIGHER EDUCATION COMMISSION and others

W.P. No.395 of 2017, decided on 14th February, 2018.

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

----Ss.28, 29 & 30---International Islamic University---Statutes, Regulations and Rules framed under Ss. 28, 29 & 30 of the International Islamic University Ordinance, 1985---Nature---Terms and conditions of service of academic staff / professors / assistant professors---Petitioner impugned procedural irregularities in constitution of Department Tenure Review Committee for the purpose of selection of candidates against post of Assistant Professor---Contention of University, inter alia, was that Constitutional petition against constitution of said committee was not maintainable---Validity--- Per provisions of the International Islamic University Ordinance, 1986 it was clear that power to regulate terms and conditions of service of the International Islamic University's employees did not vest in Federal Government, as the same did not also play any role in making / framing of Statutes, Regulations and Rules framed under S.29 of the International Islamic University Ordinance, 1985---Petitioner's service was therefore not regulated by any statute or statutory rules and Constitutional petition would only be competent if rules / regulations governing terms and conditions of service were statutory or where act or proceedings impugned were in violation of statutory rules or regulations---Constitutional petition being not maintainable was dismissed, in circumstances.

Raja Muhammad Farooq for Petitioners.

Rehan ud Din Golra for Respondents Nos.2 to 7.

2020 P L C (C.S.) 826

[Islamabad High Court]

Before Aamer Farooq, J

LIAQUAT ALI KHAN and others

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and 2 others

Writ Petitions Nos.3091 and 511 of 2019, decided on 21st November, 2019.

Civil service---

----Promotion---Deferment of promotion of employee due to non-availability of annual confidential reports---Employee was considered for promotion but he was deferred due to non-availability of performance evaluation reports---Validity---Non-availability of record for promotion including annual confidential reports was not the fault of civil servant for which he could be made to suffer---Department had neglected to complete the performance evaluation reports of employees and despite that fact their cases had been sent to Central Selection Board for promotion---High Court observed that name of employee should not have been sent for promotion if his performance evaluation reports was not complete---Department was directed to complete the performance evaluation reports of employee forthwith and place his name in the next meeting of Central Selection Board, if he was otherwise eligible for promotion---If any civil servant was not eligible for promotion then his name should not be sent to the Board---Constitutional petition was disposed of, in circumstances.

Trustee of the Port of Karachi v. Gujranwala Steel Industries and another 1990 CLC 197; Abdul Majeed v. Senior Vice President, UBL, Karachi and others 2002 PLC (C.S.) 1438 and Bashir Hussain Bokhari v. Secretary, Ministry of Housing and Works, Islamabad 1994 SCMR 420 ref.

Pervaiz Akhtar v. Federal Government 2014 PLC (C.S.) 326; Mirza Lutuf Muhammad Khan v. Government of Pakistan 2006 PLC (C.S.) 85 and Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948 rel.

Muhammad Umair Baloch for Petitioner (in Writ Petition No.3091 of 2019).

Raja Khalid Mehmood Khan, Deputy Attorney General (in Writ Petition No.3091 of 2019).

Ms. Anita Turab, Joint Secretary (CP-II), Establishment Division (in Writ Petition No.3091 of 2019).

Abdul Qayyum Kakar, Section Officer (CP-VI), Establishment Division (in Writ Petition No.3091 of 2019).

Mahmood Khan Lakho, Section Officer (Lit-VI), Establishment Division (in Writ Petition No.3091 of 2019).

Ms. Neeli Khan and Muhammad Umair Baloch for Petitioner (in Writ Petition No.511 of 2019).

Raja Khalid Mehmood Khan, Deputy Attorney General (in Writ Petition No.511 of 2019).

Haroon Rashid, Deputy Director, FPSC (in Writ Petition No.511 of 2019).

Mehmood Ahmed, Deputy Director, FPSC (in Writ Petition No.511 of 2019).

Faiq Ahmad, Assistant Director, FPSC (in Writ Petition No.511 of 2019).

2020 P L C (C.S.) 905

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Mst. SAMAN NAZ

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Federal Education and Profession Training Islamabad and 4 others

Writ Petitions Nos.3503, 1700 of 2019 and 3143 of 2018, decided on 19th November, 2019.

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

----R.20-A---Office Memorandum No.1(28)/75-D.II dated 06-03-1975---Appointment on deputation---Withdrawal of---Wedlock policy---Effect---Contention of employees (constitutional petitions) was that the orders for their repatriation to the parent departments were against law---Validity---Deputationist was not entitled to complete the tenure of deputation---Competent authority had power to repatriate a deputationist without assigning any reason---No vested right accrued to a deputationist to continue for the period of deputation---Competent authority was empowered to repatriate a deputationist as and when exigencies of service required---Employees had no grievance against their repatriation to parent departments by the borrowing departments---No legal or vested right was available to a deputationist to serve in the borrowing departments for an indefinite period---Provisions of R.20-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 could not be interpreted to provide for an indefinite period to an appointment on deputation---Parent department had not issued No Objection Certificate in favour of employees for an extension in their deputation period---Borrowing departments had expressed its unwillingness to extend the deputation period of employees---Absorption or confirmation of any deputationist in the borrowing department was to be according to prescribed procedure---Consent of deputationist for suspension or termination of lien on his permanent post in the parent department as well as agreement of the parent department was to be obtained---Petitioners' borrowing departments had not sought concurrence of parent department for their absorption during permissible deputation period---Department was directed not to discriminate the deputationist while deciding their cases for repatriation and absorption should be made through competitive process---Constitutional petition was dismissed, in circumstances.

Pakistan v. Fazal Rehman Khundkar PLD 1959 SC 82; Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad 2010 SCMR 378; Mst. Robia Ayub v. Federation of Pakistan 2013 PLC (C.S.) 915; Abdul Majeed v. Chief Secretary, Punjab 2015 PLC (C.S.) 1381; Lal Khan v. Employees Old Age Benefit Institution 2010 PLC (C.S.) 1377; Asma Shaheen v. Federation of Pakistan 2013 PLC (C.S.) 391; Senate Secretariat v. Faiqa Abdul Hayee 2014 SCMR 522; Rasheed Tareen v. Chairman Works Welfare Board 2012 PLC (C.S.) 54 and Sudhir Ahmed v. Speaker Balochistan Provincial Assembly 2017 SCMR 2051 rel.

Kashif Ali Malik and Muhammad Asif Gujjar for Petitioner.

Arshid Mehmood Kiani, Learned Deputy Attorney-General for Respondents.

S.M. Rehan Naqvi, Assistant Director (Legal) F.D.E.

2020 P L C (C.S.) 964

[Islamabad High Court]

Before Fiaz Ahmad Anjum Jandran, J

INSPECTOR MUHAMMAD ABBAS

Versus

INSPECTOR GENERAL OF POLICE, ISLAMABAD and 2 others

Writ Petition No.3651 of 2019, decided on 13th February, 2020.

Civil Servants Act (LXXI of 1973)---

----S.2(1)(b)---Service Tribunals Act (LXX of 1973), S.2(a)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.12-A---Employee having been retired from service sought correction of date of birth---Matter relating to terms and conditions of service---Service Tribunal, jurisdiction of---Civil servant---Scope---Contention of petitioner was that his actual date of birth was 08-10-1961 instead of 08-10-1959 and being a retired employee he was not a civil servant---Validity---Legislature had created Service Tribunals for the purpose of adjudication of matters relating to terms and conditions of service of civil servants---Jurisdiction of all other Courts with regard to matters of terms and conditions of service had been barred under Art.212 of the Constitution---Person who remained a civil servant did include a retired employee---Retired employees had not been ousted from agitating their claims with regard to terms and conditions of their service before Service Tribunal---Petitioner being a civil servant was barred to agitate his claim before High Court under Article 212 of the Constitution---Matter of date of birth was relating to the terms and conditions of service and High Court could not adjudicate upon the same---Constitutional petition being not maintainable was dismissed, in circumstances.

State of H.P. v. Surinder Sing Banolta {2006} 12 SCC 418 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 rel.

Haroon ur Rasheed for Petitioner.

2020 P L C (C.S.) 996

[Islamabad High Court]

Before Fiaz Ahmad Anjum Jandran, J

Syed ABID HUSSAIN

Versus

GENERAL MANAGER (HR AND A), PTCL and others

Civil Revision No.380 of 2017, decided on 11th March, 2020.

Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----S.36(2)---Qanun-e-Shahadat (10 of 1984), Art. 113---Recovery of arrears---Admitted facts---Documentary evidence---Photocopies---Objection---Stage---Plaintiff who was transferred to the company (PTCL) pursuant to S.36(2) of Pakistan Telecommunication (Reorganization) Act, 1996 sought recovery of arrears due during his service as he refused to accept "Voluntary Separation Scheme" as introduced by the defendant company---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court reversed the findings and dismissed the suit---Validity---All the documents were issued by defendant company and original thereof could not be in the possession of plaintiff---All marked documents except an agreement between defendant and Government of Pakistan, were admitted by witness of defendant company during his cross-examination---Such documents which were expressly admitted by defendant company could not have been questioned at appellate stage---High Court was not precluded / prevented from taking into account the admitted documents, which were available on record as "Marked Documents" and most of the documents were part and parcel of official record of defendant company---When the documents were presented by plaintiff during his examination-in-chief, there was not a single objection from the other side upon presentation / placing of those documents on record--- Any office order or document issued by defendant company which adversely affect any privilege, facility for which plaintiff was entitled, had no force in the light of saving clause i.e. S.36(2) of Pakistan Telecommunication (Reorganization) Act, 1996---High Court in exercise of revisional jurisdiction set aside findings of Lower Appellate Court and restored that of Trial Court--- Revision was allowed in circumstances.

Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719; PTCL and others v. Masood Ahmad Bhatti and others 2016 SCMR 1362 and Iqbal Hussain v. General Manager, Southern Telecom Region-II and others 2017 SCMR 353 rel.

Abdul Hafeez Amjad, learned Advocate Supreme Court for Petitioner.

Saad Hassan and Raheel Zafar Law Officer for Respondents.

2020 P L C (C.S.) 1041

[Islamabad High Court]

Before Aamer Farooq, J

TARIQ AHMAD PATHAN, UDC (BPS 11) and 5 others

Versus

FEDERAL BOARD OF REVENUE (FBR) ISLAMABAD through Chairman and 3 others

Writ Petition No.805 of 2019, decided on 30th January, 2020.

Civil service---

----Promotion---Vested rights---Scope---Employees passed departmental promotion examination and were on waiting list but department changed Rules for promotion---Contention of petitioners in Constitutional petition was that they had acquired vested rights for promotion and same could not have been taken away---Validity---Petitioners had passed departmental promotion examination and were on waiting list---Vested rights had acquired by the employees which could not have been done away by changing promotion Rules---Department had prerogative to formulate new Rules but rights acquired vis-à-vis old Rules could not be taken away retrospectively---Employees were aggrieved only with regard to promotion quota as they were on waiting list---Controversy did not fall within terms and conditions of service---Constitutional petition was maintainable, in circumstances---High Court sent copy of constitutional petition along with annexures to the department to treat the same as representation of employees and decide the same in accordance with law---Constitutional petition was disposed of, accordingly.

Rana Samreen Akhtar for Petitioners.

M.D. Shahzad, Ch. Talib Hussain, Jehangir Khan Jadoon and Mrs. Misbah Gulnar Sharif for Respondents.

Niazi Brohi, representative, FBR.

2020 P L C (C.S.) 1050

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ABDUL SHAKOOR

Versus

ALLAMA IQBAL OPEN UNIVERSITY through Vice-Chancellor

Writ Petition No.3485 of 2018, decided on 9th July, 2019.

Allama Iqbal Open University Act (XXXLX of 1974)---

----Ss. 24 & 31---Allama Iqbal Open University (General Conditions of Service) Statutes, 1978, R.5---Promotion of Officer of the University---Non-statutory rules of service---Effect---Contention of petitioner was that he was entitled to be considered for promotion to the post of Registrar and advertisement for appointment against the said post was illegal---Validity---Respondent was senior to the petitioner and he was not an "aggrieved person"---Petitioner was not competent to file constitutional petition, in circumstances---Petitioner had remedy of appeal against the decision of impugned advertisement---Allama Iqbal Open University (General Conditions of Service) Statutes, 1978 were non-statutory---Constitutional petition being not maintainable was dismissed, in circumstances.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 rel.

Muhammad Yaqoob Javaid for Petitioner.

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

2020 P L C (C.S.) 1067

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ABDUL JABBAR BHATTI

Versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED (OGDCL) through Chief Executive Officer/Managing Director and 2 others

Writ Petition No.1610 of 2018, decided on 4th December, 2019.

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

----Reglns. 21(1) & 121(a)---Oil and Gas Development Corporation Pension and Gratuity Regulations, 1985, Reglns. 12 & 39(1)---Employee of Oil and Gas Development Company Limited---Appointment on the basis of fake educational testimonials---Misconduct---Withholding of pension due to pendency of inquiry---Effect---Contention of employee was that Company could not conduct an inquiry after his retirement and he was entitled for pensionary benefits---Validity---Pension was not a bounty or an ex-gratia payment but a right acquired in consideration for past service---Pension did form a part of an employee's retirement benefits and same could not be withheld or reduced arbitrarily---Company could not withhold the pension of retired employee on the basis of any pending inquiry---Employee had served the Company for more than twenty-three years and had retired upon attaining the age of superannuation---Employer-Company had not taken any step for the verification of educational testimonials of employee during his employment---Said omission was actionable on the part of Company's officials---Educational testimonials submitted on behalf of employee for obtaining employment with the Company were fake---Employee could not be termed as an accused after his retirement and after his retirement he could not be proceeded against on the charge of misconduct---Constitutional jurisdiction of High Court was discretionary in nature and relief could only be claimed by a person having bona fide claim and who had approached the Court with clean hands for enforcement of a legal right obtained in a lawful manner---Employee had refused to provide Company with his original education testimonials for verification and High Court could not direct the Company to pay his pension---Constitutional petition was dismissed, in circumstances.

Abdul Wali v. WAPDA 2004 SCMR 678 and Mubeen-ul-Islam v. Federation of Pakistan PLD 2006 SC 602 ref.

Haji Muhammad Ismail Memon, Advocate's case PLD 2007 SC 35; Government of N.-W.F.P., through the Secretary to the Government of N.-W.F.P., Communication and Works Department, Peshawar v. Mohammad Said Khan PLD 1973 SC 514; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Kaloo Khan v. Oil and Gas Development Company Limited 2019 PLC (C.S.) 519; Sajjad Haider Kazmi v. Director-General (S&GAD) WAPDA 2007 SCMR 1643; Muhammad Zaheer Khan v. Government of Pakistan 2010 SCMR 1554; Mubeen-ul-Islam v. Federation of Pakistan PLD 2006 SC 602; Muhammad Afzal v. Board of Intermediate and Secondary Education, Lahore 2007 SCMR 1460; Muhammad Aslam v. Punjab Small Industries Corporation 2001 YLR 32; Nusrat Elahi v. Registrar, Lahore High Court 1991 MLD 2456; Sami-ur-Rehman v. Chief Secretary, Government of Sindh 1983 PLC (C.S.) 832; Abdul Wali v. WAPDA 2004 PLC (C.S.) 771 and Farzana Rasool v. Dr.Muhammad Bashir 2011 SCMR 1361 rel.

Muhammad Bashir Khan for Petitioner.

Aftab Ahmad Butt for Respondents.

2020 P L C (C.S.) 1132

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

Sheikh ANSER AZIZ MAYOR METROPOLITAN CORPORATION ISLAMABAD

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior Islamabad and 2 others

Writ Petition No.1401 of 2020, decided on 21st May, 2020.

(a) Constitution of Pakistan---

----Art. 10-A---Public official---Inquiry, initiation of---Due process of law---Before initiation of any inquiry it was necessary to confront the allegation to a person against whom the allegation had been levelled which should disclose a positive proof that certain illegalities were made and after receiving the reply, any order under the law could be passed at the touchstone of due process of law, equity and fair play.

(b) Islamabad Capital Territory Local Government Act (X of 2015)---

----S.96(3)---Constitution of Pakistan, Art. 10-A---Mayor, Islamabad Capital Territory (ICT)---Suspension from office for 90 days for fair conduct of inquiry---Constitutionality and legality---Ingredients of due process of law, equity and fair play prima facie were not reflected in the present case from the minutes of meeting, wherein the recommendation to suspend the Mayor, ICT was given---Adverse order of suspension could not be passed without giving reasonable opportunity of hearing to defend which was a key factor in such type of proceedings, as such the requirement of due process of law enshrined in Art. 10-A of the Constitution of Pakistan had not been adhered to in the present case---Local Government Commission ('Commission') was bound under the law to give opportunity of hearing to the Mayor, ICT before such recommendation for his suspension---Commission ought to have asked the Mayor, ICT to rebut the allegations at the first instance before giving any recommendation (for his suspension) which was a key requirement---Furthermore the Mayor himself and three members of the Commission, were not available in the meeting, when the relevant additional agenda was discussed, wherein it was recommended to suspend the Mayor---If the Mayor, ICT remained under suspension, the Local Government representation of citizen of ICT would not be available---Irreparable loss and balance of convenience laid in favour of the Mayor who had not been afforded opportunity of hearing---High Court suspended the impugned notification till next date of hearing whereby the Mayor, ICT was suspended for 90 days.

Kashif Ali Malik, Adil Aziz Qazi, Malik Abdul Rehman and Haseeb Hassan for Petitioner.

Shah Khawar, Raja Faisal Younas and M. Saad Buttar for Respondents.

Tariq Mehmood Khokhar, Additional Attorney General.

Niaz Ullah Khan Niazi, Advocate General, Islamabad.

Zohaib Hassan Gondal, State Counsel.

Irfan Anjum, Joint Secretary, Ministry of Interior.

Yawar Hussain Rana, S.O, Ministry of Interior.

Ali Sufian, Secretary, LGC.

2020 P L C (C.S.) 1196

[Islamabad High Court]

Before Fiaz Ahmad Anjum Jandran, J

ASMATULLAH JANEJO

Versus

FEDERATION OF PAKISTAN through Secretary and others

W.P. No.492 of 2020, decided on 5th June, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Policy matter---Vested right---Scope---Grievance of petitioner was that he was selected for a foreign posting but authorities had halted posting in question---Validity---Writ could only be issued, if violation of fundamental right enshrined in the Constitution or for infringement of a vested right had accrued in favour of an aggrieved person---No such approval / notification was available on record, the violation of which could be agitated through constitutional petition--- Superior Courts generally exercised judicial restraint in interfering with policy making domain of the Executive Authority--- High Court declined to interfere in the matter as there was no violation of any fundamental right or vested right so borne out from the record---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; Sheikh Mudassar Ahmed v. Government of Pakistan through Secretary Establishment Division, Islamabad and 02 others 1991 MLD 2121; Dr. Shoukat Pervez v. Federation of Pakistan through Secretary Establishment Division, Islamabad and another 2011 PLC (C.S.) 26; Fatima v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 02 others 2018 PLC (C.S.) 292; Hajj Organizers Association of Pakistan through Authorized Officers and 11 others v. Federation of Pakistan through Secretary, Ministry of Religious Affairs and Interfaith Harmony, Islamabad and 2 others PLD 2020 Sindh 42 and World Call Cable (Pvt.) Limited through Chief Executive Officer v. Federation of Pakistan through Secretary and another 2020 CLC 543 ref.

Shahid Pervaiz v. Ejaz Ahmad 2017 SCMR 206; Muhammad Shoaib Razzaq v. Federation of Pakistan through President and 5 others PLD 2019 Isl. 339; Ferzand Ali v. Province of West Pakistan PLD 1970 SC 98; Government of Pakistan v. Zamir Ahmad Khan PLD 1975 SC 667; Watan Party's case PLD 2004 SC 697; Dr. Akhtar Hassan's case 2012 SCMR 455 and Dossai Travel's case 2013 SCMR 1749 rel.

Khurram Mehmood Qureshi for Petitioner.

Ch. Muhammad Tahir Mehmood, A.A.G. and Qaiser Masood, Additional Directir, FIA for Respondents.

2020 P L C (C.S.) 1211

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

GHULAM SARWAR and others

Versus

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

Writ Petitions Nos.2114, 2345, 3108, 3625 of 2016 and 483, 494 to 496 of 2018, decided on 20th February, 2020.

(a) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----Ss.9 & 20 (since repealed)---Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), Ss. 35(2) & 36---Pakistan Telecommunication Corporation Service Regulations, 1996---Employees of Pakistan Telegraph and Telephone Department transferred to Pakistan Telecommunication Corporation and then to Pakistan Telecommunication Company Limited---Retirement under Voluntary Separation Scheme---Terms and conditions of service---Employees were seeking similar pensionary benefits as extended by the Government for retired civil servants---Validity--- Pakistan Telecommunication Corporation Service Regulations, 1996, had not been notified in the official gazette and same did not have a statutory status---Employees of Pakistan Telecommunication Corporation after enactment of Pakistan Telecommunication Corporation Act, 1991 and governed by Pakistan Telecommunication Corporation Service Regulations, 1996, could not agitate a dispute with regard to terms and conditions of their service by filing constitutional petition---Section 9 of Pakistan Telecommunication Corporation Act, 1991 and Ss. 35 & 36 of Pakistan Telecommunication (Re-Organization) Act, 1996, did protect the terms and conditions of service of departmental employees---Departmental employees who had not opted Voluntary Separation Scheme could agitate grievance regarding terms and conditions of their service in constitutional jurisdiction of High Court---Retirement in the ordinary course would entitle employee having pensionable service to pension---Employees who had opted Voluntary Separation Scheme having twenty years of service were eligible for early retirement and enhanced gross pension---None of the petitioners had twenty years of service to make them eligible for enhanced gross pension under Voluntary Separation Scheme---If petitioners had not opted Voluntary Separation Scheme then they would remain in service for a period so as to make their service pensionable---Had petitioners completed twenty years of service then they would have been entitled to the payment of pension on retirement---Petitioners had not retired by operation of any statutory rules but due to the option exercised by them for Voluntary Separation Scheme and constitutional petition was not maintainable---Controversial question of fact could not be resolved without recording of evidence and the exercise was not permissible in constitutional jurisdiction---Petitioners had received bonus and other benefits before their retirement in the ordinary course---Employees had opted for Voluntary Separation Scheme and they had not been paid any pension from their retirement---Employees had received benefits under Voluntary Separation Scheme and had accepted their disentitlement to the payment of pension---Constitutional petition had been filed after more than nine years from exercising option of Voluntary Separation Scheme---Power of High Court to issue an appropriate writ, order or direction was discretionary---High Court could refuse to exercise constitutional jurisdiction if a party was guilty of delay and laches---No plausible explanation had been put forth for inordinate delay in filing of constitutional petitions---Constitutional petitions being not maintainable were dismissed, in circumstances.

Pakistan Telecommunication Company Limited v. Iqbal Nasir PLD 2011 SC 132; State Bank of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280; P.T.C.L. v. Masood Ahmed Bhatti 2016 SCMR 1362; Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif 2015 SCMR 1472; Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783; Pakistan Telecommunication Company Limited v. Muhammad Dilpazir 2016 PLC 367; Khursheed Latif v. Federation of Pakistan 2010 SCMR 1081; Ahmad and others v. Ghama and others 2005 SCMR 119; Shahbaz Khan Mohmand v. Islamic Republic of Pakistan 1975 SCMR 4; Muhammad Sadiq and others v. The Commissioner Rawalpindi 1973 SCMR 422 and Masood Ahmad Bhatti v. Federation of Pakistan 2012 SCMR 152 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches, doctrine of---Applicability---When a petitioner approaches the High Court with undue delay, the principle of laches disentitles him from discretionary relief under Art.199 of the Constitution, particularly when there is no plausible explanation on the petitioner's part for his blameworthy dilatory conduct.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Controversial question of fact could not be resolved without recording of evidence, which exercise was not permissible in constitutional jurisdiction.

Muhammad Asif Mehmood, Nawazish Ali Gondal and Jameel Hussain Qureshi for Petitioners (in W.Ps.Nos.2114, 2345, 3108 and 3625 of 2016).

Mubashar M. Jaffar Qasuri for Petitioners (in W.Ps. Nos.483, 494, 495 and 496 of 2018).

Arshid Mehmood Kiani, learned Deputy Attorney-General and Nadeem Khan Khakwani, learned Assistant Attorney-General.

Shahid Anwar Bajwa, Tassadaq Hanif, Shaifque-ur-Rehman Dab, Habib Ahmed Bhatti, and Akhlaq Ahmad Bhatti for P.T.C.L.

Raheel Zafar, Manager (Legal) P.T.C.L.

Barrister Ahsan Jamal Pirzada for P.T.E.T. for Respondent (in W.P.No.494/2018).

Muhammad Latif Saeedi, Advocate for P.T.E.T.

Sheikh Matee-ur-Rehman, Manager (Legal) P.T.E.T.

2020 P L C (C.S.) 1267

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

SHER SHAH MALIK

Versus

The PAKISTAN BROADCASTING CORPORATION (PBC) through Secretary, Ministry of Information Broadcasting/National and another

Writ Petitions Nos.943 and 1111 of 2019, decided on 16th April, 2020.

Pakistan Broadcasting Corporation Act (XXXII of 1973)---

----S.12---Notification No. S.R.O.414(I)/74 dated 27-03-1974---Employees of Radio Pakistan transferred to Pakistan Broadcasting Corporation---Medical allowance, grant of---Scope---Petitioners applied for grant of medical allowance but their request was declined by the Corporation---Validity---Petitioners were civil servants prior to their transfer to the Corporation and after their transfer they had ceased to be civil servants---Petitioners had not sought medical allowance by claiming to be civil servants but on the basis of statutory assurance that upon their transfer to the Corporation they would be employee of said Corporation on the same terms and conditions to which they were entitled immediately before such transfer---Employees were civil servants before their transfer to the Corporation and civil servants had been given the benefit of medial allowance and petitioners were also entitled for the same benefit---Terms and conditions of service of employees on their transfer to the Corporation could not be altered to their detriment---Terms and conditions of service of petitioners were those of civil servants even though upon their transfer to Corporation they had ceased to be civil servants---Petitioners upon their transfer to the Corporation had not lost their entitlement to be given all service benefits which were available to the civil servants---Petitioners had ceased to be civil servants and they could not invoke the jurisdiction of Service Tribunal to agitate the dispute with regard to terms and conditions of their service---Petitioners were entitled to the payment of medical allowance, in circumstances---Impugned order passed by the department was set aside---Constitutional petition was allowed accordingly.

Syed Abdus Samad Pirzada v. Government of Punjab 2008 SCMR 14 and Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif 2015 SCMR 1472 rel.

Muhammad Wajid Hussain Mughal for Petitioner.

Rashid Mahmood Ansari for Respondent.

2020 P L C (C.S.) 1281

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUNAWAR ALI JALBANI

Versus

CHAIRMAN, HIGHER EDUCATION COMMISSION, ISLAMABAD and another

W.P. No.1252 of 2019, decided on 3rd February, 2020.

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

----Rr. 4 (1) (b) (iii), 5 (1) (ii) & 6---Employee of Higher Education Commission---Allegation of misconduct---Removal from service---Copy of inquiry report having not been provided to the employee along with show cause notice---Effect---Employee was removed from service after conducting regular inquiry---Contention of employee was that statement of allegations was not provided with the charge sheet and no inquiry report was accompanied with the show-cause notice---Validity---Copy of inquiry report was not given to the employee along with show cause notice---Nothing was on record that charge sheet was accompanied with the statement of allegations against the employee---Charge sheet was not issued by the order of Authorized Officer---Even impugned order whereby penalty had been imposed was not issued by the Authorized Officer---Department had not addressed the grounds taken by the employee in his departmental appeal---Departmental proceedings had been conducted in violation of Government Servants (Efficiency and Discipline) Rules, 1973, which were liable to be set aside---Impugned order whereby major penalty of removal from service had been imposed was set aside---Department would be at liberty to re-initiate departmental proceedings against the employee in accordance with Government Servants (Efficiency and Discipline) Rules, 1973---Constitutional petition was allowed, in circumstances.

Syed Mir Muhammad v. N.-W.F.P. PLD 1981 SC 186; Syed Sharafat Ali Nadeem v. Federal Service Tribunal 1987 SCMR 1774 and Dr. Mrs. Khalida Razi v. Federation of Pakistan 1993 PLC (C.S.) 10 rel.

Abdul Rahim Bhatti, Yasser Rahim Bhatti and Qaisar Rahim Bhatti for Petitioners.

Hafiz Noor Muhammad and Shahid Habib for Respondents.

2020 P L C (C.S.) 1294

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

FAZAL REHMAN and others

Versus

FEDERATION OF PAKISTAN and others

W.P. No.949 of 2015, decided on 14th May, 2020.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Petitioners were employees of Pakistan Revenue Automation (Pvt.) Limited ("PRAL"), which was a corporate entity providing automation related services to Federal and Provincial Revenue Divisions / Departments---Petitioners sought regularization of their services---Validity---Rules of Business, 1973, framed under Art.99 of the Constitution did not show "PRAL" as an attached department of Revenue Division or Ministry of Finance----"PRAL" was a private limited company incorporated ordinarily under the provisions of Companies Ordinance, 1984---Employees of corporations created by statute automatically did not acquire status of Government servants---At no material stage names of petitioners were sent to the Cabinet Sub-Committee for regularization of their services so as to give them status of Government servants---Petitioners were not entitled to be given status of employees of Government department---"PRAL Service Rules, 1998" as well as "PRAL Service Rules, 2014" were non-statutory and service of petitioners was purely contractual in nature---Employees of company owned and controlled by Government could not invoke Constitutional jurisdiction of High Court for pressing into service their non-statutory terms and conditions of employment---Contractual obligations also could not be enforced by High Court in exercise of jurisdiction under Art.199 of the Constitution---Petitioners could not seek to place fetter on power of a company to undertake its indoor management---Petitioners could avail their remedy before competent forum as protection of terms and conditions of their service fell under labour laws---Constitutional petition was dismissed in circumstances.

Imran Sajid v. Managing Director/General Manager, (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257; Aamir Junaid v. Government of the Punjab through Chief Secretary 2014 PLC (C.S) 1; Muhammad Jameel v. Taluka Nazim, Taluka Municipal Administration Khairpur 2014 PLC (C.S.) 479; Muhammad Shoaib Roomi v. Secretary / Additional Secretary, Education Department, Government of Punjab 2005 SCMR 605; Ikram Bari and others v. National Bank of Pakistan 2005 SCMR 100; Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas PLD 2003 SC 724; Dr. Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC 101; Tariq Masood Khan v. Federation of Pakistan through Secretary, Ministry of Water and Power 2014 CLD 924; Muhammad Shoaib v. Project Director, National ICT Scholarship Program, Ministry of Information Technology, Islamabad 2011 CLD 23; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence PLD 2006 SC 602; Pakistan International Airline Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676; Pakistan Telecommunication Company Limited through General Manager v. Muhammad Zahid 2010 SCMR 253; Aitcheson College, Lahore v. Muhammad Zubair PLD 2002 SC 326; Maqsood Ahmad Toor v. Federation of Pakistan 2000 SCMR 928; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Manzoor Ahmed v. Federation of Pakistan 2018 PLC (C.S.) 1224; Moti Lal and others v. The Government of the State of Uttar Pardesh AIR 1951 Allahabad 257; Jawaya Kapur and others v. The State of Punjab AIR 1955 SC 549; Lt. Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566; Tanvir Iqbal Siddiqui v. The Principal, Overseas Pakistanis Foundation Girls College 1994 SCMR 958 and Muhammad Qasim and others v. Federation of Pakistan 2019 PLC (C.S.) 1491 ref.

First Woman Bank Ltd. v. Muhammad Tayyab and others (2020 PLC (C.S.) 86; Civil Petitions Nos.1220 and 1221 of 2010; Muhammad Irfan v. Pakistan Revenue Automation (Pvt.) Limited and others Civil Review Petition No.162 of 2010 and M.C.B. Limited v. Abdul Waheed Abro and others 2016 SCMR 108 rel.

Ghulam Muhammad Khan and Muzzamil Hussain Shad for Petitioners.

Hafiz Hifz-ur-Rehman Syed, Saeed Ahmad Zaidi and Muhammad Anwar Mughal for F.B.R.

Atta Ullah Hakim Kundi and Misbah-ul-Mustafa for PRAL.

Shehzad Ali Rana and Ibrar Saeed, Special Prosecutor for S.E.C.P.

Tariq Mehmood Khokhar, learned Additional Attorney-General.

Muhammad Nadeem Khan Khakwani, learned Assistant Attorney-General.

2020 P L C (C.S.) 1315

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MAHFOOZ KHAN and 17 others

Versus

SECRETARY, AVIATION DIVISION, ISLAMABAD and 3 others

Writ Petition No.4627 of 2016, decided on 28th August, 2017.

Civil service---

----Employees of Airports Security Force---Posts having been upgraded after retirement of employees subject to fulfillment of certain conditions---Promotion against up-graded posts was sought in constitutional petition after retirement---Validity---Up-gradation/re-designation of posts in the Airports Security Force was conditional in nature and it could not have taken place unless said conditions were fulfilled---None of the petitioners had challenged the conditions imposed by the concerned Division to the up-gradation of said posts---When decision of a competent authority to up-grade a particular post or posts was subject to fulfillment of certain conditions then said conditions must be fulfilled before the decision regarding up-gradation of a post could take place---Essential condition for up-gradation of the posts in question had taken place when amendment in recruitment Rules were notified---Employees of Airports Security Force thereafter could have been considered for promotion against the up-graded posts---When competent authority had approved the up-gradation of a post then appointment to the up-graded post was to be made in accordance with the specific rules which would regulate appointment to such a post---Up-gradation of a post did not mean automatic up-gradation of its incumbent---If a post was up-graded with immediate effect then incumbent would be left without any post in his grade until he was approved for appointment to a higher post---Appointments of incumbents against up-graded posts without going through prescribed selection process or approval of competent authority were irregular---Delay in amendment in the recruitment Rules did not extend any right to the petitioners for the posts in question to have been considered as up-graded---Prior to retirement of employees there were no up-graded posts against which the petitioners could have been promoted---Petitioners could not claim to have a vested right to be promoted against the up-graded posts---Employees had not been assessed for promotion against the up-graded posts by the competent authority---Promotion could take place only against available and existing post---Promotions made by the competent authority against the up-graded posts would take effect from the date when such promotions were made and not earlier---If petitioners felt that they had a case for proforma promotion or up-gradation then they should approach to the competent authority to consider them for granting the benefit of proforma promotion or up-gradation in accordance with law---Constitutional petition was dismissed, in circumstances.

Mukhtar Ahmed Siddiqui v. Secretary to the Government of Pakistan, Ministry of Finance 2001 SCMR 923; Federal Public Service Commission v. Anwar-ul-Haq (Private Secretary) Islamabad 2017 SCMR 890; Regional Commissioner Income Tax, Northern Region v. Munawar Ali 2016 SCMR 859; Mrs. Saima Iqbal v. Government of Punjab 2010 PLC (C.S.) 1444; Abid Hussain Sherazi v. Secretary Ministry of Industries and Production Government of Pakistan, Islamabad 2005 SCMR 1742 and The Prime Minister v. Major (Retd.) Muhammad Habib Khan 2016 PLC (C.S.) 621 rel.

Muhammad Ramzan Khan for Petitioners.

Ahsan Mehmood Satti, Learned Deputy Attorney-General with S. Iftikhar Ahmed Naqvi, Assistant Director, A.S.F. for Respondents.

2020 P L C (C.S.) 1331

[Islamabad High Court]

Before Athar Minallah CJ and Miangul Hassan Aurangzeb, J

Dr. BASHARAT HASSAN BASHIR

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and

Power and 2 others

I.C.As. Nos.424 and 425 of 2014 in W.P. No.2819 of 2013, decided on 10th June, 2020.

(a) Constitution of Pakistan---

----Arts.25 & 27(1)---Civil service---Discrimination---Appointment without advertisement---Effect---Person appointed to any office under State without any advertisement is appointed in violation of rights of other citizens to equality of opportunity in matters relating to appointment to any office under the State guaranteed to them under Art. 27(1) of the Constitution--- Person appointed without advertisement to any office under State cannot be allowed to continue in such office by Court on the ground of violation of rights to equality guaranteed under Art. 25 of the Constitution.

Dr. Naveeda Tufail v. Government of Punjab 2003 SCMR 291; Mushtaq Ahmad Moral v. The Honourable Lahore High Court 1997 SCMR 1043; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287; Obaidullah v. Habibullah PLD 1997 SC 835; Lt. Col. (R) Muhammad Arif Zahid v. Azad Government of the State of Jammu and Kashmir 2018 PLC (C.S.) Note 136; Sohail Baig Noori v. High Court of Sindh 2017 PLC (C.S.) 1142 and Muhammad Muneer Malik v. Allama Iqbal Open University 2016 PLC (C.S.) 896 rel.

(b) Civil service---

----Contract appointment---Competitive process, absence of---Re-appointment without advertisement---Salary from parent organization---Appellant was appointed as consultant in Alternate Energy Development Board (AEDB), which was a State owned organization on contract basis---Appellant also claimed salary for the contract period from his parent organization which was Higher Education Commission---After completion of contract of two years, authorities extended contract without advertising the vacancy---Single Judge of High Court declared reappointment of appellant as illegal---Validity---No formal order was issued extending duration of appellant's contractual employment beyond the contract period---Appellant should have been shown the door upon completion of two years contract appointment as a consultant---On the basis of appointment on contract basis for fixed period, no right- much less a vested right- could be acquired by employees to be continued in employment after expiry of tenure specified in order of their appointments---Chief Executive Officer (CEO) of AEDB could not have been considered to be vested with authority to appoint consultants in AEDB or to extend their employment contracts at his whim and without any competitive process---No specific provision existed in either AEDB Service Regulations, 2013 or the statutes governing AEDB authorizing CEO of AEDB to appoint consultants in AEDB or to extend their employment contracts without any competitive process---AEDB's letter calling upon appellant to relinquish the charge of consultant on expiry of his contract period was lawful whereas the letter allowing appellant to look after all matters in addition to his own duties was without lawful authority and of no legal effect--- Continuation of service by appellant beyond the date of expiry of his employment contract was unlawful---Appellant provided services for AEDB and his conduct in seeking payment for that period from Higher Education Commission was inequitable disentitling him to any indulgence in discretionary jurisdiction of High Court---Intra-court appeal was dismissed in circumstances.

Zain-ul-Aziz Khan Babar v. Ministry of Inter-Provincial Coordination 2015 PLC (C.S.) 1343; Dr. Asmatullah v. International Islamic University 2014 PLC (C.S.) 297; Dr. Hafiz Muhammad Bashir v. International Islamic University, Islamabad 2013 PLC (C.S.) 191; M. Ashraf Azeem v. Federal Government of Pakistan 2013 PLC (C.S.) 1147; Muhammad Ashfaq Ahmed v. Ali Arshad Hakeem 2013 PLC (C.S.) 1463; Barrister Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah. 343; Muhammad Ali v. Province of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education, Peshawar 2012 PLC (C.S.) 1006; Azad Government of the State of Jammu and Kashmir v. Ashfaque Ahmad Hashmi 2001 PLC (C.S.) 34; Secretary for Prime Minister v. Muhammad Aslam 2000 PLC (C.S.) 155; Mst. Humaira Noorani v. Administrator, M.C., Gujranwala 1999 PLC (C.S.) 1078; State of Orissa v. Mamata Mohanty (2011) (3) SCC 436; Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara 2007 (5) SCC 326; Union Public Service Commission v. Girish Jayanti Lal Vaghela 2006 (2) SCC 482 and Suresh Kumar v. State of Haryana 2003 (10) SCC 276 rel.

(c) Civil service---

----Contract appointment---Regularization---Principle---Appointment of a person on contract basis in any Federal or Provincial Government department or an attached department or autonomous bodies/corporations without any competitive process is a violation of Art. 18 of the Constitution read with Art. 2A of the Constitution and is without any lawful consequence---Such a fundamental flaw in appointment cannot be 'regularized' by decision makers at the helm of affairs in the body in which the appointment has to be made---Only exception to the same is if the person who is appointed on contract basis without any competitive process is subjected to such a process and he is able to prove that his credentials are better than those of his competitors---Such contract/temporary employees cannot claim legitimate expectation of absorption / regularization as they know when they were appointed that they were temporary inasmuch as government does not give and assurance of regularization without following regular recruitment process.

B.N. Nagarajan v. State of Karnataka (1979) 3 SCR 937 rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Equitable jurisdiction, exercise of---Principle---High Court does not exercise equitable jurisdiction in favour of a party where equitable considerations weigh against him or where his conduct in inequitable.

Ghulam Nabi Niazi for Appellant.

Saqlain Haider Awan, Learned Assistant Attorney-General with Mehmood Khan Lakho, S.O. (Establishment Division).

Muhammad Faisal Khan and MNA Rehan for A.E.D.B. for Respondents.

2020 P L C (C.S.) 1419

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

TARIQ LIAQAT

Versus

GENERAL MANAGER HUMAN RESOURCE OF MARI PETROLEUM COMPANY LTD. ISLAMABAD and others

Writ Petition No.1287 of 2020, decided on 19th May, 2020.

(a) Civil service---

----Contract appointment---Non-statutory rules---Master and servant, relationship of---Scope---Petitioner assailed verbal termination of his service and sought re-instatement in service---Validity---Petitioner was initially appointed on contract for a period of one year which was extended on yearly basis---Rules and Regulations of the employer were non-statutory---Relationship between the employee and employer was of that of master and servant, which was confirmed from the terms and conditions of the contract---Contract of appointment did not confer any right of regular appointment under any circumstance---Question of termination of services of petitioner could not be agitated under Art. 199 of the Constitution as the employee was governed under 'master and servant' relationship---Petitioner could approach the court of plenary jurisdiction to file suit for damages---Constitutional petition was dismissed, in circumstances.

Kamran Ahmed Mallah and others v. FOP through Secretary Ministry of Petroleum and Natural Resources and others 2019 PLC (C.S.) 41 distinguished.

Muhammad Tanveer v. Government of Pakistan and others 2012 PLC (C.S.) 807; Khawaja Muhammad Asif v. FOP PLD 2014 SC 206; Imran Ahmed v. Federation of Pakistan 2019 PLC (C.S.) 19 and First Women Bank Ltd. through Attorney v. Muhammad Tayyab and others 2020 PLC (C.S.) 86 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Master and servant, relationship of---Scope---Employees of Corporation or Company, in the absence of violation of any law or non-statutory rules cannot invoke constitutional jurisdiction of High Court.

Gohar Ali and another v. Messrs Hoechst Pakistan Limited 2009 SCMR 109; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 and Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278 ref.

Manzoor Ahmad Rehmani for Petitioner.

Barrister Omer Malik and Usman Ahmad Ranjha for Respondents Nos.1 to 5.

2020 P L C (C.S.) 1467

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

GHULAM NABI

Versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED (OGDCL) through Chief Executive/Managing Director and 2 others

W.P. No.4190 of 2017, decided on 7th May, 2020.

Civil service---

----Employees of Oil and Gas Development Company ("OGDCL")---Disciplinary proceedings ---Major penalty of dismissal of service---Verification of educational qualification of employees---Petitioner, an employee of OGDCL impugned office memorandum of respondent OGDCL whereby major penalty of dismissal from service was imposed on him, inter alia, on ground that he submitted fake matriculation certificate in order to obtain increments---Validity---Perusal of record revealed that officer of OGDCL authorized to proceed against petitioner had recommended that petitioner be exonerated from charge of forgery by giving him benefit of doubt---Said recommendation was not denied by OGDCL and had not been recalled and nothing on record showed as to why said recommendation was not accepted by OGDCL and no reasons were recorded by competent authority for not agreeing with said recommendation---High Court held that such omission rendered the impugned office memorandum liable to be set aside---Constitutional petition was allowed, accordingly.

Muhammad Zaheer Khan v. Government of Pakistan through Secretary Establishment 2010 SCMR 1554; Deputy Director Food v. Akhtar Ali 1997 SCMR 343; Roshan Dani v. WAPDA 2015 PLC (C.S.) 263 and Director-General, Military Land and Cantonment Department v. Dr. Capt. Nazeer Ahmed Baloch 2011 PLC (C.S.) 1527 rel.

Saliheen Mughal and Jameel Hussain Qureshi for Petitioner.

Kashif Ali Malik for Respondents.

2020 P L C (C.S.) 1492

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

SAFOORA HUSSAIN

Versus

The SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and others

W.P. No.4443 of 2018, decided on 15th November, 2019.

(a) Civil service---

----Up-gradation of post---Scope---Petitioner was appointed as a Cataloger in the year 2003 and was still performing her duties in the same post as there was no avenue of promotion of petitioner's post in the relevant Ministry---Only grievance raised in the petition was regarding her claim of up-gradation/re-designation and promotion of her position like other similarly placed employees of Federal Government---Validity---Case of petitioner came under the up-gradation policy, because other similar departments had provided different avenues for the promotion of Cataloger and Library Assistant which was not available in the respondent Ministry, although the Ministry was the best judge to settle such question but the Ministry did not demonstrate from record that it had any objection on up-gradation of the post in accordance with the policy---High Court disposed of constitutional petition with direction to the Ministry to consider the time frame on which petitioner had performed her duties as Cataloger, nature of duties, increase in work as well as higher qualification of the petitioner with the available avenues in the ministry for promotion of the petitioner on relevant post, if the ministry came to an opinion that no such post was available, it could transmit the case of the petitioner under the up-gradation policy as well as standardization of pay scales and recruitment rules for Librarians working in the Federal Government Organizations.

Federal Public Service Commission through Secretary v. Anwar ul Haq Private Secretary Islamabad and others 2017 SCMR 890 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

Chairman FBR, Islamabad v. Atta Muhammad Mashud and others 2017 PLC (C.S.) Note 58 rel.

(b) Civil service---

----Up-gradation of post---Scope---Up-gradation policy is meant for incumbents of isolated posts to address their frustration having sufficient length of service without any progression and promotion.

Federal Public Service Commission through Secretary v. Anwar ul Haq Private Secretary Islamabad and others 2017 SCMR 890 ref.

(c) Civil service---

----Up-gradation of post---Scope---Up-gradation of the post requires to establish that the department needs restructuring, reforming or to meet exigency of service in public interest and in absence of such conditions, the up-gradation is not permissible.

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

Chairman FBR, Islamabad v. Atta Muhammad Mashud and others 2017 PLC (C.S.) Note 58 ref.

(d) Civil service---

----Up-gradation of post---Scope---Up-gradation cannot be done for a particular individual or promotion or further to provide him or her avenue.

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

Chairman FBR, Islamabad v. Atta Muhammad Mashud and others 2017 PLC (C.S.) Note 58 ref.

Yasser Latif Hamdani and Barrister Omer Azad Malik for Petitioners.

2020 P L C (C.S.) 1516

[Islamabad High Court]

Before Aamer Farooq, J

ASHFAQ AHMED

Versus

FEDERATION OF PAKISTAN and others

W.P. No.2130 of 2019, decided on 1st October, 2020.

National Database and Registration Authority Ordinance (VIII of 2000)---

----S.3---Establishment of the Authority---Appointment of new members---Scope---Petitioner sought direction to the authorities to appoint new members of (National Database and Registration Authority) (NADRA) in terms of S.3 of National Database and Registration Authority Ordinance, 2000 and sought NADRA to decide his departmental appeal, which had not been decided despite lapse of two years---Validity---Subsection (3) of S.3 of National Database and Registration Authority Ordinance, 2000 showed that the Authority consisted of a Chairman and not less than five members to be appointed by the Federal Government---Subsection (6) of S.3 provided that in case of vacancy, the Federal Government shall within a period not exceeding sixty days, appoint a qualified person to fill such vacancy---Federal Government had failed to perform its obligation regarding appointment of members of the Authority rather it was bound to perform its functions in accordance with Constitution and law, which it had failed to do in the present matter---Constitutional petition was disposed of with directions to the Federal Government to expeditiously appoint members of the Authority and the competent authority to expeditiously decide the departmental appeal.

Hafiz Arfat Ahmad Chaudhry for Petitioner.

Raja Khalid Mahmood Khan, DAG with Sikandar Hayat, J.S. (A/S), Ministry of Interior.

Muhammad Ahmad Pansota for Respondent.

2020 P L C (C.S.) 1548

[Islamabad High Court]

Before Ghulam Azam Qambrani, J

Ms. IFFAT RANA and 2 others

Versus

FEDERATION OF PAKISTAN through Secretary (CAAD), Islamabad and another

Writ Petition No.1521 of 2014, decided on 28th July, 2020.

(a) Civil service---

----Assistant Nursing Superintendent---Up-gradation of post---Discrimination---Effect---Contention of petitioners was that post of Head Nurses (BPS-17) had been up-graded, whereas post of Assistant Nursing Superintendent (BPS-16) had not been up-graded, which was discrimination---Validity---Petitioners were appointed as Charge Nurses (BPS-14) and thereafter they were promoted to the post of Assistant Nursing Superintendents (BPS-16)---Charge Nurses junior to the petitioners had been promoted as Head Nurses and posts of Head Nurses had been up-graded---Post of Assistant Nursing Superintendent had not been up-graded which had created disparity between two parallel cadres---Ministry of Health had recommended that petitioners should be up-graded from the date of creation of post of Assistant Nursing Superintendent in BPS-17---Nurses working as Assistant Nursing Superintendent had become junior to the ones working as Head Nurses which had resulted in reversal of seniority of petitioners---Nurses similarly placed could not be treated differently---Authorities had treated petitioners with discrimination which act could not be recognized under the law---Authorities were directed to up-grade the post of Assistant Nursing Superintendent from the date when post of Head Nurses was up-graded, with all consequential benefits---Constitutional petition was allowed accordingly.

Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158; Market Committee, Multan through its Administrator and another v. Muhammad Sabir 1995 SCMR 305; Muhammad Ikram v. Principal and Chairman Admission Committee, Sukkur and 2 others 2014 MLD 1; M.Y. Labib-ur-Rehman v. Federation of Pakistan and others 2018 PLC (C.S.) Note 65; Government of N.-W.F.P. v. Buner Khan 1985 SCMR 1158; Islamic Republic of Pakistan v. Abdul Karim, Deputy, Accountant General, N.W.F.P. 1978 SCMR 289 and Abu Saeed v. Government of N.W.F.P. 1990 SCMR 1623 rel.

(b) Constitution of Pakistan---

----Art. 25---Equality before law---Scope.

Article 25 clearly provides that all citizens similarly placed are to be treated equally and not otherwise. The right to be treated equally is one of the fundamental rights guaranteed in Part II, Chapter I of the Constitution. Treating the persons differently and discriminately, who falls in the same category, by making divergent yardsticks would be mockery of law and cannot be permitted to continue in any manner.

Muhammad Umair Baloch for Petitioners.

Ch. Abdul Jabbar, AAG, Majid Khan, A.D. (Legal), Ministry of NHSRC and M. Anwar A.D. (Admn.) PIMS for Respondents.

2020 P L C (C.S.) 1558

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ALTAF HUSSAIN

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and another

F.A.O. No.47 of 2018, decided on 30th July, 2019.

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

----S.7(3)(d)---Limitation Act (IX of 1908), Ss. 5, 14 & 29(2)---Federal Public Service Commission---Appointment against the post of Section Officer---Appeal---Limitation---Condonation of delay---Candidature of appellant was rejected being ineligible to take part in the examination---Appellant moved review petition but same was dismissed---Validity---Appeal before High Court could be filed only against Commission's decision on a candidate's review petition---Limitation for filing an appeal before High Court was thirty days---Appellant had filed present appeal after six years---Appellant had moved application for condonation of delay and Court should decide the same first and if such application was allowed then case should be decided on merits---Section 5 of Limitation Act, 1908, did not apply on its own force to special or local laws but had to be made applicable to such laws through legislation---Legislature had not made S.5 of Limitation Act, 1908, specifically applicable to appeals filed under S.7(3)(d) of Federal Public Service Commission Ordinance, 1977---No provision of Limitation Act, 1908, had been made applicable to any proceedings under Federal Public Service Commission Ordinance, 1977, by the said Ordinance---Mere fact that Federal Public Service Commission Ordinance, 1977, did not expressly exclude the application of S.5 of Limitation Act, 1908, to the proceedings conducted under the said Ordinance would by itself not extend the application of S.5 of Limitation Act, 1908 to such proceedings---Federal Public Service Commission Ordinance, 1977 was a special law and application of S.5 of Limitation Act, 1908 had been excluded by S.29(2) of the said Act---Appellant's application under S.5 of Limitation Act, 1908, for condonation of delay in filing the present appeal was not maintainable in circumstances---Section 14 of Limitation Act, 1908, did not come to the aid of appellant who had been prosecuting his remedy against an appealable order before a wrong forum---Delay in filing appeal could not be condoned under S.14 of Limitation Act, 1908 in circumstances---Application for condonation of delay and appeal were dismissed.

Muhammad Amir v. Muhammad Sarfraz 2019 CLD 523; Muhammad Khalid Naeem v. Habib Bank Limited 2018 CLD 1027; Raja Karamat Ullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892; Noor Muhammad v. Assistant Commissioner, Vehari 1986 SCMR 292 and Abdul Aziz v. Additional Settlement Commissioner 1984 SCMR 1562 ref.

Mahmud Alam v. Mehdi Hussain PLD 1970 Lah. 6; Government of Balochistan v. Abdul Rashid Langove 2007 SCMR 510; Haji Hussain Haji Dawood v. M.Y. Kherati 2002 SCMR 343; Rahim Jan v. Securities and Exchange Commission of Pakistan 2002 SCMR 1303; Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540; Allah Dino v. Muhammad Shah 2001 SCMR 286; Riaz Hussain v. Board of Revenue 1991 SCMR 2307; Ali Muhammad v. Fazal Hussain 1983 SCMR 1239; Furqan Habib v. Government of Pakistan 2006 SCMR 460; Syed Haji Abdul Wahid v. Syed Siraj Uddin 1998 SCMR 2269; Khan Muhammad v. Senior Superintendent of Police 1989 SCMR 589; Sherein v. Fazal Muhammad 1995 SCMR 584; Sibtain Raza Naqvi v. Hydrocarbon Development 2012 SCMR 377; Khushi Muhammad v. Fazal Bibi PLD 2016 SC 872 and Ameerullah Khan v. Mst. Nisar Begum PLD 2016 Pesh. 49 rel.

(b) Maxim---

----"Ignorantia juris non excusat" : Ignorance of law is no excuse.

Sayyid Murtaza Ali Pirzada for Appellant.

Muhammad Nadeem Khan Khakwani, learned Assistant Attorney-General, Mahmood Ullah Khan, A.D. (Legal), F.P.S.C. for Respondents.

2020 P L C (C.S.) 1585

[Islamabad High Court]

Before Athar Minallah, CJ

Syed MOHAMMAD MUSTAHSAN BUKHARI and 2 others

Versus

FEDERATION OF PAKISTAN through Ministry of Inter-Provincial Coordination, Islamabad and 12 others

W.P. No.4481 of 2012, heard on 13th February, 2020.

Sports (Development and Control) Ordinance (XVI of 1962)---

----Ss.3, 4 & 5--- Pakistan Sports Board Rules, 1981, R.17---Contract appointment---Regularization of service---Direction by Federal Government---Scope---Petitioners were employees of Pakistan Sports Board and were aggrieved of regularization of services of respondents, who were employed on contract basis for various projects--- Validity--- Legality of initial appointment of respondents under regularization policy was a mystery and was to be probed---Respondents were appointed for respective projects on contract basis and they were not transferred nor posts were created correspondingly--- Respondents could not have been adjusted against vacant posts of Sports Board--- Appointment / adjustment of respondents against post of the Board was illegal, void and ultra vires the Sports (Development and Control) Ordinance, 1962, read with Pakistan Sports Board Rules, 1981--- High Court directed the Sports Board to relieve the respondents forthwith and their legal status would be determined by Federal Government---Constitutional petition was allowed, in circumstances.

Application by Abdul Rehman Farooq Pirzada PLD 2013 SC 829 and Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327 ref.

Nauman Munir Paracha for Petitioners.

M. Saifullah Gondal, Assistant Attorney General, Barrister Iqbal Khan Nasar and Muhammad Irfan Ullah for Respondents.

2020 P L C (C.S.) 1

[Sindh High Court]

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

MUHAMMAD MATEEN KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior Islamabad and 3 others

Constitution Petition No.D-571 of 2016, decided on 28th March, 2018.

(a) National Database and Registration Authority Employees (Service) Regulations---

----Regln.11(5)---Non-statutory rules of service---Effect---Contract employee of National Database and Registration Authority---Appointment on the basis of fake documents---Termination from service---Scope---Contention of employee was that he was removed from service without holding proper inquiry into the allegations against him---Validity---Documents produced by the employee for his appointment were found fake---No appointment could be obtained on the basis of fake documents---Appointment of employee was of contractual nature which could be terminated on the expiry of contract period or any extended period on the choice of employer or appointing authority---Case of employee was governed by the principle of 'master and servant'---Petitioner did not have any vested right to seek reinstatement in service---Contract employee could not claim any vested right even for regularization of service---Employee was issued show cause notice which was replied by him---Petitioner was provided opportunity to rebut the allegation but he failed to do so---Service of contract employee could be terminated on 14 day's notice or pay in lieu thereof---Authority had no ostensible reason to put false allegation of submission of forged documents against the petitioner---Employee had failed to establish that he had any fundamental or vested right to remain on contractual post---Where conditions of service of employees of a statutory body were not regulated by rules/regulations framed under the Statue then any violation thereof could not be enforced through writ jurisdiction of High Court---Constitutional petition was dismissed being not maintainable, in circumstances.

Muhammad Rafi and others v. Federation of Pakistan and others 2016 SCMR 2146; Deputy District Officer (Revenue) Kasur and others v. Muhammad Muneer Sajid 2013 SCMR 279; Province of Punjab and others v. Raja Muhammad Saleem and others 2006 SCMR 740; Supreme Court (AJ&K) Ahsan Ur Rehman and 10 others v. Arshad Ali Khan and 5 others 2012 PLC (C.S.) 795; Raees-ud-Din v. Naseer Anwar and others 2011 SCMR 98; Noor Muhammad Lambardar v. Member Board of Revenue Punjab Lahore and others 2003 SCMR 708; Ch. Fayyaz Akbar v. Delight House Ltd. PLD 1988 SC 76; A.R. Khan v. P.N. Boga through Legal heirs PLD 1987 SC 107; Matloob Khawar and others v. Karan Elahi and others 1986 SCMR 1254 and District Officer Shikhopura and others v. Tariq Mehmood 2013 SCMR 859 ref.

M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others 1994 SCMR 1024 and Chairman NADRA, Islamabad through Chairman, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979 rel.

(b) Constitution of Pakistan---

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

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Where conditions of service of employees of a statutory body were not regulated by rules/regulations framed under the Statue then any violation thereof could not be enforced through constitutional jurisdiction of High Court.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court could not be invoked by a contractual employee of a statutory organization.

(e) Civil service---

----Contract employee---Termination of service---Contract employee did not have any vested right to seek reinstatement into service.

Muhammad Nishat Warsi for Petitioner.

Abdul Wasay Khan Kakar, DAG.

Choudhary Muhammad Farooq, Assistant Director (Legal) RHO, NADARA, Karachi.

2020 P L C (C.S.) 24

[Sindh High Court]

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

NABEELA ASHFAQ

Versus

FEDERATION OF PAKISTAN through Secretary Defence and 3 others

C.P. No. D-562 of 2012, decided on 7th March, 2018.

(a) Civil service---

----Contract employee sought regularization of service from the date of her initial appointment---Validity---Regularization of employees was not part of the terms and conditions of service and same would depend upon the length of service---Employee was appointed on contract basis on 19-09-1994 and since then she had been serving in the Corporation---Colleagues of the employee had been absorbed in the Corporation---Discrimination had been made with the petitioner in circumstances, by the Corporation---Impugned orders passed by the Corporation were declared to be erroneous and of no legal effect---Employer Corporation could not adopt a policy of its own wish and will to make fresh appointment against the posts already held by the employee who had been appointed after going through a transparent procedure---Nothing was on record that employee was inefficient in the field, even she had experience of twenty years in the employer-Corporation---Competent authority was directed by the High Court to consider the case of the employee without any discrimination for regularization of her service in accordance with law---Constitutional petition was disposed of in accordingly.

Pakistan International Airline Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831; PIA Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545; I.A. Sharwani and 14 others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 and Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 rel.

(b) Constitution of Pakistan---

----Art. 5---State functionaries are bound to abide by the Constitution and law.

Faizan Hussain Memon for Petitioner.

Usman Tufail Shaikh for Respondents Nos.2 to 4.

Shaikh Liaquat Hussain, Assistant Attorney General.

2020 P L C (C.S.) 50

[Sindh High Court]

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

ABDUL QAYOOM SOLANGI and another

Versus

PROVINCE OF SINDH through Chief Secretary and others

C.Ps. Nos. D-965 of 2016 and D-6498 of 2014, decided on 25th January, 2018.

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

----Rr. 9-A, 3(2), 4, 6-A & 7---Surplus employee of a defunct department---Absorption---Conditions---Non-Civil servant---Absorption in Government Department---Scope---Petitioner being employee of defunct Sindh Agricultural Supplies Organization was absorbed in Excise and Taxation Department as Inspector (BS-14)---Excise and Taxation Department repatriated the employee to determine his status whether his initial appointment was as Junior Clerk (BS-5) or Assistant (BS-11)---Validity---Person who had been rendered surplus could be appointed by transfer to any post in a department or office in the Government subject to his eligibility and qualification to such office---Such person was to be appointed to a post of equivalent or comparable basic scale and if such post was not available then to a post of lower basic scale---Seniority of such person to the post was to be reckoned at the bottom of the seniority list from the date of such appointment---Non-civil servant could not be appointed by transfer to any other department or organization controlled by the Government to a post which had restricted transfer under R.3(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Competent authority while making appointment by transfer could not lose sight of the conditions prescribed under Rr. 4, 6-A & 7 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Petitioner-employee belonged to Sindh Agricultural Supplies Organization whose employees were non-civil servants---Petitioner could not be allowed to be absorbed/retained in Excise and Taxation cadre---Non-civil servant could not be conferred the status of a civil servant, which employee had acquired by absorption in Excise and Taxation Department---No department could be allowed to absorb any employee of another cadre---Order passed by the competent authority for absorption/retaining the employee in Excise and Taxation cadre was not sustainable in law---Competent authority was directed by the High Court to take decision whether employee's initial appointment in defunct department was as Junior Clerk or Assistant and pass appropriate order as provided under R. 9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Constitutional petition was disposed of in circumstances.

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

(b) Fundamental Rules, 1922---

----R.9(4)---'Cadre'---Meaning---"Cadre" means the strength of a Service or a part of a service sanctioned as a separate unit.

Muhammad Bachal Memon and others v. Syed Tanveer Hussain Shah and others 2014 SCMR 1539 rel.

Tehmas Rizvi for Petitioner (in C.P. No.D-965 of 2016).

Abdul Salam Memon for Respondent No.1. (in C.P. No.D-6498 of 2014).

Abdul Jalil Zubedi, A.A.G.

2020 P L C (C.S.) 67

[Sindh High Court]

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

Maj (R) Syed MUHAMMAD TANVEER ABBAS and others

Versus

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

C.Ps. Nos.D-6555 of 2016 and D-931 of 2017, decided on 12th March, 2018.

(a) Civil service---

----Contract employee of National Database and Registration Authority---Sought regularization of service---Non-statutory rules of service---Effect---If a service grievance was agitated by an employee who was not governed by the statutory rules of service his constitutional petition was not maintainable---Where conditions of service of employees of a statutory body were not regulated by rules/regulations framed under the statute, any violation thereof could not be enforced through constitutional petition---Constitutional petition being not maintainable was dismissed, in circumstances.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Abdul Wahab and others v. HBL and others 2013 SCMR 1707; Pakistan Defence Officers Housing Authority v. Lt. Col. Syed Jawed Ahmed 2013 SCMR 1707; Muhammad Rafi and others v. Federation of Pakistan and others 2016 SCMR 2146; Muhammad Musa v. Habib Bank Limited and others 2012 SCMR 979; Iqbal Hussain Sheikh and 2 others v. Chairman Federal Board of Revenue and another 2013 SCMR 281; Government of Balochistan Department of Health through Secretary v. Dr. Zahida Kakar and 43 others 2005 SCMR 642, Chief Secretary Government of Sindh and others v. Al-Haj Professor Syed Sibte Hassan Zaidi 2005 SCMR 646; Trustees of the Port of Karachi v. Saqib Samdani 2012 SCMR 64; Tehsil Municipal Officer and another v. Gul Fraz Khan 2013 SCMR 13; Ameer Solangi and others v. WAPDA and others 2016 SCMR 46; Mubashar Majeed v. Province of Punjab and 3 others 2017 PLC (C.S) 940; Saeed Ahmed Sethar v. Province of Sindh and others 2016 PLC (C.S) 589; Miss Mehwish Asif v. Vice-Chancellor Shaheed Benazir Bhutto University and 2 others 2016 MLD 95; Lt. Col. (Retd.) Sultan Zeb Khan v. Board of Governors, Fazle Haq College Mardan and 5 others 2015 PLC (C.S.) 1385; PIA Corporation v. Syed Suleman Alam Rizvi and others PLD 2015 SC 1545 and Pakistan Telecommunication v. Iqbal Nasir and others PLD 2011 SC 132 rel.

Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; Chairman NADRA and others v. Muhammad Ali Shah 2017 SCMR 1979; Abdul Wahab and others v. HBL and others 2013 SCMR 1383 and Muhammad Zaman and others v. Government of Pakistan 2017 SCMR 571 rel.

Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 and Chairman NADRA and others v. Muhammad Ali Shah 2017 SCMR 1979 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---If a grievance is agitated by an employee who is not governed by the statutory rules of service, constitutional petition is not maintainable; however, where conditions of service of employees of a statutory body were not regulated by rules/regulations framed under the statute, any violation thereof could not be enforced through constitutional petition.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 and Muhammad Zaman and others v. Government of Pakistan 2017 SCMR 571 rel.

(c) Civil service

----Contract/probation employee--- when a person is to be condemned for the misconduct and even if he is employed on contract basis or probation, he is entitled to fair trial and sufficient opportunity to clear his position.

Malik Naeem Iqbal for Petitioners in both the Petitions.

Abdul Wasay Khan Kakar, D.A.G.

Ghulam Hassan for NADRA.

Choudhary Muhammad Farooq Assistant Director (Legal) RHO, NADRA, Karachi.

2020 P L C (C.S.) 80

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

SANJAY KUMAR

Versus

SIEMENS PAKISTAN ENGINEERING COMPANY LTD., through Director and 4 others

Suit No.900 and C.M.As. Nos.6645, 6646 of 2018, decided on 13th September, 2018.

(a) Master and servant---

----Contract between master and servant---Enforceability---Scope---Injunction, grant of---Scope---Plaintiff filed suit against his termination; claimed that notwithstanding termination, he continued to perform his duties and attended training workshops and that he was approached by an officer of the employer company for re-employment and therefore, by such conduct the letter of termination stood withdrawn---Validity---Relationship between plaintiff and defendant was governed by the rule of master and servant, as the defendant was a private organization---Terms and conditions of plaintiff's service provided that his service was subject to termination at any time after confirmation, subject to six weeks' notice or on payment of six weeks' salary in lieu of notice period---Defendant had acted strictly in accordance with the terms of employment, which were admitted---Plaintiff could not plead against such terms and conditions---Employee in a private organization could not be imposed or thrusted upon his employer---Master could always refuse to continue with employment of any of his employees, could come forward to pay compensation for breach of contract of service and could always say that the employee would not be re-engaged in service---Contract for personal services could not be specifically enforced in terms of S.21(b) of Specific Relief Act, 1877---Breach of contract of service gave rise to only two reliefs i.e. specific performance and damages and where the specific performance was barred in law then the only relief available was damages--Purported offer to re-engage could not be construed as to giving an employment to plaintiff---No relief of injunction could be granted to the plaintiff as he had failed to make out any prima facie case for indulgence, whereas, neither balance of convenience was in his favour nor any irreparable loss would be caused to him as adequate compensation as agreed by him---Application for grant of interim injunction was dismissed.

Muhammad Jan v. Nasim Gul General Manager Shaheen Airport Services, Peshawar 2006 PLC 444 ref.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 and Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 rel.

(b) Master and servant---

----Private organization---Scope---Employee in a private organization cannot be imposed or thrusted upon his employer.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 and Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 rel.

(c) Master and servant---

----Servant cannot be forced upon his master---Master can always refuse to continue with the employment of any of his employees and may come forward to pay compensation for breach of contract of services and can say that the employee would not be re-engaged in service.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 and Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 rel.

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

----S. 21(b)---Contract to render personal service---Master and servant, relationship of---Scope---Contract for personal services cannot be specifically enforced in terms of S.21(b) of Specific Relief Act, 1877---Breach of contract of service gives rise to only two reliefs i.e. specific performance and damages---Where the specific performance is barred in law then the only relief available is damages.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 and Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 rel.

(e) Master and servant---

----Where master, allegedly in breach of contract, refuses to employ the servant, the only right which survives for the employee is the right to damages and nothing else.

Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 and Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 rel.

Ms. Fareeda Mangrio for Plaintiff.

2020 P L C (C.S.) 101

[Sindh High Court]

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

NAZIA KHAN

Versus

PROVINCE OF SINDH through Secretary Education and 3 others

Constitutional Petition No. D-2831 of 2015, heard on 16th October, 2018.

Civil service---

----Appointment against the post of Female Junior School Teacher (Science)---Male and female candidates could apply for the advertised posts---Appointment of male candidate due to non-availability of female candidate---Discrimination---Effect---Petitioner, female candidate got first position in the Union Council for appointment as Junior School Teacher (Science) but she was not appointed on the ground that there was no vacancy available for a female candidate and male candidate was appointed---Validity---Petitioner obtained higher marks than the male candidates---Department did not consider the petitioner for appointment and male candidate was appointed---Department had made discrimination in the services, in circumstances---No citizen otherwise qualified for appointment in the service of Pakistan should be discriminated with regard to any such appointment only on the ground of race, religion, caste, sex, residence or place of birth---Female candidates could not be deprived to participate in the recruitment process---Department had deprived the petitioner being female gender for the post in question on wrong plea that there was no vacancy for female candidates in the concerned Union Council---Impugned selection and appointment was not in accordance with Art. 27 of the Constitution---Petitioner had made her case for appointment for the post in question---Authority was directed to issue appointment order in favour of petitioner against the post in question within a period of one month---Constitutional petition was allowed, accordingly.

Mahmood Habibullah for Petitioner.

Waqarullah Korejo, Law Officer of Educational Department.

Shahryar Mehar, Assistant Advocate-General Sindh.

2020 P L C (C.S.) 113

[Sindh High Court]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Ms. SABA

Versus

The PROVINCE OF SINDH through Secretary and 2 others

C.P. No.D-2650 of 2019, decided on 17th May, 2019.

(a) Civil service---

----Preliminary test---Appointment of Additional District and Sessions Judges---Test of candidates---Leakage of a question paper---Cancellation of test---Holding of retest---Proportionality, principle of---Applicability---Preliminary test was cancelled due to leakage of a question paper and authority ordered for retest---Validity---Credibility of preliminary test had become doubtful---Petitioner had failed to demonstrate violation of any Fundamental Right---Mere appearance in the preliminary test result of which was not announced did not create any vested right in favour of the petitioner---Fair opportunity after scrapping the first test had been afforded to all the candidates to re-sit in the retest but petitioner had failed to sit in the same---No discrimination had been caused to the petitioners in circumstances---Leakage of a question paper was sufficient to besmirch and taint the preliminary test and for a retest---No official result had been announced of cancelled test and petitioner had calculated her marks on the basis of answer key---Self-calculation by the petitioner of her marks did not justify to allow her to sit in the second written test without participation in the retest---No impediment existed for the petitioner to opt the retest/retake examination but she herself had failed to avail that fair opportunity---Allowing petitioner to sit in the second written test without qualifying retest would be discrimination to those candidates who had sit in the preliminary test and after cancellation they had again sit in retake without any demur and doubts---Court under Art.199 of the Constitution could not exercise unfettered or unrestricted power to administer equity not based on justifiable foundation---Court could quash exercise of discretionary powers in which there was no reasonable relation between the objective which was sought to be achieved and the means used to that end or where punishment imposed by administrative bodies or inferior Courts were out of proportion---Decision taken for the retest was proportionate, well balanced and harmonious---No illegality and impropriety had been pointed out in the impugned order for retest---Constitutional petition was dismissed in limine.

Darakhshan Jahan v. Province of Sindh PLD 2011 Kar. 212 and Sh. Muhammad Sadiq v. FPSC 2013 SCMR 264 rel.

Arpad Toth v. David Michael Jarman [2006] EWCA Civ 1028 distinguished.

Asdullah Mangi v. PIAC 2005 SCMR 445; Sohail Ahmed v. Province of Sindh 2017 PLC (C.S.) 510; Gulf News, April 1, 2018; Khaleejtimes.Com, March 29, 2018; Duniya News, 6th October, 2017; BBC News 13th October, 2016; The Indian Express March 29, 2018; The Supreme Court India; Aljazeera 20th June, 2016; Tribune, Karachi, October 30th, 2012; The Express Tribune Blogs, June, 5th 2013; Cambridge International Examination Board; The Daily Star Bangladesh, August 16th 2018; Independent News for International Students; bdnews 24.com. Bangladesh, 18th February, 2018; Chairman, All India Railway Rec. Board v. K. Shyam Kumar and others Civil Appeal 5675-77/2007; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 and Wednesbury and Proprtionality - Wednesbury rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Vested right of petitioner---Requisites.

The right which is foundation of an application under Article 199 of the Constitution is a personal. The legal right may be a statutory right or a right recognized by law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence to give jurisdiction to the High Court in the matter. The object of the proceeding initiated under Article 199 of the Constitution is the enforcement of a right and not the establishment of legal right and therefore, the right of petitioner must not only be clear and complete but simplicitor and there must be an actual infringement of the right.

A vested right is free from contingencies but not in the sense that it is exercisable anywhere and at any moment. There must always be occasions at which and circumstances under which the right may be exercised. Such rights have peculiar characteristics of their own. So far as plea of discrimination, it always involves an element of unfairness and bias. The factum of bias could not be substantiated without any convincing evidence. A Court of Law cannot exercise unfettered or unrestricted powers to administer equity not based on justiciable foundation but it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted.

Ghulam Asghar Pathan and Irshad Ali Shar for Petitioner.

Petitioner is also present.

Salman Talibuddin, Advocate General Sindh.

Mukesh Kumar G. Karara for Respondent No.3.

Hatim Aziz Solangi, Additional MIT-I, Sindh High Court, Karachi present.

2020 P L C (C.S.) 138

[Sindh High Court]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

SULTAN AHMED SHAIKH

Versus

Messrs SUI SOUTHERN GAS COMPANY LTD. through Managing Director Chief Executive and 3 others

C.P. No. D-6572 of 2016, decided on 31st May, 2019.

(a) Master and servant---

----Promotion---Suit for declaration, specific performance and recovery of damages---Maintainability---Plaint, rejection of---Scope---Contention of employee was that he had been ignored for the promotion as Deputy Chief Engineer---Department filed application for rejection of plaint which was dismissed by the Trial Court but Appellate Court accepted the same---Validity---Defendant-establishment had no statutory Rules of service which could have been invoked for redressal of grievance by filing constitutional petition---Relationship of master and servant existed between the parties ---Employee in the present case could only file a suit for declaration for alleviation and extenuating his grievances---Trial Court had rightly observed that employee had also claimed damages and matter could not be decided without adducing evidence---Promotion could not be claimed as vested right but same was to be granted on fulfillment and meeting the eligibility criteria provided under promotion policy of the management---Eligibility and fitness were two different attributes and characteristics which could be decided only by the departmental promotion committee---Nothing was on record that case of employee was sent for consideration by the departmental promotion committee and same was turned down---Employee should have been afforded fair opportunity to produce required evidence in the Trial Court to justify his claim of damages---Trial Court had not committed any illegality while dismissing the application for rejection of plaint---Impugned order passed by the Revisional Court was set aside in circumstances.

1987 SCMR 598; 2004 SCMR 497; 2008 PLC (C.S) 255; PLD 2008 SC 395; 2010 PLC (C.S) 888; 2016 SCMR 1021; 2018 PLC (C.S) 398; PLD 2003 SC 110 and 2004 MLD 542 ref.

Messrs Aroma Travel Services (Pvt.) Ltd. and others v. Faisal Al Abdullah Al Faisal Al Saud 2017 YLR 1579; Rana Imran v. Fahad Noor Khan 2011 YLR 1473; Ghulam Ali v. Asmatullah 1990 SCMR 1630; Jewan v. Federation of Pakistan 1994 SCMR 826; Saleem Malik v. Pakistan Cricket Board (PCB) PLD 2008 SC 650; Sadiq Amin Rahman v. PIAC 2016 PLC Lab. 335 and Shariq-ul-Haq and others v. Pakistan International Airlines Corporation Limited 2018 PLC (C.S.) 975 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court under constitutional jurisdiction could examine the legality of an order passed by the Courts below and rectify, rescind and alter the same if Courts below had acted beyond their domain and jurisdiction.

Gouranga Mohan Sikdar v. The Controller of Import and Export PLD 970 SC 158 and Halsbury's Laws of England, 4th Edition, Volume-1, para 1531 rel.

Syed Abrar Ahmed Bukhari for Petitioner.

Asim Iqbal for Respondent No.1.

Jawas Dero, Additional Advocate-General Sindh.

2020 P L C (C.S.) 160

[Sindh High Court]

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

Shaikh AADIL JAMAL

Versus

The FEDERATION OF PAKISTAN and others

C.P. No.D-2442 of 2014, decided on 19th March, 2018.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Petitioner, President of Sui Southern Gas Company Trade Union Sought transfer of shares of Government to the employees of Sui Southern Gas Company---Expression "aggrieved person"---Scope---Contention of petitioner was that he did represent the workers of the Company and had right to agitate the malpractices and discriminatory attitude of the Company---Validity---Petitioner was not an 'aggrieved person' and had no locus standi to invoke constitutional jurisdiction of High Court---Constitutional petition was dismissed accordingly.

Mian Fazal Deen v. Lahore Improvement Trust and another PLD 1969 SC 223 ref.

Messrs Gadoon Textile Mills and others v. WAPDA and others 1997 SCMR 641 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Availability of alternate remedy to petitioner---Satisfaction of Court---Scope.

Article 199 of the Constitution lays emphasis (i) on the satisfaction of the Court about the absence of any adequate remedy available under the law to the person/party invoking the jurisdiction of High Court under the said Provisions of the Constitution and (ii) that the party is to be an aggrieved one which conditions have not been prescribed under sub-clause (b) of clause (1) of Article 199 of the Constitution. It is sine qua non for invoking the jurisdiction of High Court through a Constitutional Petition.

Sohail Hameed for Petitioner.

Jamshed Ahmed Malik for Respondents Nos.1 and 10.

Asim Iqbal for Respondents Nos.2, 3, 6, 8 and 9.

Shaikh Liaquat Hussain, Assistant Attorney General for Respondents Nos. 4 and 5.

2020 P L C (C.S.) 176

[Sindh High Court]

Before Adnan-ul-Karim Memon and Adnan Iqbal Chaudhary, JJ

Mst. JAMEELA

Versus

PROVINCE OF SINDH and others

C.Ps. Nos. D-4250 and 4251 of 2012, heard on 7th November, 2017.

(a) Civil service---

----Appointment against the post of Junior School Teacher---Petitioner sought appointment on the basis of consent order passed in the earlier constitutional petition---Validity---Earlier appointments were made in the department on the basis of order passed by the High Court with the consent of the parties---Petitioners could not rely upon the consent order passed by the High Court---Petitioners had failed to refer any judgment of High Court which had allowed the petition of successful candidates on merits---Constitutional petition was dismissed in circumstances.

Hameed Akhtar Niazi v. The Secretary Establishment Division 1996 SCMR 1185 ref.

(b) Precedent---

----Consent order could not be cited as precedent.

Syed Shoa-un-Nabi for Petitioner (in C.P. No.4250 of 2012).

Mitha Ram Dahrani for Petitioners (in C.P. No.4251 of 2012).

Abdul Jalil Zubedi, A.A.G.

Waqarullah Korejo, Law Officer Education Department, Government of Sindh.

2020 P L C (C.S.) 204

[Sindh High Court]

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

ASIF HUSSAIN

Versus

The FEDERATION OF PAKISTAN through Secretary Ministry of Ports and Shipping and 9 others

C.P. No.D-4716 of 2016, decided on 15th March, 2018.

(a) Port Qasim Authority Employees Service Regulations, 2011---

----Regln. 24---Port Qasim Authority Act (XLIII of 1973), S. 50--- Employee of Port Qasim Authority---Promotion against the post of Electrician---Requisite qualification being B-Tech (Elect) or Diploma of Associate Engineer (Elect)---Contention of petitioner was that he applied for the post in question but he was not considered and respondents had been appointed against the Rules---Validity---Respondents had Diploma of Associate Engineer in (Electric) which was the basic criteria for appointment on the post in question---Merit did include qualification for certain posts in statutory/public sector organization---Power to prescribe or modify the said criteria did vest with the Federal Government for appointment in public sector companies---Court was to refrain from interfering in policy making domain of the Executive---Board of Port Qasim Authority was empowered to appoint such officers and servants as it might consider necessary for the performance of its functions on such terms and conditions as it might deem fit---Chairman Port Qasim Authority was competent to approve certain changes of the permanent post in pay scale on fulfillment of other formalities prescribed by the Board---Issue involved in the present matter was a policy decision taken by the competent authority---No illegality or mala fide had been pointed out in the decision with regard to appointment of respondents---Constitutional petition was dismissed, in circumstances.

Muhammad Akram v. Selection Committee 2003 CLC 18 ref.

Ghulam Rasool v. Government of Pakistan and others PLD 2015 SC 6 ref.

(b) Constitution of Pakistan---

----Art. 199---Powers and Scope of High Court to issue writ of quo-warranto.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 and Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 rel.

Danish Rashid Khan for Petitioner.

Muhammad Arshad Khan Tanoli for Respondents Nos. 2 to 4.

Zohaib Khalid for Respondents Nos. 5 to 9.

Ali Safdar Deeper for Respondent No.10.

Shaikh Liaquat Hussain, Assistant Attorney General.

2020 P L C (C.S.) 220

[Sindh High Court]

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

Mst. MARINA through her Attorney

Versus

PROVINCE OF SINDH through Secretary Education and 2 others

Constitutional Petition No.D-4441 of 2016, decided on 1st June, 2018.

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

----Rr. 12, 14 & 15---Civil service---Appointment against the post of Primary School Teacher---Submission of domicile certificate after cutoff date fixed in the advertisement---Cancellation of appointment by the District Recruitment Committee---Scope---Petitioner having qualified written test and interview was appointed as Primary School Teacher but her appointment was cancelled by District Recruitment Committee on the premise that she had submitted her domicile certificate after cutoff date as mentioned in the advertisement---Validity---Petitioner had already been declared successful candidate in written test and interview and appointed for the post in question---Submission of domicile certificate after cutoff date did not debar the petitioner for appointment and she should have been afforded time to do the needful---District Recruitment Committee was not competent to cancel appointment of the petitioner as decisive step had already been taken by issuance of offer letter and appointment in favour of petitioner coupled with her joining of service---Decision of District Recruitment Committee for cancellation of appointment of petitioner for the post in question was erroneous and not sustainable under the law---Constitutional petition was allowed, accordingly.

(b) Words and phrases---

----'Qualification'---Meaning.

Syed Fazal-ur-Rehman for Petitioner.

Waqarullah Korejo, Law Officer of Education Department.

Shahryar Mehar, Assistant Advocate-General Sindh.

2020 P L C (C.S.) 239

[Sindh High Court]

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

Dr. AHSANULLAH KHAN WAZIR

Versus

GOVERNMENT OF SINDH through Chief Secretary and others

C.P. No.D-5918 of 2017, decided on 15th August, 2018.

Civil service---

----Contract appointment---Allegation of misconduct---Termination from service---Scope---Contract appointment could be terminated on the expiry of contract period or any extended period at the choice of employer or appointing Authority---Case of petitioner was governed by the principle of master and servant---Contract employee did not have any vested right to seek reinstatement or regularization of service---Petitioner was a temporary employee and was issued notice for explanation which he replied---Explanation submitted by the petitioner was found unsatisfactory by the competent authority---Opportunity of show-cause notice could be afforded to an employee holding permanent post---Constitutional petition was dismissed, in circumstances.

Nadeem Ahmed Pirzada for Petitioner.

Shehryar Mehar, Assistant Advocate General.

2020 P L C (C.S.) 245

[Sindh High Court]

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

FAZL-E-AKBAR

Versus

PAKISTAN DEFENCE HOUSING AUTHORITY through Administrator

Constitutional Petition No.D-1595 of 2017, decided on 26th February, 2018.

Pakistan Defence Officers Housing Authority Service Rules, 2008---

----Preamble---Employee of Pakistan Defence Officers Housing Authority---Termination of Service---Non-statutory rules of service---Effect---Contention of employee was that impugned order for termination was without jurisdiction---Validity---Employees of Pakistan Defence Officers Housing Authority could not approach High Court in constitutional jurisdiction as they were regulated by Pakistan Defence Officers Housing Authority Service Rules, 2008 which were non-statutory in nature---Petitioner could avail any other remedy available to him under the law---Constitutional petition was dismissed, in circumstances.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Defence Housing Authority v. Lt. Col. Javed Ahmed 2013 SCMR 1707 and Muhammad Zaman and others v. Government of Pakistan 2017 SCMR 571 ref.

Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 rel.

Tariq A. Memon for Petitioner.

Malik Naeem Iqbal for Respondent.

2020 P L C (C.S.) 268

[Sindh High Court]

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

Mian SYED HUSSAIN and 13 others

Versus

PROVINCE OF SINDH through Secretary Food Department and others

C.P. No.D-333 of 2016, decided on 3rd September, 2018.

Civil service---

----Petitioner sought direction for issuance of posting order---Bar of jurisdiction contained in Art.212 of the Constitution---Effect---Petitioners filed appeal before Service Tribunal but same was dismissed and thereafter present constitutional petition had been filed---Held, High Court could not entertain grievance of petitioners in view of the bar contained under Art. 212 of the Constitution---Matter did fall within the exclusive domain of Supreme Court being Appellate Court against the decision of Service Tribunal---Petitioners might avail appropriate remedy as provided under the law---Constitutional petition was dismissed, accordingly.

Manzoor Hussain Chandio and others v. Province of Sindh and others 2009 PLC 925 ref.

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

Petitioiner No.1 present in person.

Ali Safdar Deepar, State Counsel.

2020 P L C (C.S.) 326

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ

ASIFA JAWED

Versus

FEDERATION OF PAKISTAN through Military Accountant General and 3 others

Constitutional Petition No.D-7114 of 2016, decided on 7th August, 2019.

Civil service

----Family of deceased government employee---Entitlement---Lump sum payment of cash in lieu of plot at prescribed rate---Scope---Office Memorandum revising policy of such payment---Retrospective effect---Applicability---Petitioner (widow) sought employee benefit on basis of an Office Memorandum passed at subsequent stage--- Validity--- Subsequent Office Memorandum did not benefit petitioner because it could not be applied retrospectively as desired by petitioner as husband of petitioner passed away on 17-07-2012 whereas notification was issued by authorities on 20-10-2014 and subsequent Office Memorandum was passed on 04-12-2015--- Office Memorandum was clear in its terms that since facility was revised by Government under which widow of family of deceased government employee was entitled for lump sum payment of cash in lieu of plot at prescribed rates instead of 2% quota for allotment of plot--- Petitioner was entitled for allotment of plot only against 2% quota fixed for deceased employees as per policy of Federal Government Employees Housing Foundation (FGEHF) for which petitioner was required to apply as and when any scheme was announced by FGEHF--- High Court directed authorities to consider case of petitioner (widow) against 2% quota for allotment of plot as per policy and her entitlement---Constitutional petition was disposed of accordingly.

Faisal Ikram for Petitioner.

Muhammad Nishat Warsi, D.A.G.

2020 P L C (C.S.) 345

[Sindh High Court]

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

ABDUL HAMEED SOLANGI and others

Versus

GOVERNMENT OF SINDH through Secretary Education and Literacy Department and others

C.P. No. D-2722 of 2018, decided on 17th May, 2018.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Illegal appointments---Stoppage of salaries---Supreme Court gave direction for inquiries against officers who were involved in ordering illegal appointments---Department stopped salaries of the employees whose appointments had been made by the said officers---Contention of employees was that they had not been afforded an opportunity of hearing while passing the impugned order---Validity---If employees were aggrieved by the observations of Supreme Court then they should approach the Supreme Court in review---Expression "terms and conditions of service" did include "salary" and Service Tribunal had jurisdiction to decide the issue of salaries of employees---Employees were civil servants and they could not invoke constitutional jurisdiction of High Court---Constitutional petition was dismissed in limine, in circumstances.

Messrs Ahmed Clinic v. Government of Sindh and others 2003 CLC 1196; Mst. Bashart Jehan v. Director General Federal Government Education and others 2015 SCMR 1418; Muhammad Tariq Badar and another v. National Bank of Pakistan 2013 SCMR 314; S. Nasim Ahmed Shah and 115 others v. State Bank of Pakistan through Governor and another 2017 PTD 2029; Messrs MFMY Industries Ltd. and others 2015 SCMR 1550; Sohail Baig Noori v. High Court of Sindh through Registrar and 2 others 2017 PLC (C.S.) 1142; Commissioner of Income Tax and others v. Mubashar Sheikh, City Towers 2017 PTD 795; Mst. Basharat Jehan v. Director General Federal Government Education and others 2015 SCMR 1418 Shahid Pervaiz and others v. Ejaz Ahmed and others 2017 SCMR 206 and Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539 distinguished.

Punjab Textbook Board Lahore and others v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032; Ali Azhar Khan Balouch v. Province of Sindh and others 2015 SCMR 456 and Punjab Textbook Board Lahore and others v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032 rel.

M. Ilyas Khan and Ms. Farah Khan for Petitioners.

Shahryar Mehar, Assistant Advocate-General Sindh for Respondents.

2020 P L C (C.S.) 360

[Sindh High Court]

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

ARSHAD NOOR KHAN

Versus

GOVERNMENT OF SINDH through Secretary Finance Department and 2 others

C.P. No.D-5839 of 2015, decided on 25th April, 2018.

Civil service---

----Award of premature increment on up-gradation of a post---Recovery of amount of advance increment---Scope---Authorities started recovery of amount of advance increment from leave encashment amount of the employee under the instructions of Finance Department---Validity---Grant of one pre-mature increment on up-gradation of a post was a beneficial instrument which would apply to all cases of up-gradation taken place from 28th January, 2002 onward from the actual date of up-gradation of each post---Present matter would cause financial implication and recovery of a certain amount from the bill of leave encashment of petitioner required a decision of competent authority based on cogent reasons---Authorities had recovered amount from the petitioner's leave encashment bill under the instructions of Finance Department and not on its own accord---High Court directed the Secretary Finance Department to decide the issue afresh in accordance with the relevant law, rules and regulation by affording an opportunity of hearing to the petitioner---Constitutional petition was disposed of, in circumstances.

Petitioner present in Person.

Barrister Shahryar Mehar, AAG Sindh along with Farrukh Hamidi, Accountant General Sindh and Moshin Ali, Deputy Accountant General for Respondents.

2020 P L C (C.S.) 392

[Sindh High Court]

Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ

BOSTAN KHAN KHATTAK

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and 3 others

Constitution Petition D-6770 of 2018, decided on 16th May, 2019.

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

----S. 15--- [as amended by National Command Authority (Amendment) Act, (LI of 2016)]----National Command Authority Accommodation Allocation Rules, 2010, Chapter-IV, Clause-"h"---Petitioner was employee of Pakistan Atomic Energy Commission (PAEC) and was aggrieved of reimbursement of House Rent Subsidy after superannuation---Validity--- Commission disputed claim of petitioner for his entitlement of House Rent Subsidy with retrospective effect---Petitioner purportedly executed lease agreement with landlady on 15-08-2012 and claimed House Rent Subsidy with effect from 13-03-2010 to 03-08-2012 on basis of previous rent agreements--- Prima facie, entire claim of petitioner as brought was based on factual controversy which could not be resolved under Constitutional jurisdiction--- High Court declined to interfere in the matter as issue of maintainability was involved by virtue of National Command Authority (Amendment) Act, 2016---Constitutional petition was dismissed in circumstances.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; PIA Corporation v. Syed Suleman Alam Rizvi 2015 SCMR 1545; Pakistan International Airline Corporation v. Aziz-ur-Rehman Chaudhary and others 2016 SCMR 14; Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; Pakistan Airline Pilots Association and others v. Pakistan International Airline Corporation and others 2019 SCMR 278; 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 and Maj. (R ) Syed Muhammad Tanveer Abbas and another Civil Appeals Nos. 26-K and 27-K of 2018. rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Case of petitioner was based on factual controversy---Such controversy could not be resolved under constitutional jurisdiction---High Court declined to interfere in the matter.

Petitioner present in person.

Altamash Arab for Respondents Nos.3 and 4.

Muhammad Nishat Warsi, D.A.G.

2020 P L C (C.S.) 407

[Sindh High Court (Larkana Bench)]

Before Khadim Hussain Tunio and Irshad Ali Shah, JJ

MUNEER AHMED JATOI and 3 others

Versus

DIRECTOR ANTI-CORRUPTION ESTABLISHMENT KARACHI and 8 others

Constitution Petition No.D-179 of 2012 and M.As. Nos.6088 of 2014, 2910, 6136 of 2015, 7810 of 2016, decided on 14th November, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Factual controversy---Determination of legality of a document---Scope---Department, in pursuance of applications for appointment, appointed the respondents, however, the petitioners claimed that the persons appointed by the department had never appeared in the required written and physical test nor had they qualified, hence their appointments were based on a managed list---Validity---Legality and genuineness of a document could not be determined in constitutional jurisdiction because such declaration could not be made without recording of evidence, which was not permissible at law---Petitioners had failed in making out a clear case of infringement of their rights or establishing mala fide on the part of the department---Constitutional petition was dismissed.

Ashfaq Hussain Abro for Petitioners.

Asif Ali Abdul Razzak Soomro for Private Respondents.

Ameer Ahmed Narejo, State Counsel.

2020 P L C (C.S.) 417

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ

AHMED ALI SAHARAN and others

Versus

PROVINCE OF SINDH through Additional Chief Secretary Home Department and 3 others

Constitutional Petitions Nos. D-673 and D-674 of 2016, decided on 16th September, 2019.

Police Act (V of 1861) ---

----S. 12---Standing Order No. 279/2014 dated 09-06-2014---Appointment in police department---Inspector General of Police, powers of---Standing Order issued by Inspector General of Police---Scope---Contention of petitioners was that they were entitled for appointment in view of Standing Order issued by the Inspector General of Police---Validity---Inspector General of Police had powers to frame orders and rules with regard to organization, classification and distribution of police force with the approval of Provincial Government---Mere sending copy of Standing Order to the Provincial Government and/or concerned ministry/Home Department could not be said to have approved the scheme encompassed in the Standing Order---Approval of the Provincial Government and/or concerned ministry was inevitable---Section 12 of Police Act, 1861 did not empower Inspector General of Police to make recruitment in a particular head and/or of any description---Provincial Government had prerogative to frame policies to be implemented by the Inspector General of Police---Standing Orders for appointments on the basis of retired/serving employee quota was declared to be unlawful---Constitutional petition was dismissed, in circumstances.

2010 PLC 924 and Gul Hassan Jatoi v. Faqir Muhammad Jatoi 2016 SCMR 1254 rel.

Abdul Salam Memon along with Ms. Rabya Javed for Petitioner (in C.P. No.D-673 of 2016).

Sajjad Ahmad holding brief for Ali Asadullah Bullo for Petitioner (in C.P. No.D-674 of 2016).

Shaharyar Mehar, Assistant Advocate-General for Respondents.

2020 P L C (C.S.) 483

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

GHULAM RABBANI

Versus

STATE BANK OF PAKISTAN and another

C.M.A. No.12306 of 2018 in Suit No.1680, decided on 3rd October, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Departmental penalty, suspension of---Master and Servant relationship---Statutory organization---Plaintiff was compulsorily retired from service of State Bank of Pakistan on departmental inquiry due to a criminal case against plaintiff--- Plaintiff sought suspension of sentence and same was resisted by State Bank of Pakistan on grounds that it had a master and servant relationship with its employees---Validity---Principle of master and servant could be a case for consideration in respect of employees working with private organization but such principle could not be taken into consideration in respect of government organization/departments rather they had to be dealt with on case to case basis---State Bank of Pakistan had no statutory rules and it was predominantly controlled by government---Rule of master and servant, whereby an employer could engage in hire and fire policy, would not strictly apply on the State Bank of Pakistan---Plaintiff was fully entitled for relief sought failing which, it could cause serious prejudice and irreparable loss to plaintiff---Compulsory retirement of plaintiff was merely based on charge of murder which stood compromised---Balance of convenience lay in favour of plaintiff and there appeared to be no other departmental proceedings pending against plaintiff---High Court suspended compulsory retirement of plaintiff and reinstated him to service---Application was allowed in circumstances.

Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan PLD 2010 SC 695 and Suo Motu Case No.03 of 2017 PLD 2018 SC 703 rel.

Federation of Pakistan v. Muhammad Aslam 1986 SCMR 916; Shahid Mahmood v. Karachi Electric Supply Corporation Ltd. 1997 CLC 1936; Sadiq Amin Rahman v. Pakistan International Airlines Corporation 2016 PLC (C.S.) 335 and Suo Motu Case No.03 of 2017 PLD 2018 SC 703 ref.

Muhammad Asif Malik for Plaintiff.

Aamer Latif for Defendant No.1.

2020 P L C (C.S.) 525

[Sindh High Court]

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

GHULAM RABBANI

Versus

GOVERNOR STATE BANK OF PAKISTAN and others

C.P. No.D-4268 of 2018, heard on 31st May, 2018.

Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Non-statutory rules---Scope---Petitioner an employee of State Bank of Pakistan assailed imposition of major penalty of compulsory retirement from service under State Bank of Pakistan Staff Regulations, 2005---Validity---Test as to whether Regulations were statutory or otherwise was not solely that framing of Regulations required the approval of the Federal Government, rather it was the nature and efficacy of such Regulations and it had to be seen whether the Regulations in question dealt with instructions for internal control or management, or they were broader than and complementary to the parent statute---High Court could not entertain such grievance of the petitioner under Art. 199 of the Constitution---Constitutional petition was dismissed.

Shafique Ahmed Khan and others v. NESCOM through Chairman Islamabad and others PLD 2016 SC 377 and Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad (un-reported Judgment dated 21.02.2017) in Civil Appeal No.1313 of 2017 foll.

Muhammad Asif Malik for Petitioner.

2020 P L C (C.S.) 531

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

MIR MUHAMMAD RAZA

Versus

FEDERATION OF PAKISTAN through Secretary and 5 others

C.MAs. Nos.133, 134 of 2019 and 17292 of 2018 in Suit No.2270 of 2018, decided on 10th October, 2019.

Civil service---

----Employee of a Corporation---Verification of educational credentials---Suit for declaration and permanent injunction---Temporary injunction, grant of---Employer could verify educational credentials of an employee and if any adverse action had been taken then employee had right of appeal in accordance with law---Plaintiff had no prima facie case and balance of convenience in his favour---If any irreparable loss was caused to the plaintiff/employee then same could be compensated after the trial, if plaintiff succeeded---Passing of injunction in favour of plaintiff was not warranted in circumstances---Application for grant of temporary injunction was dismissed.

Basharat Hussain and another v. Provincial Government through Chief Secretary and 4 others 2018 PLC (C.S.) Note 151; Nazar Hussain and others v. Deputy District Education Officer and others 2003 SCMR 1269 and Muhammad Ali and 11 others v. Province of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education, Peshawar and others 2012 SCMR 673 ref.

Umar Lakhani for Plaintiff.

Fayyaz Ali Metlo for Defendants Nos.2, 3 and 4.

2020 P L C (C.S.) 557

[Sindh High Court]

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

Syeda ANIS SUGHRA JAFRI and others

Versus

PROVINCE OF SINDH through Chief Secretary Sindh and others

Constitutional Petitions Nos.D-1254 D-1279 to D-1282 of 2013, decided on 19th September, 2018.

Civil service---

----Appointment on the basis of fake documents---Stoppage of salaries---Effect---Salaries of petitioners were stopped on the premise that their basic appointments and medical fitness certificates were fake---Contention of petitioners was that they were entitled for payment of their salaries from the date of their appointments---Validity---Medical fitness certificates produced by the petitioners before High Court were found fake and fabricated---Question of releasing salaries of petitioners did not arise---Petitioners had failed to point out any illegality in the impugned orders passed by the authorities---Constitutional petition was dismissed, in circumstances.

Punjab Text Book Board Lahore and others v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032 rel.

Syed Abrar Ahmed Bukhari for Petitioner (in C.P. No. D-1254 of 2013 and C.P. No.D-1282 of 2013).

Sheharyar Mehar, AAG.

2020 P L C (C.S.) 630

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Adnan Iqbal Chaudhry, JJ

MUHAMMAD ALI JAVED and 3 others

Versus

PROVINCE OF SINDH through Secretary and 2 others

Constitution Petition No.D-4047 of 2015, decided on 29th October, 2019.

Lyari Development Authority Act (LIV of 1993)---

----S. 49---Lyari Development Authority Employees (Appointment, Promotion and Transfer) Regulations, 1999---Up-gradation of post, withdrawal of---Petitioners were employees in Finance and Accounts Department of Lyari Development Authority, which had statutory service rules---Petitioners were aggrieved of withdrawal of upgradation of posts of Accounts Officer---Validity---Post of Accounts Officer under Lyari Development Authority Employees (Appointment, Promotion and Transfer) Regulations, 1999, in BS-17 was not an isolated post---Accounts Officers had an avenue for promotion to Senior Accounts Officer / Deputy Director Finance in BS-18---Upgradation of the post of petitioners was also not pursuant to any scheme or policy, rather on the misconception that here was an order of the Supreme Court to the effect such up-gradation but the same did not meet the test laid down by the Supreme Court---Test laid down by the Supreme Court was applicable to the employees of statutory and non-statutory organizations under the control of Government and Lyari Development Authority was such organization---Authorities had rightly withdrawn the orders of upgradation of the posts---High Court declined to interfere in the notification issued by the authorities---Constitutional petition was dismissed in circumstances

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456; Regional Commissioner Income Tax v. Munawar Ali 2017 PLC (C.S.) 1030 and Federal Public Service Commission v. Anwar-ul-Haq 2017 SCMR 890 rel.

Muhammad Nishat Warsi for Petitioners.

Nemo. for Respondent No.1.

Nadir Khan Burdi for Respondents Nos.2 and 3.

2020 P L C (C.S.) 665

[Sindh High Court]

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

GHULAM HUSSAIN SHAIKH

Versus

PROJECT DIRECTOR, SMBB TOWNS and others

C.P. No. D-2428 of 2018, heard on 13th September, 2018.

Civil service

----Deputation allowance grant of---Scope---Petitioner, while relying on Office Memorandum, sought direction of High Court under Constitutional jurisdiction to the employer department to pay project allowance and deputation allowance on the premise that he had worked in a project on deputation until his deputation was cancelled---Validity---Case of the petitioner did not fall within the ambit of the Office Memorandum, therefore, he was not entitled to the project allowance---Deputation allowance could not be granted to the petitioner for the reason that his deputation was illegal---Grievance of the petitioner could not be entertained under Art. 199 of the Constitution---Constitutional petition was dismissed.

Naseer Ahmed Khan for Petitioner.

2020 P L C (C.S.) 682

[Sindh High Court]

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

SIBGHATULLAH SHEIKH

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh Secretariat, Karachi and 2 others

Constitutional Petition No.4492 of 2012, decided on 26th September, 2018.

Civil service---

----Appointment---Candidate having qualified written test and interview was not issued appointment letter---Validity---Mere selection in the test/interview did not confer right upon the candidate to be issued offer letter for appointment---Constitutional petition was dismissed accordingly.

Ali Asadullah Bullo for Petitioner.

Sheryar Mehar for Respondent No.1.

Haq Nawaz Talpur for Respondents Nos.2 and 3.

2020 P L C (C.S.) 717

[Sindh High Court]

Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ

ADIL RASHID

Versus

FEDERATION OF PAKISTAN, through Secretary, Ministry of Ports and Shipping, Islamabad and 2 others

Constitutional Petition No.D-1360 of 2015, decided on 31st May, 2019.

Port Qasim Authority Employees Service Regulations, 2011---

----Reglns. 4, 36, 44 & 58---Port Qasim Authority Act (XLIII of 1973), S. 50---Termination from service---Contention of petitioner-employee was that show-cause notice issued by the Authority was illegal---Validity---Employee had no requisite qualifications and experience for the post of Director (Environment and Safety)---Appointment of employee was not in accordance with law and relevant rules---Service of employee had been terminated in the light of orders of the Supreme Court before completion of his probation period---Petitioner had no vested right for reinstatement in service---Employee was appointed by the Authority in violation of judgment of Supreme Court---Impugned order for termination of petitioner had been passed in accordance with law---Constitutional petition was dismissed in circumstances.

Abdul Jabbar Memon v. Federation of Pakistan through Secretary Ports and Shipping Government of Pakistan and 6 others 2011 PLC (C.S.) 513; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158; Shakeel Ahmed Shaikh and 2 others v. Province of Sindh through Chief Secretary, Sindh and 3 others 2012 PLC (C.S.) 657; Behram Khan v. Chairman Strategic Planning Division, Chaklala Cantt., Islamabad and 2 others 2014 PLC (C.S.) 418; Lt. Commander (Retired) Naeem Javed v. University of the Punjab through Vice-Chancellor, Lahore and another 2014 PLC (C.S.) 29; Brig. Retd. Safdar Hussain Awan v. Government of Pakistan through Principal Secretary to the Prime Minister and others 2008 PLC (C.S.) 949; Abdul Jabbar Memon v. Federation of Pakistan through Secretary Ports and Shipping Government of Pakistan and 6 others 2011 PLC (C.S.) 513; Muhammad Shahnawaz and 44 others v. Karachi Electric Supply Company through Company Secretary and 2 others 2011 PLC (C.S.) 1579; Asia Petroleum Limited through Kh. Izz Hamid, Managing Director v. Federation, Ministry of Finance, Government of Pakistan, Pak Secretariat, Islamabad and 3 others 1999 PTD 1313 and District Coordination Officer, District Dir Lower and others v. Rozi Khan and others 2011 PLC (C.S.) 942 distinguished.

Jaffar Raza for Petitioner.

Muhammad Nishat Warsi, DAG for Respondent No.1.

Muhammad Arshad Khan Tanoli and Danish Rashid Khan for Respondents Nos.2 and 3.

2020 P L C (C.S.) 764

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Adnan Iqbal Chaudhry, JJ

RIASAT ALI and another

Versus

GOVERNOR SINDH/CHANCELLOR through Principal Secretary and 5 others

Constitutional Petition No.D-3508 of 2018, decided on 9th December, 2019.

Sindh Agriculture University Act (V of 1977)---

----S. 27(1) [as amended by Sindh Universities and Institutes Laws (Amendment) Act, 2014 (V of 2015)]---Constitution of Pakistan, Art.129---Provincial Government---Advice of Chief Minister--- Petitioner assailed notification issued by Sindh Government extending tenure of respondent as Vice-Chancellor on the advice of Chief Minister---Validity---Decision to appoint a Vice-Chancellor and decision to extend his tenure for one term was to be taken by 'Government' under S.27(1) of Sindh Agriculture University Act, 1977---Notification in question stated that it was issued by Governor Sindh / Chancellor on the 'advice of the Government'---Summary pursuant to which notification in question was issued, showed that such advice had in fact been given to Governor / Chancellor by the Chief Minister---Word 'Government' in S.27(1) of Sindh Agriculture University Act, 1977, stood amended at the relevant time by Sindh Universities and Institutes Laws (Amendment) Act, 2014, and the same could only mean the 'Provincial Cabinet'---Decision to extend tenure of respondent as Vice-Chancellor for another term, and terms and conditions of such extension had to be taken by "Provincial Cabinet"---High Court set aside notification issued by Provincial Government extending tenure of respondent as Vice-Chancellor of Sindh Agriculture University---Constitutional petition was allowed in circumstances.

Khawaja Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205 ref.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Karamat Ali v. Federation of Pakistan PLD 2018 Sindh 8 and Mirpurkhas Sugar Mills Ltd. v. Province of Sindh 2020 CLC 232 rel.

Ali Asadullah Bullo for Petitioners.

Shaharyar Mahar and Ali Safdar Depar, Assistant Advocate-General Sindh for Respondents Nos.1-4.

Muhammad Arshad S. Pathan for Respondent No.5.

Muhammad Nishat Warsi, Deputy Attorney-General for Pakistan for Respondent No.6.

2020 P L C (C.S.) 792

[Sindh High Court]

Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ

MUJTABA HASSAN and others

Versus

FEDERATION OF PAKISTAN and 2 others

C.P. No.D-417 of 2018 and C.M.A. No.35136 of 2018, heard on 25th March, 2019.

Civil service---

----Regularization of employees---Statement of department that employees would be accommodated in regularization process as and when initiated---Non-compliance of said undertaking---Contempt proceedings, initiation of---Contention of authorities was that authorities had violated orders passed by the High Court---Validity---Authorities had not initiated regularization process and question of violation of orders passed by the High Court did not arise---Authorities were entitled to make policy with regard to regularization of service of its employees---Authorities had exclusive domain in administrative matters---High Court would not interfere in policy decision making of authorities until and unless they had violated the orders passed by the Court---Contempt petition was dismissed, in circumstances.

Faizan H. Memon for Petitioners.

M. Nishat Warsi, D.A.G.

Sarmad Hani for Respondents Nos.2 and 3.

2020 P L C (C.S.) 819

[Sindh High Court]

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

MUHAMMAD YOUNIS and others

Versus

PROVINCE OF SINDH and others

Constitutional Petition D-245 of 2011 and C.M.A. No.1869 of 2017, decided on 13th January, 2020.

Contempt of Court Ordinance (IV of 2003)---

----Ss 3 & 4---Constitution of Pakistan, Art. 204---Contempt of court---Regularization of ad-hoc government employees---Non-compliance of directions of Court by Provincial Government---Petitioners sought initiation of contempt of court proceedings against Department of Provincial Government on ground that said Department did not comply with directions of High Court---Validity---Record revealed that prima facie actions of Department negated basic spirit of order of High Court which could not be construed as substantial compliance of the said order and explanation offered by said Department was not tenable---High Court observed that however no malice could be seen on part of alleged contemnor / Department warranting action against under Art.204 of the Constitution---High Court directed that show-cause notice under Contempt of Court Ordinance, 2003 be issued to Department, in circumstances.

Faizan H. Memon for Applicant.

Ali Safdar Department, A.A.G. along with Sadoro Jalbani, Section Officer, Special Education Department, Government of Sindh.

2020 P L C (C.S.) 831

[Sindh High Court]

Before Muhammad Saleem Jessar and Adnan Iqbal Chaudhry, JJ

RASOOL BUX SOLANGI and others

Versus

PROVINCE OF SINDH through Secretary and others

Constitution Petition No.D-874 of 2017, decided on 10th April, 2019.

(a) Civil service---

----Increment, grant of---Discrimination---Violation of constitutional guarantee---Scope---Petitioners claimed that they were entitled to increments which were not granted to them and as such they were deprived of their legitimate right which affected their monthly salary and pensionary benefits---Case of petitioners was similar to the cases earlier decided by the High Court, hence the petitioners were entitled for the benefit of such decision and any denial/refusal to extend benefit thereof to alike persons fell within the meaning of 'discrimination'---Principle so enunciated was affirmed by the Supreme Court thereby making the respondents ensure compliance thereof within the meaning of Arts. 201 & 189 of the Constitution---Constitutional petition, stricto senso, did not relate to determination of any 'service benefit' but involved enforcement of guarantee, provided by Art. 25 of the Constitution---Constitutional petition was allowed as prayed.

Dr. Muhammad Siddique Bhutto's case (C.P. No.D-454/2010) and C.P. No.D-655 of 2014 ref.

(b) Public functionary---

----Omissions and actions of public functionary while in authority, shall not be limited to himself but sure to prejudice rights and obligations of others, if he fails to do 'justice' with his assigned duties.

Sura An-Nisa, Verse 135 foll.

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

Petitioners Nos.1 and 2 Present in Person.

Petitioner No.3 expired.

Petitioner No.4 reported to have been hospitalized.

Qazi Muhammad Bux State Counsel for Respondents.

2020 P L C (C.S.) 895

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Zulfiqar Ahmad Khan, JJ

MUHAMMAD USMAN

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager (HR&A) and another

C.P. No.D-141 along with C.Ps. Nos.6778, 6779, 6781 and 6782 of 2016, 142, 143, 144, 145, 146, 147, 148, 159, 1230, 1231, 1232, 1233, 1234, 1235, 1236, 1237, 2194, 2195, 2196, 2197, 2198, 2282, 2283, 2284, 2285, 2286, 2287, 2288, 2289, 2446, 2447, 2448, 2449, 2450, 2451, 2452, 2453, 2611, 2612, 2613, 2614, 2615, 2616, 2618, 2619, 2620, 2621, 2622, 2623, 2624, 2625, 2626, 2627, 2628, 2630, 2631, 2632, 2633, 2634, 2763, 2764, 2765, 2766, 2767, 2768, 2769, 2770, 2771, 2772, 2773, 2775, 2776, 2777, 2778, 2779, 2780, 2781, 2782, 2783, 2784, 2785, 2786, 2788, 2789, 2790, 2791, 2792, 2793, 2794, 2795, 2846, 2847, 2873, 2874, 2875, 2876, 2960, 2961, 2962, 2963, 2964, 3533, 5627, 6034, 7201, 7592, 7593, 8293,8294, 8295, 8296, 8297, 8298, 8608, 8609, 8610 of 2017, 1234, 5735, 6539 of 2018, 2319, 6055,6056, 6057, 6058, 6308, 6309, 6590, 6591, 6592, 7054 of 2019 along with C.Ps.Nos.6780 of 2016, 2617, 2629, 2774 and 2787 of 2017, decided on 19th December, 2019.

(a) Pakistan Telecommunication (Re-organization) Act (XVI of 1996)---

----Ss.35(2) & 36(2)---Employees of Pakistan Telegraph and Telephone Department (T&T Department) transferred to the Pakistan Telecommunication Corporation (the Corporation) and then onto the Pakistan Telecommunication Company Limited (Company)---Employees of the company who opted for "Voluntary Separation Scheme" (VSS)---Plea on behalf of such employees that the rights created under their original terms and conditions of service (under the T&T department), could not be taken away by introducing VSS, thus, their rights were statutory and were still available under the law---Held, that where an employee voluntarily accepted and received benefits under some arrangement or scheme with the employer out of his own free will then he could not turn around and seek benefits that were ordinarily applicable to other employees---Such an employee was estopped from resiling from the commitment made with the employer at a later stage---Employees in question had consciously opted the VSS for a prompt financial gain and consequently bartered their rights, which they claimed to have been enjoying---Voluntary Separation Scheme (VSS) was a binding contract which was neither unconstitutional nor void---Subsection (2) of S.36 of the Pakistan Telecommunication (Re-organization) Act, 1996, enabled an employer, with the consent of the transferred employee, to award appropriate compensation in lieu of whatever benefits they could have gained at the end of their tenure i.e. reaching the age of superannuation---Employees, in the present case, were given service benefits, which were not even matured at the time they opted VSS, hence it could not be said that any guarantee or secured right was arbitrarily snatched by their employer (i.e. the company)---Said employees could have continued to serve without opting VSS---At the time of signing and submitting the VSS, the employees knew that their training period would not be counted towards the length of their service.

Muhammad Rafiullah v. Zarai Taraqiati Bank Limited 2018 SCMR 598; Zarai Taraqiati Bank Limited v. Said Rehman and others 2013 SCMR 642; Wali ur Rehman and others v. State Life Insurance Corporation 2006 SCMR 1079 and Qari Allah Bux and others v. Federation of Pakistan 2011 PLC (C.S.) 488 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Scope---Disputed questions of fact---Such questions could not be dealt with by the High Court under Art.199 of the Constitution.

Masood Ahmed Bhatti, Syed Ansar Hussain Zaidi, Irfan Mir Halepota, Muhammad Ali Lakho, and Saud Ahmed Khan for Petitioners.

Ziaul Haq Makhdoom, along with Muhammad Azhar Mahmood, Faisal Aziz, Altamash Arab, Syed Mustafa Ali and Muhammad Nishat Warsi, DAG for Respondents.

2020 P L C (C.S.) 948

[Sindh High Court]

Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ

GHULAM HUSSAIN IQBALANI (DECEASED) through Legal Heirs and 2 others

Versus

THE FEDERATION OF PAKISTAN and others

C.P. No.D-745 of 2015, decided on 29th May, 2019.

(a) Civil service---

----Allegation of fraud against civil servant---Misconduct---Dismissal from service---Civil servants acquitted from the criminal case which was registered against them for committing fraud---Effect---Bar of jurisdiction contained in Art.212(3) of the Constitution---Scope---Contention of petitioners was that they were entitled for reinstatement into service after acquittal from criminal case---Validity---Department had conducted disciplinary inquiry against the petitioners and they were found guilty in the inquiry proceedings---Petitioners were dismissed from service and their service appeal had been dismissed by the Service Tribunal---High Court could not entertain the grievance of petitioners under Art. 199 of the Constitution in view of the bar contained under Art. 212(3) of the Constitution---Present matter was within the exclusive domain of Supreme Court being Appellate Court against the decisions of Service Tribunal---Departmental action against the petitioners had been initiated independent of criminal case registered against them---Mere acquittal in criminal case would not nullify the outcome of departmental proceedings and on this score dismissal order could not be set aside---Plea of petitioners had already been considered in the judgment of Service Tribunal which had attained finality---Decision of department had merged in the order of Service Tribunal---Findings of Service Tribunal could not be assailed in Constitutional petition, in circumstances---Disciplinary and criminal proceedings were different and independent of each other and could not be termed as synonymous and interchangeable---Forums for adjudication, principles of evidence and procedure for both the proceedings were separate and distinct---Decision of one forum did not have bearing on the decision of other forum---Person convicted or acquitted in a criminal trial could not influence the disciplinary proceedings---Petitioners could avail appropriate remedy, if available to them under the law---Constitutional petition was dismissed, in circumstances.

Muhammad Ayub v. The Chairman Electricity Board, WAPDA, Peshawar PLD 1975 Lah. 89; State through Prosecutor-General, Punjab v. Jahangir Akhtar 2018 PLC (C.S.) 577; Muhammad Ashraf Khan v. Director, Food, Punjab, Lahore and another 2004 PLC (C.S.) 1366; Syed Muhammad Iqbal Jafri v. Registrar, Lahore High Court, Lahore 2004 PLC (C.S.) 809; Attaullah Brohi v. Sindh Agricultural Supplies Organization and 3 others 2004 PLC (C.S.) 1300; Khaliq Dad v. Inspector General of Police and 2 others 2004 PLC (C.S.) 198; Muhammad Naveed v. Superintendent of Police, Saddar Division, Lahore and others 2004 PLC (C.S.) 563; Riasat Ali v. Principal, Government Technical Training Center Sahiwal and another 2004 PLC (C.S.) 413; Samiullah v. Inspector General of Police and others 2006 PLC (C.S) 449; Government of Pakistan through Secretary Ministry of Finance and others v. Asif Ali and others 2007 PLC (C.S.) 271; Irshad Muhammad Shah v. HESCO and another 2012 PLC (C.S.) 939; Saddar ud Din v. Government of Balochistan and another 2012 PLC (C.S.) 627; Muhammad Azram v. National Institute of Health and others 2015 PLC (C.S.) 537; Akbar Khan v. Federation of Pakistan and others 2002 SCMR 684 and Mir Nawaz Khan v. Federal Government 1996 PLC (C.S.) 350 = 1996 SCMR 315 ref.

Rashid Mehmood v. Additional Inspector-General of Police and 2 others 2002 SCMR 57; The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Province of the Punjab v. Abdul Aziz Qureshi 1994 SCMR 247; Superintending Engineer GEPCO, Sialkot v. Muhammad Yousaf 2007 SCMR 537; Malik Azharul Haq v. Director of Food, Punjab, Lahore and another 1991 SCMR 209 and Muhammad Azram v. National Institute of Health and others 2015 PLC (C.S.) 537 distinguished.

Mir Nawaz Khan v. Federal Government 1996 SCMR 315; Nazir Ahmed v. Capital City Police Officer, Lahore 2011 SCMR 484; Ali Azhar Khan Balouch and others v. Province of Sindh and others 2015 SCMR 456; Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13; Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534; Executive Engineer and others v. Zahid Sharif 2005 PLC (C.S.) 701; Falak Sher v. Inspector General of Police, Punjab and 2 others 2005 SCMR 1020; Rab Nawaz Hingoro v. Government of Sindh and others 2008 PLC (C.S.) 229; Syed Muhammad Iqbal Jafri v. Registrar, Lahore High Court Lahore 2004 SCMR 540; Khaliq Dad v. Inspector General of Police and 2 others 2004 SCMR 192 and Muhammad Ayub v. The Chairman Electricity Board WAPDA, Peshawar and another PLD 1987 SC 195 rel.

(b) Civil service---

----Disciplinary and criminal proceedings---Distinction---Disciplinary and criminal proceedings were different and independent of each other and could not be termed as synonymous and interchangeable---Forums for adjudication, principles of evidence and procedure for both the proceedings were separate and distinct---Decision of one forum did not have bearing on the decision of other forum---Person convicted or acquitted in a criminal trial could not influence the disciplinary proceedings.

(c) Limitation---

----Significance---Limitation was not a mere technicality.

Ghulam Qadir and others v. Shah Abdul Wadood and others PLD 2016 SC 712 rel.

Abdul Salam Memon for Petitioners.

Muhammad Faheem Akhtar for Respondents Nos.2 and 3.

Muhammad Nishat Warsi, D.A.G.

2020 P L C (C.S.) 1006

[Sindh High Court]

Before Muhammad Junaid Ghaffar J

LIAQAT ALI BHATTI and 4 others

Versus

PAKISTAN INTERNATIONAL AIRLINE CORPORATION LIMITED through Chief Executive Officer and 7 others

Suit No.1670 and C.M.A. No.12138 of 2018, decided on 16th September, 2019.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Promotion---Interim injunction, grant of---Plaintiffs were aggrieved of refusal by the Corporation, a public authority, declining their promotion---Validity---Plaintiffs were senior to the defendants who had been promoted by the Airline Corporation---Promotion Board or competent authority while considering a promotion case could not exercise its discretion without following mandate of law---Corporation was bound to assign reasons for not considering the plaintiffs for promotion---Nothing was on record to show that cases of all the employees, who were called for promotion, were considered individually as well as independently by the Promotion Board---Defendant at the relevant time was not qualified but he had been recommended for promotion conditionally upon providing requisite equivalence certificate---Corporation could not claim any exemption from following the mandate of law and its Regulations---Court could not interfere in case of promotion based on subjective assessment of an employee---Subjective assessment by a competent authority must be based on open and transparent objective criteria---Subjectivity of Promotion Board must filter through defined parameters, criteria and standards---Subjective assessment did not empower or grant a license to a public authority to exercise discretion without structuring such discretion---Nothing was on record as to why plaintiffs had been superseded by their juniors---Personal opinion of the members of Promotion Board could not outweigh the law and Regulations required to be followed---No material had been produced before the Court on the basis of which plaintiffs had been found not fit for promotion---Plaintiffs had made out a prima facie case and balance of convenience did lie in their favour---Plaintiffs would suffer irreparable loss if temporary injunction was not granted in their favour---Impugned order for promotion of defendants was suspended till final disposal of main suit---Petition for temporary injunction was accepted, in circumstances.

Shariq-ul-Haq and 5 others v. Pakistan International Airlines Corporation Limited and another 2018 PLC (C.S.) 975; Shafqat Sultan v. Khursheed Ahmed and 2 others 1992 SCMR 1461; Ghulam Nabi v. Chairman, Lahore Development Authority, LDA Plaza, Lahore and 3 others 2002 PLC (C.S.) 836; Saeed Muhammad Zai v. The Secretary, Government of Khyber Pakhtunkhwa, Labour Department and 4 others 2017 PLC (C.S.) 738; Muhammad Gulshan Khan v. Secretary, Establishment Division Islamabad and others PLD 2003 SC 102; Fazali Rehman v. Chief Minister, N.W.F.P. Peshawar and others PLD 2008 SC 769 and Federation of Pakistan through Secretary and another v. Khushdil Khan Malik 2018 PLC (C.S.) Note 196 ref.

Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650; Sadiq Amin Rahman v. Pakistan International Airlines Corporation through Managing Director and 3 others 2016 PLC 335; Liaqat Ali Chugtai v. Federation of Pakistan PLD 2013 Lah. 413; Federation of Pakistan v. Dr. Muhammad Arif and others 2017 SCMR 969 and Tariq Aziz-Ud-Din and others : in re 2010 SCMR 1301 rel.

Muhammad Ali Lakhani and Mutaba Sohail Raja for Plaintiffs.

Khalid Mahmood Siddiqui for Defendant No.1.

Ghulam Rasool Korai for Defendants Nos.3 to 8.

Mahmud Alam for Defendant No.2.

2020 P L C (C.S.) 1044

[Sindh High Court]

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

Ms. SHAMA HASSAN and 35 others

Versus

FEDERATION OF PAKISTAN through Secretary and 2 others

Constitutional Petitions Nos.D-2271, D-2334, D-2518, D-2584, D-2729, D-3006, D-3392, D-3766, D-6589 and D-7067 of 2018, decided on 20th February, 2020.

Civil service---

----Contractual employees of public bodies---Regularization of service---Petitioners, who were contractual employees inter alia, sought regularization of service by filing constitutional petition---Contention of respondent/employer was that petitioners would be provided similar treatment as other employees, who had similar grievances and whose grievances had been decided by the Supreme Court---Validity---Objection of petitioners that they would not be given similar treatment as their colleagues upon scrutiny by employers, was not valid as such objection was based on mere presumption and liable to be discarded---High Court directed that matter of petitioners' service be decided in terms of directions of Supreme Court---Constitutional petition was disposed of, accordingly.

Ch. Muhammad Ashraf Khan along with Amir Hanif and Hussain Bux Saryo for Petitioners.

Muhammad Nishat Warsi, D.A.G. for Respondent No.1.

Sanaullah Noor Ghori along with Malik Ejaz, Law Officer, Pakistan Steel for Respondent No.2 (in all C.Ps.).

Muhammad Zahid for Respondent No.3. (in all C.Ps.).

2020 P L C (C.S.) 1078

[Sindh High Court]

Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ

FOUZIA KHAN and others

Versus

CHAIRMAN/CEO PIA and others

C.Ps. Nos.D-3169 to D-3173 of 2019, decided on 8th May, 2019.

Master and servant---

----Posting and transfer---Non-statutory rules of service---Effect---Expression 'terms and conditions'---Scope---Contention of employees was that they had been transferred prior to completion of their tenure---Validity---Terms and conditions of employees of (Pakistan International Airlines Company) were not governed by any statutory rules and there was relationship of 'Master and Servant' between the parties---Constitutional jurisdiction of High Court could not be invoked in the matter, in circumstances---Expression 'terms and conditions' did include transfer and posting of employees---Employer had not violated any law while making transfer and posting of the employees---Grievance of the petitioners could not be enforced through constitutional jurisdiction of High Court---Constitutional petition was dismissed, in limine accordingly.

Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 ref.

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

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; PIA Corporation v. Syed Suleman Alam Rizvi 2015 SCMR 1545; Pakistan International Airline Corporation v. Aziz-ur Rehman Chaudhary and others 2016 SCMR 14; Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; Pakistan Airline Pilots Association and others v. Pakistan International Airline Corporation and others 2019 SCMR 278; Ali Azhar Khan Balouch and others v. Province of Sindh and others 2015 SCMR 456; Shafique Ahmed Khan and others v. NESCOM through Chairman Islamabad and others PLD 2016 SC 377 and Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad 2017 SCMR 571 rel.

Kamran Iqbal Bhutta for Petitioners.

2020 P L C (C.S.) 1156

[Sindh High Court (Hyderabad Bench)]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

MUHAMMAD SALEEM SHAIKH and others

Versus

PROVINCE OF SINDH and others

C.Ps. Nos.D-228 of 2004, 2157 of 2008, 2576, 2353, 2354, 2355, 2356 of 2009, 2596, 2559, 218 of 2010, 104, 2963 of 2011, 104, 4429 of 2012, 2252, 2473 of 2014 and 797 of 2018, decided on 13th February, 2020.

(a) Civil service---

----Provincial Public Service Commission (Commission)---Illegalities and discrepancies committed by the Commission in conducting written test and interview---Effect---Locus poenitentiae, principle of---Applicability---Public Service Commission had committed tampering with intention of fraud in the result of Competitive Examination---Result prepared by the Commission had lost its credibility and same had been issued without any legitimate basis---Public Service Commission had favored the candidates in the interview and recommendations had been made for fresh interview of the candidates who had been declared successful---Wrong selection of blue eyed on nepotism and favouritism had led to a chaos and turmoil in the civil service structure---Merit should be the only and sole criteria in the selection process by the Public Service Commission---High Court observed that appointment process should be see-through and transparent and only competent persons should be appointed to serve, rather than incompetent and unskilled persons---Entire competitive process was sham and doubtful and inquiry in that regard had been conducted by Public Service Commission---Necessary action should have been taken rather than non-suiting the petitioners on the ground of laches, in circumstances---No Court could dismiss a lis on the ground of laches, if it would defeat the cause of justice and perpetuate an injustice or relief claimed was based on a recurring cause of action---Constitutional petition should not be dismissed merely on the ground of laches without examining the dictates of justice---Government should have taken action at the relevant time to resolve the issue and to maintain the transparency---Locus poenitentiae was the power of receding till a decisive step was taken but it was not a principle of law that order once passed did become irrevocable and past and closed transaction---Benefit to any person in violation of law would not attract principle of locus poenitentiae---If any order was illegal then perpetual rights could not be gained on the basis of such an order---High Powered Commission should be constituted to examine and scrutinize the selection process and fix responsibility and propose proper action to the competent authority to conclude the matter---Constitutional petition was disposed of with the direction to the Government to constitute an Inquiry Commission to examine the entire competitive examination process, in circumstances.

Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) and others 2014 SCMR 949; 2017 SCMR 1519; 2006 SCMR 1876; PLD 2013 SC 829; Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; 2015 SCMR 456; PLD 2013 SC 268; Chief Secretary Government of Sindh v. Sher Muhammad Makhdoom PLD 1991 SC 973; 2017 SCMR 369; 1999 SCMR 2405 and 2005 SCMR 445 ref.

2017 SCMR 637; Abdul Haque Indhar and others v. Province of Sindh and others 2011 SCMR 408; Abdul Haque Indhar and others v. Province of Sindh and others 2000 SCMR 907; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh 2004 SCMR 1299; 2014 PLC (C.S.) 1292; Tariq Aziz-ud-Din and other's case 2011 PLC (C.S.) 1130; Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101; Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997(7) SCC 622; Umar Baz Khan v. Syed Jehanzeb and others PLD 2013 SC 268; Farzand Raza Naqvi and others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 SCMR 280 = 2012 PLC (C.S.) 218; Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Chief Secretary, Government of Punjab and others v. Malik Asif Hayat 2011 SCMR 1220; Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) and others 2014 SCMR 949; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Federation of Pakistan v. Muhammad Saifullah Khan 1988 SCMR 1996; Azizur Rahman Chowdhury v. M. Nasiruddin PLD 1965 SC 236; Hari Shankar v. Sukhdeo Prasad AIR 1954 All. 227; M.U.A. Khan v. M. Sultan PLD 1974 SC 228; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 and M.U.A. Khan v. M. Sultan 1981 SCMR 74 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact or factual controversy could not be resolved in constitutional jurisdiction of High Court.

(c) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Scope---Aggrieved person or otherwise can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of a public office by a person without having any lawful authority.

Abid S. Zuberi for Petitioners (in C.P. No.D-2355 / 2009) along with Petitioner and Zaeem Hyder.

Shaikh Altaf Ahmed for Petitioners Nos.13 and 14 (in C.P. No.D-2157/2008).

Petitioner in person (in C.P. No.D-2157 of 2008).

Petitioner in person (C.P.No.D-2354/2009).

Petitioner present in person (in C.P.No.D-218/2010).

Intervenor Muneer Ahmed Sehar (in C.P.No.D-2157/2008).

Mushtaq A. Memon for Respondent No.5 (in C.P.No.D-2157 / 2008) along with Shahid Ansari, Asif Memon and Ishtiaq Memon.

M.M. Aqil Awan for Respondents Nos.6 to 8, 13, 15, 16, 18, 22 to 25, 27, 31 to 37, 40 to 42, 44, 47, 48, 50 to 53, 55, 56, 58, 59, 62 to 64, 68, 77 and 79 (in C.P. No.D-228 of 2004) and for Respondents Nos.4, 7 to 18 (in C.P No.D-2157 of 2008) along with M. Arshad Tanoli and Danish Rasheed.

Bhajandas Tejwani for Respondents Nos. 19 to 33 (in C.P. No.D-2157/2008) along with Ms. Nazia Siddiqui.

Neel Keshav for Petitioners Nos.4 to 8 and 10 (in C.P. No.D-2157/2008).

Syed Amir Ali Shah Jilani for Petitioner No. 14 (in C.P. No.D-2157 of 2008).

Abdul Salam Memon for Petitioners (in C.Ps. Nos.D-2157 / 2008, 104/2011, 2963/2011, 104/2012 and 4429/2012) along with Amanullah and Ms. Rabia Javed.

Hyder Bux Shar for Petitioners (in C.Ps. Nos.D-2596/2010 2354/2009 and for Applicants/Interveners (in C.P. No.D-2157/2008).

Ali Ahmed Kurd for Petitioners (in C.P. No.D-2353/2009).

Basil Nabi Malik for Petitioners (in C.Ps. Nos.D-2473/2014 and 2252/2014).

Kazim Abbasi for Petitioner (in C.P. No.D-797 of 2018).

Ahmed Pirzada and Niaz Muhammad Ghumro for Petitioner (in C.P. No.D-2559/2010).

Asadullah Magsi for Intervenors (in C.P. No.D-2157/2008).

Mukhtiar Hussain Kazi for Intervenor Sultan Qureshi (in C.P. No.D-2157/2008).

Abdul Majeed Khoso for Intervener (C.M.A. No.8114/2016 in C.P. No.D-2157/2008).

Muhammad Junaid Farooqi for Intervener (M. Muslim Shaikh) (in C.P. No.D-2157/2008).

Intervenor Aziz Ahmed Chandio present in person (in C.P. No.D-2157/2008).

Ahmed Pirzada, Advocate for Intervener Abdul Hakeem (in C.P No.D-2157/2008).

Malik Naeem Iqbal for Respondent No.6 and Applicant/Intervenor along with Malik Altaf Javed, Faizan H. Memon and M. Saleem Khaskheli).

Saleem Akhtar (in C.P No.D-2157/2008) for Respondent No.3 (in C.P. No.D-2252/2014) and for Respondent No.6 (in C.P. No.D-228 / 2004).

Farhatullah and Talat Hussain Shah for Respondent No.4 in C.P. No.D-2157/2008).

Khalid Javed for Respondent No.15 (in C.P. No.D-2157/2008) along with Munawar Juna, Yousuf and Ms. Farkhanda Shaheen.

G.M. Bhutto for Respondents Nos.3, 5 and 6 (in C.P. No. D-2157/2008).

Suhail H.K. Rana holding brief for Shahnawaz M. Sahito for the Intervenor Muhammad Ali Unar (in C.P. No.D-2157/2008).

Intervenor Amanullah present in person (in C.P. No.D-2157/2008).

Muhammad Yousuf Alvi, Law Officer, SPSC.

Abdul Jalil Zubedi, A.A.G.

Sibtain Mehmood, A.A.G and Jawad Dero, Addl. A.G. along with Mr. DM-Imran Khan (internee).

Yousuf Alvi, Law Officer Sindh Public Service Commission.

Saeed Ahmed Shaikh, Deputy Secretary (Services) SGA&CD, Government of Sindh.

2020 P L C (C.S.) 1203

[Sindh High Court (Hyderabad Bench)]

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

RIZWAN ALI and others

Versus

PROVINCE OF SINDH through Chief Secretary and others

C.Ps. Nos. D-2671 of 2016, D-3300, 3274 and 3275 of 2017, D-2833 of 2018, D-1724, D-1781, D-1860, D-2084, D-2063, D-2041 and D-2065 of 2019, decided on 31st October, 2019.

(a) Police Act (V of 1861)---

----S.12---Power of Inspector General to make rules and issuance of Standing Order without approval of the Provincial Government---Effect---Question before High Court was whether the petitioners could claim appointment in police on the basis of Standing Order issued by Inspector General of Police under S.12 of Police Act, 1861---Validity---Section 12 of the Police Act, 1861, left no room or ambiguity as to the fact that police force was commanded by Inspector General of Police, who had the powers to frame Orders and Rules with regard to recruitment, organization, classification and distribution of Police Force subject to approval of Provincial Government---Standing Orders were not approved by the Provincial Government, therefore, no sanctity could be attached to such Standing Orders to claim benefit arising out of it---Police department could not circumvent the law to make appointments by issuing Standing Orders---Appointments could only be made through competitive process on merits as provided under the Recruitment Rules and not otherwise---Constitutional petitions were dismissed.

Gul Hassan Jatoi and others v. Faqeer Muhammad Jatoi and others 2016 SCMR 1254 and Mohammad Nadeem Arif and others v. IGP Punjab, Lahore and others 2011 SCMR 408 ref.

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

----Rr. 10-A [since omitted] & 11-A---Appointment of son against deceased father quota---Scope---Petitioners while placing reliance on Rr.10-A & 11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, sought appointment on son quota---Validity---Said rules provided for deceased quota subject to all just exceptions and not for son quota---Petitioners had applied against son quota in police department, which under the said rules could not be done---Constitutional petitions were dismissed.

Khadim Hussain Soomro for Petitioners (in C.Ps. Nos. D-2671 of 2016 and 3274, 3275 of 2017).

Ali Ahmed Palh for Petitioner (in C.P. No. D-3300 of 2017).

Badar Rajpar for Petitioner (in C.P. No. D-2833 of 2018).

Bakhtiar Ahmed Panhwar for Petitioner (in C.P. No. D-1781 of 2019).

Abdul Ghaffar Malik for Petitioner (in C.P. No. D-1724 of 2019).

Bashir Ahmed Almani for Petitioner (in C.P. No. D-1860 of 2019).

Muhammad Ahmed Khan Pathan for Petitioner (in C.P. No. D-2041 of 2019).

K.B. Lutuf Ali Leghari for Petitioner (in C.P. No. D-2063 of 2019).

Ms. Shaheen Fatima for Petitioner (in C.P. No. D- 2065 of 2019).

Abdul Hafeez Daudani for Petitioner (in C.P. No. D-2084 of 2019).

2020 P L C (C.S.) 1249

[Sindh High Court]

Before Adnan-ul-Karim Memon and Adnan Iqbal Chaudhry, JJ

Mst. YASMEEN AKHTAR and others

Versus

The GOVERNMENT OF SINDH through Chief Secretary and 3 others

Constitution Petition No.D-5147 of 2017, decided on 14th November, 2018.

Civil service---

----Physiotherapists---Allowances admissible to doctors and paramedical staff, grant of---Discrimination---Effect---Contention of petitioners was that they were entitled for same allowances which were being paid to the doctors and paramedical staff of the hospital---Validity---Physiotherapists had not role in certain ailments---Non-practicing allowance was admissible to those doctors who were not allowed the private practice---No citizen should be discriminated in any manner---Article 27 of the Constitution provided safeguard against discrimination in the service---Disparity in the pay scale allowances in the Province of Sindh as compared to other provinces was negation of Arts. 25 & 27 of the Constitution---Competent authority was directed to consider the case of petitioners for grant of allowances admissible to the doctors and paramedical staff of the hospitals after according hearing to the petitioners---Constitutional petition was disposed of, in circumstances.

Abdul Salam Memon for Petitioners.

Ali Safdar Depar, Assistant Advocate General Sindh.

2020 P L C (C.S.) 1359

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ

KARACHI INTERNATIONAL CONTAINER TERMINAL LTD. through Chief Executive

Officer and other

Versus

Brig (Retd.) ARIF MAHMUD MALIK and another

High Court Appeals Nos.15 and 103 of 2016, decided on 23rd September, 2019.

(a) Master and servant---

----Contract employee of a company---Termination from service before expiry of contract---Suit for recovery of damages in the shape of unpaid salary for unexpired period of contract---Appeal, filing of---Requirements---Limitation---Condonation of delay---Plaintiff filed suit for recovery of salary of unexpired period of contract---Trial Court decreed the suit and plaintiff was held entitled for notice of 120 days or payment in lieu thereof---Validity---Party could claim compensation in the shape of left over salary of the unexpired period on account of breach of contract---Termination clauses were generally provided in the contract to terminate the services when an employee was no longer wished to continue---If terms of termination was a breach of contract then the cause to claim compensation would trigger for the employee or the employer as the case might be---Contract between the parties was for three years therefore the employee could not seek reinstatement---Master and servant could agree to any reasonable time and that wisdom could not be challenged---Compensation/damages could be claimed independently by proving breach of contract by either party---Employee should have made efforts to minimize the damages and obtained alternate employment---Nothing was on record that employee had made efforts to obtain an employment elsewhere and he had monetarily suffered on account of termination despite his efforts---Parties had agreed that contract could be terminated by giving thirty days' notice therefore, there was no breach of terms of contract---If party had no justified reason for termination of contract then cause would be available to mobilize S.73 of Contract Act, 1872---Damages for breach of contract would depend on establishing such losses---Availability of thirty days' period was only for terminating the relationship and it did not mean that damages or compensation could not be claimed, as it was not a breach of term of contract---Plaintiff-employee had failed to establish damages sustained by him---Appeal was dismissed, in circumstances.

National Bank of Pakistan v. Ghulam Muhammad Sagarwala PLD 1988 Kar. 489 rel.

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

----O.XLI, R.1---Limitation Act (IX of 1908), S.12---Appeal, filing of---Requirements---Limitation---Condonation of delay---Appellant was bound to file certified copy of decree along with memo of appeal--- Certified copy of decree had been filed after expiry of period of limitation in the present case---Court was not empowered to dispense with requirements of filing certified copy of decree---Period for obtaining certified copy of decree could not be condoned as appellant himself had filed application to obtain said copy after three years---Date for filing of appeal should be reckoned from the date of filing of copy of decree---If statute had provided a remedy of appeal within a time frame then same was to be followed in letter and spirit---Appeal being time barred was dismissed, in circumstances.

Muhammad Mast v. Inayat 1987 SCMR 364; Apollo Textile Mills Ltd. v. Soneri Bank Ltd. 2012 CLD 337; Abdul Rashid v. Abdul Ghani 2011 MLD 1597 and Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892 rel.

(c) Appeal---

---General---Right of appeal did arise out of the statute---Remedy of appeal could not be availed unless expressly provided by the law.

Javed Asghar Awan for Appellants (in High Court Appeals Nos.15 and 103 of 2016).

Malik Altaf Javed along with Muhammad Saleem Khaskheli for Respondent (in High Court Appeals Nos.15 and 103 of 2016).

2020 P L C (C.S.) 1385

[Sindh High Court]

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

Syed MUHAMMAD ALI RAZA

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division

Islamabad and 3 others

Constitutional Petition No.D-4330 of 2018, decided on 1st June, 2018.

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

----Rr.7 & 11---Civil Servants (Seniority) Rules, 1993---Out of turn promotion---Police officer from the Province encadred into the Police Service of Pakistan---Inter-se seniority---Determination of---Procedure---Out of turn promotion of petitioner-police officer was withdrawn from the Police Service of Pakistan in pursuance of judgment of Supreme Court---Authorities intimated the petitioner that his seniority in the Police Service of Pakistan would be determined as per Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985---Contention of petitioner was that his seniority was to be fixed with his batch mates in the Police Service of Pakistan cadre---Validity---Petitioner was encadred in Police Service of Pakistan on 03-07-2015 and his seniority was to be reckoned from the date of his encadrement in Police Service of Pakistan cadre and not from the date his seniority was maintained by the Provincial Government---Seniority of petitioner could not be reckoned from the date of service in Provincial Police cadre---Appointment of encadred police officers from the Provinces was to be made with prospective effect and not with retrospective effect---Petitioner was in Police Service of Pakistan and his service was governed by the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, and not under the Civil Servants (Seniority) Rules, 1993---Petitioner had already been allowed to maintain his inter-se seniority with his batch mates before his encadrement---Constitutional petition was dismissed in limine, in circumstances.

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

2014 PLC (C.S.) 1363; Asim Gulzar's case 2015 SCMR 365 and 2013 SCMR 1752 rel.

Adnan Memon for Petitioner.

2020 P L C (C.S.) 1411

[Sindh High Court (Hyderabad Bench)]

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

IRSHAD HUSSAIN

Versus

PROVINCE OF SINDH through Secretary and 6 others

Constitutional Petition No.D-6431 of 2019, decided on 7th April, 2020.

Civil service---

----Appointment of Junior School Teacher (BPS-9)---Appointment on the basis of deputation as Senior Translator (BPS-16) in Provincial Assembly of Sindh---Absorption of deputationist---Scope---Employee was repatriated to his parent department in compliance with the order of Supreme Court---Employee filed appeal against the said order which was accepted by the Authority and he was absorbed in the borrowing department---Contention of petitioner was that respondent had been absorbed in violation of law laid down by the Supreme Court---Validity---Junior School Teacher (BPS-9) of education department could not be absorbed against the post of Senior Translator (BPS-16) in the Provincial Assembly which was a different cadre---Employee was repatriated to his parent department in compliance with the order of Supreme Court---Respondent had no right to file appeal against his absorption and his absorption was illegal and void ab initio---Even respondent was not eligible for the post of Senior Translator---Impugned notification for absorption of respondent was without lawful authority and of no legal effects, which was set aside---Authorities were directed to implement the law laid down by the Supreme Court in letter and spirit---Employee was to be repatriated to his parent department immediately and he would be entitled for the salary if he was never absorbed in the Provincial Assembly---If batch mates of respondent had been promoted then he would be entitled to the same treatment with seniority and other benefits in accordance with law---Government was directed to recover differential in the pay scales of BPS-9 and BPS-16 and deposit the same in government exchequer---High Court issued show-cause notices to the private/official respondents as to why contempt proceedings be not initiated against them---Constitutional petition was allowed, in circumstances.

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

Ghulam Sarwar Chandio for Petitioner.

Hakim Ali Shaikh, Additional Advocate General Sindh.

G.M. Umer Farooq, Secretary, Provincial Assembly of Sindh and Muhammad Khan Rind, Sr. Special Secretary, Provincial Assembly of Sindh.

2020 P L C (C.S.) 1449

[Sindh High Court]

Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ

MS. SHAMIM NAQVI

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, through Secretary and 4 others

C.P. No.D-7319 of 2018, decided on 30th May, 2019.

(a) Master and servant---

----Contract employee---Absence from duty---Termination from service---Non-statutory rules of service---Effect---Contention of employee was that she had been dismissed from service without a regular inquiry---Validity---Petitioner was an employee of a statutory authority having non-statutory rules of service---Employee could not invoke the jurisdiction of Service Tribunal and only remedy for her was a civil suit before Civil Court---Disciplinary proceedings had been initiated against the petitioner and she had been dismissed from service---Disciplinary matters did fall within the expression "terms and conditions of service"---Service rules of employee were non-statutory which could not be thrashed out in constitutional jurisdiction of High Court---Contractual terms and conditions of service of employee were not enforceable through constitutional petition---Relationship of master and servant did exist between the employee and Employer Authority in the present case---Disciplinary proceedings had not been initiated against the petitioner under any statutory rules of service---No vested right of employee had been infringed in the present case---Employer-Authority had prerogative to place its employees in accordance with its service rules and regulations---Constitutional petition was dismissed, in circumstances.

Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Messrs Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Lt. Col. Sayed Jawaid Ahmed v. Pakistan Defence Officers Housing Authority and others 2009 PLC (C.S.) 753 and Government of Pakistan v. Farheen Rashid 2011 SCMR 1 ref.

Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 distinguished.

Defence Housing Authority v. Lt. Col Syed Jawaid 2013 SCMR 1707; Muhammad Rafi and others v. Federation of Pakistan and others 2016 SCMR 2146; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; 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; Muhammad Mobeen-ul-Islam v. Federation of Pakistan and others PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Principal Cadet College, Kohat and another v. Mohammad Shoab Qureshi PLD 1984 SC 170 and Syed Nazir Gillani v. Pakistan Red Crescent Society 2014 SCMR 982 rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional petition against employer, a statutory body, but having no statutory Rules was not maintainable.

Ashraf Hussain Rizvi for Petitioner.

Faizan Hussain Memon for Respondents Nos.1 to 4.

Muhammad Nishat Warsi, D.A.G.

2020 P L C (C.S.) 1484

[Sindh High Court]

Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ

FAHEEM AHMED ATTARI and others

Versus

PROVINCE OF SINDH and others

C.Ps. Nos.D-6352 of 2016, D-3577, D-4000, D-4689, D-5379, D-7211 of 2017 and D-4510 and D-5645 of 2018, decided on 27th May, 2019.

(a) Civil service---

----Irregularities in the appointments---Stoppage of salaries of the employees---Contention of employees was that their appointments were genuine whereas department contended that their appointments had been made without codal formalities---Validity---Disputed questions of facts could not be determined by the High Court while exercising constitutional jurisdiction---Competent authority was to determine the genuineness or otherwise of the documents produced on behalf of parties---Chief Secretary was directed to constitute a committee for an inquiry of alleged fraud and forgery in the appointments after affording an opportunity of hearing to the petitioners---Constitutional petition was disposed of, accordingly.

Government of the Punjab through Chief Secretary and others v. Aamir Junaid and others 2015 SCMR 74 rel.

(b) Administration of justice---

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

(c) Administration of justice---

----Ill-gotten gains could not be protected.

Shoa-un-Nabi and Nadeem Shaikh for Petitioners.

Abdul Jalil Zubedi, A.A.G.

Shaukat Ali Shaikh for DMC Malir, Karachi.

Iqbal Khurram for KMC.

Ms. Azra Moqueem for KMC.

Abdul Khalil for DMC Central, Karachi.

Ahmed Zameer for DMC Korangi, Karachi.

Mirza Saleem Akhtar for DMC South, Karachi.

Salman Sabir for DMC East, Karachi.

2020 P L C (C.S.) 1553

[Sindh High Court (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui and Muhammad Faisal Kamal Alam, JJ

ASIF ALI

Versus

SECRETARY BOARD OF REVENUE, GOVERNMENT OF SINDH and 4 others

Constitutional Petition No.D-302 of 2012, decided on 19th March, 2020.

Civil service---

----Appointment against the post of Data Entry Operator and Assistant---Petitioner secured first position in the interview but he was not appointed against the post in question---Validity---Petitioner had secured first position in the interview for the post of Data Entry Operator and Assistant but he had not been recommended for appointment---Authorities had misled the Court in the present dispute---Laches per se was not a bar to invoke the Constitutional jurisdiction of High Court---Question of delay in filing a constitutional petition was to be examined with reference to the facts of each case---Present constitutional petition was not hit by the doctrine of laches---Authorities were bound to act fairly, reasonably and justly and pass speaking order with reasons---Petitioner had no vested right to get an appointment order from the authorities but he had a legitimate expectation---Eligible candidate could not be discriminated against or not considered merely on account of extraneous considerations---Authorities were bound to issue order for appointment of petitioner after completing legal requirements---Petitioner had right to be considered by the authorities and while doing so they were to consider the time consumed in the present constitutional petition---Constitutional petition was allowed, in circumstances.

Muhammad Akhtar v. District Returning Officer 2008 SCMR 629 and Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534 distinguished.

State Bank of Pakistan v. Imtiaz Ali Khan 2012 PLC (C.S) 2018 rel.

Sajjad A. Chandio for Petitioner.

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

2020 P L C (C.S.) 454

[Subordinate Judiciary Service Tribunal Khyber Pakhtunkhwa]

Before Lal Jan Khattak, Chairman and Ijaz Anwar, Member

Syed ASGHAR SHAH

Versus

The REGISTRAR, PESHAWAR HIGH COURT, PESHAWAR

Service Appeals Nos.60, 61, 62, 63 of 2011, decided on 19th October, 2019.

(On Appeal from the orders dated 23.12.2010, of Registrar, Peshawar High Court, Peshawar, whereby, adverse remarks recorded by Hon'ble the Administration Committee of Peshawar High Court, Peshawar, in the Annual Confidential Reports for the years, 2006, 2007, 2008 and 2009, were communicated to the appellant).

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

----S.5---Additional District and Sessions Judge---Adverse remarks recorded in the Annual Confidential Report---Impugned adverse remarks recorded in Annual Confidential Report were stereo type words which were conveyed after a considerable delay---High Court observed that Performance Evaluation Reports should be filled and dispatched to the Reporting Officer not later than 15th of January---Reporting Officers should forward the report to the Countersigning Officers within two weeks of receipt after recording their views---Countersigning Officers should finalize their comments within two weeks of receipt of Performance Evaluation Reports---Second Countersigning Officers, if any, should also complete their assessment within a period of two weeks---Adverse remarks must be communicated to persons concerned well before the end of June, each year without fail---In the present case, no allegation was on record with regard to judicial work of the officer---Conduct of judicial officer could not change at the spur of the moment---Opinion with regard to conduct of a judicial officer could be formed keeping in view his overall service career---Delay in timely communication of remarks was to be considered as misconduct on the part of reporting channel---Officer in question had already been compulsory retired from service---Performance Evaluation Reports were to give a clear picture with regard to work and conduct of officer reported upon---Adverse remarks were not supported by overall service career of the officer which could not sustain---Adverse remarks were expunged by High Court---Appeal was allowed accordingly.

Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others 2004 PLC (C.S.) 236 and Zahid Mehmood v. Peshawar High Court through Registrar 2013 PLC (C.S.) 570 rel.

Appellant in person.

Khalid Rehman for Respondent.

2020 P L C (C.S.) 60

[Lahore High Court]

Before Ayesha A. Malik and Asim Hafeez, JJ

Messrs STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Attorney

Versus

MUHAMMAD SHARIF

I.C.A. No.236606 of 2018 in Writ Petition No.44402 of 2017, heard on 22nd April, 2019.

State Life Employees (Pension) Regulations, 1986---

----Reglns. 16(3)(iv), 4 & 24(1)---Life Insurance (Nationalization) Order (10 of 1972), Art. 25---Increase in pension of employees of State Life Insurance Corporation, in the manner adopted by the Federal Government---Scope---Contention of Corporation was that ipso-facto increase in the pension could not be allowed to the employees merely upon office memorandum issued by the Federal Government---Validity---Chairman of the Corporation or person authorized had discretion to sanction pension---Purpose of State Life Employees (Pension) Regulations, 1986 dealing with matters relating to pension would stand compromised if absolute discretion was deemed to have been allowed to Federal Government to direct increase in pension of the employees of Corporation---No direction in writing had been issued through Office Memorandum of Federal Government to the Corporation for increase in the pension of its employees---If intention of Federal Government was to give effect and implement the said Memorandum qua the employees of Corporation, such intention should have been conveyed in writing---Regulation 16(3)(iv) of State Life Employees (Pension) Regulations, 1986 could not be read and implemented in isolation without considering the effect of Regln. 4 of said Regulations---Mere indexing of the pension in the manner adopted by the Federal Government would not ipso-facto result in the implementation of alleged office memorandum qua the employees of Corporation ignoring the powers of competent authority---State Life Employees (Pension) Regulations, 1986 had been issued with sanction of Federal Government and same enjoyed statutory force and any decision made in ignorance of any regulation material to the controversy would be per incuriam---State Life Employees (Pension) Regulations, 1986 and purpose thereof could not be made subservient to the command of the Federal Government---Corporation could consider the increase sanctioned in Office Memorandum of Federal Government and take independent decision qua the increase to be allowed to the employees but no right/benefit could be claimed merely upon issuance of the Memorandum by the Federal Government---High Court observed that employees could approach the Corporation for seeking increase in their pension which should be considered and decided in accordance with the mandate of State Life Employees (Pension) Regulations, 1986 and Life Insurance (Nationalization) Order, 1972---Impugned judgment passed by Single Judge of High Court was set aside---Intra court appeal was allowed, in circumstances.

Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 distinguished.

Gulshan Ara v. The State 2010 SCMR 1162 and Fasih-ud-Din Khan and others v. Government of Punjab and others 2010 SCMR 1778 rel.

Syed Waqar Hussain Naqvi for Appellant.

Mian Muhammad Sharif for Respondent.

2020 P L C (C.S.) 96

[Lahore High Court]

Before Ali Baqar Najafi, J

Mst. CHANDNI ASAD

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.21479 of 2016 and C.Ms. Nos.3 and 4 of 2019, decided on 15th July, 2019.

Civil Service Regulations, 1960---

----Reglns. 361, 418 & 420---Fundamental Rules, R.9.5---Leave without pay---Pension, grant of---Scope---Department refused to grant pensionary benefits on the ground that employee had not completed requisite length of service---Validity---Employee joined service on 26-10-1972 and resigned on 16-11-1999 and his resignation was accepted on 15-06-2000---Employee during his service remained on leave from 10-09-1979 to 10-09-1981 and rejoined the service without any reservations---No disciplinary proceedings were initiated during this period and employee was considered as regular employee entitled to the benefits as government employee---Petitioner remained on deputation and after his repatriation no disciplinary proceedings were initiated against him during his remaining period of service---Pensionary benefits, in circumstances, could not be deducted by refusing to count said period of absence from duty which was to be treated as leave without pay---Any interruption in service of employee would entail forfeiture of past service when it was due to an authorized leave or absence or when unauthorized absence was in continuation of authorized leave as long as the office of the absentee was not substantively filled---Employee was declared to be entitled to the pension after completing his twenty five years requisite qualifying service---Constitutional petition was allowed, in circumstances.

Nisar Ahmad and others v. Town Committee, Khairpur Tamewali through Administrator 2004 PLC (C.S.) 382; Ministry of Defence, Government of Pakistan, through Secretary Defence, Rawalpindi and 6 others 2012 PLC (C.S.) 1223; The Government of N.-W.F.P. through the Secretary of the Government of N.-W.F.P. Communication and Works Departments, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514; Mrs. Riffat Sattar v. Government of the Punjab through Secretary and 6 others 2016 PLC (C.S) 472 and Nazeer Ahmed Chakrani and others v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Government of Pakistan and 2 others 2009 PLC (C.S.) 776 ref.

Haji Muhammad Ismail Memon, Advocate's case PLD 2007 SC 35 and Chief Engineer, Hydel (North) and Project Director, WAPDA, Warsak v. Zafrullah Shah and another 2003 SCMR 686 ref.

Sh. Imran Muhammad Naeem for Petitioner.

2020 P L C (C.S.) 127

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Dr. SHAHBAZ MUJTABA GHAURI

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Chairman Lahore and 2 others

Writ Petition No.257665 of 2018, decided on 11th June, 2019.

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

----S.23---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 20---Constitution of Pakistan, Arts. 18 & 27---Notification No. SORIII(S&GAD)1-23/2018 dated 25-05-2018---Appointment against the post of Associate Professor (BS-19)---Reservation of quota for residents of special zone---Candidate qualified for interview but he was not recommended against one post of open merit due to quota for residents of special zone---Contention of petitioner was that bifurcation of quota was against Fundamental Rights of the Candidates---Validity---Bifurcation of posts advertised by the Public Service Commission was itself against the notification in question wherein authorities had offered one post on open merit and one post for women quota being 15% of total posts and with 20% quota for special zone having one post---Section 23 of Punjab Civil Servants Act, 1974 did not confer rule making power to the Governor for fixation of quota---Impugned notification was in derogation to the command of R. 20 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Impugned notification as well as advertisement were not at the same pedestal as their parent statute and rules---Rule making body could not frame rule in conflict with the substantive provisions of law or statute under which rules were framed---Courts was not to give effect to the rules unless satisfied that all the conditions precedent to the validity of rules had been fulfilled---Every citizen to have right to enter upon any lawful profession or occupation which did include the right to compete and participate for appointment to a post in any Federal or a Provincial Government Department on the basis of open competition---State to protect, respect, safeguard, ensure and facilitate the exercise of Fundamental Rights---Court to provide remedy to citizen whose rights had been encroached by the State or its functionaries---Reservation of quota for any class of persons or area to enter even in service of Pakistan was allowed for 40 years from the date of commencement of the Constitution---Impugned notification as well as advertisement to the extent of reservation of quota for the post in question were declared to be illegal and without lawful authority---Authorities were directed to approach the concerned quarters to make necessary amendments in the relevant law to accommodate the candidates from underdeveloped regions in conformity with the constitutional scheme for such candidates to seek employment in government service---Appointments already made under impugned notification prior to the impugned advertisement which had not been assailed would remain protected under doctrine of past and closed transaction---Constitutional petition was allowed, in circumstances.

Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; K.B. Threads (Pvt.) Limited through Chief Executive and others v. Zila Nazim, Lahore (Amir Mehmood) and others PLD 2004 Lah. 376; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353; Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 and Ahmad Yar Chowhan v. Federal Public Service Commission through its Secretary, Islamabad and others 1998 MLD 1832 ref.

Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Suo Motu Case No.11 of 2011 PLD 2014 SC 389; Malik Naz v. University of Peshawar through Registrar, Peshawar and 3 others 2003 PLC (C.S.) 180 and Independent Newspapers Corporation (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2017 Lah. 289 rel.

(b) Interpretation of statutes---

----Delegated power was be controlled and regulated by the parent statute and rule which could not be enhanced. (c) Interpretation of statutes---

----Rules could neither go beyond the scope of the parent statute nor could enlarge the scope of statutory provisions---Rules could not militate against the provisions under which they were made.

Iftikhar Ahmed Mian and Sheraz Zaka for Petitioners (connected petition).

Muhammad Ejaz, A.A.G. along with Mian Muhammad Iqbal, Law Officer for respondent-PPSC, Javed Hussain Sial, Law Officer for respondent / Secretary, Services and General Administration Department ("S&GAD"), Lahore, Hafiz Tariq Nasim, Jawad Tariq Nasim, Farzeen Fatima, Muhammad Salman Ullah Khan and Usman Shafiq Butt for Respondent No.4.

2020 P L C (C.S.) 150

[Lahore High Court]

Before Muhammad Ameer Bhatti, J

Messrs WAQAS DEVELOPERS through Proprietor

Versus

ENGR. LT. COL. (RETD.) HAQNAWAZ and 4 others

Writ Petition No.38989 of 2019, decided on 26th June, 2019.

Construction and Operation of Engineering Works Bye-Laws, 1987---

----Mode of payment of salary to engineers---Scope---Petitioner assailed letter issued by Engineering Council whereby firms were directed to provide the evidence regarding payment of salary to engineers/employees through transactions between the firm's account and the salary account of engineers in order to consider the case of petitioner for renewal of his firm---Petitioner contended that recording of statement of an engineer/employee regarding payment of salary was also permissible, therefore, the demand of documents by Engineering Council was unwarranted and uncalled for---Validity---One of the modes to pay the salary was through personal appearance of engineer/employee but at the same time other modes were equally effective and through any one of the same confirmation of payment of salary could be ensured---Employed engineers must have been paid their salaries through cross cheques or it should otherwise have been transferred to their accounts, removing all ambiguities---Demand of Engineering Council to produce relevant document showing the transaction of payment of salary between firm's account and salary account of engineers was in strict compliance of the law---Constitutional petition, having no force, was dismissed.

Imtiaz Ali Khan for Petitioner.

2020 P L C (C.S.) 168

[Lahore High Court]

Before Muhammad Ameer Bhatti, J

SULAMAN AMJAD and others

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.51484 of 2019, decided on 20th September, 2019.

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

----R. 17-A---Punjab Contract Appointment Policy, 2004, Preamble---Appointment of a child or widow of deceased civil servant on contract basis---Scope---Petitioner being son of deceased civil servant was appointed on contract basis---Validity---Recruitments under R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 on contract basis were not justified and same would amount to deprive the beneficiary of its true spirit---Government had changed policy qua mode of recruitment from contract to regular---Impugned order for appointment on contract basis was without lawful authority---Government had regularized all the contract employees completing their three years' service---Authorities were directed by the High Court to make new appointment of the petitioner under R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 on regular basis and to regularize the services of all the employees who were appointed by granting the benefit of R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Constitutional petition was allowed accordingly.

Ali Ahmad v. Executive District Education Officer, Sialkot and another 2014 PLC (C.S.) 793 and Mst. Rabia Mahboob v. Deputy Commissioner, Bahawalpur and 4 others PLJ 2019 Lahore (Note) 25 rel.

Malik Muhammad Imtiaz Mahl for Petitioners.

Muhammad Arshad Jahangir Jhojha, Additional Advocate-General.

2020 P L C (C.S.) 183

[Lahore High Court]

Before Ayesha A. Malik, J

BILQEES SHAUKAT

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 3 others

W.P. No.109673 of 2017, heard on 8th November, 2019.

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

----R.20---Policy Notification SRO IV-8-25/78, dated 28-5-1979---Absorption---Domicile of husband---Petitioner was a civil servant in education department and after her marriage she shifted her abode from Karachi to Lahore---Female Civil Servant seeking her permanent absorption in department on the basis of domicile of her husband---Validity---Such female civil servant could be absorbed and accommodated (without relaxation of rules) in terms of policy of Government---High Court directed the authorities to absorb the civil servant in service on the basis of Government of Punjab Policy vide Notification SRO IV-8-25/78, dated 28-5-1979---Constitutional petition was allowed in circumstances.

WAPDA through Chairman and others v. Abdul Ghaffar and others 2018 SCMR 380 ref.

Senate Secretariat through Chairman and another v. Miss Faiqa Abdul Hayee 2014 SCMR 522 distinguished.

Amir Hamza v. Government of Balochistan and others 2005 SCMR 1422 rel.

Mrs. Rizwana Anjum Mufti for Petitioner (in W.P. No.109673 of 2017).

Ch. Tariq Javed for Petitioner (in W.P. No.181148 of 2018).

Akhtar Javed, Additional Advocate General with Asia Butt, Law Officer for Respondents.

2020 P L C (C.S.) 214

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

PARKS AND HORTICULTURE AUTHORITY and others

Versus

EJAZ AHMAD SIAL

I.C.As. Nos. 246032 and 207440 of 2018, heard on 18th September, 2019.

Civil service---

----Intra-court appeal---Daily wages employees of Parks and Horticulture Authority---Regularization of service---Declaring a post as permanent---Scope---Employees filed constitutional petition for their regularization in service---Single Judge of High Court declared the post to be permanent and ordered for regularization of the employees---Validity---No vacant sanctioned post against which employees could be regularized was available in the department---Employees were not appointed through proper procedure and were employed from time to time on daily wages---No permanent post existed against which employees were appointed---Only department could declare any post to be permanent---Court could only direct that a candidate should be considered for regularization but it could not order for regularization of person against post that had not been sanctioned and was not a permanent post---Impugned judgment passed by the Single Judge of High Court was set aside---Intra court appeal was allowed in circumstances.

Waqar A. Sheikh for Appellants.

Mian Sohail Anwar and Hafiz Sarfraz Ahmad for Respondents.

2020 P L C (C.S.) 272

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

HASSAN MAHMOOD

Versus

HABIB BANK LIMITED and others

Intra Court Appeal No.1105 of 2015, heard on 30th September, 2019.

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

----Ss. 3 & 9--- Law Reforms Ordinance (XII of 1972), S. 3--- Intra-court appeal--- Maintainability--- Removal from service--- Alternate remedy--- Appellant was employee of nationalized Bank, who was removed from service by authorities--- Validity---Remedy of representation was provided against decision of authorities --- Order in question was challengeable and appellant had challenged the same through representation / review petition under S. 9 of Removal from Service (Special Powers) Ordinance, 2000, before competent authority which was also rejected--- Intra-court appeal was filed under S. 3 of Law Reforms Ordinance, 1972--- Provision of proviso to S. 3(2) of Law Reforms Ordinance, 1972 barred remedy of intra-court appeal in cases in which relevant law provided remedy of appeal, revision or review--- Division Bench of High Court declined to interfere in the matter as proviso to S.3(2) of Law Reforms Ordinance, 1972 specifically barred remedy of intra-court appeal in those cases in which relevant law provided remedy of appeal, revision or review--- Intra-court appeal was dismissed in circumstances.

SME Bank Limited v. Izharul Haq 2019 SCMR 939; Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another PLD 2005 SC 45; Federation of Pakistan through Secretary Revenue Division, Islamabad and others v. Messrs Sahib Jee and others 2017 PTD 1481; Muhammad Shakoor v. Federal Public Service Commission through Chairman, Islamabad and 2 others 2003 PLC (C.S.) 414; Yamin v. Mst. Jajan and others 2005 CLC 978; Messrs Shahzadi Polypropylene Industries through Proprietor v. Federation of Pakistan through President and 4 others 2017 PTD 2019; Muhammad Ashraf Saeed v. Habib Bank Limited and another 2018 PLC (C.S.) Note 13 and Haji Ahmad Khan and another v. Province of the Punjab and 5 others 2018 PLC (C.S.) 36 rel.

Munawar Ahmad Javed for Appellant.

Syed Fazal Mehmood for Respondents.

2020 P L C (C.S.) 285

[Lahore High Court]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Mst. GHULAM ZUHRA JAHANGIR and another

Versus

VICE-CHANCELLOR, UNIVERSITY OF THE PUNJAB, LAHORE and 8 others

Writ Petition No.247544 of 2018, decided on 22nd October, 2019.

Constitution of Pakistan---

----Arts. 199, 4 & 25---University of the Punjab Act (IX of 1973), S.11-A---Constitutional petition---Maintainability---Alternate relief---Effect---Civil service---Appointment on contract basis---Regularization of service---Scope---Contractual appointments were made on the recommendation of Selection Committee---Colleagues of petitioners had been regularized in service and there was no allegation/complaint with regard to official duties of petitioners---Authorities had been extending period of contract of employees from time to time which had created a legitimate expectancy in their mind with regard to their retention in service on regular basis---Person who had already served ten years in the government institution, if thrown out from the service, would be deprived of any service in any of the institutions under the government due to over age---Petitioners had been discriminated as their co-employees had already been regularized in service---Case of petitioners was at par with other colleagues who had been regularized---Petitioners were not to be pushed back to the authority which had already refused to accede to their genuine request---Act of authority to direct the petitioners to apply for any post as and when advertised was against the substantial justice---Technicality of law and rule should not operate as an absolute bar in the way of Court as preference in this regard would defeat the substantial justice---Extraordinary constitutional jurisdiction of High Court could be exercised with compassion and Court could not disregard the fact that non-regularization of services of petitioners was an act violative of right of livelihood---Petitioners were eligible for the posts in question---Public functionaries were to act fairly, justly and without discrimination---Petitioners were also entitled for the same treatment which had been given to their colleagues---Authorities were directed to reinstate the services of petitioners and regularize the same with immediate effect---Constitutional petition was allowed, in circumstances.

Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405; Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others 2018 SCMR 325; 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; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 and Government of Khyber Pakhtunkhwa and others v. Adnanullah and others 2016 SCMR 1375 rel.

Kh. Isaam Bin Haris for Petitioners.

Shoaib Zafar, Additional Advocate-General Punjab.

2020 P L C (C.S.) 352

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD AKHTAR and 3 others

Versus

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

W.P. No.25125 of 2016, decided on 8th October, 2019.

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

----Ss.10, 11 & 12---Employees of Board of Intermediate and Secondary Education---Grant of personal scale---Notice to deposit over payment received in lieu of higher scales---Locus poenitentiae, principle of---Applicability---Competent authority on the direction of finance department due to audit objections issued notice to the petitioners employees for deposit of over payment in lieu of higher scales---Contention of petitioners was that audit objection was a matter between Education Board and Finance Department and they should not be penalized---Validity---Board of Intermediate and Secondary Education was an independent body and was competent to hold the control, administer the property and funds---Provincial government was the controlling authority of Education Board---Competent authority had power to inspect and cause an inspection of the offices, activities and funds and the conduct of examination by the Education Board---Controlling authority had limited powers to interfere with the financial affairs of the Education Board---Once a right was created by extending benefit for no fault of a person then same could not be taken away on mere assumption, supposition, whims and fancy of any functionary---Nothing was on record that petitioners were at fault in procuring the personal scales----Acts of authorities could not prejudice their rights---Impugned order was declared to be illegal and without lawful authority---Matter was remitted to Secretary Board of Intermediate and Secondary Education with the direction to reconsider and decide in accordance with law---Constitutional petition was allowed, in circumstances.

Employees Welfare Association through President and General Secretary, Employees Welfare Association Board of Intermediate and Secondary Education, Multan and 3 others v. Board of Intermediate and Secondary Education, Multan through Chairman and 2 others 2000 CLC 1102 and Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others 2015 SCMR 1418 rel.

Arshad Malik Awan and Ajaz Khalid Khan Niazi for Petitioners.

Ameer Abbas Ali Khan, A.A.G.

2020 P L C (C.S.) 375

[Lahore High Court]

Before Sayyed Mazahar Ali Akbar Naqvi, J

AMJAD MEHMOOD

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 6 others

Writ Petition No.7779 of 2017, decided on 14th June, 2019.

Recruitment Policy of Punjab Emergency Service (Rescue-1122)---

----Cls. 7, 8 & 9---Petitioner qualified written test but could not meet the criteria laid down by the department for the post in question in his interview---Contention of petitioner was that recruitment policy of department was against Fundamental Rights---Validity---Recruitment policy with regard to division of marks for extra curriculum activities as well as description of interview marks was exclusively within the domain of the department---Court could not interfere into the affairs of any department until and unless the action was based upon mala fide or department had encroached upon the Fundamental Rights---Policy framed for induction by the department, which related to emergency affairs, required quickness and immediate response having direct nexus with the qualification being part of recruitment policy, should be adjudged during interview---Constitutional petition was dismissed, in circumstances.

Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167 and Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 rel.

Ali Rana for Petitioner.

Shoaib Zafar, Additional Advocate-General.

Falak Sher for Respondent No.6.

2020 P L C (C.S.) 389

[Lahore High Court]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SAEED AHMAD and others

Versus

NATIONAL BANK OF PAKISTAN through President and others

Writ Petitions Nos.8625 of 2019 and 7063 of 2017, decided on 25th November, 2019.

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

----S.11---National Bank of Pakistan (Staff) Services Rules, 1973, Preamble---National Bank of Pakistan Employees Pension, Provident and Gratuity Fund Rules, 1958, Preamble---Employee of National Bank of Pakistan---Pension, calculation of---Petitioners' representations for non-commuted portion of pension existing on the day when commuted period expired were dismissed---Validity---National Bank of Pakistan was a statutory corporation having statutory service rules---Petitioners were not covered under Civil Servant Rules of Government Employees---Commuted portion of pension of petitioners had been restored in accordance with Bank's relevant Pension Rules applicable to all the employees of the Bank---Petitioners were bound by the statutory rules and regulation of National Bank of Pakistan and could not seek remedy against any rule prevalent in the Bank---Constitutional petition was dismissed, in circumstances.

Umer Hayat Khawaja for Petitioner.

2020 P L C (C.S.) 398

[Lahore High Court (Multan Bench)]

Before Shahid Karim and Asim Hafeez, JJ

NATIONAL BANK OF PAKISTAN through President and 5 others

Versus

MUMTAZ AHMAD and another

I.C.A. No.276 of 2017 in W.P. No.2527 of 2012, decided on 6th November, 2019.

Civil service---

----Promotion---Constitutional petition was allowed by Single Judge of High Court holding that a Bank employee was entitled for promotion---Contention of employer Bank was that employee was not eligible for being considered for promotion---Validity---Eligibility for promotion did not mean the same as a vested right to be promoted under all circumstances---Minimum conditions for eligibility did not imply that those who met them would become entitled to be promoted necessarily---Employee had failed to meet the criteria for promotion and had not obtained the qualifying marks for being promoted---Order passed by the employer Bank was proper and based on reasonable grounds---Impugned order passed by Single Judge of High Court was set aside, in circumstances --- Intra court appeal was allowed accordingly.

Sardar Riaz Karim for Appellants.

2020 P L C (C.S.) 404

[Lahore High Court]

Before Shahid Karim, J

MUHAMMAD TALIB

Versus

PAKISTAN TELECOMMUNICATION CO. LTD. through Chief Superintendent and 2 others

W.P. No.12388 of 2019, decided on 19th June, 2019.

Civil service---

----Laches, doctrine of---Applicability---Retirement of employee under Voluntary Separation Scheme---Pension, grant of---Contention of employee was that he had qualifying service to his credit but pension had not been granted to him---Validity---Employee had filed the constitutional petition with inordinate delay therefore, no indulgence could be shown to him---Employee company had alleged that employee had less than ten years of service for qualifying for pension---Disputed questions of fact were involved in the matter, evidence was required for resolution of dispute---Constitutional petition was dismissed, in circumstances.

Nadeem Irshad for Petitioner.

2020 P L C (C.S.) 437

[Lahore High Court]

Before Ayesha A. Malik and Asim Hafeez, JJ

PROVINCE OF PUNJAB through SECRETARY FINANCE, LAHORE and others

Versus

KANWAL RASHID

I.C.A. No.50253 of 2019, heard on 27th January, 2020.

Per Ayesha A. Malik, J; Asim Hafeez, J agreeing

(a) Civil service---

----"Pension"---Meaning and concept of ---Pension was a retirement benefit, paid regularly based generally on length of service of a pensioner and was series of periodic money payments made to a person who retired from employment because of age, disability, or completion of an agreed span of service---Such payments generally continued for remainder of natural life of recipient or to a widow or any other survivor, as case may be---Grant of pension to public officers or public employees served public purpose, and was designed to induce competent persons to enter and remain in public service or employment, and to encourage retirement from public service of those who become incapacitated from performance of duties---Pension system is intended to promote efficient, continued and faithful service to the employer and economic security to the employees and their dependents, by an arrangement under which, by fulfillment of specified eligibility requirements, pension became property of individual as a matter of right upon completion of public service---Right to pension depended upon statutory provisions and existence of such right in particular instances was determinable primarily from terms of statute under which such right or privilege was granted---Right to a pension may be made to depend upon such conditions, as grantor may see fit to prescribe and it may be provided in a general through a pension act.

H.R.C. No.40927-S of 2012 PLD 2013 SC 829; Corpus Juris Secundum. Vol. 67 pages 763-764; American Jurisprudence, Vol. 40, pages 980 and 981; Ghulam Sadiq v. Government of Pakistan 2005 PLC (C.S.) 1114; Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif 2015 SCMR 1472; Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer 2015 PLC (C.S.) 296 and Federation of Pakistan v. I.A. Sharwani 2005 SCMR 292 rel.

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

----Ss.18 & 23---Punjab Civil Services Pension Rules, 1955, R. 4---Law Reforms Ordinance (XII of 1972) S. 3---"Pension" and "gratuity"---Entitlement of family to receive pension after death of civil servant---Unmarried daughter of deceased civil servant---Entitlement to receive concurrent pensions from both deceased parents who were civil servants---Scope---Question before High Court was whether respondent, who was unmarried daughter of two deceased civil servants, was entitled to receive pension benefits of both her parents concurrently---Held, that pension was a right of civil servant by way of statute, which could not be taken away arbitrarily by Provincial Government and such right accrued in favour of retired civil servant due to length of their service and said right was then bestowed upon persons mentioned in Punjab Civil Services Pension Rules, 1955 in the event of their death---Contention that respondent was not entitled to two pensions was misconceived because each one parent of respondent had earned their pension in their own right, while working for Provincial Government and on their death, said right was now vested in respondent who was entitled to collect the pension subject to the terms provided in Punjab Civil Services Pension Rules, 1955---As per applicable notification, respondent being an unmarried daughter was entitled to receive pension of both her parents until her marriage or on acquiring regular source of income, whichever was earlier---Contention that where a child was to receive two pensions, one pension would be deemed to be regular income thereby denying such child pension from other parent was flawed as such pension could not be considered as an independent or regular source of income said child was earning in her own capacity--- Respondent was therefore entitled to receive both pensions---Intra-court appeal was dismissed, in circumstances.

The Government of NWFP through the Secretary to the Government of NWFP, Communication and Works Department, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514 rel.

Per Asim Hafeez, J, agreeing with Ayesha A. Malik, J, giving his own reasons.

(c) Punjab Civil Services Pension Rules, 1955---

----R.4.10---"Pension" and "gratuity"---Entitlement of family to receive pension after death of civil servant---Nature of family pensions---Unmarried female child of deceased civil servant---Interpretation of Rule 4.10 of the Punjab Civil Services Pension Rules, 1955---Expression "acquiring regular source of income, interpretation of----Scope---Question before High Court related to Family Pension as per Rule 4.10 of Punjab Civil Services Pension Rules, 1955, which provided no family pension was payable to unmarried female on "acquiring regular source of income"---Issue to be determined was whether where an unmarried female was entitled to receive pension of both her deceased parents, and did the receipt of one pension constitute "regular income" thereby disentitling said unmarried female from the second pension of the other parent---Held, that in expression "acquiring regular source of income", used in Rule 4.10 of Punjab Civil Services Pension Rules, 1955; preceding word "acquiring" essentially controlled meaning and effect of following expression "regular source of income" and thus significance of expression "acquiring" had to be underscored while interpreting said condition---Right of parent to receive pension was an "acquired right", achieved in lieu and consideration of services performed, however, it was not an acquired right of an unmarried female daughter of such deceased civil servant as it simply devolved on her after death of parent(s), as cause and effect of relationship with deceased persons--- Construction of the expression "regular source of income", without the prefix, may simply indicate income coming from any source whatsoever, but when read with expression "acquiring", it had a definite connotation and meant more than mere assumption of devolved rights or receiving pensions and indicated acquiring of income by dint of some conscious effort, personal ability, skills, special qualification, experience or as consequence of any action or behaviour---Mere receipt of pension(s) by such unmarried female, as continuing right of her parents, could not be construed or termed as "acquiring regular income".

Don Basco High School v. The Assistant Director, E.O.B.I and others PLD 1989 SC 128 rel.

Shan Gul, Additional Advocate-General, Punjab on behalf of the Appellant along with Abdul Rauf, Deputy Secretary (SR), Finance Department, Nasir Mahmood, Law Officer, Finance Department and Chaudhry Asif Javaid, Accounts Officer in the Office of Appellant No.2.

Rana Asad Ullah Khan for Respondent.

2020 P L C (C.S.) 505

[Lahore High Court]

Before Ali Baqar Najafi, J

FIRDOUS SHAFIQ

Versus

INSPECTOR GENERAL OF POLICE and others

W.P. No. 232741 of 2018, decided on 27th January, 2020.

Constitution of Pakistan---

----Art. 199---Punjab Police Welfare Fund Rules, 2016, R.14(F)---Notification No. 7641/W-III, dated 30-05-2015---Appreciation of evidence---Petitioner sought declaration to the effect that her husband, who while on duty as Traffic Warden had met with an accident, be declared as "Shaheed" as against the declaration of Additional Inspector General of Police, Finance and Welfare---Validity---No reason had been given by the Additional Inspector General of Police, Finance and Welfare to disagree with the inquiry report which recommended declaration of deceased as "Shaheed"---Legal heirs of officers/officials killed in encounters, bomb blast, riots, watch and ward duties were entitled to be awarded Rs. 20,00,000/- as compensation under Notification No. 7641/W-III, dated 30-05-2015, however, the notification did not extend to the cases where death was caused by accident---Deceased had died during the watch and ward duties in an accident which was reported under S.302, P.P.C., therefore, it was not an accidental death and deceased was entitled to be declared as "Shaheed"---Constitutional petition was allowed and the husband of petitioner was declared as "Shaheed" with all consequential benefits.

Raja Rafaqat Ali for Petitioner.

2020 P L C (C.S.) 560

[Lahore High Court (Multan Bench)]

Before Shakil-ur-Rehman Khan and Mujahid Mustaqeem Ahmed, JJ

NABEELA KIRAN

Versus

GOVERNMENT OF PUNJAB and others

I.C.A. No. 25 of 2019 in W.P. No.13244 of 2017, decided on 25th February, 2019.

Civil service---

----Resignation---Withdrawal of---Scope---Petitioner requested for withdrawal of her resignation but same was declined---Constitutional petition filed by the petitioner was dismissed by Single Judge of High Court---Contention of petitioner was that her resignation from service was not voluntary rather it was a complaint---Validity---Competent authority had not examined the resignation and grounds highlighted therein---Petitioner was not summoned or interviewed by her immediate boss or competent authority to ascertain that her decision for resignation was voluntary or under compelling circumstances---Resignation submitted by the employee, in the present case, was a complaint against the officials/officers of the department for non-redressal of her grouses and grievances---Competent authority had failed to discharge the legal obligation before passing the impugned order---Department was to provide better and congenial working environment to its employees to discharge duties to their best abilities---Constitutional petition was remitted by the High Court to the competent authority with the direction to treat the same as representation and decide afresh after affording an opportunity of hearing to the petitioner and departmental representative on merits as per law---Intra-court appeal was disposed of, accordingly.

Muhammad Zahoor v. Registrar, Lahore High Court, Lahore and another 2005 SCMR 1194 rel.

(b) Words and phrases---

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

Black's Law Dictionary (Sixth Edition); Corpus Juris Secundum, Volume LXXVII at page 77 and Muhammad Khan v. Pakistan through Secretary, Ministry of Interior Karachi PLD 1958 Kar. 75 rel.

Raja Naveed Azam for Appellant.

2020 P L C (C.S.) 593

[Lahore High Court (Multan Bench)]

Before Abid Aziz Sheikh and Muzamil Akhtar Shabir, JJ

GOVERNMENT OF THE PUNJAB and others

Versus

Syed MUHAMMAD SALEEM SHAH

I.C.A. No.158 of 2019, heard on 12th November, 2019.

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

----S. 4(1)(b)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Promotion---Fitness for promotion---Principles---Terms and conditions of service---Bar on jurisdiction contained under Art.212 of the Constitution---Determination of fitness---Scope---Employee was not recommended for promotion by the Departmental Promotion Committee---Constitutional petition filed by the employee was allowed by Single Judge of the High Court---Validity---Departmental Promotion Committee had observed that employee had doubtful integrity and was professionally incompetent---Assessment of Departmental Promotion Committee was subjective assessment based on objective criteria---Question of determination of fitness of a person to be promoted was not capable of being scrutinized on the basis of judicially manageable standards---Fitness did introduce an element of subjective evaluation on the basis of objective criteria---Substitution of opinion of competent authority by the Court was not possible---Where competent authority had acted in violation of law or in excess of jurisdiction only then constitutional jurisdiction of High Court could be invoked---Department itself had devised objective criteria by issuing policy guidelines and developing method for assessment for the performance of officer for the purpose of promotion---Said assessment was based upon subjective opinion of the evaluation reports---High Court could not sit in judgment over the said subjective evaluation but could only examine if objective criteria was followed or not by the competent authority---Single Judge of High Court had neither examined subjective evaluation nor considered the objective criteria for determination of fitness---Nothing was on record that competent authority had passed order in colourable exercise of power or order was without jurisdiction or against law or mala fide---Service Tribunal had exclusive jurisdiction in the matter with regard to terms and conditions of person in the service of Pakistan---Impugned order passed by Single Judge of High Court was set aside by the Division Bench---Intra-court appeal was allowed, in circumstances.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui 1991 SCMR 1129 and Muhammad Iqbal Executive District Officer 2007 SCMR 682 rel.

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

----S.4(1)(b)---Promotion---Terms and conditions of service---Appeal against final order of the department---Service Tribunal, jurisdiction of---Scope---Determination of fitness of employee for promotion---Exclusive jurisdiction of the department---Civil servant aggrieved by any final order passed by departmental authority with regard to any terms and conditions of his service might prefer an appeal to the Service Tribunal---Service Tribunal had no jurisdiction with regard to decision or order of departmental authorities determining the fitness or otherwise of a person for promotion---Departmental authorities had exclusive jurisdiction to determine the fitness of person to be promoted or not to a higher grade---Service Tribunal had exclusive jurisdiction with regard to matter relating to terms and conditions of service.

Mian Muhammad Azhar Saleem Kamlana, AAG along with Muhammad Hassan Tahir, Inspector DPO Officer, Muzaffargarh for Appellants.

Ch. Abdul Sattar Goraya for Respondent.

2020 P L C (C.S.) 645

[Lahore High Court]

Before Ayesha A. Malik, J

MAKHDOOM NAWAZ and others

Versus

PAKISTAN ELECTRIC POWER COMPANY (PVT.) LIMITED and others

W.P. No. 67866 of 2019, heard on 4th February, 2020.

Constitution of Pakistan---

----Art. 199---Government posts in Electricity distribution companies (DISCOs)---Recruitment process --- Recruitment policy, change in---Weightage ratio for academic qualification, written test and interview---Increase in weightage given to interview and written test in changed policy---Admittedly, the petitioners applied for the various different posts offered by the DISCOs pursuant to the new changed policy---Recruitment process was under way and interview stage had not arrived, hence the challenge was premature---Interview marks did play a decisive role in the recruitment process, however at present stage there was nothing available on the record on the basis of which the petitioners could assert that the increased percentage allocated for interview in the changed policy was not structured, reasoned or objective---Grounds of challenge against the changed policy were based on apprehensions of the petitioners---Weightage ratio of written test was increased and made equal to that of academic qualification so as to broaden the base of applicants for the purposes of recruitment---As such it was a policy decision and there was no basis to challenge the policy such that it favoured graduates of a particular university---Petitioners did not have any data to show how they had been prejudiced at present stage given that the new changed policy had just been introduced and the recruitment process was still underway---High Court directed that the DISCOs should proceed with the recruitment process as the petitioners' entire case was based on apprehensions---Constitutional petitions were dismissed.

Barrister Haris Azmat, Barrister Maryam Hayat and Muhammad Faizan Azhar for Petitioners (in W.P. No.67866 of 2019).

Barrister Lamia Niazi for Petitioners (in W.P. No.69022 of 2019).

Ambreen Moeen, DAG for Respondent.

Muhammad Shahzad Shaukat and H.M. Zeeshan Khan for Respondent PEPCO along with Farrukh Aftab Khan, Director PEPCO.

Mehar Shahid Mehmood for LESCO along with Muhammad Yusaf Raza, Chief Law Officer, LESCO and Muhammad Yasin Badar, Legal Consultant, LESCO.

Muhammad Javaid for IESCO and PESSCO.

Ms. Erum Masood Chughtai for HESCO.

2020 P L C (C.S.) 654

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

LESCO

Versus

MUHAMMAD SHOAIB and others

Intra Court Appeal No.167161 of 2018, heard on 21st November, 2019.

(a) Civil service---

----Appointment---Petitioners having higher qualification but without requisite experience qualified written test and interview but their appointments were refused---Constitutional petition filed by the petitioners was allowed by Single Judge of High Court---Validity---Board of Directors of employer Company had power to appoint its employees and fix their terms and conditions of service without reference or recourse to the Federal Government---Post in question had been advertised to ensure transparent process for appointment of persons having particular qualification and experience in the light of advertisement---High Court would not interfere in the transparent policy decision of the executive body aimed to achieve the best result in managing its affairs---If persons having better qualification were recruited against a post which prescribed lower qualification then it would deprive a candidate having less but required qualification---Employer-Company had appointed eligible and suitable persons to run its affairs smoothly---No constitutional right of petitioners had been infringed in the present case---Single Judge of High Court had failed to appreciate assessment of suitability of particular nature of job and its scope---Courts could not prescribe eligibility and experience which were matters of policy and same should be left to the department---Employer could have not appointed overqualified persons who would not be willing and ready to perform field nature duties---Company had resorted to an objective and rational criteria mentioned in the advertisement and selected candidates having required qualification---High Court was not to take exception to such procedure and interfere in administrative decisions---Impugned order passed by the Single Judge of High Court was not sustainable which was set aside---Intra court appeal was allowed, in circumstances.

Sheikh Muhammad Rashid v. Majid Nizami, Editor-In-Chief, The Nation and Nawa-E-Waqat, Lahore and another PLD 2002 SC 514 and Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another PLD 2008 SC 591 ref.

M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363; Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 and Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. Former President of Defunct National Awami Party PLD 1976 SC 57 rel.

(b) Constitution of Pakistan---

----Art 199---Constitutional jurisdiction of High Court---Policy matter---Interference---Scope.

High Court, on the decisions of authority with regard to a policy matter will not ordinarily interfere. However, Courts do not abdicate their right to scrutinize whether the policy has been formulated keeping in mind all relevant facts and whether it is beyond the pale of discriminations or unreasonableness on the basis of the material on record. Unless the policy or action is inconsistent with the Constitution and the laws are arbitrary or irrational or there is abuse of power, the Courts will not interfere with such policy matters.

Barrister Muhammad Haroon Mumtaz, ASC, Zain Naqvi and Najam Saqib for Appellant.

Barrister Lamia Khan Niazi for Respondents.

2020 P L C (C.S.) 675

[Lahore High Court (Bahawalpur Bench)]

Before Shahid Jamil Khan, J

Mst. NABILA NIAZ and others

Versus

SECRETARY HEALTH and others

W.P. No.4588 of 2013, heard on 17th February, 2020.

Punjab Regularization of Service Act (XV of 2018)---

----Ss. 3, 4, 5, 10, 1 (3) & 2 (c) (f)---Punjab Civil Servants Act (VIII of 1974), Preamble---Appointment on contract basis---Regularization of service---Procedure---Contention of petitioners-employees was that they were entitled to be regularized under Punjab Regularization of Service Act, 2018---Validity---Punjab Regularization of Service Act, 2018 was applicable to those persons who had completed three years continuous service under contract before or after its enactment---Regularization of such employee who was eligible to be appointed on contract under relevant law or policy should be made through appointment in accordance with Punjab Regularization of Service Act, 2018---Employees who had fulfilled conditions under Punjab Regularization of Service Act, 2018 were entitled for regularization---Petitioners had completed three years of continuous service on contract and Punjab Regularization of Service Act, 2018 was applicable to them---Eligibility for the post in question and fulfillment of preconditions should be determined under Punjab Regularization of Service Act, 2018---Section 3 of Punjab Regularization of Service Act, 2018 did protect the appointments on contract made immediately before commencement of the Act---If contract employee had not opted against regularization within sixty days then he should be deemed to have opted for the same---Competent authority after expiry of sixty days from commencement of Punjab Regularization of Service Act, 2018 was bound to submit case of contract employee for regularization either before Scrutiny Committee or before Commission---Contract employee who had been appointed on the recommendations of Commission should be regularized by the appointing authority without referring his case to the Commission---Scrutiny Committee should forward its recommendations to the appointing authority after verification of academic record and scrutinizing the relevant record to determine whether the conditions stipulated in S.3(2) of Punjab Regularization of Service Act, 2018 had been fulfilled---Contract employee who had fulfilled the conditions to the satisfaction of Scrutiny Committee or Commission was entitled to be regularized under Punjab Regularization of Service Act, 2018 with immediate effect---Employee so regularized should be governed under Punjab Civil Servants Act, 1974 and the rules framed thereunder---Petitioners were eligible to be considered for regularization under Punjab Regularization of Service Act, 2018---Appointing authority was directed by the High Court to send the cases of petitioners to the Commission if appointment against the posts in question did fall within the purview of Commission otherwise their cases for determination of eligibility be placed before the Scrutiny Committee---Constitutional petition was allowed, in circumstances.

Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181 rel.

Jamshed Akhtar Khokhar for Petitioners.

Jam Muhammad Afzal Gosoora, Assistant Advocate-General, Punjab.

Khurram Abbas Wahga for Respondent No.1.

2020 P L C (C.S.) 688

[Lahore High Court (Bahawalpur Bench)]

Before Shahid Jamil Khan, J

Dr. FATIMA ARSHAD

Versus

GOVERNMENT OF THE PUNJAB and others

W.P. No.898 of 2020, heard on 19th February, 2020.

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

----S. 10---Constitution of Pakistan, Arts. 4, 10A & 19A---Appointment on ad hoc basis for one year or till availability of regular incumbent---Verbal termination of petitioner on transfer of regular incumbent---Due process---Scope---Contention of petitioner was that impugned verbal termination order was against law---Validity---Appointment on ad hoc basis was temporary in nature which was liable to termination on appointment of regular incumbent---Appointment of a person on the recommendation of selection authority during the tenure of ad hoc appointment was sine qua non---Respondent had been appointed prior to the appointment of petitioner and not during the tenure of one year---Authority even on appointment of regular incumbent was bound to serve a thirty days notice or pay in lieu thereof---Such notice was to contain the information of appointment of regular incumbent against the vacancy and an intimation of termination within thirty days from the date of notice---Termination in alternative with immediate effect was to be communicated with pay in lieu thereof---Due process and disclosure of necessary information in a notice or show-cause notice was Fundamental Right of the recipient of the notice---Any action taken on a notice or a show cause notice lacking due process or necessary information would be susceptible to judicial review in constitutional jurisdiction and liable to be set aside---Impugned action of reliving the petitioner verbally on simple transfer of a regular employee being not an incumbent appointed against the vacant post was declared in violation of express provisions of law---Statutory rights even temporary could not be taken away in violation of Fundamental Rights guaranteed under Arts. 4, 10A & 19A of the Constitution---Petitioner had statutory right though temporary to serve for one year unless a regular incumbent was appointed on recommendation of selection authority and that too on service of a written notice for thirty days or pay in lieu thereof---Impugned order passed by the authority was set aside---Petitioner would continue to serve unless her service was terminated in accordance with law---Constitutional petition was allowed, in circumstances.

Muhammad Atif Qureshi for Petitioner.

Jam Muhammad Afzal Gasoora, Assistant Advocate General Punjab assisted by Dr. Ghulam Yaseen Sabir, Chief Executive Officer, DHA, Bahawalpur.

Muhammad Tahir Saeed Ramay for Respondent No.6.

2020 P L C (C.S.) 697

[Lahore High Court]

Before Ayesha A. Malik and Jawad Hassan, JJ

Syed MUNTAZIR MEHDI BUKHARI

Versus

GOVERNMENT OF THE PUNJAB and others

Intra Court Appeal No.73514 of 2019, decided on 4th December, 2019.

Civil service---

----Contract employee---Master and servant, relationship of---Termination from service---Constitutional petition filed by the employee was dismissed by Single Judge of High Court---Contention of employee was that no opportunity of hearing had been provided to him before his termination from service---Validity---Petitioner who was appointed on contract basis had accepted the terms and conditions of his employment---Employee had been afforded an opportunity of hearing by the department---Relationship of master and servant existed in the matter of contract appointment and constitutional petition was not maintainable---No illegality or infirmity had been pointed out in the impugned order passed by the Single Judge---Intra-court appeal was dismissed in limine.

Muhammad Riaz v. Medical Superintendent, Service Hospital, Lahore and 2 others 2016 PLC (C.S.) 296; Jahanzaib Khan Niazi v. Government of Punjab through Secretary Irrigation, Lahore and 8 others 2016 PLC (C.S.) 1039; Aamir Junaid and 143 others v. Government of the Punjab through Chief Secretary and 5 others 2014 PLC (C.S.) 1 and Dr. Sitara Abdul Rehman v. Government of Punjab through Secretary Health, Lahore and 3 others 2012 PLC (C.S.) 1203 ref.

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

Muhammad Ilyas Bhatti for Appellant.

2020 P L C (C.S.) 747

[Lahore High Court (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD IQBAL

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education Schools, Punjab, Lahore and 4 others

Writ Petition No.13233 of 2016, decided on 18th February, 2019.

(a) Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---

----R.3(v)---Notification No. DS(O&M)5-3/2004/CONTRACT(MF) dated 19-01-2012---Contract employee having applied for Secondary School Educator and seeking relaxation in their upper age limit---"Government servant"---Scope---Petitioner being contract employee applied for appointment against the post of Secondary School Educator but he was not extended benefit of R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---Validity---Benefit of age relaxation under Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 had been extended to the 'government servant' for exclusion of his period of continuous service for the purpose of upper age limit prescribed under any service rules of the post for which he was candidate---Competent authority had extended benefit of age relaxation to the contract employment---Petitioner employee was entitled for age relaxation under Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, in circumstances---"Government servant" referred in R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 did include the contract employee---Petitioner being government employee was entitled for age relaxation and refusal of such right on the part of competent authority was against law---Petitioner employee had been discriminated in the present case---Impugned order passed by the authorities was set aside with the direction to extend benefit of R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 to the petitioner---Constitutional petition was allowed, in circumstances.

Punjab Government and others v. Saleem-ur-Rehman and others 1985 PLC (C.S.) 112; Shahid Akhtar and another v. Secretary, School Education Department, Government of Punjab, Lahore and 2 others 2012 PLC (C.S.) 851; Saghir Ahmad Naqi v. Government of the Punjab through Secretary Home (Prisons) Department, Lahore and another 2005 PLC (C.S.) 1409; Sajid Aziz v. Secretary Schools and others 2014 PLC (C.S.) 464; Muhammad Qasim and 6 others v. Home Department, Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others 2004 PLC (C.S.) 69; Arif Hussain Dar v. Board of Revenue through Secretary, Muzaffarabad and 5 others PLD 2002 Azad J&K 14 and Saphire Energy Limited and 10 others v. Pakistan and others 2001 PTD 2234 rel.

(b) Interpretation of statutes---

----Policy or notification could not override statutory rules framed by the government under the statute.

(c) Interpretation of statutes---

----Executive instructions and polices could not amend statutory rule.

(d) Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---

----R.3(v)---'Government Servant'---Scope---Term 'Government Servant' did include all Government Servants including 'Civil Servants' and not vice versa.

Syed Asif Raza Gilani for Petitioner.

2020 P L C (C.S.) 790

[Lahore High Court]

Before Shams Mehmood Mirza, J

Mst. SHABANA MALIK

Versus

GOVERNMENT OF PUNJAB through Secretary and 3 others

W.P. No.60141 of 2019 and C.M.A. No.1 of 2020, decided on 14th January, 2020.

Civil service---

----Eligibility for appointment---Scope---Petitioner filed application before the Chairman, District Recruitment Committee, for being accommodated on the seat lying vacant in government school reserved for the minority quota---Application of the petitioner was dismissed on the ground that the minority quota was liable to be filled up under the new policy---Validity---Clause 16(h) of the Contract Policy 2016-2017 provided that in case a seat reserved for minority quota was not filled up on account of non-availability of suitable candidate, the same would be available to other candidates on open merit list---High Court observed that as soon as the vacancy opened on account of non-availability of the candidate under the minority quota right came to be vested in the next candidate available on the open merit list, which right could not be denied on the ground that the seats would be filled up under the next recruitment policy---Constitutional petition was allowed, order passed by Authority was set aside and it was directed to process the case of petitioner for her appointment to the said post, if she was otherwise eligible.

Saif ur Rehman Jasra for Petitioner.

2020 P L C (C.S.) 815

[Lahore High Court (Multan Bench)]

Before Ch. Muhammad Iqbal, J

Syed IMRAN QADIR GILANI

Versus

FEDERATION OF PAKISTAN through Ministry of Communications, Pakistan Secretariat, Islamabad and 5 others

W.P. No.5975 of 2015, decided on 20th May, 2019.

Civil service---

----Appointment on deputation---Withdrawal of---Scope---Employee did not have any vested right to remain on the post as deputationist for an indefinite period or to get absorption in the other department---Parent department at any time without assigning any reason could pass orders with regard to repatriation of its employee---Constitutional petition was dismissed, in circumstances.

S. Masood Abbas Rizvi v. Federation of Pakistan and others 2014 SCMR 799; Dr. Shafi ur Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378; Ghansham Das v. Federation of Pakistan through Secretary Establishment Division and others 2017 PLC (C.S) 191; Aziz Ul Allah and others v. Government of Balochistan through Chief Secretary, Quetta and another 2018 SCMR 5; Rafiq Ahmed and others v. Government of Balochistan through Chief Secretary, Quetta and others 2018 SCMR 48 and Muhammad Sharif Tareen, Chief of Section (Acting) (BPS-19), Planning and Development Department, Government of Balochistan, Civil Secretariat v. Government of Balochistan through Chief Secretary and another 2018 SCMR 54 rel.

Muhammad Ali Siddiqui for Petitioner.

Syed Muhammad Najam-us-Saqib, Assistant Attorney General, Malik Muhammad Tariq Rajwana for Respondents Nos.2 to 5.

2020 P L C (C.S.) 867

[Lahore High Court]

Before Asim Hafeez, J

MUHAMMAD KHALID and others

Versus

PROVINCE OF PUNJAB through Chief Secretary, Punjab and others

W.P. No.205 of 2020, decided on 24th April, 2020.

(a) Punjab Local Government Act (XIII of 2019)---

----Ss. 296, 297 & 316---Punjab Local Government Act (XVIII of 2013), S.142---Punjab Local Government Ordinance (XIII of 2001), S.184---Punjab Local Government Ordinance (VI of 1979), Ss. 42 & 43---Punjab Local Councils Servants (Service) Rules, 1997, R.2(3)---Repatriation of employee to parent local government---Petitioners were employees of local councils for collection of Octori / Goods Export tax and after the same were abolished they were directed to perform duties in succeeding local governments, constituted in Punjab under subsequent legislations---After promulgation of Punjab Local Government Act, 2019, petitioners were repatriated to their parent Local Councils--- Validity--- Service cadre of Octroi / Goods Expert tax staff remained unchanged--- Petitioners failed to establish legitimate transfer/migration or alleged absorption into different service cadres--- Trajectory of local government laws, introduced by competent legislature from time to time, acknowledged and maintained segregation amongst various classes of employees and the same was preserved while promulgating Punjab Local Government Act, 2019--- Divide among the employees of various classes- based on their service structure / cadre and posts and separate set of rules- was conspicuous in terms of S.42 of Punjab Local Government Ordinance, 1979, S.184 of Punjab Local Government Ordinance, 2001, S.142 of Punjab Local Government Act, 2013, and Ss.296 & 297 of Punjab Local Government Act, 2019--- Claim of horizontal movement from one cadre to another cadre by way of alleged absorption was not permissible in terms of R.2(3) of Punjab Local Councils Servants (Service) Rules, 1997--- Order of repatriation of petitioners to report to their parent local government-being the servants of Local Council Service in terms of S.297 of Punjab Local Government Act, 2019, was legally justiciable and valid in the wake of abolition of Union Administration / Councils as the lowest tier of local governments---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Kareem Bux and others v. Province of Sindh through Chief Secretary, Government of Sindh and others 2012 PLC (C.S.) 160; I.A. Shawani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Abid Hussain and 5 others v. Secretary to Government of the Punjab, Finance Department, Civil Secretariat, Lahore and 5 others 2012 PLC (C.S.) 26; Naseem-ur-Rehman v. Secretary, Establishment Division, Islamabad and 16 others 2001 PLC (C.S.) 710; Shahid Ali and 12 others v. Administrator, District Council, Larkana and another 2002 PLC (C.S.) 655; Shah Muhammad Chaudhry v. Chairman, Pakistan Steel Mills Corporation and 3 others 2002 PLC (C.S.) 1541; Mrs. Farkhanda Talat v. Federation of Pakistan through Secretary Establishment Division, Islamabad and others 2007 SCMR 886; Ghulam Rasool v. Secretary, Government of Pakistan, Ministry of Defence and others 2011 SCMR 994; Kareem Bux and others v. Province of Sindh through Chief Secretary, Government of Sindh and others 2012 PLC (C.S.) 160; Contempt Proceedings Against Chief Secretary, Sindh and others 2014 PLC (C.S.) 82; Senate Secretariat through Chairman and another v. Miss Faiqa Abdul Hayee 2014 SCMR 522; Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed and others 2015 SCMR 1006; Babar Khan v. Provincial Government through Chief Secretary and 5 others 2015 PLC (C.S.) 906; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Islamic Republic of Pakistan v. Israrul Haq and 23 others PLD 1981 SC 531; Contempt Proceedings Against Chief Secretary, Sindh and others 2013 SCMR 1752 and Ms. Azra Mooqueem v. Karachi Metropolitan Corporation through Administrator and 3 others 2019 PLC (C.S.) Note 2 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Policy decision---Scope---High Court does not examine or review policy decisions made, deployment plan prepared and implemented, in absence of any illegality or violation of any actionable right conferred by statute.

Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad through Chairman and others 2010 SCMR 378 rel.

Malik Salim Iqbal Awan, Kashif Ali Chaudhry, Mian Tanvir Rehmat Qureshi, Muhammad Sultan, Zahid Mehmood Goraya, Muhammad Umer Farooq, Mustafa Shaukat Pasha, Ch. Abdul Latif, Ch. Muhammad Lehrasab Khan Gondal, Malik Ahmad Nawaz, Awan, Muhammad Ahsan Farooq, Muhammad Ali Johari, Shazia Ashraf, Rao Mudassar Azam and Rabia Rehman for Petitioners (in C.M. No.3 of 2020).

Sardar Qasim Hassan Khan, Assistant Advocate-General with Ch. Ibrar Ahmad, Director (Legal), M. Naeem Akhtar, Assistant Director (Legal) and Ms. Baby Tabassam, Litigation Officer for Chief Secretary LG&CD Department.

Muhammad Uzair Chughtai and Ch. Abdul Majid for Applicants.

2020 P L C (C.S.) 925

[Lahore High Court]

Before Shahid Waheed, J

MUHAMMAD SAFDAR

Versus

GOVERNMENT OF THE PUNJAB through Secretary Higher Education and 2 others

W.P. No.4137 of 2019, decided on 18th February, 2020.

Civil service---

----Appointment---Petitioner was aggrieved of appointment of respondent as lecturer on the recommendation of Punjab Public Service Commission---Contention of petitioner was that respondent concealed the fact of his service and did not provide 'No Objection Certificate' from the Ministry concerned while applying for the post in question--- Validity--- Respondent applied for the post on 9-7-2017, whereas he was appointed on contract basis in a project of Ministry of Law on 16-8-2017--- At the time of submitting online application for the post in question, respondent was not in service--- Condition of furnishing 'No Objection Certificate' from the Ministry concerned could not be imposed upon respondent and he could not be held guilty of any concealment of fact--- Advice rendered by Regulation / O & M Wing of S&GA Department, Government of Punjab was valid---Allegation made in complaint of petitioner was not well founded---High Court declined to interfere in the matter as Punjab Public Service Commission had rightly rejected complaint of the petitioner---Constitutional petition was dismissed in circumstances.

Zameer-ul-Hassan for Petitioner.

2020 P L C (C.S.) 939

[Lahore High Court]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD ASAD GULZAR ALI and 2 others

Versus

CHIEF EXECUTIVE OFFICER and others

Writ Petitions Nos.67946 of 2017 and 56565 of 2019, decided on 29th November, 2019.

Civil service---

----Appointment against the post of Assistant Education Officer---Requisite qualification being Master Degree in any subject---Candidates having degrees of Bachelor of Science in Electrical (Power) Engineering, Bachelor of Mechatronics Engineering, Bachelor of Science in Building and Architectural Engineering and Bachelor of Science in Electrical Engineering---Discrimination---Effect---Appointments of petitioners as Assistant Education Officers were cancelled on the ground that they did not possess the requisite qualification---Contention of petitioners was that they had been discriminated by the authorities---Validity---Petitioners being qualified persons after test and interview were appointed against the posts in question by the competent authority---Appointment of petitioners had been withdrawn on the ground that they did not possess requisite qualification---Higher Education Commission had issued equivalence of Master Degrees to the degrees held by the petitioners---Higher Education Commission had domain to issue equivalence in favour of the educational degrees---Nothing was on record that petitioners had got inducted themselves in the department through concealment or on the basis of forged documents---Petitioners had been recruited in accordance with law---If there was any defect in appointments of petitioners then they could not be held responsible for the same nor they should be penalized in this regard---Department could not be allowed to take benefit of its own lapse---Dispensation of justice was not only the duty of judicial or quasi-judicial authority but every public functionary was bound to act fairly, justly and without any discrimination---Colleagues of petitioners having similar qualification were still performing the duties in the department---Petitioners having been discriminated deserved same treatment---High Court exercised constitutional jurisdiction with compassion---Cancellation of appointments of petitioners was an act violative of right of livelihood---Act of authorities was against the dictates of substantial justice---Technicality of law and rule should not operate as an absolute bar in the way of Court as preference in that regard would defeat the substantial justice---Constitutional petition was allowed in circumstances.

District Education Officer (MEE), Bahawalnagar and others v. Mst. Fouzia Nazir and 2 others 2011 SCMR 1441 and Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulifqar Ali 2006 SCMR 678 ref.

Haji Nasir Mehmood v. Mian Imran Masood and others PLD 2010 SC 1089; Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others 2015 SCMR 1418; Chairman, Selection Committee/Principal, King Edward Medical College, Lahore an 2 others v. Wasif Zamir Ahmad and 2 others 1997 SCMR 15; Mian Tariq Javed v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others 2008 SCMR 598; Federation of Pakistan through Secretary, Government of Pakistan Establishment Division, Islamabad and another v. Flt. Lt. Farrukh Rashid (R) and another 2008 SCMR 544; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Government of Khyber Pakhtunkhwa and others v. Adnanullah and others 2016 SCMR 1375; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 and Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others PLD 2015 SC 15 ref.

Saif ur Rehman Jasra for Petitioners.

Shoaib Zafar, Additional Advocate General.

2020 P L C (C.S.) 1036

[Lahore High Court (Multan Bench)]

Before Abid Aziz Sheikh and Muzammil Akhtar Shabir, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, SAHIWAL and another

Versus

AKHTAR USMAN and 2 others

I.C.A. No.152 of 2019, decided on 5th November, 2019.

Civil service---

----Regularization of services---Scope--- Equality of citizens---Rule of consistency---Respondents had filed constitutional petitions seeking regularization of their services---Single Judge of High Court vide the impugned order had allowed the constitutional petitions---Validity---Orders similar to the impugned orders had been passed in some other Constitutional petitions by the Single Judges of the High Court which were upheld in intra court appeals--- Respondents were entitled to the same relief on the principle of consistency and equality---Respondents/employees could not be discriminated without any cogent reason by violating the provisions of Art. 25 of the Constitution and it was duty of employer department to protect fundamental rights of employee as enshrined in Art.9 of the Constitution---No ground to interfere in the impugned order was made out---Intra-court appeals by the employer department, being devoid of merits, were dismissed.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Board of Intermediate and Secondary Education, D.G. Khan and another v. Muhammad Altaf and others 2018 SCMR 325; Mirza Naeem Baig's Case C.P. No.2509 of 2016 and Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 ref.

Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Muhammad Iqbal and 29 others I.C.A. No.186 of 2018; Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Muhammad Sajid and another I.C.A. No.149/2018 and Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Furrukh Mehmood and another I.C.A. No.150/2018 foll.

Board of Intermediate and Secondary Education, Multan through Chairman and another v. Muhammad Sajid and others 2019 SCMR 233 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 rel.

Board of Intermediate and Secondary Education, Bahawalpur and others (in all cases) v. Sher Muhammad and others Civil Petitions Nos.301-L to 309-L and 316-L to 318-L of 2019 distinguished.

Allah Bakhsh Khan Kulachi for Appellants (in I.C.As. Nos.15, 153, 177 and 178 of 2019).

Nemo. for Appellants (in connected I.C.As. Nos.75, 145, 146, 147, 180, 181, 182, 183, 198, 222 and 223 of 2019).

2020 P L C (C.S.) 1087

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Dr. IQRAR AHMAD KHAN

Versus

GOVERNMENT OF THE PUNJAB through Secretary Agricultural Department, Lahore and others

Writ Petition No.34743 of 2019, decided on 4th February, 2020.

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

----Ss.11 & 14---University of Agriculture, Faisalabad Conduct of Business Rules of the Syndicate, 1976, R. 3---Appointment of Vice Chancellor of University---Recommendations of Search Committee---Lapse in holding the meetings of Syndicate---Effect---Search Committee awarded highest marks to the petitioner but he was not appointed as Vice Chancellor on the grounds that he had failed to hold required number of meetings of the Syndicate during his previous tenure and there were outstanding audit paras against him---Validity---Search Committee was not the appointing authority however, its recommendations were to be given due weight---Petitioner had secured highest marks in qualification and experience as well as in the interview---Competent authority had power to differ with the recommendations of Search Committee but said decision must be based on rules of fairness and cogent reasons---Appointing authority had no absolute power to appoint any person of its choice---No charge over the capacity and honesty of Search Committee had been levelled by the competent authority---Provision of R.3 of University of Agriculture, Faisalabad Conduct of Business Rules of the Syndicate, 1976, was not mandatory but it was directory in nature---Lapse in holding Syndicate meetings could not be considered as a cogent reason to disentitle the petitioner from appointment to the post in question---Nothing was on record that due to non-holding of required number of Syndicate meetings any important agenda item/work had suffered or even delayed---Unwillingness of authorities to appoint the candidate highest in merit was based on mala fide---Reasons given by the authorities for rejecting the petitioner highest in merit were not cogent---Impugned notification for appointment of respondent as Vice Chancellor of the University was declared to be illegal and without lawful authority---Competent authority was directed to notify the candidate highest in merit in accordance with law---Constitutional petition was allowed, accordingly.

Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186; Professor Dr. Razia Sultana and others v. Professor Dr. Ghazala Yasmeen Nizam and others 2016 SCMR 992 and Hassan Usmani, Sole Proprietor and another v. T.F. Pipes Limited through Managing Director 2003 YLR 1075 ref.

Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others 2019 SCMR 124; Asif Hassan and others v. Sabir Hussain and others 2019 PLC (C.S.) 1375; 2019 PLC (C.S.) 660; Fazal Muhammad Chaudhari v. Ch. Khadim Hussain and 3 others 1997 SCMR 1368; Member Board of Revenue / Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another PLD 2015 SC 166; Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489 and Prof. Abdul Razzaque Shaikh v. Province of Sindh through Secretary Board of Universities and 3 others 2018 PLC (C.S.) Note 108 distinguished.

Prof. Dr. Ijaz Ahmad and others v. Province of Punjab and others 2019 PLC (C.S.) 1487; Shama Khan Zafar v. District Coordination Officer, Lodhran and others 2014 PLC (C.S.) 948; Hassan Usmani, Sole Proprietor and another 2003 YLR 1075; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 6 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Lawful exercise of discretion by Authority---Interference by High Court---Scope---Jurisdiction of High Court to interfere is restricted in a lawful exercise of discretion however, when discretion is exercised by an authority in an arbitrary manner, against the directions given by superior courts, and mala fide is floating on record, the jurisdiction of High Court to interfere under Art. 199 of the Constitution of Pakistan, 1973 is not barred.

The State v. Zia-ur-Rahman and others PLD 1973 SC 49; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 rel.

Bilal Hassan Minto and Barrister Muhammad Saram Israr for Petitioner.

Barrister Zargham Lukhesar and Ameer Abbas Ali Khan, Assistant Advocate Generals.

Malik Muhammad Awais Khalid (on behalf of Respondent-University).

Hafiz Tariq Naseem, Advocate (on behalf of Respondent No.8).

2020 P L C (C.S.) 1140

[Lahore High Court (Multan Bench)]

Before Shakil-ur-Rehman Khan, J

ASIF NAWAZ

Versus

CHAIRMAN, PUNJAB VACATIONAL TRAINING COUNCIL and 4 others

Writ Petition No.6235 of 2020, decided on 9th June, 2020.

(a) Interpretation of statutes---

----Statutory Rules and Regulations---Delegated legislation --- Determination of nature of delegated legislation in form of Rules and Regulations --- Statutory and non-statutory Rules and Regulations --- Scope---- Determination as to whether Rules or Regulations were statutory or otherwise, was not solely to be based on whether their framing required approval of Federal Government but rather it was nature and area of efficacy of such Rules / Regulations which determined their status --- Rules dealing with instructions for internal control or management were to be treated as non-statutory Rules while those whose area of efficacy was broader and / or complimentary to parent statute in matters of crucial importance were to be treated as statutory.

Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571; Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 and Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377 rel.

(b) Punjab Vocational Training Council Act (VIII of 1998)---

----Ss.10, 13 & 14---Punjab Vocational Training Council Employees' Service Regulations 2014, Regln. 11---Punjab Vocational Training Council Rules, 1998 Rr. 8 & 3---Constitution of Pakistan, Arts. 212 & 199---Constitutional jurisdiction of High Court---Scope---Transfer / posting of employee---Bar to Constitutional jurisdiction of High Court under Art. 212 of Constitution---Employees of Punjab Vocational Training Council---Scope---Petitioner, an employee of Punjab Vocational Training Council impugned his transfer / posting to another city, inter alia, on ground that such order of transfer was made without lawful authority---Validity---Prima facie, employees of Punjab Vocational Training Council were "civil servants" and their service matters were to be dealt with under the laws relevant to civil service---Transfer and postings were terms and conditions of service and Constitutional jurisdiction of High Court was therefore barred in the present matter---High Court observed that petitioner may approach competent authority under Regln. 11 of Punjab Vocational Training Council Employees' Service Regulations, 2014 for redressal---Constitutional petition, being not maintainable, was dismissed in circumstances.

Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Syed Mehmood Akhtar Naqvi and others v. Federation of Pakistan and others 2013 SCMR 1 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195 ref.

Sadaf Mubeen v. General Manager Tevta and others 2018 PLC (C.S.) 480; Intisar Shamim Ahmed and another v. Secretary, Labour and Manpower, Government of Punjab, Lahore and 2 others 1997 PLC (C.S.) 860; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Asif Ali Memon v. The Province of Sindh through Chief Secretary and 2 others 2019 PLC (C.S.) 492; Mst. Allah Rakhi v. Commissioner Sahiwal Division/Chairman Complaint Redressal Cell, Sahiwal and 3 others 2019 PLC (C.S.) 1452; Tariq Mehmood Malik v. Chief Executive Officer and others 2018 PLC (C.S.) 664; The Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151; Syed Hassan Khan v. Chairman, WAPDA, Lahore and 5 others 1995 SCMR 23; Afzal Motors Company (Pvt.) Limited v. Province of Sindh and others 2009 SCMR 659; Afzal Motors Company (Pvt.) Ltd. v. Province of Sindh and others 2009 CLD 798; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 CLD 520 rel.

Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Muhammad Rafi and another v. Federation of Pakistan and others 2017 PLC (C.S.) 1270; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Syed Mehmood Akhtar Naqvi and others v. Federation of Pakistan and others 2013 SCMR 1 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2013 SC 195 distinguished.

M. Fayyaz Mansab Sukhera for Petitioner.

2020 P L C (C.S.) 1226

[Lahore High Court]

Before Jawad Hassan, J

ARSHAD ALI

Versus

WAPDA and others

Writ Petition No.43599 of 2017, decided on 21st August, 2020.

(a) Civil service---

----Promotion---Time scale upgradation---Non-convening of Time Scale Upgradation Board's meeting---Effect---Petitioner assailed the refusal of his application and sought direction to the authorities for granting him time scale upgradation along with pensionary benefits---Validity---Petitioner was eligible for promotion but he could not be granted time scale upgradation only because of non-convening of Time Scale Upgradation Board's meeting and having been retired in the meanwhile---Promotion policy of the department itself had provided that the meeting of the Board for the purpose of time scale upgradation would be held twice a year---Word 'shall' was used in the notification, which was a mandatory expression and manifest purpose of the rule/policy was that it must be acted upon as a general course---Petitioner also referred to an office order wherein benefit of time scale upgradation was given to those employees who were eligible for the same but were not allowed due to non-conducting of respective Board's meeting---Impugned order was set aside and the matter was remanded to the authorities to re-consider the plea of petitioner.

Abdul Qayyum Mirza and another v. Director-General, Federal Directorate of Education, Islamabad and 5 others 2008 PLC (C.S.) 173; Raja Muhammad Naseem Khan v. Azad Jammu and Kashmir Government through Chief Secretary and 4 others 2010 PLC (C.S.) 439; Shafique Ahmad Khan v. NESCOM and others PLD 2016 SC 377; Muhammad Tariq Badr v. National Bank of Pakistan 2013 SCMR 314; Muhammad Zaman and others v. Government of Pakistan and others 2017 SCMR 571 and National Bank of Pakistan v. Iftikhar Rasool Anjum 2017 PLC (C.S.) 453 ref.

Ch. Azhar Hussain v. Secretary to Government of the Punjab LG&CD Department, Lahore and 2 others 2016 PLC (C.S.) 693; Mrs. Naseem M. Qadri v. Federation of Pakistan and another 2009 PLC (C.S.) 229; Muhammad Tariq Masood, CEO Saudi Pak Leasing Company Limited v. Commissioner (Specialized Companies Division) SECP" 2018 CLD 44; National Transmission and Despatch Company Limited v. Corporation and Compliance Department, SECP 2018 CLD 197 and Secretary Schools of Education and others v. Rana Arshad Khan and others 2012 SCMR 126 rel.

(b) Words and phrases---

----"Shall"---Defined.

Black's Law Dictionary and People v. O'Rourke, 124 Cal. App. 752, 758-59 (Cal.Ct.App.1932) rel.

(c) Constitution of Pakistan---

----Art. 25---Equality of citizens---Legitimate expectation, doctrine of---Scope---Principle of legitimate expectancy aims at enforcing fairness and preventing arbitrariness---Rule of fairness and non-arbitrariness recognized in jurisprudence is meant that an advantage or benefit derived from a competent legal dispensation, departmental practice or established procedure that has been extended to and enjoyed by a person may legitimately be expected to remain available unless notice or opportunity to defend or adjust his position is given to that person---Doctrine of legitimate expectation is rooted in Art. 25 of the Constitution which abhors arbitrariness and insists on fairness in all administrative dealings---Doctrine has now gained importance in administrative law as a component of natural justice, non-arbitrariness and rule of law and aims at checking the growing abuse of administrative power as a supplement to the principles of natural justice.

Chairman Federal Board of Revenue, Islamabad v. Mrs. Naureen Ahmed Tarar and others 2020 SCMR 90 and R. v. Secretary of State (1987) 2 All. E.R. 518 rel.

(d) Legitimate expectation, doctrine of---

----Principle of "legitimate expectancy" is at the root of the rule of law and requires regularity, predictability and certainty in governments' dealings with the public---Decision maker can be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way---Legitimate expectation may be procedural or substantive or both---Procedural part of legitimate expectation relates to a representation that a hearing or other appropriate procedure will be afforded before any change in decision is made---Substantive part of the doctrine relates to the representation that a benefit of substantive nature will be granted or will continue---Procedural legitimate expectation cannot be withdrawn without giving a person concerned some opportunity of advancing reason for contending that it should not be withdrawn---Substantive expectation cannot be withdrawn unless some rational grounds for withdrawing it have been communicated to the person concerned and on which he has been given an opportunity to comment.

Punjab Communications Ltd. v. Union of India and others AIR 1999 SC 1801 rel.

(e) Legitimate expectation, doctrine of---

----Applicability---Doctrine of legitimate expectation in the substantive sense mandates that the decision making authority can normally be compelled to give effect to it unless overriding public interest demands otherwise.

(f) Civil service---

----Promotion---Consideration for---Scope---Promotion is not deemed as a vested right, yet to be considered for promotion is certainly a right which cannot be negated especially when the right has already accrued without impediment and the only lapse posing hindrance in the way of such a right is an inaction on the part of department and its non-fulfillment of rules/policy.

A. Satyanarayana and others v. S. Purushotham and others 2008 5 SCC 416; Ajit Singh and others v. State of Punjab and others (1997) 5 SCC 201 and Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650 rel.

(g) Administration of justice---

----Where the law requires an act to be done in a particular manner, it ought to be done in that manner alone, and such a dictate of law cannot be termed as a technicality.

Muhammad Anwar and others v. Ms. Ilyas Begum and others PLD 2013 SC 255 ref.

(h) Civil service---

----Promotion---Proforma promotion---Scope---Promotion is generally an advancement in rank, which is granted on the basis of acquiring extra-qualifications or enhancement of skills or awarded in lieu of longstanding services of the employee as a token of satisfaction and appreciation over services rendered by him---Concept of pro-forma promotion is to remedy the loss sustained by an employee/civil servant on account of denial of promotion upon his legitimate turn due to any reason but not a fault of his own and in cases where a temporary embargo is created against his right for such promotion or a legal restraint is posed against his claim owing to any departmental proceedings inquiry, etc. against him and the said obstacle is done away with ultimately then in such a situation, his monetary loss and loss of rank is remedied through pro-forma promotion.

Regarding Putting of two Government Officers namely Hasan Waseem Afzal and his wife Farkhanda Waseem Afzal as OSD 2013 SCMR 1150; Dr. Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others 2008 SCMR 1535 and Prime Minister and others v. Major (R) Muhammad Habib Khan 2016 PLC (C.S.) 621 rel.

(i) Civil service---

----Promotion---Proforma promotion---Retirement---Effect---Antedated promotion---Scope---Civil servant has a fundamental right to be promoted even after his retirement through awarding pro-forma promotion provided his right of promotion accrued during his service and his case for promotion could not be considered for promotion for no fault of his own and he is retired on attaining the age of superannuation without any shortcoming on his part pertaining to deficiency in length of service or in the form of inquiry and departmental action so taken against his right of promotion.

Syed Moyazzam Ali Shah and Tamara Murat Khan Saleem for Petitioners.

Muhammad Saeed Tahir Sulehri for Respondent.

Barrister Umair Niazi, Additional Advocate General.

Barrister Lamia Niazi and Malik Muhammad Awais Khalid, Amicus Curiae.

Ms. Sadia Malik, Assistant Attorney General.

2020 P L C (C.S.) 1287

[Lahore High Court (Multan Bench)]

Before Muzamil Akhtar Shabir and Jawad Hassan, JJ

MUSTAFA KAMAL

Versus

MULTAN ELECTRIC POWER COMPANY LIMITED and 56 others

I.C.A. No.188 of 2016, decided on 9th October, 2019.

Civil service---

----Claim for appointment against quota reserved for children of in service employees---Appointment criteria---Preferential right of appointment---Intelligible differentia---Scope---Appellant assailed order passed by Single Judge of High Court whereby his constitutional petition was dismissed---Claim of appellant was that he applied for appointment against 20% quota reserved for children of in-service employees but his case was not properly considered---Validity---Appointment was to be made on the basis of inter-se merit of children of employees to be fixed keeping in view the priorities mentioned in para. 1 of the notification in question wherein the children of deceased and retired employees had to be given priority over the children of in-service employees---Appellant was not entitled to be considered for appointment along with or in preference to the said categories and had to be considered when the candidates in the said categories had been exhausted---Notification challenged by appellant was based on a policy decision which could not be called in question through constitutional jurisdiction unless the same was violative of the Constitution Fundamental Rights, law or suffered from illegality, arbitrariness or established mala fides---Reasonable classification had been made by giving priority to the children of employees who no longer remained in service over the children of serving employees which itself was made on the basis of intelligible differentia and reasons for making such classification was beyond the scope of determination by High Court as the said classification was not in conflict with any prevailing law---Intra-court appeal was dismissed.

Messrs Dossani Travels (Pvt.) Limited and others v. Messrs Travels Shop (Pvt.) Limited and others PLD 2014 SC 01; Human Rights Case No. 14392 of 2013 (2014 SCMR 220); Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Malik Muhammad Ali Dhol for Appellant.

2020 P L C (C.S.) 1378

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Syed FAROOQ AHMAD SHAH

Versus

GOVERNMENT OF THE PUNJAB through Home Secretary Punjab, Lahore and others

Writ Petition No.8419 of 2019, decided on 4th February, 2020.

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

----Ss.16 & 18---Punjab Civil Services Pension Rules, 1963---Employee having embraced Shahadat while performing duty---Payment of salary and allowances to the legal heirs of Shaheed---Locus poenitentiae, principle of---Applicability---"Pay" and "pension"---Scope---Salary and allowances of Shaheed employee with increments were allowed in favour of legal heir of the deceased till date of superannuation---Department stopped salary of petitioner's Shaheed father on the ground that he was not entitled to receive the same in view of Punjab Civil Services Pension Rules, 1963---Validity---Department had granted approval for payment of last pay and allowances drawn by Shaheed official for the remaining period of service up to the age of superannuation---Executive had prerogative to make policy but retrospective application of said policy curtailing vested rights accrued in favour of an aggrieved person was not plausible---Petitioner was receiving salary and allowances of his Shaheed father and a vested right had accrued in his favour which could not be taken away through impugned notification---Effect of a notification taking away certain rights would start from the date of its issuance---Notification issued in exercise of executive powers could not be operated retrospectively---Once a right had been created by extending benefit after complying with codal formalities then same could not be destroyed or withdrawn---"Pay" was different and distinct subject from "pension" and it could not be treated as pension for the purpose of its disbursement to family of a Shaheed---Authorities were directed to disburse full pay and allowances to the petitioner till the date of superannuation of his Shaheed father with increments and with full benefits of revised rates of all pay and allowances as allowed by the Government from time to time along with the arrears---Constitutional petition was allowed, accordingly.

Jawaria Maqsood v. Joint Admission Committee for Medical Colleges through Chairman and 3 others 2017 YLR 1571; Al-Noor Sugar Mills Limited and another v. Federation of Pakistan and others 2018 SCMR 1792; Malik Muhammad Hashim Awan and another v. Chief Secretary Government of Punjab, Lahore and 3 others 2017 PLC (C.S.) 1085; Province of Punjab through Secretary to the Government v. Dr. Muhammad Zafar Iqbal and 10 others 2018 PLC (C.S.) 152; Kanwal Rasheed v. Accountant General, Punjab and others 2019 PLC (C.S.) 783; Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others v. Nusrat Tahir and others 2018 PLC (C.S.) 669 and Muhammad Saeed and others v. Secretary Finance and others 2019 PLC (C.S.) 893 rel.

(b) Interpretation of statutes---

----Notification---Beneficial notification could operate retrospectively and notification impairing an existing right would operate prospectively.

Mirza Qamar-uz-Zaman for Petitioner.

Ameer Abbas Ali Khan, Assistant Advocate General, along with Najia Iqbal, Inspector Legal for Respondent.

Hafiz Tariq Naseem as Amicus Curie.

2020 P L C (C.S.) 1398

[Lahore High Court]

Before Jawad Hassan, J

ZAKA ULLAH KHAN

Versus

SECRETARY PRIMARY AND SECONDARY HEALTHCARE and others

Writ Petition No.36633 of 2020, decided on 19th August, 2020.

(a) Civil service---

----Contract appointment---Scope---Petitioner assailed order passed by respondent whereby he was relieved from service on the basis of being over-age---Petitioner was appointed for a period of one year as a stop gap arrangement---Such appointment did not confer any right on the incumbent for regular appointment or to hold it for an indefinite period---Petitioner, at the time of joining, had accepted all the terms and conditions of his ad hoc employment and could not resile from the same at belated stage---Constitutional petition was dismissed in limine.

Dr. Zaheer Iqbal and others v. Province of Punjab through Chief Secretary and others 2018 PLC (C.S.) 712 distinguished.

Shahzad Ghohar v. Government of Punjab and Aitchison College through its Board of Governor 2018 PLC (C.S.) Note-1; Muhammad Mohsin Ismail v. Managing Director Punjab Daanish Schools and 2 others 2018 PLC (C.S.) 722; Dr. Abid Ali v. Chief Secretary, Government of Punjab and 3 others 2017 PLC (C.S.) 488 and Mubashar Majeed v. Province of Punjab and 3 others 2017 PLC (C.S.) 940 rel.

(b) Words and phrases---

----Stop-gap---Meaning.

Advance Law Lexicon 4th Edition, P.4615 and Concise Oxford English Dictionary, Twelth Edition, P.1422 ref.

Malik Saleem Iqbal Awan for Petitioner.

2020 P L C (C.S.) 1506

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi and Shahid Jamil Khan, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD., ISLAMABAD through Authorized Officer and another

Versus

CH. BASHARAT ALI

Intra Court Appeal No.1772 of 2015, heard on 28th January, 2020.

Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----S.9 (since repealed)---Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), Ss.35 & 36---Government Servants (Efficiency and Discipline) Rules, 1973---Employees of Pakistan Telegraph and Telephone Department transferred to Pakistan Telecommunication Corporation and then to Pakistan Telecommunication Company Limited---Termination from service---Constitutional petition filed on behalf of employees was accepted on the ground that action should have been taken under Government Servants (Efficiency and Discipline) Rules, 1973---Validity---Terms and conditions of service of employees had been protected under S.9 of Pakistan Telecommunication Corporation Act, 1991 and Ss. 35 & 36 of Pakistan Telecommunication (Re-Organization) Act, 1996---Terms and conditions of service of petitioners should not be varied to their disadvantage---Sections 35 & 36 of Pakistan Telecommunication (Re-Organization) Act, 1996, were statutory in nature and employees were no more civil servants, in circumstances---Petitioners recruited before 01-01-1996 had statutory protection and employees recruited after said date were governed by non-statutory rules being their employment as contractual in nature---Intra court appeal was allowed, in circumstances.

Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others 2012 SCMR 152; Chief Manager, State Bank of Pakistan, Lahore and another v. Muhammad Shafi 2010 PLC (C.S.) 1088; Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571 and Muhammad Din v. Nazar Muhammad Khan and others PLD 1966 Lah. 780 ref.

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

PTCL and others v. Masood Ahmad Bhatti 2016 SCMR 1362 and Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others PLD 1996 SC 222 rel.

Shahid Anwar Bajwa, Abdul Rahman Bajwa, Faiza Naseer Chaudhary, A.D. Shahid, Rana Muhammad Nafees along with Syed Faisal Bukhari, Senior Manager and Waqas Mehmood, Assistant Manager, PTCL. for Appellants.

Ishtiaq Ahmad Chaudhary, Muhammad Umer Qureshi, Ali Rana, Khalid Ismail, Mian Tariq Ahmad, Mian Jaffar, Tariq Bashir, Ijaz Ali Murtazai, Muhammad Usman Qureshi, Liaqat Ali Butt and Farhan Shahzad for Respondent.

2020 P L C (C.S.) 1526

[Lahore High Court]

Before Masud Abid Naqvi and Jawad Hassan, JJ

BUSHRA TABASSUM

Versus

GOVERNMENT OF PUNJAB and others

Intra Court Appeal No.44513 of 2020, decided on 29th September, 2020.

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

----S.19---Petitioner assailed the dismissal of his departmental appeal before the High Court through constitutional petition ---Single Judge dismissed the same---Validity---Section 19 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (Act), provided that any employee aggrieved by any final order passed under S.16 or 17 of the Act could prefer appeal to the Service Tribunal---Proviso to subsection (2) of S.3 of the Law Reforms Ordinance, 1972, provided that where appeal, revision or review was provided then the intra court appeal was not maintainable---Intra court appeal was dismissed.

Muhammad Shakoor v. Federal Public Service Commission through Chairman, Islamabad and 2 others 2003 PLC (C.S.) 414; Yamin v. Mst. Jajan and others 2005 CLC 978; Messrs Shahzadi Polypropylene Industries through Proprietor v. Federation of Pakistan through President and 4 others 2017 PTD 2019; Muhammad Ashraf Saeed v. Habib Bank Limited and another 2018 PLC (C.S.) Note 13 and Haji Ahmad Khan and another v. Province of the Punjab and 5 others 2018 PLC (C.S.) 36 ref.

SME Bank Limited v. Izharul Haq 2019 SCMR 939; Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another PLD 2005 SC 45 and Federation of Pakistan through Secretary Revenue Division, Islamabad and others v Messrs Sahib Jee and others 2017 PTD 1481 rel.

Riaz Hussain Haleem for Appellant.

2020 P L C (C.S.) 1537

[Lahore High Court]

Before Shujaat Ali Khan, J

TANVEER ASIM

Versus

PAKISTAN INSTITUTE OF FASHION AND DESIGN, LAHORE and others

W.P. No.246752 of 2018, decided on 14th September, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Scope---Service of employee was governed by non-statutory service rules/regulations---Effect---In routine, a Constitutional petition was not maintainable on behalf of employees whose terms and conditions of service were governed under non-statutory service rules however, when an order or action impugned was patently illegal, perverse or arbitrary, then Constitutional jurisdiction of High Court to interfere could not be abridged.

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

(b) Interpretation of statutes---

----Construction of statute/rules/regulations---Amendment or subsequent insertion of a provision---Effect and scope---Subsequent provision, being later in time, could have overriding effect inasmuch as such subsequent provision / rule / regulation could supplement, rescind or amend an earlier provision, however, a former provision could not be used to render a subsequent provision as ineffective.

(c) Pakistan Institute of Fashion and Design Act (X of 2011)---

----Ss. 17 & 25---Pakistan Institute of Fashion and Employees (Efficiency and Discipline) Statutes, 2012, S. 10---Constitution of Pakistan, Art.199---Probation---Regularization of service---Powers and authority of Senate of "Pakistan Institute of Fashion and Design"---Scope---Petitioner, an employee of Pakistan Institute of Fashion and Design, impugned order whereby probationary period of his employment was extended, and he was not considered for regularization of service, and subsequently his services were dispensed with---Validity ---Per Pakistan Institute of Fashion and Employees (Efficiency and Discipline) Statutes 2012; petitioner had already completed the probationary period --- While a competent authority considering confirmation / regularization of an employee could gauge his / her output during probationary period but said authority could not be given unbridled powers by cherry-picking some employees, whose probationary period was terminated, while depriving others, like petitioner, from confirmation despite passage of three years---High Court held that mala fide on part of Pakistan Institute of Fashion and Design vis-à-vis with matter of confirmation of service of petitioner was floating on surface, and impugned orders were set aside---High Court directed Pakistan Institute of Fashion and Design Act to put up matter of petitioner's confirmation with Senate of "Pakistan Institute of Fashion and Design" with direction to decide same afresh with specific reference to the defects apparent in Annual Confidential Report---Constitutional petition was allowed, accordingly.

Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146 and Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377 distinguished.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Muhammad Shehzad Malik v. Muhammad Suhail and another 2010 SCMR 1825 rel.

Pakistan Olympic Association through President and others v. Nadeem Aftab Sindhu and others 2019 SCMR 221; Raja Iviz Mehmood and another v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others 2018 SCMR 162; Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Qamar-ul-Islam v. The Institute of Chartered Accountants of Pakistan 1993 MLD 1362; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Syed Muhammad Ismail Shah and another v. Pakistan through Secretary Communication and Works, Islamabad and 6 others 2017 YLR Note 214; Muhammad Younis v. The Superintending Engineer and others 2017 PLC (C.S.) 630; Lt.-Col (Retd.) Aamir Rauf v. Federation of Pakistan through Secretary Ministry of Defence and 3 others 2011 PLC (C.S.) 654' Ghulam Rabbani v. Governor State Bank of Pakistan and others 2010 PLC (C.S.) 525; Noor Badshah through L.Rs v. United Bank Limited through its President and others 2019 PLC (C.S.) 1433; Hassan Jawed and another v. Punjab Education Foundation and 4 others 2018 PLC (C.S.) 580; Abdul Ghani v. Baha-ud-Din Zakariya University and others 2018 CLC 965; 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; Hassan Jatoi and others v. Faqir Muhammad Jatoi and others 2016 SCMR 1254; Waseem Ullah v. The State 2016 SCMR 1282; Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Secretary, Ministry of Education, Government of Pakistan, Islamabad and another v. Muhammad Azam Ch. and another 2009 SCMR 194; Muhammad Rafique v. Director General, Pakistan Rangers, Sindh 2004 SCMR 23; Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337; Civil Petition No.2011-L of 2016, The Bank of Punjab through its President v. Muhammad Aslam, Ex-Vice President and Muhammad Aslam v. The Bank of Punjab I.C.A. No.263/2014 ref.

Junaid Jabbar Khan for Petitioner.

Ishtiaq A. Khan, Additional Attorney General.

Ms. Sadia Malik, Assistant Attorney General.

2020 P L C (C.S.) 1578

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

NASIR MEHMOOD RAZA and others

Versus

SECRETARY PROSECUTION PUBLIC PROSECUTION DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 4 others

Writ Petition No.22706 of 2017, decided on 21st January, 2019.

Civil service---

----Promotion---Contention of employees was that their promotion had been deferred without any reason and justification---Validity---Present matter was with regard to the determination of fitness of employees for their promotion---Employees had been deferred by the competent authority twice and they had alleged discrimination---High Court had Constitutional jurisdiction to interfere in the present matter---Cases of promotion of petitioners were deferred on the question of their integrity and reputation---Competent authority while assessing cases of petitioners for promotion had not given due consideration to their annual confidential reports of said period---Observations of competent authority were contrary to the evaluation and remarks of Reporting Officer made in the Performance Evaluation Reports of the employees---Petitioners had been reported as very good and honest officers by the Reporting Officer and Countersigning Officers had agreed with the said reports---No valid and legal ground or reason existed to defer the case of employees for promotion---Petitioners were entitled for the same relief as had been granted to the similarly placed employees of the department---Department was directed by the High Court to consider the case of petitioners for promotion from the date of their deferment for promotion in the next meeting of Promotion Board---Constitutional petition was allowed accordingly.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen 2009 SCMR 01 ref.

Syed Iftikhar Hussain Shah and others v. Government of Pakistan and others 1998 SCMR 2009; Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed Manika and others 2015 SCMR 1006; Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCMR 682 and Director General Intelligence Bureau, Islamabad and others v. Amir Mujahid Khan and others 2010 PLC (C.S.) 946 rel.

M. Yafis Naveed Hashmi for Petitioners.

Akhtar Javed, Additional Advocate General, Punjab, Prince Khalid, Law Officer, Prosecutor General, Punjab and Adnan Ali, Law Officer, Public Prosecution Department, Punjab for Respondents.

2020 P L C (C.S.) 1593

[Lahore High Court]

Before Jawad Hassan, J

SHAFIQ-UL-HASSAN

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Energy (Power Division), Islamabad and 6 others

Writ Petition No.39841 of 2020, decided on 9th October, 2020.

(a) Maxim---

----Pacta sunt servanda---Scope : Agreements are made to be kept and are dependent to their terms.

(b) Civil service

----Appointment on "stop gap arrangement"---Vested right---Scope---Non-statutory rules of service---Effect---Petitioner was an employee of Pakistan Electric Power Company who was posted to Tribal Areas Electric Supply Company with additional charge to look after work of Faisalabad Electric Supply Company on "stop gap arrangement"---Petitioner was aggrieved of the order passed by authorities posting him to the office of Pakistan Electric Power Company at Lahore on attachment---Validity---No statutory rules existed to govern terms and conditions of employment of petitioner therefore, such relationship was governed by principles of "master and servant"---Constitutional jurisdiction was not maintainable in such matters--- Appointment of petitioner was made to meet contingency on account of delay in completing process for regular recruitment to the post due to any reason---To leave the post vacant was not possible till appointment was made, such was a stop gap arrangement under established principles of service rules--- Petitioner was working in Faisalabad Electric Supply Company on temporary basis as a "stop gap arrangement" until further orders--- Petitioner could not claim to continue on post in question, as his vested right--- Authorities had discretion to post petitioner anywhere under Pakistan Electric Power Company---Constitutional petition was dismissed, in circumstances.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530; Kamran Ahmad v. Chief Executive GEPCO and others 2017 PLC (C.S.) 900; Tahir Abbas v. FESCO, Jhang and others (2011 PLC (C.S.) 354; Mrs. Itrat Sajjad Khan v. Federation of Pakistan through Secretary Ministry of Defence and 3 others 2015 PLC (C.S.) 1056; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707; Muhammad Umar Lodhi XEN (Operations) v. WAPDA and 2 others PLJ 2014 Lah. 157 and P.T.C.L and others v. Masood Ahmad Bhatti and others 2016 SCMR 1362 distinguished.

Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278; Dr. Tahir Masud v. Amjad Ali Khan and 4 others 2019 PLC (C.S.) 1167; 2018 PLC (C.S.) Note 6.; Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573 and Wali-ur-Rehman and others v. State Life Insurance Corporation and others 2006 SCMR 1079 ref.

Tariq Mehmood Malik v. Chief Executive Officer and others 2018 PLC (C.S.) 664; Kamran Ahmad v. Chief Executive GEPCO and others 2017 PLC (C.S.) 900; Tahir Abbas v. FESCO, Jhang and others 2011 PLC (C.S.) 354; Mrs. Itrat Sajjad Khan v. Federation of Pakistan through Secretary Ministry of Defence and 3 others 2015 PLC (C.S.) 1056; Lt. Col. Rtd. 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; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Muhammad Zaman and others v. Government of Pakistan and others 2017 SCMR 571; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan International Airline and others v. Noreen Naz Butt 2017 PLC (C.S.) 923; Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278; Muhammad Shafique Tareen v. Water and Power Development Authority through Chairman, WAPDA House, Lahore and 3 others 1998 SCMR 1293; Khaliqullah v. Regional Commissioner of Income Tax, Northern Region, Islamabad and 2 others 1994 PLC (C.S.) 537; Engr. Ghazanfar Ali Khan and others v. F.O.P and others PLD 2014 Lah. 375 and JDW Sugar Mills Ltd. and others v. Province of Punjab and others PLD 2017 Lah. 68 rel.

(c) Civil service---

----Appointment on "Stop gap arrangement"--- Connotation--- Such is a transitory or interim arrangement or a temporary measure to meet contingency arising on account of delay in completing the process of regular recruitment to a post (due to any reason), in order to prevent stand-still in performance of public duties---Such appointment does not confer any right on the incumbent for regular appointment to the post in question or to hold the same for an indefinite period.

Oxford Dictionary; Advance Law Lexicon 4th Edition, P.4615 and Concise Oxford English Dictionary, Twelfth Edition, P.1422 rel.

Muhammad Ahsan Bhoon, Advocate Supreme Court and Malik Muhammad Awais Khalid, Advocate Supreme Court for the Petitioner.

Ch. Ishtiaq Ahmad Khan, Additional Attorney General for Pakistan with Shams-ul-Haq, Section Officer (Law), Power Division.

Asad Ali Bajwa, Deputy Attorney General for Pakistan.

Ms.Sadia Malik, Assistant Attorney General.

Nadim Ahmad Sheikh, ASC and Rizwan Faiz Muhammad, PEPCO with Farrukh Aftab, Director (Legal), PEPCO.

Aurangzeb Mirza and Waqar A. Sheikh, ASC for FESCO.

Raza Bashir for the Respondent-LESCO.

2020 P L C (C.S.) 45

[Peshawar High Court]

Before Ijaz Anwar and Wiqar Ahmad, JJ

Mst. ZILL-E-HUMA

Versus

SECRETARY EDUCATION (HIGHER EDUCATION) COLLEGE AND COMMERCE, KHYBER PAKHTUNKHWA, PESHAWAR and 3 others

Writ Petition No.3483-P of 2019, decided on 27th August, 2019.

Civil service---

----Appointment---Candidate having qualified written test was not called for interview due to lack of experience---Different criteria for experience for the post of different Directorates---Reasonable classification---Scope---Requisite qualification required in the impugned advertisement was based upon Service Rules of concerned departments---Different directorates might require different standard for teaching staff employed by them for various disciplines---Qualification must be adjudged by the relevant departments as they had technical expertise---High Court could not have the expertise required for fixing the said criteria nor it was the job of the Court---Different people having different qualification or experience might be treated differently and this would be reasonable classification---Petitioner had not impugned the relevant Service Rules whereupon the qualification required in the impugned advertisement had been provided---Requisite qualification had been provided in the relevant Service Rules which had been framed by the respective departments---Criteria or qualification required in the advertisement could only be challenged when vires of Service Rules had been challenged---Constitutional petition was dismissed, in circumstances.

Abid Hussain Sherazi v. Secretary M/O Industries and Production, Government of Pakistan, Islamabad 2005 SCMR 1742 rel.

Gohar Ali Khweshgi for Petitioner.

Arshad Ahmad, Additional Advocate-General for Respondents.

2020 P L C (C.S.) 136

[Peshawar High Court]

Before Mohammad Ibrahim Khan and Abdul Shakoor, JJ

ANWAR KHAN

Versus

CHAIRMAN WAPDA, WAPDA HOUSE and 2 others

Writ Petition No.6080-P of 2018, decided on 6th May, 2019.

Constitution of Pakistan---

----Art.199---Constitutional petition against Electric Supply Company---Maintainability---Appointment against the post of driver---Scope---Electric Supply Company did not have statutory rules---Alleged refusal of Electric Supply Company to appoint the petitioner as driver in absence of violation of any statutory rules did not furnish him any justification to invoke constitutional jurisdiction of High Court---Petitioner had failed to make out a case for High Court to interfere with the alleged act of Electric Supply Company---Constitutional petition was dismissed, in circumstances.

Danial Khan Chamkani for Petitioner.

Shakir Ullah Afridi for Respondent No.1.

2020 P L C (C.S.) 198

[Peshawar High Court (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

Mst. LALA RUKH YOUSAFZAI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Elementary and Secondary Department, Peshawar and 3 others

W.P. No.2806-P of 2017, decided on 13th November, 2018.

Civil service---

----Appointment of Secondary School Teacher against disabled quota---Candidate being blind in her both eyes---Additional qualification obtained after cutoff date fixed in advertisement---Additional marks, award of---Discretion, exercise of---Requirements---Locus poenitentiae, principle of---Applicability---Petitioner was refused appointment despite she topped the merit list on the grounds that she was blind in her both eyes and had acquired additional qualification after cutoff date fixed for submission of applications---Validity---Department had discretion to refuse appointment of a candidate if he/she was unable to perform the required duty due to disability---Such discretion should be exercised fairly and in a meaningful manner---Blindness per se was not hindrance which would hamper a teacher to perform her teaching duties---If a blind candidate had acquired higher education then why not he/she was able to teach the other students efficiently---Advertisement for appointment did not envisage that any qualification obtained after the cutoff date would not be considered at the time of evaluation of candidature of the person for the post---Additional marks for higher qualification of petitioner had been counted for evaluation---Petitioner at the time of evaluation of her candidature was holding the additional qualification and she was rightly awarded additional marks, in circumstances---Department was to award the candidates additional marks for additional qualification if same was available on the date of quantification of candidature when rules with regard to the same were silent---Rejection of petitioner for appointment against the post in question was uncalled for---Impugned order was set aside, in circumstance---Department was directed to appoint the petitioner against the post of Secondary School Teacher with immediate effect---Respondent (already appointed) had been appointed against the post of Secondary School Teacher after test and interview and with a transparent process of appointment and she had acquired a right to continue her job under the principle of locus poenitentiae---Constitutional petition was allowed, in circumstances.

Hafiz Junaid Mahmood's case PLD 2017 Lah. 1; Jehanzeb, Malik v. Baluchistan Public Procurement Regulatory Authority 2018 SCMR 414; Muhammad Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363; Mst. Nusrat Rafi v. Executive District Officer (Education) Faisalabad and 3 others 2010 PLC (C.S.) 257; 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.

Muhammad Maaz Madni for Petitioners.

Rahim Shah, Astt. Advocate General and Khawaja Salah-ud-Din for Respondents.

2020 P L C (C.S.) 217

[Peshawar High Court]

Before Waqar Ahmad Seth and Muhammad Naeem Anwar, JJ

ASMAT ULLAH JAN

Versus

Messrs NATIONAL BANK OF PAKISTAN through President/CEO and 4 others

Writ Petition No.3987-P of 2019, decided on 5th September, 2019.

Civil service---

----Contract appointment---Extension of---Scope---Petitioner being a contract employee could not force for the extension of contract period---High Court under constitutional jurisdiction could not force any statutory body (employer) to extend the contract---Arrears of services rendered without any written employment could be determined by the Courts of ordinary jurisdiction and not by the High Court---No question of violation of fundamental rights involved in the constitutional petition, same was dismissed.

Government of Baluchistan v. Dr. Zahida Kakar 2005 SCMR 642; Federation of Pakistan and another v. Hashim Khan Qureshi 1987 SCMR 156; Dr. Muhammad Ahmad v. PTCL through Chairman Islamabad and others 2007 PLC (C.S.) (sic); Malik Muhammad Jalil v. Federal Secretary for Defense 2019 CLC 127 and Ashraf Ali Akhanda v. Abdul Awal and others PLD 1968 Quetta 962 rel.

Liaqat Ali Khan for Petitioner.

Nemo being in motion for Respondents.

2020 P L C (C.S.) 227

[Peshawar High Court (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

NAEEMULLAH

Versus

CONTROLLING AUTHORITY, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION MALAKAND KHYBER PAKHTUNKHWA and 2 others

W.P. No.7-P of 2018 With Interim Relief (N), C.M. No.222-P of 2018 (N) and C.O.C. No.116-P of 2018, decided on 11th December, 2018.

Khyber Pakhtunkhwa Boards of Intermediate and Secondary Education Act (V of 1990)---

----S.15 & Ch. XXVIII, R.1(a)---Assistant Controller of Examination---Promotion---Discretion, exercise of---Requirements---Competent authority appointed respondent as Controller of Examination on deputation---Contention of petitioner employee was that he was entitled for promotion as Controller of Examination whereas authority contended that post in question was to be filled by direct recruitment or on deputation---Validity---Post of Controller was a selection post for a fix term of three years---Authority had discretion either to fill the said post by promoting the employees of Education Board or on deputation---When authority was conferred with the powers to exercise a discretion in any matter then same was to be exercised in a judicious, transparent and impartial manner---Equal opportunity to the employees of Education Board as well as other civil servants in the services of Pakistan/Province was to be afforded for appointment against post in question---Filling the post of Controller of Examination only on Ad hoc/deputation was against R. 1(a) of Khyber Pakhtunkhwa Boards of Intermediate and Secondary Education Act, 1990---Authorities were directed to consider the petitioner against the post in question according to the criteria as envisaged under Chapter XXVIII of Khyber Pakhtunkhwa Boards of Intermediate and Secondary Education Act, 1990---Constitutional petition was allowed, in circumstances.

Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Tariq Aziz-ud-Din's case 2010 SCMR 1301; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 and M.Q.M. and others v. Province of Sindh and others 2014 CLC 335 ref.

Fazal Shah Mohamand for Petitioner.

Rahim Shah, Assistant Advocate General for Respondents along with Khalid Mateen S.O. E&SE Department.

2020 P L C (C.S.) 276

[Peshawar High Court (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

SAIFUL HAQ

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary and 4 others

W.P. No.817-M of 2017, decided on 26th September, 2018.

Civil service---

----Appointment---Petitioner-candidate having qualified written test and interview---Non-joinder of a selectee---Effect---Contention of department was that request of petitioner for appointment at belated stage could not be considered---Validity---Petitioner was the next available candidate top on waiting list after withdrawal of appointment of a selectee---Request for appointment of present petitioner was valid against the post in question---Department was directed to issue appointment order of the petitioner against the post in question with immediate effect---Constitutional petition was allowed, in circumstances.

Musa Wazir v. N.W.F.P Public Service Commission 1993 SCMR 1124; Dr. Sumera Tabassum v. F.P.S.C. and others 2016 SCMR 196; Sumara Umar Khan v. Chancellor Gomal University D.I. Khan and 4 others 2014 PCr.L.J 526 and Muhammad Afzal v. Government of Khyber Pakhtunkhwa 2016 PLC (C.S.) 664 rel.

Asghar Ali for Petitioner.

Malik Akhtar Hussain Awan, A.A.G. for Respondents.

2020 P L C (C.S.) 331

[Peshawar High Court]

Before Rooh ul Amin Khan and Ishtiaq Ibrahim, JJ

MUHAMMAD SADIQ

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health and others

Writ Petition No.2014-P of 2018, decided on 16th October, 2019.

(a) Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R. 10 (2)---Appointment---Criteria adopted for appointment on the basis of lucky draw was neither decided by the appointing authority nor had chosen by the selection committee---Even the factum of appointment through lucky draw system was neither requirement of any law, rules or policy nor it was given publicity in the conditions enumerated in the advertisement---Any appointment made in violation of prescribed rules and procedure in any department would be void and nullity---Appointment of Class-IV employees should be made in accordance with Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---Appointment against the posts falling in BPS-3 to 5 were to be initiated on intimation of Employment Exchange in a District and where the office of such Exchange did not exist then recourse should be made to the advertisement in a leading newspaper of the District or Division concerned---Deviation from statutory provisions of law in the appointment of civil servants by introducing an alien procedure of choice would not only be an attempt to de-shape statutory rules and interfere in the process of selection on merit but it would also amount to express lack of confidence by the authority on the performance and sanctity of selection committee---Authorities were directed to consider the petitioner for appointment against the post in question if otherwise qualified and eligible---Constitutional petition was allowed, in circumstances.

(b) Administration of justice---

----If law had required a particular thing to be done in a particular manner then same must be done in the prescribed manner only.

Noor Rahim for Petitioner.

Mujahid Ali Khan, A.A.G. for Respondents.

2020 P L C (C.S.) 356

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

ARSHAD and 3 others

Versus

THE GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Forest, Environment and Wildlife, Peshawar and 5 others

Writ Petition No.713-M of 2017 with I.R. (N), C.M. No. 530-M of 2019 and C.M. No. 1336 of 2019, decided on 24th September, 2019.

Civil service---

----Appointment on contract basis---Regularization of service---Scope---Petitioners were appointed on fixed pay in the project---Appointment of petitioners did not confer any right of absorption against the vacant posts of the department---Services of petitioners could not be counted towards seniority, promotion and pension and they could not be treated as civil servants---Life of project, in the present case, had expired and it had not been taken on regular budget---Contract appointment would terminate on the expiry of contract period or any extended period on the choice of employer or appointing authority---Such appointment did not per se create any vested right---Petitioners had no vested right for regularization of their services---High Court could not issue any direction to the Government or other statutory functionary to do a particular act unless it was their statutory or legal obligation to do the same---Constitutional petition was dismissed, in circumstances.

Muzaffar Khan and others v. Government of Pakistan and others 2013 SCMR 304 and Government of Baluchistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642 rel.

Aziz-ur-Rehman for Petitioners.

Wilayat Ali Khan, A.A.G. along with Abdul Ghafoor D.F.O., Wildlife, Swat for Respondents.

2020 P L C (C.S.) 413

[Peshawar High Court (D.I. Khan Bench)]

Before S.M. Attique Shah and Sahibzada Asadullah, JJ

Dr. KARIM SHAH

Versus

CHAIRMAN, SEARCH AND NOMINATION COUNCIL/ HEALTH MINISTER, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and others

Writ Petition No.635-D with C.M. No.746-D of 2019, decided on 30th October, 2019.

(a) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

---Ss. 3, 7 & 10---Medical Teaching Institution---Appointment of Director of Hospital---District Headquarter Teaching Center and Hospital were attached hospitals of Medical College and they could not be split into two Teaching Institutions---Appointment as Director of one such Hospital was alien to Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Chairman Board of Governors was only authorized to make appointment in the case of exigency of service against the post of Deans, Hospital Director, Medical Director, Finance Director and Nursing Director on officiating basis and all such appointments were to be placed before Board of Governors for approval---Respondent had been appointed in the Hospital in presence of appointment of the petitioner which was against the mandate of law---Impugned notification for appointment of respondent being illegal was set aside---Constitutional petition was allowed, in circumstances.

(b) Administration of justice---

----When law required a thing to be done in a specific manner then doing of that thing in any other manner was illegal.

Salimullah Khan Ranazai, Muhammad Yousaf Khan and Zia ur Rehman Qazi for Petitioner.

Kamran Hayat Miankhel, Additional Advocate-General for Respondent No.2.

Salim Jan and Saddam Hussain Zakori for Respondents Nos.3 and 4.

Muhammad Waqar Alam for Respondent No.5.

2020 P L C (C.S.) 515

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

HANEEFULLAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary at Peshawar and 3 others

W.P. No. 213-M of 2019, decided on 4th November, 2019.

Civil service---

----Appointment against the post of Primary School Teacher---Candidate having qualified written test and interview was not considered for appointment for the reason that he had obtained requisite qualification after cut-off date for receiving application---Validity---If on cut-off date for receiving application the candidate qualified the essential conditions however, due to an official act or omission he could not formally receive the certificate or degree then his candidature could not be regretted on the said score---If by cut-off date for receiving application for a particular post a candidate did not possess the essential qualification then he would not be eligible to apply for the said post---Petitioner had acquired requisite qualification after cut-off date for receiving the application for the post in question therefore, he was not eligible for the same---Constitutional petition was dismissed, in circumstances.

Muhammad Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363; Mst. Nusrat Rafi v. Executive District Officer (Education), Faisalabad and others 2010 PLC (C.S.) 257 and Jehanzeb Malik v. Balochistan Public Procurement Regulatory Authority' 2018 SCMR 414 rel.

Abdul Qayum for Petitioner.

Wilayat Ali Khan, A.A.G. for the official Respondents.

2020 P L C (C.S.) 566

[Peshawar High Court (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

ALI AKBAR and 8 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government and Rural Development Peshawar

W.Ps. Nos.470-M and 551-M of 2018 with Interim Relief (N), decided on 26th September, 2018.

Civil service---

----Contract appointment---Termination of---Promissory estoppel, doctrine of---Applicability---Petitioners were terminated on the ground that there were complaints against their appointments and reservation had also been shown by the District Council about them---Petitioners were appointed on contract basis after going through a proper and transparent process of recruitment---Public functionary representing the Government was to be steadfast, upright and work without any fear in the best public interest---If actions of public functionaries were unfair and un-reasonable then Constitutional Court should correct the same---Petitioners, in the present case had been appointed after undergoing the process of selection through competition and they had acquired vested right to hold the said posts---Public functionaries were not expected to act whimsically and violate its promises, which it had made to its citizens, in any form---Doctrines of promissory estoppel and legitimate expectations were applicable to the present case---If Government had made certain promises to any person which were neither inconsistent with the law nor against public interest then it could not refuse to abide by its promises---If Government actions were inconsistent with its promises then same were subject to judicial review by the Constitutional Court---Impugned orders had been passed on alien and irrelevant considerations which could not be approved---Constitutional petition was allowed, in circumstances.

Federation of Pakistan v. Chaudhary Mohammad Aslam 1986 SCMR 916; Fecto Belarus Tractors Limited v. Pakistan through Ministry of Finance Economic Affairs 2001 PTD 1829; Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 PTD 2728; Ashfaq Hussain v. Government of Punjab 2011 PLC (C.S.) 799; Mubarak Ali and another v. Government of Punjab 1997 PLC (C.S.) 284; Government of Sindh Muhammad Hussain and 6 others 2000 SCMR 75 and Sarfaraz Ahmed v. Government of Sindh 2006 PLC (C.S.) 1304 rel.

Sabir Shah and Humaira Shaukat for Petitioners.

2020 P L C (C.S.) 581

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

Syed MUHAMMAD FAWAD BUKHARI and 13 others

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ABBOTABAD and others

Writ Petitions Nos.563-A and 757-A of 2014, decided on 10th October, 2018.

Civil service---

----Contingent paid staff---Regularization of service---Scope---Employees had been appointed for 89 days by the authorities as contingent paid staff against various posts---Employees had been performing their duties and after expiry of initial period of their service the authorities (employer) had extended the period for further 89 days---Employees had not been regularized on the ground that they were contingent paid staff and their services could not be regularized notwithstanding the availability of sanctioned posts and the budget thereof---Practice of continuous service on temporary/contract/daily wages/contingent paid staff basis for long period of time was deprecated---Petitioners were similarly placed with the employees of the Board and entitled to the same treatment as extended to them---Authorities were directed to regularize the services of petitioners in accordance with law from the date of their initial appointment---Constitutional petition was allowed, accordingly.

Board of. Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405; Ejaz Akbar Kasi v. Ministry of Information and Broadcasting PLD 2011 SC 22; Pir Imran Sajid v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257 and Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others 2018 SCMR 325 rel.

Qazi Muhammad Azhar for Petitioners.

Syed Altaf Hussain Shah and Raja Muhammad Zubair, AAG for Respondents.

2020 P L C (C.S.) 599

[Peshawar High Court]

Before Waqar Ahmad Seth, CJ and Ahmed Ali, J

AURANGZEB KHAN and 14 others

Versus

FEDERATION OF PAKISTAN through Ministry of Safran and 7 others

Writ Petition No.1630-P of 2019, decided on 19th September, 2019.

Civil service---

----Regularization of service---Petitioners/employees had been appointed under due process of law on fixed pay for a contract period of two years or till the completion of project---Project was still continuing and petitioners/employees had been serving with unblemished service record---Employees were serving for the last twelve years without any job security---Employees had become overage to get the job anywhere else, they having requisite qualification for the post in question, had right to continue against the same---Employees could not be termed as "retained employees" against "retained fee"---Services of employees had matured and they were entitled for regularization---Regularization of employees did not require any statutory rules rather same would depend on the length of their service---High Court directed for regularization of service of employees from the date of their first appointment and they would be entitled to national increase of their pay from the date of their appointment without any arrears and their past service was to be computed towards their pensionary benefits---Constitutional petition was allowed, in circumstances.

Sher Alam and 9 others v. Government of Pakistan through Secretary SAFRON and 5 others 2019 PLC (C.S.) 12; Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405; Abdul Ghafoor and others v. The President National Bank of Pakistan and others 2018 SCMR 157; Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others 2018 SCMR 325 and Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181 rel.

Muhammad Asif Yousafzai for Petitioners.

Muhammad Riaz Khan, AAG for Respondents.

2020 P L C (C.S.) 623

[Peshawar High Court]

Before Ishtiaq Ibrahim and Ahmad Ali, JJ

JAWAD AHMAD MIR

Versus

Prof. Dr. IMTIAZ ALI KHAN and 4 others

Writ Petition No.4406-P of 2019, decided on 20th September, 2019.

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

----Ss. 11 & 12-A---Appointment of Vice-Chancellor of University---Petitioner was appointed as Vice-Chancellor of the University for three years and after expiry of her tenure the matter for appointment against the said post was referred to Search Committee and respondent was authorized to look after the office of Vice-Chancellor of the University as a stopgap arrangement---Contention of petitioner was that upon expiry of tenure of Vice-Chancellor the Pro-Vice-Chancellor should be deemed to be the Acting Vice-Chancellor---Validity---Tenure of previous Vice-Chancellor had expired and there was no Pro-Vice-Chancellor to act as Acting Vice-Chancellor---Absence of Vice-Chancellor would create complications and cause hurdles in the smooth administration and financial business of the University---Impugned notification could not be cancelled at the cost of the future of students of the University---Respondent had been appointed in accordance with law to look after the office of Vice-Chancellor till appointment of regular Vice-Chancellor---Process for appointment of a regular incumbent was in progress before Research Committee---Respondent did meet the criteria to hold the office of Vice-Chancellor and his appointment had been made as stopgap arrangement---Purpose of impugned notification was to safeguard the public interest which was an exception to exercise constitutional jurisdiction---Constitutional jurisdiction was to be exercised to enforce and protect a vested right---No right could be established through constitutional jurisdiction of High Court---Right to be enforced under Art. 199 of the Constitution must not only be an existing right but the infringement of such vested right must be there---For seeking remedy constitutional petition was dismissed, in circumstances.

Abdul Khalique v. Federation of Pakistan and others 2016 PLC (C.S.) 530 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction, exercise of---Requirements---Constitutional jurisdiction was to be exercised to enforce and protect a vested right---No right could be established through constitutional jurisdiction of High Court---Right to be enforced under Art. 199 of the Constitution must not only be an existing right but the infringement of such vested right must be there for seeking remedy.

(c) Constitution of Pakistan---

----Art. 199---Writ of mandamus, issuance of---Essentials.

Mandamus demands some kind of activity on the part of the body or person to whom it is addressed. Thus, when a body omits to do an act for which it is bound to do, it can be commanded to do the same. Where the Government denies to itself a jurisdiction which it has under the law or where an authority vested with the power improperly refuses to exercise it, mandamus can be issued. Thus, writ of mandamus cannot be issued unless the petitioner has a legal right to the performance of legal duty of a public nature and the party against whom the writ is sought is bound to perform that duty. The rule of Locus Standi is strictly followed while issuing writ of mandamus. The petitioner has to prove that he has a right to enforce public duty in his favour. Discretion of constitutional jurisdiction could not be exercised in favour of a petitioner who could not himself take benefit of order given by the Court.

Peshawar University Teachers Association and others v. Government of Khyber Pakhtunkhwa and others 2015 CLC 265; Brig. (R.) Aziz Muhammad Khan v. Secretary Ministry of Defence, Government of Pakistan 2003 CLC 1057 and Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 rel.

(d) Constitution of Pakistan---

----Art. 199---Writ of quo warranto issuance of---Fundamental basis.

Fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. It is, however, a discretionary remedy which the Court may grant or refuse according to the facts and circumstances of each case. Thus, it may be refused when it is vexatious or where it would be futile in its result or where the petitioner is guilty of laches or where there is an alternative remedy for ousting the usurper. Although, vast powers are vested with the Judiciary to control an administrative action when it infringes the fundamental rights of the citizens or when it goes beyond the spirit of the Constitution. It ensures the Rule of Law and proper check and balances between the three organs of the democratic system.

Ali Azim Afridi for Petitioner.

Kamran Hayat, A.A.G. for Official Respondents.

2020 P L C (C.S.) 639

[Peshawar High Court]

Before Lal Jan Khattak and Ahmad Ali, JJ

NOOR-UL-WAHAB

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior Government of Pakistan and 3 others

Writ Petition No.4966-P of 2019, decided on 25th September, 2019.

Civil service---

----Appointment on deputation---Such appointeee sought absorption in the borrowing department---Validity---Deputation was an administrative arrangement between borrowing and lending authorities for utilizing the service of an employee in the public interest and exigency of services against a particular post---Deputationist had no right to remain in borrowing department for ever and even he could not challenge order for his repatriation to his parent department---Competent authority could repatriate a deputationist as and when the exigencies of service required---Civil servant had no vested right to ask for his absorption in the borrowing department---Deputationist could not be treated as an aggrieved person provided he had been placed in the same grade and status in borrowing cadre which he was enjoying before his status of deputationist in the parent department---Constitutional petition was not maintainable which was dismissed, in circumstances.

Pakistan v. Fazal Rehman Khundkar and another PLD 1959 SC 82; Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad 2010 SCMR 378; Mst. Robia Ayub v. Federation of Pakistan 2013 PLC (C.S.) 915; Abdul Majeed v. Chief Secretary, Punjab 2015 PLC (C.S.) 1381; Lal Khan v. Employees Old Age Benefit Institution 2010 PLC (C.S.) 1377; 2018 PLC (C.S.) 1248; Zain Yar Khan v. Chief Engineer 1998 SCMR 2419, Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330, Sheikh Abdul Rahim's case PLD 1964 Lah. 376; Abdul Khaliq Anjum v. Secretary Education 1998 PLC (C.S.) 839; Prof. M. Ashraf Khan Niazi v. Chairman Board of Governors, Allama Iqbal Medical College 2003 PLC (C.S.) 243; Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC 13; Abdul Qayyum v. Nasrullah Khan Draishak and others 1975 SCMR 320; Ala-ud-Din Akhtar v. Government of Punjab and another 1982 CLC 515; Ch. Muhammad Bakhsh v. Government of Punjab PLD 1989 Lah. 175; Ayyaz Anjum v. Government of Punjab and others 1997 PLC (C.S.) 123; 1997 SCMR 169; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 PLC (C.S.) 124; 1997 SCMR 170; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Daniel v. State 1968 AIR Mad. 349 and Government of East Pakistan v. Federation of Pakistan PLD 1962 Kar. 353 rel.

Arab Shabbir Ahmad for Petitioner.

Respondent in motion.

2020 P L C (C.S.) 668

[Peshawar High Court]

Before Lal Jan Khattak and Ahmad Ali, JJ

TAJ MUHAMMAD KHAN and others

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.2308-P of 2018, decided on 24th September, 2019.

(a) Civil service---

----Non-Management Trainee Officers of a Bank statutory body, sought equal pay and perks which had been allowed to the Management Trainee Officers of the Bank---Discrimination---Effect---National Bank of Pakistan enhanced salary package for Management Trainee Officers---Earlier employees of the Bank filed constitutional petition seeking same salary package having been allowed to the Management Trainee Officers, which petition was allowed---Contention of petitioners was that there was no difference in the nature of job of both, the Management Trainee Officers and non-Management Trainee Officers, and they were entitled for equal pay and perks---Validity---Non-Management Trainee Officers and Management Trainee Officers possessed the contemporary qualification, performed same duties and could be transferred and posted vice each other and they had similar grade---National Bank of Pakistan being a statutory body could not be allowed to create artificial distinction or classification between Management Trainee Officers and non-Management Trainee Officers merely to discriminate them in terms of salary package---Non-Management Trainee Officers were to be treated like Management Trainee Officers, in circumstances---Authorities were directed to treat the petitioners at par with Management Trainee Officers---Constitutional petition was allowed, in circumstances.

PLD 1990 SC 686; Tara Chand and others v. Karachi Water and Sewerage Board Karachi and others 2005 SCMR 499; State Bank of Pakistan and others v. Mst. Mumtaz Sultana and others 2010 SCMR 421; Government of Punjab, through Secretary Education, Civil Secretariat, Lahore, and others v. Sameena Parveen and others 2009 SCMR 01 and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional petition---Laches, doctrine of---Applicability---Bar of laches did not apply in cases where the relief claimed was based on recurring cause of action.

(c) "Judgment in rem" and "Judgment in personam"---

----Distinction and scope.

The terms in rem' andin personam' are of Roman Law used in connection with actio, that is, actio in rem and actio in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms in rem' andin personam' got tagged with the word judgments to denote `the end products of actions in rem and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was as action in rem and the judgment pronounced in such action was a judgment in rein and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them.

The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared.

Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceedings in which it was given. This rule of law is referable to the maxims of Roman Law namely, 'Res inter also judicata nullun inter alias prejudicium facit', or 'Res inter alias acta alteri nocere non debet'. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law.

Principles and Digest of the Law of Evidence rel.

Muhammad Naveed Akhtar for Petitioners.

Muhammad Asghar Khan Kundi, D.A.G. for Respondents.

2020 P L C (C.S.) 692

[Peshawar High Court]

Before Muhammad Ibrahim Khan and Muhammad Nasir Mehfooz, JJ

Mst. HAJIRA BIBI

Versus

CIVIL ADMIN OFFICER, PAF BASE, PESHAWAR and 2 others

Writ Petition No.5614-P of 2018, decided on 4th December, 2019.

Civil service---

----Kidnapping of civil servant---Family pension, grant of---Scope---Grant of salary or pension emoluments was not bounty of the State but one of the basic fundamental rights of the employee---Husband of petitioner had not been heard of for the last more than three years and he was reportedly missing from 24-03-2016---Family pension was to be granted to the legal heirs of employee who remained missing or un-heard of for a period of twelve months---Nothing was on record that absence of employee was deliberate and he was alive---Petitioner (wife) was entitled to all the pensionary emoluments under the relevant rules---Authorities were directed to complete the process of pensionary benefits to the petitioner within two months---Constitutional petition was allowed, in circumstances.

Parveen Shaukat v. Province of Sindh and others PLD 2019 SC 710 and I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 rel.

Muhammad Isa Khan Khalil for Petitioner.

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

2020 P L C (C.S.) 708

[Peshawar High Court]

Before Muhammad Naeem Anwar, J

GOVERNMENT OF PAKISTAN, MINISTRY OF HOUSING AND WORKS

Versus

FAZAL WAHAB

Civil Revision No.24-P of 2018, decided on 20th January, 2020.

Accommodation Allocation Rules, 2002---

----Preamble---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 129 (g)---Allotment of official accommodation---Cancellation of---Suit for declaration and permanent injunction---Maintainability---Burden of proof---Contention of plaintiff was that impugned order for cancellation of allotment was illegal and ineffective upon his rights whereas defendant had contended that employee had sublet the suit premises and after inquiry allotment had been cancelled---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Defendant had neither examined sublettee nor produced the inquiry officer before the Trial Court---Even employee had not been associated in the inquiry proceedings in the present case---Nothing was on record to substantiate the plea of subletting the premises, in circumstances---Defendant was bound to prove the factum of subletting in accordance with Art. 117 of Qanun-e-Shahadat but he had failed to discharge burden of proof---Mere alleging a particular fact was not sufficient unless it was proved by reliable evidence, which was lacking on the part of defendant---Defendant had withheld best evidence and adverse inference should be drawn against him---Defendant had failed to prove the subletting of disputed promises and Appellate Court had rightly reversed the findings of Trial Court---Cancellation of allotment of disputed premises was based on no sound footing---No specific bar on the jurisdiction of civil Court to entertain and adjudicate the present matter existed---Civil Court being Court of ultimate jurisdiction could try the suit, in circumstances---Revision was dismissed in circumstances.

2008 SCMR 139; Mst. Sobia Bano v. EFU Life Insurance Ltd. through Chairman and another 2018 CLD 1313; Sugran Bibi v. Mst. Aziz Begum and others 1996 SCMR 137; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Muhammad Yaqub Brohi v. Ministry of Housing and Works through Secretary and 2 others 2017 CLC 369 rel.

Ahmad Saleem, Additional Attorney General along with Hameed, Assistant (Litigation) Estate Officer, Government of Pakistan for Petitioner No.1, while the added Petitioner No.2 Amal Bacha in person.

Fazal Wahab Respondent in person.

2020 P L C (C.S.) 785

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

MUZAMMIL SHAH

Versus

The CHAIRMAN BOARD OF TECHNICAL EDUCATION, PESHAWAR and 2 others

Writ Petition No.572-M of 2017, decided on 14th October, 2019.

Civil service---

----Contract employee---Willful absence from duty---Termination from service---Contention of employee was that he had not been afforded an opportunity of hearing---Validity---Service of employee had been dispensed with under Regln. No. 5 of Khyber Pakhtunkhwa Board of Technical Education Regulations, 1994---Absence of employee from duty was willful and it was not possible to provide him a right of hearing or notice---Right of hearing to the employee was not necessary in circumstances---Action of departmental authority might be reversed on the basis of omission in providing hearing when the right of hearing would make a difference and when petitioner had vested right to be presented before the authority---When a right of hearing was a mere formality then omission of right of hearing could not be made the basis for reversal of an order of administrative authority---Departmental appeal of employee had rightly been dismissed by the department---Constitutional petition filed by the employee was hit by the doctrine of laches---Constitutional petition being not maintainable was dismissed, in circumstances.

Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 PLC (C.S.) 928 and The Secretary Government of the Punjab Health Department of Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552 distinguished.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another PLD 2010 SC 483; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2009 PLC (C.S.) 161; Abdul Haque Indhar and others v. Province of Sindh through Secretary and others 2000 SCMR 907; Abdul Waheed and another v. Secretary, Ministry of Culture and Sports and another 2002 SCMR 769; Trustees of the Port of Karachi v. Organization of Karachi Port Trust Workers 2013 SCMR 238 and Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary and others PLD 2013 SC 413 rel.

Shahzullah Yousafzai for Petitioner.

Nemo. for Respondents.

2020 P L C (C.S.) 804

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

Dr. AMJAD FAROOQ, SENIOR REGISTRAR SURGICAL DEPARTMENT, ABBOTTABAD

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary Health, Khyber Pakhtunkhwa, Peshawar and 6 others

W.P. No.1168-A of 2015, decided on 7th November, 2018.

(a) Pakistan Medical and Dental Council Regulations, 2011---

----Reglns. 37 & 38---Appointment against the post of Assistant Professor Urology---Requirements---Petitioner being Senior Registrar Surgical applied for appointment against the post of Assistant Professor Urology but he was not considered due to lack of experience---Validity---Certificates produced by petitioner were not valid experience certificates---When law required a thing to be done in a particular manner then it must be done in that manner and not otherwise---Advertisement had been made for initial recruitment against the vacant post of Assistant Professor Urology and petitioner employee had applied for the same---When petitioner was not considered for appointment by the Scrutiny Committee then he had challenged the said decision seeking his promotion---Once petitioner had participated in the selection process then he could not take the benefit of Regln. 37 of Pakistan Medical and Dental Council Regulations, 2011 as post in question had not been reserved for promotion quota---Constitutional petition was dismissed, in circumstances.

(b) Administration of justice---

----When law requires a thing to be done in a particular manner then it must be done in that manner and not otherwise.

Tehsil Nazim, TMA Okara v. Abbas Ali 2010 SCMR 1437 and Raja Hamayun Sarfaraz Khan and others v. Noor Muhammad 2007 SCMR 307 rel.

Muhammad Arshad Khan Tanoli for Petitioner.

Raja Muhammad Zubair, Additional Advocate General, Fawad Saleh, Asad Tanveer Qureshi, Faheem Yousafzai, Tahir Hussain Lughmani and Junaid Anwar Khan for Respondents.

2020 P L C (C.S.) 822

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

SAJJAD HUSSAIN CONSTABLE NO. 1076, SPECIAL FORCE DISTRICT SWAT

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Home Secretary and 2 others

W.P. No.11-M of 2019, decided on 17th September, 2019.

Civil service---

----Contract employee involved in a criminal case was terminated from service---Contention of employee was that he had been acquitted from the criminal case---Validity---Employee was acquitted from the criminal case due to compromise and settlement with the complainant party---Employee was removed from service on 07-11-2012 and Constitutional petition had been filed in the year 2018 which was hit by the doctrine of laches---Contract employee had no right to maintain a constitutional petition for his reinstatement in service---Contract employee had not been provided right to proper inquiry in law---Such employee could not seek similar treatment with regular employees of the department---Constitutional petition was dismissed, in circumstances.

WAPDA through Chairman and others v. Abdul Ghaffar 2018 SCMR 380; Aamir Junaid and 143 others v. Government of the Punjab through Chief Secretary and 5 others 2014 PLC (C.S.) 1; The Secretary, Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552 ref.

Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another 2016 SCMR 183; Umar Baz Khan through L.Hrs. v. Syed Jehanzeb and others PLD 2013 SC 268; Federation of Pakistan and another v. Hashim Khan Qureshi 1987 SCMR 156; Government of Balochistan v. Dr. Zahida Kakar 2005 SCMR 642; Khwaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others 2003 SCMR 1030; WAPDA through Chairman and others v. Abdul Ghaffar and others 2018 SCMR 380; A.C./Administrator, Municipal Committee, Lakki Marwat, N.W.F.P v. Izzat Khan and 12 others 2000 SCMR 777; WAPDA through Chairman and others v. Abdul Ghaffar and others 2018 SCMR 380; Rana Asif Nadeem v. Executive District Officer, Education, District Nankana and 2 others 2008 PLC (C.S.) 715 and The Secretary, Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552 rel.

2020 P L C (C.S.) 844

[Peshawar High Court (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

MUHAMMAD KALIM KHAN

Versus

SMBR, KHYBER PAKHTUNKHWA and 9 others

W.P. No.581-D of 2013, decided on 3rd December, 2018.

Civil service---

----Appointment of patwari---Contention of petitioner was that respondents despite being juniors had been appointed ignoring the seniority of petitioner---Validity---Respondents were juniors to the petitioner as per register of patwar candidates---Appointments of respondents as Patwari were made on 24-12-2009 but same were never challenged by the petitioner and his name had been deleted from the relevant register being overage---Petitioner had not challenged the order for deletion of his name from the register of patwar---Petitioner had slept over his right for indefinite period and constitutional petition had been filed on 23-12-2013---Petitioner had failed to explain the laches and delay in approaching the Court---Petitioner was not vigilant in seeking relief from the Court in due course of time---Constitutional petition should have been filed within a reasonable time---Petitioner was guilty of contumacious lethargy, inaction, laxity and negligent in the prosecution of his cause---Constitutional petition was dismissed, in circumstances.

S.A. Jameel v. Secretary to the Government of the Punjab, Cooperative Department and others 2005 SCMR 126 and Jawad Mir Muhammad and others v. Haroon Mirza and others PLD 2007 SC 472 rel.

Burhan Latif Khaisori for Petitioner.

Adnan Ali, Assistant Advocate General for Respondents.

2020 P L C (C.S.) 918

[Peshawar High Court]

Before Waqar Ahmad Seth, CJ and Ahmad Ali, J

ATHAR RAHIM

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government and 3 others

W.P. No.1120-P of 2019, decided on 14th November, 2019.

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

----S.4---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition against disciplinary proceedings---Maintainability---Departmental proceedings---Compulsory retirement---Reinstatement in service---De novo inquiry---Service Tribunal reinstated employee in service with option to the department to conduct de novo inquiry within a specific period---Department having failed to complete de novo inquiry within a period provided by the Service Tribunal---Non-compliance of judgment of Service Tribunal---Effect---Petitioner-employee was reinstated in service by the Service Tribunal and Department was directed to conduct de novo inquiry within a period of ninety days after receipt of judgment---Employee was reinstated in service but de novo inquiry was not completed within a period provided by the Service Tribunal---Contention of petitioner was that no inquiry proceedings could be conducted after expiry of period provided by the Service Tribunal---Validity---Compliance of order of Court in letter and spirit was not only the responsibility of general public but government departments too were required to honour the verdict of the Courts and Tribunals---Sufficient time had been granted to the Department to conduct de novo inquiry but they had adopted dilatory tactics to delay the implementation of judgment of Service Tribunal---Impugned order for de novo inquiry had been passed after expiry of period for completion of inquiry proceedings provided by the Service Tribunal---Inquiry proceedings had become void being violative of judgment of Service Tribunal in circumstances---Departmental action against a civil servant was an executive discretion of the authority and High Court in order to protect the administration of justice could examine and judicially review the said discretion---Acts done by the authority in violation of judgment of Service Tribunal could not be given cover under Art. 212 of the Constitution---Act of non-compliance with the orders of the Court or Tribunal by itself was an illegal act and High Court in its constitutional jurisdiction could review such act of the Executive---Inquiry conducted by the department after expiry of period provided by the Service Tribunal was illegal, contumacious and against rule of law---Departmental proceedings initiated against the petitioner were declared null and void, in circumstances---Constitutional petition was allowed, in circumstances.

Zahoor-ud-Din Sheikh v. Pakistan Atomic Energy Commission through Chairman, Islamabad 2007 PLC (C.S.) 959; National Bank of Pakistan and others v. Shamoon Khan and others 2010 PLC (C.S.) 608 and Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others PLD 2019 SC 189 rel.

(b) Constitution of Pakistan---

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

The jurisdiction of High Court under Article 199 of the Constitution is a supervisory and extraordinary original jurisdiction. The High Court under its constitutional jurisdiction can discourage an act which adversely effects the majesty of law or dignity of the courts; and High Court can take every measure to protect the administration of justice from being maligned. In the general interest of the community, it is imperative that the authority of Courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice. The government departments are not aloof from the law rather they are comparatively more responsible to follow the dictum of Courts or Tribunals.

Babar Khan Yousufzai for Petitioner.

Wilayat Khan, A.A.G. for Respondents.

2020 P L C (C.S.) 974

[Peshawar High Court]

Before Lal Jan Khattak and Ahmad Ali, JJ

MUHAMMAD SULEMAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.4642-P of 2019, decided on 11th February, 2020.

Civil service---

----Appointment against the posts of District Emergency Officer and Emergency Officer---Expression 'suitable shortlisted candidates'---Scope---Petitioner qualified written test but he was not appointed against the posts in question---Contention of petitioner was that appointment of respondents was based on favouritism and nepotism---One of the respondents had failed in written test whereas the other had not applied for the said post---Respondents qualified written test for the post and they were shortlisted for the said post---Selection Committee recommended both the respondents for the post and they were appointed---Petitioner including all other candidates had been ignored---Validity---No criteria for selection had been laid down---Term 'suitable shortlisted candidates' did not empower the Authority or anyone else to travel beyond the merit---Respondents were shortlisted for the post of Emergency Officer only and not for the post of District Emergency Officer---Respondents were not eligible and suitable for the post of District Emergency Officer but they had been recommended and appointed against the said post---Selection Committee and Appointing Authority had violated the merit and transparency, in circumstances---Selection Committee had not mentioned the interview marks of petitioner and other candidates---Recommendation and appointment of respondents was malfeasance, misuse of authority and based on corrupt practices for which all the members of Selection Committee were responsible---Appointments of respondents against the post of District Emergency Officer were declared as illegal and null and void---High Court issued direction for initiation of disciplinary proceedings against all the members of Selection Committee and Appointment Authority for making illegal appointments---Petitioner remained at of merit list for the post of District Emergency Officer---Petitioner had not been appointed due to less experience but experience was not a sine-qua-non for appointment as District Emergency Officer---Respondent and petitioner had equal experience---Petitioner having higher merit position had been discriminated and deprived of the right of appointment---Authorities were directed to issue appointment letter to the petitioner against the post of District Emergency Officer---Constitutional petition was accepted, in circumstances.

Muhammad Farooq Malik for Petitioner.

Sikandar Rasheed for Respondent No.2.

Muhammad Asif Yousufzai for Respondents Nos.4 and 5.

2020 P L C (C.S.) 1025

[Peshawar High Court]

Before Waqar Ahmad Seth, CJ and Muhammad Naeem Anwar, J

ZEESHAN MAJEED and others

Versus

STATE

Writ Petition No.5648-P of 2019, decided on 21st November, 2019.

(a) Khyber Pakhtunkhwa Tourism Act (XXXVIII of 2019)---

----Ss. 8 & 32---Petitioners/employees of department of tourism/directorate/Institute assailed vires of Khyber Pakhtunkhwa Tourism Act, 2019, in general and particularly its Ss. 8 & 32 on the ground of being arbitrary, discriminatory and un-constitutional---Validity---No reason muchless the legal one was given for declaration of the Khyber Pakhtunkhwa Tourism Act, 2019 as un-constitutional---High Court observed that apprehension of petitioners was only to the extent of conversion of their regular services into contractual services but while considering the future prospect of their services in juxtaposition with S. 8(iv)(a)(i) and (ii), Khyber Pakhtunkhwa Tourism Act, 2019, their apprehension was properly met and their rights were protected with due care and caution---Legislature never intended that the regular services of the petitioners or other employees would be converted into contractual employment rather it was clear that the employees would continue to enjoy all the benefits currently admissible to them and would be entitled to their salary and other benefits as if they had continued to work against existing cadres or post---Section 32 of Khyber Pakhtunkhwa Tourism Act, 2019, pertained to the status of the employment in future and the same did not apply to the petitioners---Constitutional petition was disposed of accordingly.

Lahore Development Authority v. Imran Tiwana 2015 SCMR 1739 rel.

(b) Interpretation of statutes---

----Process of interpretation of statutes is the correct understanding of law---Process is commonly adopted by the court for determining the exact intention of legislature because the objective of the court is not only to read the law but is to apply the same in meaningful manner to suit from case to case.

Yasir Khattak for Petitioner.

Atif Ali, A.A.G. for the State.

2020 P L C (C.S.) 1046

[Peshawar High Court]

Before Lal Jan Khattak and Muhammad Naeem Anwar, JJ

Mst. NUSRATA

Versus

GOVERNMENT OF PAKISTAN through Secretary Defence, Islamabad and 8 others

Writ Petition No.5122 of 2017, decided on 6th February, 2020.

Civil Servants Leave Rules, 1986---

----R. 27---Shuhada Package No. F1 (OSR-II) 4-199 / 2011, dated 22-04-2011---Employee was granted leave and he was murdered the same day---Commencement of leave---Shuhada package---Grant of---Scope---Employee was on bona fide duty on the day he was granted leave and was murdered the same day---Deceased employee did fall within the definition of 'Shaheed', in circumstances---Authorities were directed to award compensation to the petitioner as that of 'Shaheed'---Constitutional petition was allowed, in circumstances.

Farhad Ullah Afridi for Petitioners.

Farman Ullah Khattak for Respondents.

2020 P L C (C.S.) 1326

[Peshawar High Court (D.I. Khan Bench)]

Before S.M. Attique Shah and Sahibzada Asadullah, JJ

AHSAN RASHID and 3 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Education (E&S), Peshawar and 21 others

Writ Petition No.763-D of 2016, decided on 27th November, 2019.

Civil service---

----Appointment---Eligibility for appointment to the post---Basic requirement for the post was a typing speed of 25 words per minute, besides that 100 marks were for educational qualification and another 100 marks were for NTS (National Testify Service)---Analysis of merit list revealed that the petitioners had succeeded in obtaining qualifying marks out of 200 marks but they had failed in typing test---Court could not substitute its opinion for that of the Interview Committee---Constitutional petition was dismissed.

2014 SCMR 157; 2015 SCMR 112 and 2000 SCMR 966 rel.

Saleemullah Khan Ranazai for Petitioners.

Kamran Hayat Miankhel, Additional Advocate General.

Salim Jan and Muhammad Afzal Nadir for Respondents

2020 P L C (C.S.) 1529

[Peshawar High Court (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

GUL REHMAN and 3 others

Versus

The NATIONAL BANK OF PAKISTAN, through President, Head Office, Islamabad and others

W.P. No.336-A of 2013, decided on 4th March, 2020.

Civil service---

----Contract employees (of National Bank of Pakistan)---Regularization of service---Right to life---Discrimination---Effect---Contention of petitioners was that similar placed employees had already been regularized by the Bank but they had been deprived of their legal rights---Validity---Petitioners were performing their duties on different positions in the Bank since their appointments without any break or discontinuation---Bank was being benefited from the labour, blood and sweat of the employees---Petitioners had contributed towards the prosperity and progress of the Bank---Employees had not been considered for regularization by the Bank---Right to life did include the right to livelihood and same could not hang on to the fancies of individuals in authority---Service of an employee could be brought to an end but in accordance with law---Nothing was on record as to why petitioners had not been regularized---Status of present employees was identical to those employees whose cases had been allowed by the Supreme Court---Where matter had been settled once for all then Bank/employers were supposed to treat its similarly placed employees on the same footing without compelling them to approach the Court of law---Bank could not be allowed to discriminate the petitioners in violation of judgment of Supreme Court---Bank was directed to regularize the employees against their respective posts with effect from the date they had approached through constitutional petition---Petitioners would be entitled for pensionary benefits if any from the date of their initial appointments---Constitutional petition was allowed, accordingly.

2009 SCMR 1; Abdul Ghafoor and others v. The President, National Bank of Pakistan and others 2018 SCMR 157; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance), Telephone Industries of Pakistan and others 2015 SCMR 1257; 1996 SCMR 1185; 2005 SCMR 100; 2005 SCMR 499; 2009 SCMR 01; PLD 2011 SC 22; 2013 SCMR 1253; 2018 PLC (C.S) 383; 2018 SCMR 1181; 2018 SCMR 1405 and AIR 1987 SC 777 rel.

Muhammad Arshid Khan Tanoli for Petitioner.

Muhammad Pervaz Khan Tanoli for Federation and Touqeer ur Rehman, Malik Mehmood Akhtar, Roy Nawaz Kharral and Ms. Bushra Mobeen Khan for remaining Respondents.

2020 P L C (C.S.) 1574

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

FARHAN ZAIB

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government, Elections and Rural Development Department, Peshawar and 3 others

Writ Petition No.300-M of 2020, decided on 3rd February, 2020.

Civil service---

----Appointment on the basis of deputation---Repatriation---Scope---Contention of employee was that his services had been surrendered to the borrowing department and he could not be repatriated to his parent department---Validity---Employee had never been absorbed nor he could be deemed to have ever been absorbed in the borrowing department---Service of employee could not be surrendered unilaterally to the borrowing department---Decision of absorption of employee could not be taken by the borrowing department unilaterally nor had it ever taken such a decision---Employee had been placed under the control of borrowing department on deputation in the present case---Employee had no right for further retention in the borrowing department as it did not need his services---Employee could not be thrusted upon the borrowing department any further---Employee had been repatriated to his parent department and no prejudice had been caused to him---Employee had failed to established violation of any law, rules or infringement of any right due to passing of impugned order---Constitutional petition was dismissed, in circumstances.

Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 PLC (C.S.) 367; Pakistan v. Fazal Rahman Khundkar and another PLD 1959 SC (Pak.) 82; Punjab Small Industries Corporation PSIC v. Sh. Abdu Salam and others 2008 SCMR 583; S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 and Abdul Khaliq Anjum v. Secretary Education, Government of Punjab and 2 others 1998 PLC (C.S.) 839 rel.

2020 P L C (C.S.) 282

[Punjab Service Tribunal]

Before Muhammad Qasim, Member-III

MUHAMMAD AFZAL

Versus

CHIEF EXECUTIVE OFFICER, KHUSHAB and another

Appeal No.490 of 2019, decided on 19th November, 2019.

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

---- S.4--- Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), Ss. 4 & 5--- Limitation Act (IX of 1908), S.5--- Appeal to Service Tribunal--- Condonation of delay--- Illness--- Civil servant was proceeded under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, after he had already retired from service--- Plea raised by authorities was that appeal before Service Tribunal was time barred--- Validity--- Civil servant remained ill and was advised bed rest by doctor--- Delay was of short span therefore, Service Tribunal condoned the period of delay in filing of appeal--- Civil servant was punished for involvement in subversive and immoral activities without any supporting substance--- Charges against civil servant were vague in nature as it was not specified as to how he remained indulged in subversive activities---No reliable evidence was on the file which was to be considered sufficient for imposing penalty--- While imposing penalty, nothing was mentioned with regard to defence version of civil servant--- Penalty orders were illegal and based on presumptive act on the part of authorities--- Service Tribunal set aside the penalty imposed upon civil servant by authorities--- Appeal was allowed in circumstances.

Rizwana Anjum Mufti for Appellant.

Mazhar Hayat Dogar, District Attorney for Respondents.

2020 P L C (C.S.) 109

[Balochistan High Court]

Before Abdul Hameed Baloch and Naeem Akhtar Afghan, JJ

FEROZ SHAH

Versus

The SECRETARY EDUCATION DEPARTMENT, GOVERNMENT OF BALOCHISTAN CIVIL SECRETARIAT QUETTA and others

Constitution Petition No.681 of 2016, decided on 23rd September, 2019.

Civil service---

----Appointment---Non-availability of sanctioned post---Scope--- Petitioner had applied for the post of watchman and had appeared in the interview---Petitioner was found successful for the post so applied by him---District Recruitment Committee recommended the name of petitioner for appointment, however, the department noted that the orders would be issued against clear sanctioned vacant post---Record revealed that department had invited applications for only one vacant post of driver---No vacant post of the watchman was published in the advertisement---Petitioner had not applied for the clear sanctioned post as advertised in the newspaper by the department---Held; no direction could be issued to the department for appointment of petitioner---Constitutional petition, being devoid of merits, was dismissed.

Director, Social Welfare, N.-W.F.P. v. Sadullah Khan 1996 SCMR 1349 rel.

Rehmatullah Barech for Petitioner.

Abdul Latif Kakar, A.A.G. for Respondents.

2020 P L C (C.S.) 242

[Balochistan High Court]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

USMAN ALI and 17 others

Versus

The SECRETARY, RELIGIOUS AFFAIRS AND INTER-FAITH HARMONY DEPARTMENT, GOVERNMENT OF BALOCHISTAN and another

C.P. No.1542 of 2018, decided on 30th September, 2019.

Civil service---

----Appointment---Petitioners had qualified written test and interview---Ban imposed on recruitment---Re-advertisement for appointment against vacant posts---Petitioners had qualified written test and interview and were recommended for appointment by the Recruitment Committee but prior to issuance of appointment orders ban on recruitment was imposed---Respondents lifted the ban on recruitment but re-advertised the vacant posts---Validity---Petitioners had qualified written test and interview and Selection Committee had recommended the candidates for their appointment---No plausible reason was given not issuing appointment orders to the petitioners---Authorities were directed to issue appointment orders of the petitioners---Constitutional petition was allowed, accordingly.

Abdul Razaq Shar, Najamuddin Mengal and Hafeezullah for Petitioners.

Abdul Latif Kakar, A.A.G. for Respondents.

2020 P L C (C.S.) 368

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar, C.J and Muhammad Ejaz Swati, J

RUQQIYA ATTA

Versus

SECRETARY, EDUCATION DEPARTMENT, CIVIL SECRETARIAT QUETTA and 4 others

C.P. No.684 of 2018, decided on 16th September, 2019.

Civil service---

----Appointment order---Withdrawal of---Petitioner was appointed as Physical Training Instructor and she joined her place of posting and received salaries---Respondent filed complaint which was accepted and she was also appointed against the post in question---Validity---Nothing was on record with regard to approval for cancellation/withdrawal or termination of petitioner from service---Appointment order in favour of respondent had been passed but no order had been passed about the appointment of petitioner---No order of cancellation or termination of appointment of petitioner was passed by the authorities---Appointment order passed in favour of petitioner was still intact---Issuance of appointment order in favour of respondent would not amount to cancellation of the appointment order in favour of petitioner---Petitioner and respondent were appointed on different posts and in different schools---Specific order was to be passed to determine the fate of appointment of petitioner--- Authorities had failed to follow the procedure as required by the law---Constitutional petition was disposed of, accordingly.

Manzoor Ahmed Rehmani for Petitioner.

Abdul Latif Kakar, Additional Advocate-General for Respondent No.4.

Tabinda Shahid Respondent No.4 present in person.

2020 P L C (C.S.) 548

[Balochistan High Court]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

BIBI MARYAM and 8 others

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary Education and 9 others

C.P. No.537 of 2017, decided on 13th November, 2019

Contract Act (IX of 1872)---

----S.23---Civil service---Donation of land for construction of school in consideration of employment---Scope---Petitioners applied for appointment against vacant posts of Class-IV and appeared in test and interview but they were not recommended by District Recruitment Committee---Complaint by the petitioners before Complaint Redressal Cell was accepted but they were not appointed against the posts in question---Contention of petitioners was that they had donated land to the school and on this count they were entitled for appointment---Validity---No post could be filled on the recommendation of private person---Alleged agreement being not according to law had no legal sanctity---Donation of land in consideration of employment would amount to sale of a public office---Petitioners could not claim specific performance of void agreement---Constitutional petition was dismissed, in circumstances.

Haeedullah v. Head Master 1997 SCMR 855 rel.

Jamil Ramzan and Jamila Kakar for Petitioner.

Abdul Latif Kakar, A.A.G. for Respondents.

2020 P L C (C.S.) 650

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

SADIA ANWAR

Versus

SECRETARY EDUCATION DEPARTMENT and another

C.P. No.943 of 2018, decided on 24th February, 2020.

Establishment of the Office of Ombudsman for the Province of Balochistan Ordinance (VI of 2001)

----Ss.9 & 11---Constitution of Pakistan Art. 199---Jurisdiction functions and powers of the Ombudsman---Recommendations for implementations of Provincial Ombudsman---Civil Service---Recruitment---Provincial Ombudsman's jurisdiction vis-à-vis recruitment / appointment to Government Departments---Constitutional petition---Question before High Court was whether forums provided for in Establishment of the office of Ombudsman for the Province of Balochistan Ordinance, 2001 had jurisdiction to dilate upon matters of appointment/recruitment of persons in Government Departments---Held, that scheme and spirit of Establishment of the office of Ombudsman for the Province of Balochistan Ordinance, 2001 did not empower Provincial Ombudsman to adjudicate upon matters of appointments in Government Departments---Under said law, having considered a matter of being case of maladministration, Ombudsman could only move to concerned Department for taking disciplinary action against any public servant under applicable law---Provincial Ombudsman, therefore, could not direct for making or de-notifying appointment of a candidate who applied for appointment in a Government Department---Constitutional petition was disposed of, accordingly.

PLD 2016 SC 940 rel.

Jalal-ud-Din for Petitioner.

Nadeem Ahmed Sheikh for Respondent Zarmina Kakar, Zahoor Ahmed Baloch, Assistant Advocate-General for Respondents.

2020 P L C (C.S.) 684

[Balochistan High Court]

Before Nazeer Ahmed Langove, J

BIBI KALSOOM

Versus

The GENERAL PUBLIC and another

Civil Revision No.307 of 2018, decided on 12th November, 2018.

Balochistan Civil Services Pension Rules, 1989---

----R.4---Succession Act (XXXIX of 1925), Ss. 373 & 372--- Government of Balochistan Notification No. FD(R-II)VII-2/98/1719-1819 dated 25.07.1998----Family pension---Pension dues of deceased public servant---Succession Certificate---Eligibility of unmarried daughter above the age of twenty-one---Petitioner impugned order of Civil Court whereby claim of entitlment of petitioner to her deceased father's pension was denied, on ground that she being above the age of twenty-one was not entitled to the same---Validity---In view of Government of Balochistan Notification No.FD(R-II)VII-2/98/1719-1819 dated 25.07.1998, irreseptive of age, unmarried female child of deceased was entitled to draw family pernsion of late father till her marriage---High Court observed that no where in Balochistan Civil Services Pension Rules, 1989 it had been mentioned that after having attained age of twenty-one, unmarried daughter of deceased government servant would be disentitled from family pension---Impugned order was set aside---Revision was allowed, accordingly.

Abdul Zahir Kakar for Petitioner.

2020 P L C (C.S.) 759

[Balochistan High Court]

Before Abdul Hameed Baloch, J

ABDUL NABI SASOLI

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary Education Department and 2 others

C.P. No. 27 of 2020, decided on 17th February, 2020.

(a) Balochistan Civil Servants Act (IX of 1974)---

----S.10---Transfer of employee---Bar of jurisdiction contained in Art.212(2) of the Constitution---Scope---Contention of employee was that he had been transferred prematurely---Validity---Matter with regard to transfer and posting of an employee was related to terms and conditions of service---Constitutional jurisdiction of High Court in the matters of terms and conditions of service was barred---Service Tribunal was not functioning and employee had no other adequate remedy in the present case---Question of bar of jurisdiction of High Court under Art. 212(2) of Constitution would not come into play till the establishment and actual functioning of Service Tribunal---Petitioner was serving as Secondary School Teacher (BPS-17) and aspiring for high post while post of Controller, Board of Intermediate and Secondary Education, had been upgraded from BS-18 to BS-19---Employee being officer of BPS-17 was not eligible for holding the higher post of BPS-19---Posting of junior officer against the higher grade discouraged the senior officer---Rules of posting and transfer were to be followed---Petitioner had no right to claim posting against a particular post---Transfer and posting were the policy decision of the government---Government was the best judge in the policy decision---Court was not to sit in policy matter unless it appeared to be arbitrary or abuse of process of law---Posting and transfer of an employee was the domain of competent authority---Every civil servant was liable to serve within the Province---Constitutional petition was dismissed, in circumstances.

Sarfaraz Saleem v. Federation of Pakistan and others PLD 2014 SC 232; Muhammad Andleed Raza v. Muhammad Nazar 2019 YLR 1974; Peer Muhammad v. Government of Balochistan 2007 SCMR 54 and Syed Muhammad Naqvi and others v. Federation of Pakistan PLD 2013 SC 195 rel.

(b) Constitution of Pakistan---

----Art. 189---Law laid down by the Supreme Court had binding effect upon High Courts, subordinate Courts and public functionaries.

(c) Administration of justice---

----Court could not grant a relief which had not been sought specifically.

Abdullah v. Yahya Bakhtiar PLD 2001 SC 158 rel.

(d) Administration of justice---

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

Rehmatullah Sadozai and Ibrahim Lehri for Petitioner.

Sardar Haleemi and Najam-ud-Din Mengal for Respondent No.2.

Shai Haq, A.A.G. for Respondent No.1.

2020 P L C (C.S.) 800

[Balochistan High Court]

Before Jamal Khan Mandokhail and Abdullah Baloch, JJ

HAMID SHAKEEL SABIR and others

Versus

FEDERATION OF PAKISTAN, through Secretary, Establishment Division and others

Constitutional Petitions Nos.671 and 672 of 2017, decided on 17th October, 2019.

Civil service---

----"Police Service of Pakistan" and "Provincial Police Service"---Promotion---Criteria---Petitioners were appointed in Provincial Police Service and subsequently they were inducted in Police Service of Pakistan cadre---Departmental Selection Committee started process for promotion of Officers Police Service of Pakistan to BPS-19 but petitioners were not considered on the ground that they did not possess requisite length of service for promotion---Validity---According to Sl.No. 157 of Estacode, if initial appointment of an officer was made in BPS-18 and he served for a period of seven years then he would be eligible for promotion to the post of BPS-19---Officers who had served for a period of twelve years in BPS-17 and above would be eligible for promotion to BPS-19---Petitioners were appointed in BPS-17, whereafter they were promoted to BPS-18 and subsequently were inducted and encadred as Officer of Police Service of Pakistan---Encadrement in Police Service of Pakistan could not be considered as "initial appointment"---Petitioners had more than twelve years of service in BPS-17 and more than three years of service in BPS-18 and they possessed the requisite qualification and were eligible to be considered for promotion in BPS-19---Departmental Selection Committee was directed to consider the cases of petitioners for promotion in accordance with law and on merits---Constitutional petition was allowed accordingly.

Muhammad Zafar Ali v. Asim Gulzar 2015 SCMR 379 distinguished.

Muhammad Riaz Ahmed, Khalid Sultan and Raza Khan for Petitioners.

Ghulam Mustafa Buzdar, D.A.G.

2020 P L C 847

[Balochistan High Court]

Before Muhammad Noor Meskanzai, CJ and Muhammad Hashim Khan Kakar, J

MUNIR AHMED KHAN KAKAR and another

Versus

PROVINCE OF BALOCHISTAN through Chief Secretary and 7 others

Constitution Petition No. 138 of 2018, decided on 4th June, 2018.

(a) Constitution of Pakistan---

----Arts. 189 & 190---Judgment of the Supreme Court---Scope---Law declared by Supreme Court becomes law of land under Arts. 189 & 190 of the Constitution and is binding not only on all courts in Pakistan but also on all organs of the State---No escape from acceptance obedience or compliance of an order passed by Supreme Court which is final and highest court in the country---No one can be allowed to violate such orders while taking shelter behind technicalities---Effect of judgment of Supreme Court cannot be eroded or nullified through any executive or administrative instrumentality---Even legislature cannot destroy, annul, set aside, vacate, reverse or modify a final judgment of court of competent jurisdiction.

Mir Alam Gul v. Ismail PLD 1990 SC 926; Ashiq Hussain v. The State PLD 1994 SC 879; Province of the Punjab v. Haji Yaqoob Khan 2007 SCMR 554; Syed Sajjad Hussain v. Secretary, Establishment Division Cabinet Secretariat Islamabad 1996 SCMR 284; Abdul Waheed v. Mst. Ramzanu 2006 SCMR 489 and Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan PLD 2006 SC 66 rel.

(b) Constitution of Pakistan---

----Arts. 199(1)(c) & 4---Constitutional jurisdiction of High Court---Mandamus, writ of---Scope---High Court under Art.199(1)(c) of the Constitution has ample jurisdiction to give directions to public functionaries to act strictly in accordance with law and in view of Art. 4 of the Constitution---When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, High Court in exercise of its Constitutional jurisdiction has ample power to grant relief to aggrieved party.

Pakistan Petroleum Ltd. v. Director General Mines and Minerals PLD 2011 Quetta 1; Brig. Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 and Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 rel.

(c) Balochistan Rules of Business, 2012---

----Rr. 3, 6(1), 8(1)(2), 9(4) & 22(2)---Constitution of Pakistan, Arts. 187(2) & 204(2)(a)---Transfers of public servants---Minister, functions of---Delegatus Non Potest Delegare, principle of---Applicability---Implementation of judgment of Supreme Court---Petitioner was member of Balochistan Bar Council who assailed postings and transfers of officials made on orders of provincial minister on basis of notification dated 17-07-2012---Plea raised by petitioner was that transfers and postings were being made in violation of judgments passed by Supreme Court---Validity---Secretary concerned was official head of the department who was responsible for its efficient administration and discipline and for proper conduct of business assigned to department under R.3 of Rules of Business, 2012---Minister had nothing to do with transfers/postings of civil servants and notification dated 17-07-2012 whereby powers of transfer/posting were assigned to minister was illegal and void ab initio---Notification dated 17-07-2012 was not only against principle of Delegatus Non Potest Delegare but was also against provisions of Rules of Business, 2012---High Court directed that no transfers/postings of civil servants would be made in violation of guidelines issued by Supreme Court in its judgments and same should be implemented in letter and spirit---High Court restrained transfer and posting orders on verbal directions of competent authority and directed to follow provisions of R. 9(4) of Balochistan Rules of Business, 2012---High Court further directed that Administrative Secretary while submitting summary/note to competent authority for transfer and posting of any officer, provision of R. 22(2) of Balochistan Rules of Business, 2012 would be strictly followed---In case of any failure on part of State functionary to comply with direction issued by Supreme Court, Chief Secretary as well as Administrative Secretaries would expose themselves to contempt proceedings under Art. 204(2)(a) of the constitution---Constitutional petition was allowed accordingly.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 and Khan Muhammad v. The Chief Secretary Government of Balochistan (Civil Petition No.2812 of 2017) rel.

Khushi Muhammad v. Inspector General of Police Punjab 1999 SCMR 2868; Amanullah Khan Yousafzai v. Federation of Pakistan PLD 2011 Kar. 451; Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 and Zahid Akhter v. Government of Punjab PLD 1995 SC 530 ref.

(d) Discretion---

----Principles---Discretion cannot be exercised in an arbitrary or fanciful manner but judiciously and in accordance with settled norms of justice, equity and fair play.

Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 rel.

(e) Civil service---

----Good governance---Civil servant---Status---In order to improve governance it is necessary that independent, impartial and professional status of civil service as an institution is restored---Civil servants are backbone of system and have to be protected against injustices particularly political victimization enabling them to deliver to best of their abilities without any fear or favour---Civil servants have to be reassured that they are not subservient to political executives and are under obligation to remain compliant with the Constitution and law.

Raja Abdul Rehman, Amanullah Kanrani, Naseebullah Tareen, Aamir Rana, Nadir Ali Chalgari, Attaullah Langov for Petitioner along with Petitioner Munir Ahmed Kakar.

Abdullah Khan Kakar, Deputy Attorney General and Muhammad Rauf Atta, Advocate General, assisted by Shai Haq Baloch, Additional Advocate General for Respondents.

Kamran Murtaza and Mazhar Ilyas Nagi as Amici Curiae.

2020 P L C (C.S.) 927

[Balochistan High Court]

Before Abdul Hameed Baloch and Naeem Akhtar Afghan, JJ

ABDUL KARIM and others

Versus

SECRETARY HEALTH DEPARTMENT GOVERNMENT OF BALOCHISTAN and others

Constitutional Petitions Nos. 415 and 505 of 2019, decided on 5th December, 2019.

Civil service---

----Contract appointment---Cancellation of---Non-payment of salaries to the appointees---Effect---Petitioners-employees were appointed on contract basis and their posting orders were issued but thereafter said appointments were cancelled---Validity---Department had recruited the petitioners in accordance with law---Non-posting was not fault of the employees---Department was bound to pass order for posting of employees---Employees could not assume duty without being posted by the department---Impugned order had been passed without issuing show cause notice to the employees which was not sustainable---Employees should not have suffered due to fault of department---Department had failed to assign any reason for issuing order for cancellation of contract appointments---Department was bound to pay salaries to the employees from the date of their appointment till the expiry of their contract period---Non-payment of salaries to the petitioners-employees was violation of Art. 3 of the Constitution---Impugned order was declared void and of no legal effect---Department was directed to release the salaries of employees from the date of issuance of offer letters till expiry of their contract period---Constitutional petition was allowed, in circumstances.

Obaidullah Quresh for Petitioners (in Constitutional Petition No.415 of 2019).

Abdul Latif Kakar, A.A.G., Dr. Khalil ur Rehman, Director Malaria/VBD Control Program Balochistan and Hidayatullah, Senior Law Officer Health Department for Respondents (in Constitutional Petition No.415 of 2019).

Mazher Ilyas Nagi for Petitioners (in Constitutional Petition No.505 of 2019).

Abdul Latif Kakar, A.A.G., Dr. Khalil ur Rehman, Director Malaria/VBD Control Program Balochistan and Hidayatullah, Senior Law Officer Health Department for Respondents (in Constitutional Petition No.505 of 2019).

2020 P L C (C.S.) 969

[Balochistan High Court]

Before Rozi Khan Barrech and Muhammad Hashim Khan Kakar, JJ

SHER ZAMAN EX-ASSISTANT EXCISE AND TAXATION OFFICER (B-16), Versus

BOARD OF REVENUE BALOCHISTAN (EXCISE AND TAXATION BRANCH) through Member Board of Revenue-II/Secretary Excise and another

Constitution Petition No.836 of 2019, decided on 28th November, 2019.

Civil service---

----Withholding of pension due to pendency of criminal proceedings---Scope---Gratuity and pension were not bounties and an employee did earn these benefits by dint of his continuous and unblemished service---Pension could not be withheld during the pendency of departmental/criminal proceedings in absence of any provision in the Pension Rules---Receiving gratuity and pension had been treated as right to property as enshrined in Art. 9 of the Constitution and no person could be deprived of his property save by authority of law---Employee had been acquitted by a competent Court of law and there was no occasion with the authorities to withhold his pensionary benefits---Authorities were directed to make payment of pensionary benefits to the petitioner, in circumstances---Constitutional petition was allowed accordingly.

Muhammad Ismail Memon : In the matter of PLD 2007 SC 35 rel.

Muhammad Riaz Ahmed for Petitioner.

Khalil-uz-Zaman, Addl. A.G. and Jaffar Raza Khan, Senior Special Prosecutor, NAB for Respondents.

2020 P L C (C.S.) 1055

[Subordinate Judiciary Service Tribunal]

Before Lal Jan Khattak and Ijaz Anwar, JJ

SHAFIQ AHMAD TANOLI, D&SJ

Versus

The REGISTRAR, PHC, PESHAWAR and others

Service Appeal No.13-P of 2015, decided on 9th February, 2019.

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

----S.5---Khyber Pakhtunkhwa Judicial Service Rules, 2001, Rr.5, 9 & 10---Promotion---Additional District and Sessions Judge---Seniority of promotees and direct appointees---Determination of---Procedure---Creation of new posts---Effect---Appellant was appointed through direct appointment as Additional District and Sessions Judge and thereafter respondents---Senior Civil Judges were also promoted against newly created posts---Competent authority considered the case of respondents for promotion to the rank of District and Sessions Judge but appellant was ignored---Contention of appellant was that his case for promotion as District and Sessions Judge had not been considered and junior officers had been promoted on account of wrong seniority and respondents had been promoted as Additional District and Sessions Judges against newly created posts---Validity---If date of promotion and appointment of promotee and direct appointee was the same then promotee should be considered as senior---Where promotees were eligible and vacancies were available in their quota then they should be given seniority over the direct recruitees---Grant of seniority to the respondents on the ground that they were eligible at the time of creation of posts could not be made a ground for allowing them seniority---Seniority of appellant was to be considered without considering subsequent promotion of respondents made against newly created posts having no effect on his seniority---Department was directed to consider the appellant for promotion as District and Sessions Judge with effect from the date his juniors were promoted---Appeal was allowed, in circumstances.

Registrar PHC and others v. Shafiq Ahmad Tanoli PLD 2015 SC 360 and Government of NWFP and others v. Buner Khan and others' 1985 SCMR 1158 rel.

Ghulam Mohy-ud-Din Malik for Petitioner.

Khalid Rehman and Muhammad Zafar Tahirkheli for Respondents.

2020 P L C (C.S.) 1100

[Subordinate Judiciary Service Tribunal]

Before Lal Jan Khattak, Chairman and Ijaz Anwar, Member

ABDUL HAKEEM HASHMI and others

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar and others

Service Appeals Nos.29, 31, 32, 34, 36, 37, 38, 40, 43, 45, 49 and 47 of 2017, decided on 18th May, 2019.

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

----Rr. 4 (1) (b) (iii), 5 (1) (a), 7 & 2 (f) (g) (l)---Khyber Pakhtunkhwa Judicial Service Rules, 2001, R. 4---Judicial Officers (Officers)---Adverse remarks recorded in the Annual Confidential Reports---Effect---"Persistent reputation of being corrupt"---Misconduct---Dispensing with regular inquiry---Removal from service---Scope---Adverse entries were recorded in the Annual Confidential Reposts of Judicial Officers---Competent authority after issuing show-cause notices to the said officers removed them from service while dispensing with regular inquiry---Contention of officers was that they had been condemned unheard and for proposed major punishment regular inquiry was mandatory---Validity---Officers were communicated adverse remarks recorded in their Annual Confidential Reports and same had been confirmed through Inspection Judge as well as Intelligence Agencies---Regular inquiry could not be dispensed with where it was proposed to impose major penalty---Neither there was any specific instance of corruption nor any complaint to be inquired into, rather it was general reputation of officers and it was an opinion not developed instantly but they had earned it during their judicial career---Competent authority had discretion to proceed departmentally against an officer---Holding an inquiry in the cases of misconduct was not a universal principle but it would depend upon case to case basis---Allegations against the officers were of such a nature that regular inquiry was not necessary---Procedure adopted by the Authority was valid and permissible under the law---Tribunal observed that civil servants were bound to be honest and should have unblemished integrity yet judicial officers were supposed to excel in this trait of character in view of sacred and sensitive nature of their duties---Repeated communication of adverse remarks with regard to doubtful integrity and reputation could be made basis for forming an opinion about reputation of a judicial officer---Complaint with regard to corruption of a judicial officer in all cases was not necessary---Regular inquiry in presence of adverse material was not mandatory---Judicial Officers proceeded for the same allegations had been awarded major penalties of compulsory retirement from service and penalty of present officers was also modified from removal into compulsory retirement from service---Appeals were dismissed in circumstances.

2015 PLC (C.S.) 239; 2015 PLC (C.S.) 173-191; 2007 SCMR 1786; 2010 SCMR 1392; PLD 1986 SC 162; 2004 PLC (C.S.) 1558; 2009 SCMR 412; 2007 SCMR 1389; 2007 SCMR 1726; 2006 SCMR 106; 2003 SCMR 681; 2008 SCMR 1362; 2007 SCMR 1643; 2015 PLC (C.S.) 868; 2001 SCMR 1161; 2009 SCMR 1169; PLD 2004 SC 222; 2007 SCMR 1786 and 2014 PLC (C.S.) 1244 ref.

PLD 2015 SC 360; The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134; Government of Sindh and others v. Saiful Haq Hashmi and others 1993 SCMR 956; Shah Nazar Khan v. Assistant Commissioner and S.D.M., Malir, Karachi and 3 others PLD 1977 Kar. 582; Saad Salam Ansari v. Chief Justice, High Court of Sindh, Karachi 2006 PLC (C.S.) 938; Ch. Shabbir Hussain v. Registrar, Lahore High Court, Lahore 2004 PLC (C.S.) 236; Executive Engineer and others v. Zahid Sharif 2005 SCMR 824; Nawab Khan and others v. Government of Pakistan through Secretary Ministry of Defence, Rawalpindi and others PLD 1994 SC 222 and Javid Akhtar v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others' 1991 SCMR 140 rel.

(b) Words and phrases---

----'Reputation'---Dictionary concept---Word 'reputation' means 'What is thought of a person by others and the general reputation of a person in the collective opinion of those among whom he lives and works.

Shah Nazar Khan v. Assistant Commissioner and S.D.M., Malir, Karachi and 3 others PLD 1977 Kar. 582 rel.

Muhammad Shoaib Shaheen for Appeallant (in S.As. Nos. 29, 31, 32, 36, 37, 38 and 40 of 2017).

Muhammad Zafar Tahirkheli for Appellant (in S.A. No.34 of 2017).

Abdul Latif Afridi and Syed Haziq Ali Shah for Appellant (in S.A. Nos.43 of 2017).

Mian Hikmatullah Jan for Appellant (in S.A. No.45 of 2017).

Qazi Jawad Ihsan Ullah for Appellant (in S.As. Nos.43 and 49 of 2017).

Ghulam Mohy-ud-Din Malik and Muhammad Ibrahim Khan for Appellant (in S.A. No.49 of 2017).

Ahmad Yar Khan for Appellant (in S.A. No.47 of 2017).

Khalid Rehman for Respondent (in S.As. Nos.39, 31, 32, 36, 37, 38, 40, 43, 45, 49 and 47 of 2017).

Maik Akhtar Hussain, A.A.G. (in S.A. No.34 of 2017).

2020 P L C (C.S.) 1254

[Subordinante Judiciary Service Tribunal]

Before Lal Jan Khattak and Ijaz Anwar, JJ

Syed ASGHAR SHAH, AD&SJ

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar

Service Appeal No.53-P of 2011, decided on 4th May, 2019.

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

----S.5---Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 2 (b)(c), 4 (1)(b)(ii) & 5(3)---Additional District and Sessions Judge---Allegation of ill-reputation---Adverse entries recorded in the Annual Confidential Report---Persistent reputation of being corrupt---Dispensing with regular inquiry---Compulsory retirement from service---Competent authority to initiate departmental proceedings---Adverse entries were recorded in the Annual Confidential Repost of Judicial Officer---Competent authority issued show-cause notice to the employee while dispensing with regular inquiry and he was compulsory retired from service---Chief Justice, High Court, decided to initiate departmental inquiry when a report with regard to conduct of Judicial Officer was placed before him and he appointed authorized officer to proceed against the employee---Authorized officer decided to dispense with regular inquiry and issued show cause notice to the Judicial Officer who submitted his reply against the said notice---Chief Justice imposed major penalty of compulsory retirement upon the employee on the basis of report of authorized officer---Contention of employee (Judicial Officer) was that without regular inquiry no charge of misconduct could be proved---Validity---Competent authority could initiate and finalize the departmental proceedings against delinquent civil servant---Authority had power to appoint authorized officer who could dispense with regular inquiry or conduct a regular inquiry keeping in view facts and circumstances of the case---Chief Justice, High Court, had been declared as 'authority' under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 1973---No record with regard to corruption of Judicial Officer was available---Adverse remarks recorded in Annual Confidential Report of the officer were communicated after his retirement---Said remarks could not be used against the Judicial Officer in the present matter---Nothing was on record with regard to ill-reputation of employee except one expunged adverse Annual Confidential Report---Repeated adverse entries or malignant service record should exist for the term 'persistent reputation of being corrupt'---Even no evidence was available that employee was living beyond ostensible means---Mere show-cause notice with regard to ill-reputation or living beyond ostensible means was not suffice unless there was some evidence to that effect---Competent authority had power to impose any of the penalties but same were to commensurate with the gravity of charge---Allegations against the employee were not of such a nature to impose penalty of compulsory retirement from service---High Court observed that punishment imposed upon the Judicial Officer was extremely harsh---Punishment was converted into the reduction of judicial officer to the post of Senior Civil Judge for a period of three years---Judicial Officer was to be restored to his original seniority on completion of said period of reduction to the post---Period of compulsory retirement was directed to be treated as leave of the kind due and countable towards length of service---Appeal was allowed, in accordingly.

Registrar Peshawar High Court and other v. Shafiq Ahmad Tanoli and others PLD 2015 SC 360; Auditor General of Pakistan v. Muhammad Ali 2006 SCMR 60; G.M. Pak Railways v. Muhammad Rafique 2013 SCMR 372; Muhammad Ali S. Bukhari v. Federation of Pakistan 2008 SCMR 214; Syed Fida Hussain Kazmi v. IGP Punjab 2008 SCMR 1513; Secretary to Government of the Punjab Food Department Lahore v. Javed Iqbal 2007 PLC (C.S.) 692; Maqbool Ahmad v. Chief Executive, FESCO 2004 SCMR 637 and Commissioner, Punjab ESSI v. Jamal Butt 2004 SCMR 186 rel.

Appellant in person.

Khalid Rehman for Respondent.

2020 P L C (C.S.) 34

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

USMAN ALI CHHACHHAR

Versus

MOULA BUX CHHACHHAR and others

Civil Appeal No. 735 of 2016, decided on 17th October, 2019.

(On appeal from the judgment dated 12.11.2014 passed by the Sindh Service Tribunal at Karachi in Appeal No. 119 of 2014)

Civil Servants (Appeal) Rules, 1977---

----Rr. 5(4), 7(1)(c) & 7(2)---Civil Services Rules (Punjab), Vol. 1, Chapt. XIV, Section III, Cls. 14.21(1)(c) & 14.21(2)---Balochistan Civil Servants (Appeal) Rules, 2013, R. 5---Khyber Pakhtunkhwa Civil Servants (Appeal) Rules, 1986, R. 3(1)---Sindh Civil Servants (Appeal) Rules, 1980, R. 3(1)--- Appeal before Service Tribunal, competency of---Where departmental appeal/representation/review was barred by limitation, whether the appeal before the Service Tribunal was ipso facto incompetent and had to be dismissed---Held, that for purposes of Provinces of Balochistan, Sindh and Khyber Pakhtunkhwa, if the departmental appeal/representation/review was filed beyond the prescribed period, then the delay may be condoned if the appellate authority was satisfied that, inter alia, it "was for reasons beyond the control of the appellant", or "sufficient cause" was shown (as the case may be)---As regards the Federation and the Province of Punjab the appeal/representation/ revision may be "withheld" if filed after the prescribed period and the appellant was unable to show any reasonable cause for the delay---In both categories, a departmental appeal was not to be dismissed outright if beyond time; the delay could be condoned---Supreme Court (i.e. current two-Member Bench) after its interpretation of the relevant provisions of law observed that the case law/judgments on the subject did not appear to take into consideration the actual terms of the relevant statutory provisions, therefore, the state of the law on the subject could only be regarded as unsettled; that accordingly, there was an urgent need for the law to be settled and made certain, which could only happen if the matter was considered by a Larger Bench---His Lordship observed that Office to place present appeal before the Chief Justice for such orders as were deemed appropriate.

Chairman PIAC and others v. Nasim Malik PLD 1990 SC 951 held to be per incuriam.

State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426; Anwarul Haq v. Federation of Pakistan 1995 SCMR 1505; Anwar Muhammad v. General Manager, Pakistan Railways and another 1995 SCMR 950; Muhammad Jan Marwat and another v. Nazir Muhammad and others 1997 SCMR 287; Sui Northern Gas Pipelines Ltd. v. Murawat Hussain 2004 SCMR 527; NED University of Engineering and Technology v. Ashfaq Hussain Shah 2006 SCMR 453; Ashfaq Hussain Shah v. NED University of Engineering and Technology and others 2007 SCMR 73; Muhammad Aslam v. WAPDA and others 2007 SCMR 513; Irshad Muhammad Shah v. HESCO and another 2011 SCMR 1717; Zia ur Rehman v. Divisional Superintendent, Postal Services, Abbottabad and others 2009 SCMR 1121; Sajid Hussain v. Secretary, Minister of Railways and others 2012 SCMR 195; Sohail Butt v. Deputy Inspector General of Police and others 2011 PLC (C.S.) 846; Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others 2011 PLC (C.S.) 856 and Muhammad Asif Chatha and others v. Chief Secretary, Government of Punjab and others 2015 SCMR 165 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Appellant.

Respondent No. 1 in person.

Sibtain Mahmood, Additional AG for the Government of Sindh.

2020 P L C (C.S.) 152

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Yahya Afridi, JJ

CHAIRMAN, FEDERAL BAORD OF REVENUE, ISLAMABAD and another

Versus

Mrs. NAUREEN AHMED TARAR and others

Civil Appeals Nos. 1219 to 1222 of 2015 and Civil Appeals Nos. 248 to 251 of 2018, decided on 20th February, 2019.

(On appeal from the judgment/order dated 30.07.2015 passed by Federal Service Tribunal, Islamabad in Appeals Nos. 460(R)CS to 461(R)CS of 2013)

(a) Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990---

----Rr. 6(2) & 7(4) [as amended on 28-04-2001]---Inter-se seniority amongst probationers after Final Passing Out Examination---Legitimate expectancy, principle of---Scope---Amendment to service rules during an ongoing probationary course affecting substantive right of the probationers---Through an amendment dated 28-04-2001 in the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, ('the Rules') the number of attempts availed by a probationer to clear the specialized training examinations was added as one of the criteria for determining seniority---Constitutionality---Seniority in service was a valuable right and probationers had a legitimate expectancy that the probationary service law prevalent at the time when they entered their probation shall remain in force until their confirmation---Principle of legitimate expectancy aimed at enforcing fairness and preventing arbitrariness---Ranking of passing probationers on the basis of the number of their attempts made to clear the prescribed examinations imposed a penal liability through loss of seniority---Change in law by the amendment in the Rules, caused adverse consequences for the probationers---Such consequences infringed the legitimate expectancy of the serving probationers by altering the legal dispensation under which firstly, their service rights were determined for the future and secondly, for the rules under which the probationers commenced their probationary training---Though procedural in content, the amendment affected a substantive right of the probationers, namely, their seniority in the batch and in this respect by altering an accrued status, the said amendment had retrospective effect---Resultantly it was burdensome to implement the amendment upon the probationers who had already entered their probationary period prior to the enforcement of the said amendment---Additionally one of the examinations envisaged in the Rules, namely, the Specialized Training Programme (STP), could not be held---Such failure made the categorization of the total result on the basis of number of examination attempts to be irrational and lopsided---Circumstances of incomplete examinations to test the probationers and the enforcement of the disputed amendment to an ongoing probationary course, had resulted in harsh and untenable consequences both in law and fact---Supreme Court held that Rules in their (unamended) form as at the commencement of the probationary period in July, 1998 shall remain applicable for reckoning the seniority of the probationers on the completion of their probation, and the Federal Government needed to apply its mind to remove the salient anomalies highlighted by the Service Tribunal that existed in the application and implementation of the Rules.

(b) Civil service---

----Legitimate expectancy, principle of---Scope---Advantage or benefit derived from a competent legal dispensation, departmental practice or established procedure that had been extended to and enjoyed by a person may legitimately be expected to remain available unless notice or opportunity to defend or adjust his position was given to that person.

Regarding pensionary benefits of the Judges of Superior Courts PLD 2013 SC 29; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Union of India v. Hindustan Development Corporation AIR 1994 SC 988 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.As. Nos.1219 - 1220 of 2015 and C.As. Nos.248-251 of 2018).

Mahmood Ahmed Qazi, Advocate Supreme Court for Appellants (in C.As. Nos.1221-1222 of 2015).

Respondent No. 1 in person (in C.As. Nos.1219 and 1221 of 2015).

Ch. Abdul Sattar, Advocate Supreme Court for Respondents Nos. 20-21 (in C.As. Nos.1219 and 1220 of 2015).

Ex parte for Respondents Nos. 3, 5, 7, 13, 17-19, 22 and 23 (in C.As. Nos.1219-1220 of 2015).

Rana Asif Saeed, Advocate Supreme Court for Respondent No.1 (in C.As. Nos.1220 and 1222 of 2015).

Mehmood Ahmed Qazi, Advocate Supreme Court for Respondents Nos. 2, 4, 6, 8-12, 14-16 (in C.As. Nos.1219-1220 of 2015).

Ch. Abdul Sattar, Advocate Supreme Court for Respondents Nos.11 and 12 (in C.A. No.1221 of 2015).

Ex parte for Respondents Nos. 2-10 and 13 (in C.A. No.1222 of 2015).

Ch. Abdul Sattar, Advocate Supreme Court for Respondents Nos. 10 and 11 (in C.A. No.1222 of 2015).

Ex parte for Respondents Nos. 2-9 and 12-14 (in C.A. No.1222 of 2015).

M. Shoaib Shaheen, Advocate Supreme Court for Respondent No. 1 (in C.As. Nos. 248-251 of 2018).

Kh. M. Farooq, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos.7-8 (in C.As. Nos.248-250 of 2018).

Kh. M. Farooq, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 5 and 6 (in C.A. No.251 of 2018).

2020 P L C (C.S.) 171

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

HOUSE BUILDING FINANCE COMPANY LIMITED

Versus

MUHAMMAD IRFAN KHAN and others

Civil Appeal No. 86-K of 2018, decided on 4th September, 2019.

(On appeal from the judgment dated 26.11.2018 passed by High Court of Sindh, Karachi in C.P. No. D-5773 of 2016)

Constitution of Pakistan---

----Art. 25---Civil service---Salary---Discrimination, plea of---Distinct categories of employees---Salary and allowances of 'Workmen' and 'Officers/Executive staff' revised on basis of different criteria---Legality---Financial exigency did empower the employer to consider different yardstick for revision in the salary of different categories of its employees---All employees could not claim to be treated alike irrespective of their grades, domain and class---Clear distinction existed between the employees covered by the labour laws (i.e. workmen') and other statutory dispensation vis-a-vis employees in 'Executive and Officers' cadre---For good governance grouping by the employer of its employees serving in lower Basic Pay Scales into one category and those serving in higher Basic Pay Scales to another category for the purpose of granting greater monetary benefit, could not be challenged on ground of arbitrariness or unreasonable classification and as violative of Art. 25 of the Constitution.

Sail Ex-employees Association v. Steel Authority of India Ltd. and others 2010 (124) FLR 410; Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad 1997 SCMR 1026; Farman Ali v. State 1997 SCMR 1026 = 1997 PLC (C.S.) 903; V. Markendeya and others v. State of Andhra Pradesh and others (1989) 3 Supreme Court Cases 191; Ajay Hasia v. Khalid Mujib AIR 1981 SC 487 and E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555 ref.

Munir A. Malik, Senior Advocate Supreme Court, Ghulam Qadir Jatoi, Advocate-on-Record, Tariq Rehman, Head HR, Malik Nasir Ayaz, Head Legal and Zulfiqar Ali, Manager Legal for Appellant.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Respondents.

2020 P L C (C.S.) 195

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

MUHAMMAD JAWED HANIF KHAN and another

Versus

NATIONAL ACCOUNTABILITY BUREAU SINDH and others

Civil Petitions Nos. 302, 579 and 580 of 2019, decided on 27th November, 2019.

(Against order dated 14.12.2018 passed by High Court of Sindh at Karachi in C.Ps. Nos. D-5118, D-4279 of 2018 and D-2569 of 2016)

(a) Civil service---

----Void/illegal orders of superiors---Non-valid defence---Compliance by a civil servant with void or illegal orders/directions, issued by his superiors, could not be received as a valid defence nor such a plea could absolve him from the fall out of consequences of an illegal act---Primary responsibility of a civil servant was to the Republic and not to his superiors or political masters of the time; he was viably entrenched by statutory protections and, thus, was required by law to maintain his independence as well as subservience to the law.

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

----S. 9---Corruption and corrupt practices---Bail, grant of---Rule of consistency---Allegation against the accused was that in his capacity as the Chairman, Karachi Port Trust, he instrumented regular appointment of hundreds of stipend employees in derogation of the rules, costing public exchequer a vast sum of money---Plea of accused that he was simply following the command of the then Federal Minister for Ports and Shipping, issued in pursuance to an announcement/ directive of the then Prime Minister calling for regularization of all temporary employees in Karachi Port Trust---Held, that role of accused in the impugned transaction, was an issue to be essentially settled by the Accountability Court on the strength of evidence alone---High Court had already allowed pre-arrest bail to two co-accused persons, who were Human Resource Managers at Karachi Port Trust, on the grounds that they, being at a lower rung, haplessly followed Ministerial directions passed on through proper channel and as such determination of their culpability was consequent upon recording of evidence---Although such grounds for granting extra-ordinary protection of pre-arrest bail did not commend approval, however the only expedient option in the present case was the status quo of equality (i.e. to follow the rule of consistency)---Accused was granted bail in circumstances.

Munir A. Malik, Senior Advocate Supreme Court and Muhammad Kassim Mirjat, Advocate-on-Record for Petitioners (in C.P. No.302 of 2019).

Sittar Sahil, Special Prosecutor NAB and Ausaf Talpur, Deputy Director NAB for Petitioners (in C.Ps. Nos.379 and 580 of 2019).

Sittar Sahil, Special Prosecutor NAB and Ausaf Talpur, Deputy Director NAB for Respondents (in C.P. No.302 of 2019).

Khaleeq Ahmad, Advocate Supreme Court for Respondent No.1 (in C.P. No.579 of 2019).

S.M. Iqbal, Advocate Supreme Court for Respondent No. 1 (in C.P. No.580 of 2019).

2020 P L C (C.S.) 212

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Munib Akhtar, JJ

KAFYAT ULLAH KHAN

Versus

INSPECTOR-GENERAL OF POLICE, ISLAMABAD and another

C.P. No. 3090 of 2017, decided on 16th October, 2019.

(Against the judgment dated 26.05.2017, passed by the Federal Service Tribunal, Islamabad in Appeal No. 2094(R)CS/2015).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Absence from duty---Dismissal from service---Period of absence from service treated as leave without pay---Double penalty---Contention of petitioner-civil servant that when the penalty of dismissal from service was awarded to him, the further order by which his absence period of 9 months and 13 days was treated as leave without pay would amount to double penalty upon him---Contention by Provincial Law Officer that in similar situations the Supreme Court in different cases had held that the penalty of dismissal from service could be maintained even though the absence had been treated as leave without pay---Leave to appeal was granted by the Supreme Court to consider and decide the issue in question as there appeared to be some conflict in the judgments of the Supreme Court on the point in issue.

Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another 2006 PLC (C.S.) 294; Imtiaz Ahmed Lali v. Returning Officer and 3 others PLD 2008 SC 355 and Water and Power Development Authority and others v. Shan Elahi 1998 SCMR 1890 ref.

Malik Matee Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sajid Ilyas Bhatti, Additional A.-G. and Sajid Cheema, Inspector Legal, ICT for Respondents.

2020 P L C (C.S.) 235

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Yahya Afridi, JJ

SAJJAD ALI

Versus

VICE-CHANCELLOR through Registrar University of Malakand at Chakdara, Dir Lower and others

Civil Petition No. 3107 of 2018, decided on 24th October, 2019.

(On appeal against the judgment of Peshawar High Court, Mingora Bench dated 28.05.2018, passed in Writ Petition No. 290-M of 2013).

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

----Ss. 10 & 12 [as amended by the Khyber Pakhtunkhwa Disabled Persons (Employment and Rehabilitation) (Amendment) Act, (XVI of 2012)---Establishments to employ disabled persons--- Disability quota, calculation of---Provisions of S. 10 of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 ('the Ordinance') mandated that not less than two percent of the total number of persons employed by an establishment at any time shall be disabled persons---Under S. 10 of the Ordinance the quota for disabled persons in an establishment was calculated on the basis of the total number of persons employed by the establishment and not on the basis of the number of posts advertised at a given time---To give effect to S. 10, S.12 of the Ordinance must also be given full effect---Under S. 12, a disabled person desirous of getting employed had to ensure that his name was registered with the Employment Exchange of the area---Additionally, the Provincial Council was to assess the nature of functional disability of the person and also as to his aptitude and the nature of work he was fit to do and if the Provincial Council was of the view that the disabled person was fit to work it shall inform the Employment Exchange, indicating the nature of work for which he may be employed---Total quota of 2% calculated on the basis of the fixed number of the employees in an establishment was then given effect through the information collected by the Employment Exchange with the assistance of the Provincial Council---Calculating the quota under S. 10 would not lead to much result if the exercise under S. 12 had not been undertaken, especially regarding the nature of work a disabled person was fit to perform.

Nasir Mahmood, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Rehman Ullah, Advocate Supreme Court along with Rauf Khattak, A.D (SWD) KPK for Respondent No.1.

2020 P L C (C.S.) 306

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

MUHAMMAD SALEEM

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others

Civil Appeal No. 1481 of 2015, decided on 16th December, 2019.

(On appeal from the judgment dated 4.5.2015 passed by the FST, Ibd, in Appeal No. 1704(R)(C.S)/2013)

(a) Constitution of Pakistan---

----Art. 240---Appointment to service of Pakistan and conditions of service---History of constitutional arrangements that were in place pre and post creation of Pakistan that led to addition of Art. 240 in the Constitution stated.

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

----S.25(1)---Civil service---Occupational Groups created by Office Memorandums---Office Memorandums---Scope---Legal source for the issuance of such Office Memorandums could only be the Civil Servants Act, 1973 itself---Legal power whereby such Office Memorandums had been issued was nothing other than an aspect (and exercise) of the rule making power conferred in terms of S.25(1) of the Civil Servants Act, 1973---In law the Office Memorandums whereby the Occupational Groups were established emanated from, and were an exercise of, the rule making power conferred on the "President or any person authorized by the President in this behalf".

(c) Constitution of Pakistan---

----Art. 240---Appointment to service of Pakistan and conditions of service---Legislature, powers of---Scope---On the constitutional plane there was only one repository of the power in relation to the appointment and the terms and conditions of service of civil servants, and that was the Legislature---Notwithstanding this important and in many ways fundamental change from the past, the Executive branch had no direct and independent power in this regard.

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

----S. 25---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ("APT Rules") Civil service---Office Memorandums creating Occupational Groups in conflict with other Rules made under S. 25 of the Civil Servants Act, 1973---Question as to which of the two shall prevail in case of conflict---Held, that legal source from which the Office Memorandums emanated was the rule making power in terms of S. 25 of the Civil Servants Act, 1973 ('the 1973 Act'), therefore such Office Memorandums were co-equal with other Rules framed under S. 25, such as the 'APT Rules'---Office Memorandums could not be considered subordinate to such Rules, thus, in case of any inconsistency, they could not be regarded as yielding to the Rules otherwise made under S. 25---Since in the legal hierarchy they were of equal standing, the Office Memorandums and Rules such as the 'APT Rules' must be read together in a harmonized and consistent manner, to the maximum extent possible---Only if there was an irreconcilable difference that the question of which would prevail would arise, and such question would have to be addressed by resort to well established rules of interpretation, including (but not limited to) those such as relating to earlier versus later in time, or general versus specific etc---Question as to which particular rule(s) of interpretation would actually apply (and how) would depend on the actual provisions under consideration and the context in which they operated.

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

----S. 25---Constitution of Pakistan, Art. 240---Civil service---Office Memorandums creating Occupational Groups issued in terms of S. 25 of the Civil Servants Act, 1973---Such Office Memorandums could not be inconsistent with the Civil Servants Act, 1973 itself nor (ipso facto) the Constitution.

Qazi Jawad Ehsanullah, Advocate Supreme Court for Appellant.

Sohail Mehmood, DAG, Haroon ur Rasheed, Dy. Dir. (FPSC), Mrs. Misbah Gulnar Sharif, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, Zahid Nawaz Cheema, Advocate Supreme Court, Syed Ali Zafar, Advocate Supreme Court, Waqar A. Shaikh, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record, Hafiz Tariq Nasim, Advocate Supreme Court, Aftab Alam Rana, Advocate Supreme Court, Syed Rafaqat Hussain, Shah, Advocate Supreme Court, Malik Muhammad Qayyun, Senior Advocate Supreme Court, Shoaib Shaheen, Advocate Supreme Court and Khalid Anwar Afridi, Advocate Supreme Court for Respondents.

2020 P L C (C.S.) 340

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

SUI NORTHERN GAS PIPELINES LIMITED

Versus

PRESIDENT OF PAKISTAN, PRESIDENT SECRETARIAT (PUBLIC), AIWAN-E-SADR, ISLAMABAD and 2 others

Civil Petition No. 614-L of 2019, decided on 5th December, 2019.

(On appeal against the order dated 18.12.2018, passed by the Lahore High Court, Lahore in W.P. No. 2360 of 2016).

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. No. 1 of 1983)---

----Art. 9---Wafaqi Mohtasib, jurisdiction of---Scope---Public sector company (Sui Northern Gas Pipelines Limited)---Matter of recruitment/appointment of a candidate on basis of "Blood Relation Quota"---Complaint filed by candidate before Wafaqi Mohtasib---Maintainability---Appointment and/or recruitment in a public sector company like the Sui Northern Gas Pipelines Limited was an executive function and such function could not be performed by the Wafaqi Mohtasib under Art. 9 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, which excludes his jurisdiction to entertain a complaint of such nature---In the present case, the Wafaqi Mohtasib did not have the jurisdiction to hear the complaint filed by the respondent-candidate due to his non-selection on basis of "Blood Relation Quota"---Petition for leave to appeal was converted into appeal and allowed accordingly with the direction to the petitioner (Sui Northern Gas Pipelines Limited) to formulate a clear policy for appointment on "Blood Relation Quota" and set down transparent criteria for appointment under the same, and to consider the case of respondent-candidate, as well as the other applicants, as per the newly formulated policy.

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

Salim J. Baig, Advocate Supreme Court for Petitioner.

Ms. Rabia Bajwa, Advocate Supreme Court for Respondent No.3 along with Respondent in person.

2020 P L C (C.S.) 365

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

Dr. AZAD HUSSAIN

Versus

The DEPUTY COMMISSIONER, RAWALPINDI and others

Civil Petition No. 1170 of 2018, decided on 13th November, 2019.

(Against judgment dated 13.02.2018 passed by the Punjab Service Tribunal, Lahore in Appeal No. 540 of 2018)

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

----R. 7-A---Lien with parent department---Scope---Plain reading of R. 7-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, showed that lien with the parent department could be retained for a maximum period of three years and could not be extended beyond such period---Language of R. 7-A was couched in mandatory terms and neither the Department nor the Service Tribunal had the power or jurisdiction to extend the period of such lien beyond the maximum term of three years as prescribed by the Rules.

Petitioner in person.

Nemo for for Respondents.

2020 P L C (C.S.) 386

[Supreme Court of Pakistan]

Present: Faisal Arab and Sajjad Ali Shah, JJ

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD through Chairman

Versus

ABEER MASOOD

Civil Appeal No. 1286 of 2018, decided on 20th December, 2019.

(Against the judgment dated 14.12.2016 passed by the Islamabad High Court, Islamabad in Civil Revision No. 341 of 2016)

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

----S. 42---Suit for declaration seeking change in date of birth---Change in date of birth only allowed in exceptional circumstances---Respondent, who was a student, filed a suit seeking a declaration that her date of birth in the Intermediate Secondary Education Certificate had been incorrectly recorded as 17-8-1992 whereas her correct date of birth was 17-8-1994---Held, that record contained Family Registration Certificate wherein the names of the respondent's siblings and their date of births were mentioned, Computerized National Identity Cards (CNICs) of the respondent and of her elder brother issued by NADRA, birth registration certificate of respondent's brother issued by the relevant authority and the birth certificate of the respondent issued by the Provincial Government---On all the said documents the date of birth of the respondent was mentioned as 17-8-1994 whereas the date of birth of her elder brother was 30-12-1992---Mother of the respondent produced documents relating to date of birth of the respondent's elder brother, which was mentioned as 30-12-1992---If the respondent's date of birth was taken as 17-08-1992, it was quite unbelievable that her elder brother, who was born on 30-12-1992, would have been born only four months after her birth and yet NADRA's record would reflect that her brother was elder than her---Respondent herself stated before the court that she was not an employee of any government or public institution---Supreme Court observed that it would not have allowed the correction in date of birth had the respondent been in the employment of any public, private or government service and was taking undue advantage of change in her date of birth, which might have prejudiced any right of others; that since no such situation arose in the present case, thus, the date of birth on her birth certificate, CNIC as well as in Family Registration Certificate issued by NADRA which was 17-8-1994 could not be ignored; that to ensure that the record did not reflect that the respondent's elder brother was born four months after her birth and to prevent any future dispute amongst her siblings with regard to inheritance and parentage, the Supreme Court was not inclined to interfere with the concurrent finding of courts below, whereby suit of respondent had been decreed---Appeal was dismissed.

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

----S. 42---Suit for declaration---Change in date of birth---Principles---Supreme Court discouraged changes in the date of birth which either could be for the purpose of unduly enhancing the tenure of service in any employment or to bring oneself within certain age limit in order to qualify for getting employed or seeking admission in an institution where age was relevant.

Mir Afzal Malik, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Sh. Riazul Haque, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 P L C (C.S.) 448

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sajjad Ali Shah, JJ

NATIONAL ACCOUNTABILITY BUREAU through Chairman

Versus

MUHAMMAD SHAFIQUE

Civil Appeal No. 1618 of 2019, decided on 6th January, 2020.

(Against the order dated 18.7.2017 passed by the Islamabad High Court in W.P. No. 3793 of 2016)

(a) Revised Leave Rules, 1980---

----R. 9(3)---Extraordinary leave without pay---Scope---Unauthorised absence from duty for a continuous period of 66 days---Compulsory retirement---Office order imposed major penalty of compulsory retirement on the respondent and treated his unauthorised absence from duty as extraordinary leave without pay---Interpretation---Plea on behalf of respondent that since his unauthorised absence from duty was treated as extraordinary leave without pay, therefore, the major penalty of compulsory retirement could not be sustained---Held, that perusal of the office order reflected that the competent authority in the first paragraph of office order had expressed its mind explicitly on the unauthorized absence of the respondent by imposing the major penalty of compulsory retirement from service with immediate effect---So far as the second portion of the office order treating absence of respondent as extraordinary leave without pay was concerned, since the penalty imposed by the competent authority was of compulsory retirement which followed the payment of salaries and other dues till the date of imposing such penalty, therefore, it was necessary to give finding as to how such absence was to be treated---Office order categorically provided for consequences of unauthorised absence in the form of compulsory retirement---Appeal was allowed.

(b) Revised Leave Rules, 1980---

----R. 9(3)---Extraordinary leave without pay---Scope---Rule 9(3) of Revised Leave Rules, 1980 empowered the authorized officer to treat the unauthorized absence of an employee as extraordinary leave without pay but such treatment was not to be automatically allowed in every case---Such power was to be exercised in very genuine cases where the authorized officer found that imposing of major penalty on account of unauthorized absence of an employee would be too harsh or was not warranted under the circumstances---However, where the authorized officer after due application of mind upon examining/adjudging the misconduct had imposed one of the major penalties and thereafter keeping in mind that the gap between the un-authorized absence of the employee and the imposition of major penalty was to be provided with some kind of treatment provided for accordingly, then such treatment would undo the major penalty.

Lahore Development Authority v. Muhammad Nadeem Kachloo 2006 SCMR 434; Director General Intelligence Bureau v. Muhammad Javed 2012 SCMR 165 and Muhammad Sharif Abbasi v. Member, Water, WAPDA Lahore 2013 SCMR 903 distinguished.

Imran ul Haq Khan, DPG NAB for Appellant.

Raja Muhammad Aleem Khan Abbasi, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondent.

2020 P L C (C.S.) 475

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sajjad Ali Shah, JJ

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and others

Versus

ZIA-UR-REHMAN

Civil Appeal No. 661 of 2018, decided on 13th January, 2020.

(Against judgment dated 25.01.2017 of the Punjab Service Tribunal, Lahore passed in Appeal No. 4088 of 2014)

(a) Civil service---

----Traffic warden---Additional basic pay---Scope---"Letter of offer for appointment" and "Letter of appointment"---Interpretation---Respondent was appointed as a Traffic Warden (BS-14)---Before issuance of the appointment letter, a letter of offer of appointment as Traffic Warden (BS-14) was issued wherein it was mentioned that appointee shall receive emoluments of one additional basic pay plus 20 days fixed daily allowance and other allowances sanctioned by the Government from time to time---However, vide a subsequent notification the said emoluments were frozen to the levels existing at a prior date----Whether the additional basic pay formed part of the basic emolument of the respondent and therefore it was subject to increase---Held, that "letter of offer of appointment" was never accepted by the respondent and it was in the nature of an intimation---Had the respondent accepted the said letter, he may have had an arguable case---Appointment of the respondent was made through a "letter of appointment" as Traffic Warden (BS-14) and it was pursuant to and in acceptance of the terms and conditions of the said letter that the respondent joined the department---Said letter of appointment undertook a promise of grant of BS-14 with other emoluments at par with the Punjab Highway Patrol Police and as enhanced/ supplemented by the Government from time to time---Even otherwise correct meaning and interpretation of the "letter of offer of appointment" as well as the "letter of appointment" in essence meant the same things namely that the respondent would be entitled to draw his pay in BS-14 with other emoluments at par with the Punjab Highway Patrol Police---Furthermore the respondent never challenged the notification of the Provincial Government by virtue of which special pay and allowances were frozen at the level of an earlier date---Said freezing was applicable to all employees of the Provincial Government including the Provincial Police---Appeal was allowed and judgment of Service Tribunal was set aside.

Government of NWFP v. I.A. Sherwani PLD 1994 SC 72 and Secretary, Railways Board v. Muhammad Zubair Rana PLD 2000 SC 61 distinguished.

Abdul Hameed v. Special Secretary, Education 2016 SCMR 1611 ref.

(b) Civil Service Rules (Punjab)---

----Vol. I, Pt. I, Chapt. II, R. 2.44(a)---Pay---Interpretation---Special pay---Scope---Special pays granted in lieu of personal qualification were excluded from the general definition of "pay" and any interpretation or reasoning adopted to include it in the "pay" was incorrect.

Abdul Hameed v. Special Secretary, Education 2016 SCMR 1611 ref.

Ch. Faisal Fareed, Additional A.-G. Punjab, Shahbaz Ahmed Sheikh, Law Officer, Finance Department, Punjab, Amanullah, Dy. Secy., Government of Punjab, Finance Department, Punjab and Saif-ur Murtaza, AIG (HCR) for Appellants.

Hafiz M. Tariq Naseem, Advocate Supreme Court assisted by Junaid Jabbar, Advocate Supreme Court for Respondent.

2020 P L C (C.S.) 499

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

Dr. SHAMIM TARIQ

Versus

INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD through President and others

Civil Petition No. 2119 of 2018, decided on 12th February, 2020.

(Against judgment dated 02.04.2018 passed by the Islamabad High Court, Islamabad in I.C.A. No. 179-W of 2012)

(a) Civil service---

----Appointment--- Assistant Professor, post of--- Short listed candidates---Eligibility/qualification mentioned in advertisement for post---Candidates were required to meet the criteria mentioned in the advertisement on the date of submission of their applications---Respondent, who was selected for the post, did not possess the requisite qualification on the said date and as such was not qualified to be considered for the job---As the respondent did not possess requisite qualification, the Selection Board had no occasion to consider her in preference to those who possessed the qualifications as advertised by the University itself---Respondent's appointment as Assistant Professor BPS-19 was declared to have been made without lawful authority and accordingly set aside with the direction that the Selection Board shall convene at the earliest to appoint a suitable candidate from amongst the already short listed candidates, excluding both the petitioners as well as the respondent---Petition for leave to appeal was disposed of.

(b) Civil service---

----Appointment---Objective selection---Adherence to the statutory rules and procedures for selection of public jobs was the only surest method to objectively select the best out of the best from a competing lot---Such selection process was rooted into the fundamentals of equal opportunity, equal treatment and equal protections.

(c) Public functionary---

----State authority, exercise of---State authority in every sphere of life was a sacred trust to be exercised fairly and justly by the functionaries to accomplish the purposes assigned to them by law; it was their bounden duty to do right to all manner of people, without any distinction.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmad Nawaz Chaudhry, Advocate-on-Record for Petitioner.

Rehan-ud-Din Khan, Advocate Supreme Court for Respondent No.1.

Babar Awan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 4.

2020 P L C (C.S.) 508

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

FAYAZ KHAN

Versus

GOVERNMENT OF PAKISTAN through Secretary Aviation Cabinet Secretariat, Aviation Division, Islamabad and another

Civil Petition No. 1839 of of 2018, decided on 14th January, 2020.

(Against judgment dated 3.4.2018 passed by Peshawar High Court, Peshawar in W.P. No. 2614-P of 2016)

Airport Security Force Act (LXXVII of 1975)---

----S. 7-A---Pakistan Army Act (XXXIX of 1952), Preamble---Employee of Airport Security Force---Dismissal from service by Summary Court Martial---Such employee was subject to the Pakistan Army Act, 1952.

By virtue of section 7-A of the Airport Security Force Act, 1975 every officer/member of the Airport Security Force, was subject to the Pakistan Army Act, 1952 and, therefore, could be competently proceeded against by a duly constituted tribunal, findings whereof could not be upset unless shown to have been carried out without jurisdiction, coram non judice or mala fide.

District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 ref.

Muhammad Bashir Khan, Advocate Supreme Court and Arshad Ali Chaudhary, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2020 P L C (C.S.) 519

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

PROVINCE OF PUNJAB through Secretary Agriculture Department, Lahore and others

Versus

MUHAMMAD ARIF and others

Civil Appeals Nos. 266-L to 285-L of 2019, decided on 14th February, 2020.

(On appeal from the judgment/order dated 04.04.2019 passed by Lahore High Court, Lahore in I.C.As. Nos. 19804, 19805, 19807, 19809, 19810, 19812, 19815, 19817, 19822, 19824, 19830, 19835, 19837, 19838, 19840, 19841, 19844, 19846, 19847 and 19849 of 2019).

(a) Civil service---

----Contractual employees---Time bound project posts---Such employees had no right to regularization in service.

Respondents were appointed under an international financial institution's development project on contract basis, initially for a period of three years. Under the conditions of the contract, the project posts were sanctioned only for the period and the period of employment was to be automatically terminated if not extended on expiry of the contract period. After gestation period of the project expired, services of the respondents automatically stood terminated. Although the international financial institution provided additional financing to the project after its gestation period expired, on the basis of the terms of conditions of such extension, the contracts of some of the employees were not extended.

In so far as it related to contract employees of the project, it was the prerogative of the project management to determine which employees were required for the extended period and stage of the project for effective implementation of the same. No vested right existed in favour of a particular employee to insist that the management should be directed to retain his services and extend his contract.

(b) Punjab Regularization of Service Act (XV of 2018)---

----S. 2(c)--- "Contract employees" and "project employees"---Distinction---Project employees employed on contractual basis were not entitled to the benefit of regularization under the Punjab Regularization of Service Act, 2018.

Punjab Regularization of Service Act, 2018 (Act of 2018) dealt with employees appointed on contract basis in a Government Department against the posts which were either vacant or likely to become vacated. Further these were sanctioned posts against which appointments made on contract basis and such contracts continued for years on end on the basis of periodic extensions. The Act of 2018 envisaged the right of regularization of service to a contract employee who had continuously been serving as such for a period not less than four years on the commencement of the Act to be considered for appointment on regular basis if:

(i) a regular vacancy allocated for initially recruitment was available for regularization;

(ii) he was qualified for the post;

(iii) he had not been appointed on a special pay package; and

(iv) he did not opt to continue as contract employee.

There was a qualitative and conceptual difference between contract employees covered by provisions of the Act of 2018 and contract employee employed in projects who had been specifically excluded from the benefit of the Act of 2018 in terms of section 2(c) of the said Act.

Arshad Jehangir Jhoja, Additional P.-G. Punjab, Muhammad Adeeb Faisal, Assistant Director Technical and Javed Iqbal, Law Officer for Appellants.

Ishrat Ali Javed, Advocate Supreme Court for Respondents (in C.As. Nos. 266-L, 268-L, 277-L, 279-L, 283-L to 285-L of 2019).

Agha Abul Hassan Arif, Advocate Supreme Court for Respondents (in C.As. Nos.267-L, 273-L, 276-L and 281-L of 2019).

Naveed Ahmed Khawaja, Advocate Supreme Court for Respondents (in C.As. Nos.269-L, 272-L and 278-L of 2019).

Saqib Akram Gondal, Advocate Supreme Court for Respondents (in C.As. Nos.274-L and 280-L of 2019).

Rai Ashfaq Ahmed Kharral, Advocate Supreme Court for Respondents (in C.A. Nos.282-L of 2019).

Nemo for Respondents (in C.A. 275-L of 2019).

2020 P L C (C.S.) 538

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

PROVINCE OF PUNJAB through Executive District Officer (Education) Rawalpindi and another

Versus

RUQIA ISLAM

Civil Appeal No. 797 of 2013, decided on 23rd January, 2020.

(Against judgment dated 27.2.2013 passed by the Lahore High Court, Lahore in I.C.A. No. 89 of 2011)

(a) Constitution of Pakistan---

----Arts. 27 & 34---Civil service---Recruitment policy for teachers in government schools---Discrimination---Under impugned recruitment policy female teacher, otherwise eligible, was denied assumption of charge in boys high school but given option of joining primary or middle sections---Such policy was based on an apprehension oriented more on chauvinism than on any objective foundation---Impugned policy was not reasonable and High Court rightly gave directions to consider the appointment of respondent (female teacher) in Boys High School.

Respondent-female candidate otherwise eligible on all fours, was being denied a position despite having successfully competed for the job as an educator in the same category of post/functional group in Boys High/Higher Secondary School, however, with a relegated opportunity to serve in the same capacity in the primary and middle sections. Said stipulation/ classification, founded on her gender alone, apparently sans any rational basis except for a dogmatic and subjective belief that she would not be able to handle (boy) students placed in a slightly higher age group, was an apprehension oriented more on chauvinism than on any objective foundation. Impugned (recruitment) policy could not be viewed as prudent or expedient nor it reflected intelligible differentia so as to qualify the precondition of being reasonable. On the contrary, it was grievously retrogressive besides being violative of Constitutional commands. High Court had rightly directed the department to consider respondent's appointment in Boys High School.

Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 and Dossani Travels Pvt. Ltd. v. Messrs Travels Shop (Pvt.) Limited PLD 2014 SC 1 distinguished.

Supreme Court observed that half of the human resource of the country comprised of women; that they were mentoring, par excellence in every walk of life, and were a treasure which must be utilized for a better future, and that the Constitution contained rights that included equality of status as well as of opportunity.

(b) Constitution of Pakistan---

----Arts.27 & 199---Civil service---Recruitment policy---Judicial review---Scope---Policy manifestly inconsistent with the Constitutional commands, retrogressive in nature, and discriminatory inter se the populace was not immune from judicial review.

Mushtaq Ahmad Mohal, Additional Advocate-General Punjab and Ikram Abbasi, L.O., C.E.O. for Appellants.

Respondent in person.

2020 P L C (C.S.) 585

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sajjad Ali Shah, JJ

GOVERNMENT OF PAKISTAN, REVENUE DIVISION, FEDERAL BOARD OF REVENUE through Chairman, Islamabad and another

Versus

NAWAZ ALI SHEIKH

Civil Petition No. 669-L of 2018, decided on 3rd February, 2020.

(Against the judgment dated 06.03.2018 passed by the Federal Service Tribunal, Lahore Bench in Appeal No. 158(L)CS/2015)

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

----Rr. 3(a), 3(b) & 3(c)---Inefficiency, misconduct and corruption---Dismissal from service---Respondent, who was a superintendent at the Regional Tax Office, was found guilty of processing bogus refund claims by ignoring red alerts issued by the Directorate of Intelligence and Investigation (IR), and consequently was dismissed from service---Service Tribunal modified major penalty of dismissal from service into reduction to lower scale in respondent's current scale equal to three increments for a period of five years and reinstated him into service---Held, that respondent had conceded that the red alerts issued by the Directorate of Intelligence and Investigation (IR) were duly communicated to him, and were in his knowledge but on account of rush of work, the same were overlooked---Inquiry Officer conducted the inquiry thoroughly, all due process rights available to the respondent under the law were provided to him---Charge sheet was issued to him; he was given an opportunity to respond; regular inquiry was conducted in accordance with the law; respondent was afforded adequate opportunity of defence and subsequently a show cause notice was issued by the competent authority and personal hearing was afforded to him before imposition of major penalty---Findings recorded by the Inquiry Officer and affirmed by the competent authority that the respondent was guilty of inefficiency, misconduct and corruption within the meaning of R. 3(a)(b) & (c) of the Government Servants (Efficiency and Discipline) Rules, 1973, were supported by the record and quite justified---Impugned judgment of the Service Tribunal was set aside and the order of dismissal of the respondent was maintained.

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

----S. 5(1)---Service Tribunal---Power to modify Appellate orders---Scope---Under S. 5 of the Service Tribunals Act, 1973 the Service Tribunal enjoyed powers to modify any Appellate order but such power was to be exercised carefully, judiciously and with great circumspection by assigning cogent, valid and legally sustainable reasons justifying such modification.

Chairman Dr. A.Q. Khan, Research Laboratories and another v. Malik Muhammad Hamid Ullah Khan 2010 SCMR 302 ref.

(c) Administration of justice---

----Relief based on law---Scope---No Court, Authority or Tribunal had any jurisdiction to grant any relief in favour of any person which was not based upon the foundation of the Constitution, the law and the rules.

Ibrar Ahmed, Advocate Supreme Court for Petitioner.

Respondent in person.

2020 P L C (C.S.) 636

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sajjad Ali Shah, JJ

MEHMOOD AHMED

Versus

DISTRICT POLICE OFFICER, BAHAWALPUR and others

Civil Appeal No. 1736 of 2019, decided on 18th February, 2020.

(Against the judgment dated 19.2.2018 of the Punjab Service Tribunal, Lahore Camp at Bahawalpur passed in Service Appeal No. 60 of 2017)

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R.12(iii)---Enhancement of penalty, order for---Pre-requisites---Opportunity to accused of showing cause---Scope---Rule 12(iii) of Punjab Police (Efficiency and Discipline) Rules, 1975 provided that in all cases, in which officers proposed to enhance an award/punishment, they shall before passing final orders give the defaulter concerned an opportunity of showing cause, either personally or in writing, as to why his punishment should not be enhanced---In the present case, accused-appellant was called in the orderly room by the Regional Police Officer (RPO) himself and he was given personal hearing on the point of enhancement of penalty and after such hearing been provided to the appellant, the penalty of reduction in rank was enhanced to dismissal from service---No infringement of Sub-rule (iii) of R. 12 of the Punjab Police (Efficiency and Discipline) Rules, 1975 had been made nor the principles of natural justice were violated in the present case---Appeal was dismissed.

Arif Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Syed Wajid Ali Gillani, Additional A.-G. Punjab and Shahid Iqbal, DSP, Legal, Bahawalpur for Respondents.

2020 P L C (C.S.) 753

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

GOVERNMENT OF THE PUNJAB through Secretary Special Education Department, Lahore and others

Versus

ABDUL JABBAR

Civil Appeal No. 2056 of 2019, decided on 9th April, 2020.

(Against the order dated 23.01.2019, passed by the Lahore High Court, Lahore in W.P. No. 184204 of 2018)

Punjab Public Service Commission Regulations, 2016---

----Reglns. 59 & 62---Advertised post---Creation of vacancy due to non-joining by any of the successful candidates---Appointment of a substitute candidate against the vacant post---Scope---Plain reading of Reglns. Nos. 59 & 62 of the Punjab Public Service Commission Regulations, 2016 showed that a substitute could indeed be provided by the Provincial Public Service Commission from the merit list during its validity period if so requested by the department concerned---Obligation to recommend a substitute candidate was conditional upon a request being made by the concerned department, and no automatic right of appointment against post vacated could vest in a candidate who had not been selected.

Provincial government advertised posts of junior special educators. After going through the process of written test and interview respondent-candidate was placed at Sr. No. 108 on the merit list and was not recommended for appointment. Two other candidates who stood at Sr. Nos. 20 and 44 on the merit list and were recommended for appointment against the posts in question did not join. Respondent who stood at Sr. No. 108 on the merit list, claimed a right to be appointed relying on Regulations 59 and 62 of the Punjab Public Service Commission Regulations, 2016 ('the 2016 Regulations'). Claim of respondent was denied. Subsequently Provincial Government re-advertised the two posts vacated, however, the respondent did not participate in the fresh recruitment process and insisted that a right had already accrued in his favour by reason of two vacancies having become available as the recommended candidates appearing at Sr.Nos. 20 and 44 on the merit list did not join. High Court while relying on the Regulations 59 and 62 of the 2016 Regulations allowed the writ petition of the respondent and issued directions to the concerned department to issue appointment letter to him subject to availability of post.

Plain reading of Regulation No. 59 of the 2016 Regulations showed that a substitute could indeed be provided by the Provincial Public Service Commission from the merit list during its validity period if so requested by the department concerned. No such request from the department was available on the record in the present case.

Combined reading of Regulations Nos. 59 and 62 of the 2016 Regulations revealed that an obligation to recommend a substitute candidate was conditional upon a request being made by the concerned department. The said condition having not been met in the present case, an automatic right did not and could not come to have vest in the respondent for his appointment. Further, it was also apparent from the record that pursuant to the fresh advertisement, the process of recruitment had already been completed and as such an order to appoint the respondent against a post for which he had not been recommended could not have been passed.

High Court fell in error in misinterpreting the provisions of the 2016 Regulations and also ignored a material fact that the respondent had not participated in the fresh recruitment process despite having knowledge of the same. Regulation No. 59 left the decision on the hiring department to ask for substitute recommendation or re-advertise to attract better qualified and accomplished candidates. In the absence of demonstrated mala fides on the part of the hiring department, which had not even been alleged let alone proved the High Court could not have arrogated to itself the powers which have been conferred on the department by the Regulations. Besides the High Court had not considered the principle of law laid down in the judgment reported as Musa Wazir v. NWFP Public Service Commission (1993 SCMR 1124). Appeal was allowed and impugned order of High Court was set-aside.

Syed Wajid Ali Gillani, Additional AG, Punjab and Mian M. Iqbal, Law Officer, PPSC for Appellants.

Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 P L C (C.S.) 772

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Capital City Police Officer Peshawar and others

Versus

SHAHID

Civil Appeal No. 58 of 2020, decided on 2nd April, 2020.

(Against judgment dated 20.11.2017 of Khyber Pakhtunkhwa Service Tribunal, Peshawar, passed in Service Appeal No. 734 of 2014).

Civil service---

----Police official---Dismissal from service---Wilful absence from duty for a period of six months and three days---Service Tribunal considering penalty of dismissal from service imposed upon respondent to be too harsh a penalty modified the same to withholding of two increments for a period of two years and absence period was treated as leave of kind due---Legality---Tribunal had not taken trouble of examining or making any observations regarding the parameters of imposition of major and minor penalties, and circumstances under which such penalties were to be imposed and what law governed the imposition of such penalties---Whimsically stating that the punishment was harsh could not be made basis by the Tribunal to modify the penalty imposed by the competent authority---Tribunal while modifying the penalty had not acted in accordance with law, in that, no law in such regard whatsoever was cited by him---Tribunal by interfering with the penalty imposed by the department had exceeded from its jurisdiction more so when the respondent was employed in a disciplined force where he could not have remained absent from duty for a long period of 06 months and 03 days---Impugned judgment passed by the Tribunal suffered from illegality and was unsustainable in the eyes of law, therefore the same was set aside, and the penalty of dismissal from service imposed upon the respondent was restored---Appeal was allowed.

Barrister Qasim Wadood, Additional AG, Khyber Pakhtunkhwa for Appellants.

Muhammad Asif, Advocate Supreme Court for Respondent.

2020 P L C (C.S.) 780

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz-ul-Ahsan and Sajjad Ali Shah, JJ

DIG OF POLICE, PUNJAB and others

Versus

MUHAMMAD IRFAN

Civil Petition No. 2875-L of 2019, decided on 12th March, 2020.

(Against judgment dated 10.05.2019 of Punjab Service Tribunal, Lahore passed in Appeal No. 4717 of 2017)

Police Rules, 1934---

----R. 16.2---Pakistan Arms Ordinance (XX of 1965), Ss. 13 & 20---Conviction---Dismissal from service---Respondent, who was a junior clerk in office of District Police Officer, made a confession before the Judicial Magistrate in a case recorded against him under Ss. 13 & 20 of the Pakistan Arms Ordinance, 1965---Respondent was accordingly sentenced, however his sentence was suspended and he was put on probation---Held, that respondent had himself confessed his guilt and was convicted and sentenced accordingly---In terms of the R. 16.2 of the Police Rules, 1934 he could not be awarded a punishment less than what had been provided in the said Rules i.e. dismissal from service---Petition for leave to appeal was converted into appeal and allowed accordingly.

Mushtaq A. Mohal, Additional A.G., Punjab and Zaka Ullah, Inspector, Legal for Petitioners.

Malik Matiullah, Advocate Supreme Court for Respondent.

2020 P L C (C.S.) 890

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz ul Ahsan, JJ

HASSAN RAZA

Versus

FEDERAL BOARD OF REVENUE through Chairman and others

Civil Petition No. 2749 of 2016, decided on 14th June, 2017.\

(Against judgment dated 27.06.2016 of Federal Service Tribunal, Islamabad, passed in Appeal No. 1988 (R) CS of 2015)

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

----R.4(1)(b)---Inquiry proceedings---Major penalty---Detailed inquiry---Scope---Ordinarily major penalty could not be imposed unless a detailed inquiry was conducted; however, this was not an absolute rule---Where sufficient evidence was available on record, a detailed inquiry could be dispensed with and after confronting the delinquent official with the available evidence and providing him an opportunity to explain his position, the inquiry officer could record findings and make his recommendations.

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

----Rr. 3(b), 3(c) & 4(1)(b)(iv)---Misconduct and corruption---Taking a bribe---Dismissal from service converted into compulsory retirement---CCTV Footage, authenticity of---Petitioner, who was posted at an airport, was alleged to have demanded illegal gratification from a passenger---Video clip as well as the CCTV footage of the incident was available and the same was shown to the petitioner who admitted that he featured in the said video---Only defence taken by the petitioner was that the voice in the video clip was not his---Inquiry officer found that the sound in the video clip was the voice of the petitioner because of his peculiar accent and lip movements which coincided with the sound recording---Perusal of said video clip with sound by the Supreme Court in Chambers also revealed that the audio recording clearly corresponded with the lip movements of the petitioner in the video clip, and there was no possibility of a voiceover or the video clip having been dubbed subsequently---Even otherwise, there was no reason why anybody in the department or the passenger who apparently met the petitioner for a few minutes would involve and frame the petitioner in such manner---Video clip in question was also uploaded on the social media and covered by international press which clearly brought a bad name to the country as well as the concerned department---Any leniency shown in dealing with such acts would not only send the wrong message to other functionaries of the department but would amount to condoning bribery and corruption in the system with disastrous consequences---Competent authority had imposed major penalty of dismissal from service, but the appellate authority, possibly on compassionate grounds, converted the major penalty of dismissal from service into compulsory retirement, which decision was maintained by the Service Tribunal---Service Tribunal recorded valid and cogent reason for its judgment which required no further interference---Petition for leave to appeal was dismissed and leave was refused.

Sardar M. Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

M.D. Shahzad, Advocate Supreme Court and Ms. Ansar Anees, Dy. Collector Customs for Respondents.

2020 P L C (C.S.) 915

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Qazi Muhammad Amin Ahmed, J

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice Division, Islamabad

Versus

MAMOON AHMED MALIK

C.P. No. 4683 of 2018, decided on 11th May, 2020.

(Against the judgment dated 22.10.2018, passed by the Federal Service Tribunal, Islamabad in Appeal No. 64(R)CS/2017)

(a) Revised Leave Rules, 1980---

----R. 9(3)---Absence from duty---Termination from service with absence treated as Extraordinary leave without pay---Plea that once the absence period had been treated as an Extraordinary leave (EOL), no further punishment could have been imposed upon the respondent---Held, that such plea was not tenable in view of two judgments of the Supreme Court, passed in the cases of NAB through its Chairman v. Muhammad Shafique (2020 SCMR 425) and Kafyat Ullah Khan v. Inspector-General of Police, Islamabad and another (Civil Appeal No.1661/2019) 2020 SCMR 425---Petition for leave to appeal was converted into appeal and allowed and termination order of respondent's service was restored.

National Accountability Bureau through its Chairman v. Muhammad Shafique 2020 SCMR 425 and Kafyat Ullah Khan v. Inspector General of Police, Islamabad and another Civil Appeal No.1661 of 2019 ref.

(b) Civil service---

----Regular enquiry---Scope---No disputed facts---Regular enquiry was only held when there were disputed facts---In the present case the fact that the respondent remained absent from duty from 5.9.2011 to 2.4.2012, was not disputed rather an admitted fact; it was also admitted fact that the respondent was a probationer---Since there was no dispute about the fact of respondent remaining absent from duty, no question arose for holding of a regular enquiry---Petition for leave to appeal was converted into appeal and allowed and termination order of respondent's service was restored.

Sajid Ilyas Bhatti, Additional Attorney General and Arshad Ali Siddiqui, S.O. Ministry of Law for Petitioner.

Ms. Shireen Imran, Advocate Supreme Court for Respondent.

2020 P L C (C.S.) 933

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Yahya Afridi, JJ

SECRETARY REVENUE DIVISION / CHAIRMAN FBR and another

Versus

MUHAMMAD ASLAM and others

Civil Appeal No. 327 of 2018, decided on 17th June, 2019.

(On appeal from the judgment/order dated 06.06.2017 of the Federal Service Tribunal, Islamabad passed in Appeal No.880(R)CS/ 2015)

Fundamental Rules---

----F.R. 26---Period of leave counted for increments in time scale---Scope---Extraordinary leave---Absence from duty for 2557 days regularized in categories of leave on half pay, leave on full pay and extraordinary leave---On retirement respondent applied for three annual increments for the absence period which was treated as extraordinary leave---Department denied such relief to the respondent however Service Tribunal granted the same through the impugned judgment---Held, that clearly the extraordinary leave period of absence from duty of the respondent was attributable to his own doing---No cause for such extraordinary leave had been given by the department whilst dividing the duration of his absence into different types of leave periods---Such relief constituted a favour given to the respondent---Attempt to seek increments for the period of leave which was neither leave on half pay nor leave on full pay but was classified as extraordinary leave could not be sanctified further by assuming the same to be beyond respondent's control---Impugned judgment of Service Tribunal was set aside and relief of three annual increments was denied to the respondent--- Appeal was allowed accordingly.

Secretary, Communication and Works Department, Lahore and another v. Malik Riaz Ahmad 1993 SCMR 1014 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Ms. Shireen Imran, Advocate Supreme Court for Respondent No.1 in person.

M.D. Shahzad, Advocate Supreme Court and Rasheed Alam Dogar, Inspector for Respondent No.2.

Saqib Farid, Dept. Rep., Mrs. Misbah Gulnar Sharif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 3.

2020 P L C (C.S.) 959

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

ANTHONY ROY (DECEASED) through Legal Heirs

Versus

The PRIME MINISTER OF ISLAMIC REPUBLIC OF PAKISTAN through Prime Minister Secretariat, Islamabad and others

Civil Appeal No. 10 of 2020, decided on 23rd April, 2020.

(Against the judgment dated 22.10.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 2183(R)CS/2011)

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

----R. 4(1)(b)(iv)---Mechanical engineer in Pakistan Railways---Gross negligence, carelessness and failure to perform duty diligently, efficiently and conscientiously---Dismissal from service---In the tender documents, no specific measurement of the Bitumen Tape was mentioned by the appellant and the question of quantity was kept open which opened the door for fraud which was consequently committed---Contracts of such nature were required to mention specific quantities of goods required in order to ensure that the exchequer was not unduly burdened with excessive procurement or over payment---Appellant was negligent and careless in performance of his duties which led to a loss of Rs.38,39,734/- where in the first instance he did not mention any quantity of Bitumen Tape required, thereafter did not supervise actual use of the Bitumen Tape and finally without due verification mechanically and negligently approved bills raised by the contractor which led to over payment of Rs.38,39,734---Measurements given by the appellant were not supported by the work actually performed---Three successive inquiries were conducted at three different levels by qualified and experienced officers of Pakistan Railways who had no apparent bias against the appellant---In all three inquiries the appellant was found guilty---Penalty of dismissal was sustainable on the basis of the fact that gross negligence, carelessness and failure to perform his duty diligently, efficiently and conscientiously stood established from the record---Appeal was dismissed.

Mian Asif Mumtaz, Advocate Supreme Court for Appellant.

Jawad Mehmood Pasha, Advocate Supreme Court, Raja Ghazanfar Ali Khan, Advocate Supreme Court, Syed Rafaqat H. Shah, Advocate-on-Record, Imran Hayat, Director Legal, Azam Ghafoor, Chief Contractor Purchase, Rashid Waqas, Dy. CME, Shehzad Javed, Dy. Mechanical Engineer and Muhammad Saleem, Joint Director Ministry of Railways for Respondents.

2020 P L C (C.S.) 979

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CHIEF POSTMASTER FAISALABAD, GPO and another

Versus

MUHAMMAD AFZAL

Civil Appeal No. 2063 of 2019, decided on 27th April, 2020.

(Against the judgment dated 28.02.2019 passed by the Federal Service Tribunal, Lahore in Appeal No. 549(L)/2016)

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

----S.5---Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 3(b), 3(c) & 4(1)(b)(iv)---Misappropriation, embezzlement, dishonesty and cheating---Service Tribunal, powers of---Scope---Service Tribunal converting dismissal from service awarded by department authority into compulsory retirement with all pensionary benefits---Legality---Service Tribunal held that the department was justified in finding the respondent guilty of misconduct, corruption, misappropriation, embezzlement, dishonesty and cheating etc, but surprisingly, after having recorded said findings arrogated to itself the jurisdiction to modify the penalty of dismissal from service to compulsory retirement---Under S. 5 of the Service Tribunals Act, 1973 the Tribunal enjoyed powers to modify any order passed by the departmental authorities but such power was required to be exercised carefully, judiciously and after recording reasons for the same---In the present case, the penalty in question had been imposed by the departmental authority on the basis of established charges and the major penalty of dismissal from service was imposed upon him in accordance with the law and the rules---In these circumstances, it was not understandable as to how and from where the Tribunal derived the authority to exercise a power in favour of the respondent in such an arbitrary unstructured and whimsical manner---Exercise of jurisdiction by the Tribunal was without any lawful authority whatsoever, specially so where no reasons, let alone cogent had been assigned for exercise of jurisdiction by the Tribunal---Appeal was allowed, judgment of Service Tribunal was set-aside and penalty of dismissal from service imposed by departmental authorities was restored.

(b) Administration of justice---

----Courts/Tribunals---Relief, grant of---Adherence to the Constitution and the law---Scope---All Courts/Tribunals seized of matters before them were required to pass orders strictly in accordance with the parameters of the Constitution, the law and the rules and regulations lawfully framed under the law---No Court had any jurisdiction to grant arbitrary relief without the support of any power granted by the Constitution or the law.

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

----R. 5---Departmental inquiry---Dispensing with the requirement of regular inquiry---Scope---Where there were serious allegations against an employee which were denied by him, the department was under an obligation to conduct a regular inquiry in all circumstances --- In case the departmental authorities came to the conclusion that there was sufficient documentary evidence available on record which was enough to establish the charge, it could, after recording reasons, which were of course justiciable, dispense with the inquiry in the interest of expeditious conclusion of departmental proceedings---Courts can always re-examine the reasons assigned by the departmental authority for dispensing with the requirement of regular inquiry and if such reasons were not found cogent and legally sustainable, the Court had all requisite powers and was not debarred from sending the matter back to the department to hold a regular inquiry.

Mian Asghar Ali, DAG, Raja Abdul Ghafoor, Advocate-on-Record and M. Zahid, A.S. for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Hafiz Hifz-ur-Rehman, Advocate Supreme Court for Respondent.

2020 P L C (C.S.) 993

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Maqbool Baqar, JJ

DIVISIONAL SUPERINTENDENT, PAKISTANRAILWAYS, QUETTA and another

Versus

ABDUL SATTAR

Civil Petition No. 2841 of 2018, decided on 25th April, 2019.

(Against the order dated 24.04.2018, passed by the High Court of Balochistan, Quetta in Civil Revision No. 452 of 2010)

Pakistan Railways Code for the Engineering Department---

----Item No. 1961---Railway quarter let out to an outsider---Pre-requisites---Consultation of General Manager, Railways with the Financial Advisor---Highest rent that could be secured---Respondent, who was a bailiff of the High Court, was allotted a Railway quarter vide an agreement---After expiry of agreement, when respondent was serviced with a vacation notice, he filed a suit for declaration and permanent injunction, which was decreed by the civil court---Held, that in terms of Item No. 1961 of the Pakistan Railways Code for the Engineering Department ('the Code'), Railways quarters and other building, which were not required for housing of railway staff or other railway purposes may at the discretion of the General Manager be let, in consultation with the Financial Advisor, to outsiders, on the highest rent that could be secured---In the present case, counsel for respondent was unable to show any approval of General Manager in consultation with the Financial Advisor for letting out the quarters to the respondent---Manner by which the highest rent was secured was also not explained to the court---Unless the quarter was offered by publication for obtaining of highest rent it was not understandable as to how the amount of highest rent could be determined---Two essential conditions for letting out the quarter in question apparently were not met, and there seemed to be letting out of the said quarter to the respondent on mere asking---Such manner of allotment to the respondent was not in accordance with the "Code" and thus was a nullity in the eye of law---Unless the requirement of the "Code" was met in toto the letting out of the quarter in question could not be held as legal and the respondent could not claim any right over it---Judgments/decrees of all the Courts below were set aside---Petition for leave to appeal was converted into appeal and allowed accordingly.

M.D. Shahzad Feroz, Advocate Supreme Court for Petitioners.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 P L C (C.S.) 1002

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

OWAIS SHAMS DURRANI and others

Versus

VICE-CHANCELLOR, BACHA KHAN UNIVERSITY, CHARSADDA and another

Civil Petition No. 2911 of 2018, decided on 29th April, 2020.

(Against the order dated 12.04.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 5210 of 2017)

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

----S. 11(5)(d)--- Upper Division Clerks--- Contract appointments converted into fixed pay (employment) for one year---Whether such employees had right to regularization in service---Held, that the petitioners' appointments were made in terms of S. 11(5)(d) of the Khyber Pakhtunkhwa Universities Act, 2012, (Act, 2012) which limited the power of the Vice Chancellor to create temporary posts and make appointments to a maximum period of three years---Petitioners worked for three years and thereafter their contracts expired with afflux of time---Further re-appointment of petitioners on fixed pay for a period of one year only was done through a notification, and on expiry of such period their services were terminated---Said notification did not confer any right to seek regularization and the University reserved to itself the right of termination of petitioners' services at any time/ stage without serving any prior notice to that effect to them---Petitioners accepted such appointments and did not challenge the notification before the terms of their appointments expired---Moreover the petitioners were appointed directly without following any process requiring advertisement of the posts, open competition, transparency in the process of appointment and appointments on merit through a validly constituted Selection Committee---Initially having been appointed on contract basis there was no vested right of petitioners to seek regularization in terms of settled principles of law as well as the provisions of S. 11(5)(d) of the Act, 2012---Petition for leave to appeal was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Relief---Scope---Where a citizen sought relief in constitutional jurisdiction he must point to a right statutory or constitutional which vested in him and had been denied in violation of the law.

Nasir Mehmood, Advocate Supreme Court and Mehmood A. Sh., Advocate-on-Record for Petitioners.

Nemo for Respondents.

2020 P L C (C.S.) 1021

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Qazi Muhammad Amin Ahmed, J

MUHAMMAD SHOAIB AHMED

Versus

The CONTROLLER GENERAL OF ACCOUNTS, ISLAMABAD

C.A. No. 2065 of 2019, decided on 13th May, 2020.

(Against the judgment dated 16.02.2018, passed by the Federal Service Tribunal, Lahore in Appeal No. 426(L)/2017)

Civil service---

----Regular inquiry after retirement from service---Appellant who was a Senior Auditor in the office of the Provincial Accountant General, along with four other employees was proceeded against for taking out a procession, and forcefully closing down their office---Competent authority dismissed appellant and three others from service, while the fourth employee was compulsorily retired---Service Tribunal reinstated all four employees in service with direction to hold regular inquiry against them, whereas in case of appellant his major penalty of dismissal from service was converted into compulsory retirement and it was ordered that since appellant had reached age of superannuation therefore there question of conducting a regular inquiry did not arise--- Held, that case of the appellant was similar to that of the remaining four persons, and the very fact that the appellant retired from service before his appeal came to be decided, could not provide justification to the Tribunal to take a different view from the one taken in the case of the other four employees---Since the appellant seemed to have been treated differently by the impugned judgment from four other employees, the impugned judgment to the extent of the appellant was not sustainable in law---Impugned judgment was set-aside and the matter was remanded to the department to hold regular enquiry in the case of the appellant and thereafter, to pass necessary order in accordance with law--- Appeal was allowed accordingly.

Rana Habib ur Rehmand Khan, Advocate Supreme Court (via video link from Lahore) and Syed Rafaqat Hussain Shah, Advocate-on-record for Appellant.

Ch. Aamir Rehman, Additional Attorney General, Syeda B.H. Shah, Advocate-on-Record and Muhammad Zubair Akhtar, Assistant Accountant General for Respondent.

2020 P L C (C.S.) 1190

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

AQEEL SHAHZAD and others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Khyber Pakhtunkhwa, Peshawar and others

Civil Appeals Nos. 634 of 2014 and 431 and 432 of 2020, decided on 22nd July, 2020.

(On appeal from the judgment/Order dated 8.5.2012 and dated 20.4.2018 passed by the Peshawar High Court, Peshawar in W.P. 3095 of 2011 and W.P. No. 3058 of 2011)

Khyber Pakhtunkhwa Agricultural Produce Markets General Rules, 2011---

----R. 71(v)---Khyber Pakhtunkhwa Agricultural and Livestock Produce Markets Act (IV of 2007), Ss. 16 & 36--- Employees of Market Committee seeking regularization in service--- Termination from services---Legality---Terms and conditions of the employees as reflected in the different appointment orders would show that the same were of permanent and regular nature---Employees of the Market Committee who had spent/rendered services in the Committee since the year 1994-95 and that too without any blemish, and in spite of Khyber Pakhtunkhwa Agricultural and Livestock Produce Markets Act, 2007 ('the 2007 Act'), the Khyber Pakhtunkhwa Agricultural Produce Markets General Rules, 2011 ('the 2011 Rules'), and Bye-laws of 2013 made under the 2007 Act, had been made rolling stones struggling for their fundamental rights---Action of the competent authorities to terminate the employees and to make fresh appointments orders was oppressive and against their fundamental rights specially when R. 71(v) of the 2011 Rules also gave protection to the persons already employed---While serving the Market Committee for such a long time, almost all of the employees would have lost their chance of fresh appointments in other Government departments---In such circumstances the decision of the government and the Market Committee for termination of the employees or their fresh appointments under the Act 2007, the 2011 Rules and relevant Bye-laws of 2013, could not be concurred with---Order of termination of the employees, being illegal and unlawful, and having no legal effect, was set aside with the direction to the Provincial Government and the Market Committee to consider regularization of the services of the employees in accordance with law.

Misbahullah Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (absent) for Appellants (in C.A. No. 634 of 2014).

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa and Saadullah Jandoli, Advocate-on-Record (absent) for the Appellants (in C.A. No.431 of 2020 also for Respondents Nos. 1-5 in C.A. No. 634 of 2014).

Sardar Ali Raza, Advocate Supreme Court and Syed Rifaqat Hussain, Advocate-on-Record for Appellants (in C.A. No. 432 of 2020).

Khalid Rehman, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (absent) for Respondents Nos. 1 - 16 (in C.As. Nos.431 - 432 of 2020).

Nemo for other Respondents.

2020 P L C (C.S.) 1207

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.and Ijaz ul Ahsan, J

CHIEF COMMISSIONER OF INLAND REVENUE, LTU, ISLAMABAD and another

Versus

MUHAMMAD JAVED PARACHA and others

Civil Petitions Nos. 3625 and 3707 of 2018, decided on 2nd July, 2020.

(Against the judgment dated 11.07.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1064(R)CS/2017)

(a) Civil service---

----Willful absence from duty without authorization-----Removal from service converted into resignation---Petitioner was continuously on leave with effect from 1.4.2008 to 1.7.2013 and his application for extension of leave was not allowed, therefore, he was under an obligation to report for duty which he did not do---Petitioner's application for extension also stated that in case his leave could not be extended and he could not be transferred to his native city, his letter may be treated as his resignation---In view of the fact that the department neither extended his leave nor transferred him to his native city, it should have accepted his resignation and relieved him from duty---Action of the department to have waited and thereafter finding the petitioner absent from duty without leave leading to removal from service proceeding against him was not only unnecessary but also without lawful justification---Service Tribunal was correct in coming to the conclusion that the order of removal from service was unsustainable, however, in view of the fact. that petitioner had tendered his resignation with effect from 1.7.2013, his resignation from service was to be accepted from the said date---Having admittedly tendered his resignation on 1.7.2013 and having never formally withdrawn the same, no lawful reason or basis was made out to reinstate the petitioner into service---Petitions for leave to appeal were dismissed and leave was refused.

(b) Civil service---

----Place of service---Prerogative of employer---Government servant was required to serve where his employer wanted him to serve; it was not a choice or prerogative of the employee to claim a right to serve at a place that he choose to serve.

M.D. Shahzad Feroz, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Petitioners.

Respondents in person.

2020 P L C (C.S.) 1244

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Sayyed Mazahar Ali Akbar Naqvi, JJ

RIZWANA ALTAF

Versus

CHIEF JUSTICE, HIGH COURT OF SINDH through Registrar

Civil Petition No. 3952 of 2019, decided on 9th June, 2020.

(On appeal against the judgment dated 14.09.2019 passed by the Sindh Subordinate Judiciary Service Tribunal, Karachi)

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

----R. 9(2)---Civil Judge and Judicial Magistrate---Misrepresentation and concealment in application form for post of Civil Judge and Judicial Magistrate---Held, that in the application submitted while applying for the post of Civil Judge and Judicial Magistrate, the petitioner disclosed that she was enrolled as an advocate of district judiciary and as advocate of the High Court without disclosing the fact that she was a government servant holding the post of primary school teacher---In the application form, petitioner was required to disclose the name of the department, her designation and the date of her employment in service, and the date of her induction in previous service and if terminated, when and with what reasons---Petitioner did not provide such information in her application and left the relevant spaces in the application blank---Resultantly, background check with regard to her past service could not be conducted by the concerned authorities of the Provincial Government before appointing her as a Civil Judge and Judicial Magistrate---Only when the petitioner drew salary as school teacher for the months when she was also entitled to draw salary of the post of Civil Judge that the factum of her pervious employment came to light---Petitioner's own record reflected that she got herself enrolled as a school teacher by representing herself to be a practicing advocate for at least two years though she only had a standing of about two months, which was another misrepresentation on her part---Petitioner either never practiced as an advocate of the subordinate courts for a period of two years or if she had then she did not serve the education department as primary school teacher and yet continued to draw salary of such post; in this background she appeared to have deliberately concealed the factum of her employment with Education Department in order to get enrolled as an advocate of High Court on false representation---Petitioner did not disclose to the Education department that she needed NOC for applying for the post of Civil Judge and Judicial Magistrate---Only reason which the petitioner disclosed in her resignation tendered to the Education Department was her domestic engagement---Facts reflected from the record were sufficient to dispense petitioner's services by invoking R. 9(2) of the Sindh Judicial Service Rules, 1994, as such a person could not be given the important post of a judge when the basis of seeking enrolment as High Court advocate as well as appointment as Civil Judge and Judicial Magistrate was tainted with concealment and misrepresentation---Services of petitioner were rightly dispensed with by the Chief Justice of the High Court, while she was in her probationary period---Petition for leave to appeal was dismissed and leave was refused.

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

----R. 9(2)---Probationer---Dispensing of services without regular inquiry---When there was some sound reason in the mind of the competent authority that an employee who was serving in his or her probationary period was not suitable to be given permanent employment and his or her services needed to be dispensed with, then it mattered not if the competent authority expresses such reason without conducting a regular inquiry.

Muhammad Umair Baloch, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2020 P L C (C.S.) 1263

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

Mirza AAMER HASSAN

Versus

COMMISSIONER OF INCOME TAX and others Civil Appeal No. 158-L of 2011, decided on 30th June, 2020.

(On appeal from the judgment of Federal Service Tribunal, Lahore dated 27.05.2020, passed in Appeal No. 668(L)C.S/2001)

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

----S. 3(1)(e)(iii)---Fundamental Rules, R. 29---Major penalty of reduction/reversion to the lowest of the time-scale---Whether such penalty could be imposed without any specified time---Held, that major penalty of reduction/reversion to the lowest of the time-scale had to be time bound---Once the time was served the officer under penalty could revert to his original position or status in service.

Section 3(1)(e)(iii) of the Removal from Service (Special Powers) Ordinance, 2000 ('the Ordinance') did not specify any time as to how long the reduction to the lowest post or time scale or lower stage in time scale was to last. However Rule 29 of the Fundamental Rules clearly provided that any such major penalty had to be time-bound. Consistent practice of the Supreme Court over the years was to specify the time in such like penalties by placing reliance on Fundamental Rule 29.

Muhammad Sadiq v. Superintendent of Police and others 2008 SCMR 1296; Member (A.C.E. and S.T.) Federal Board of Revenue, Islamabad and others v. Muhammad Ashraf and 3 others 2008 SCMR 1165; Secretary Kashmir Affairs and Northern Areas Division, Islamabad v. Saeed Akhtar and another PLD 2008 SC 392; Government of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Umer Morio 2005 SCMR 436 and Tanvir Ahmed v. Chief Secretary, Government of Punjab, Lahore 2004 SCMR 647 ref.

Major penalty of reduction to a lower post or pay scale or to a lower stage in a pay scale was not akin to the board game of Snakes and Ladders, relegating a civil servant to a lower position and making him rise up again. It was not the scheme of the penalty under the Ordinance that the officer after such reduction was to a start all over again in the new position and rise up the ranks as if to re-live his service life again. This was not the purpose or the object of the major penalty. Such like penalties, by nature were time-bound, they were to punish an officer for the lapse committed and once the time was served, the officer under penalty could revert to his original position or status in service and stood restituted. A major penalty of reduction to lower position without specifying time not only defeated the object of the penalty but was also disproportionate with the lapse committed by the officer.

Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others PLD 2019 SC 189; Secretary to Government of the Punjab Food Department, Lahore and another v. Javed Iqbal and others 2016 SCMR 1120 and Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 SCMR 214 ref.

Mian Muhammad Javaid, Advocate Supreme Court for Appellant.

Ibrar Ahmad, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Respondents.

2020 P L C (C.S.) 1276

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.and Ijaz ul Ahsan, J

COMMISSIONER FAISALABAD DIVISION,FAISALABAD and another

Versus

ALLAH BAKHSH

Civil Appeal No. 370 of 2020, decided on 1st July, 2020.

(Against the judgment dated 3.3.2017, passed by the Punjab Service Tribunal, Lahore in Appeal No. 377 of 2014)

(a) Civil service---

----Transferring/mutating Government land in favour of a private party--- Misconduct---Fraud and embezzlement---Dismissal from service---Respondent-Patwari had himself admitted the commission of the offence that he transferred Government land measuring 270 Kanals, to private parties, causing loss of millions of rupees to the Government exchequer---Such conduct of the respondent could not be considered as mere negligence, rather it constituted misconduct and maximum penalty under the law had to be imposed upon him---Government properties and the Government funds were not to be doled out by Government officials, either to private persons or to themselves, and such conduct amounted to fraud upon the Government---Person(s) committing such fraud or embezzlement of Government property or money could, in no circumstances be treated leniently in disciplinary proceedings and in appropriate cases, be allowed to continue in service---Respondent was proceeded against departmentally by issuing of a show cause notice and the statement of allegations against him---Inquiry was conducted and the requirements of natural justice were duly complied with---Judgment of the Tribunal holding that the respondent had been given harsh punishment by competent authority and the punishment of dismissal from service was not commensurate with the gravity of the offence, was altogether misplaced---Impugned judgment of Service Tribunal was set-aside and order passed against respondent for his dismissal from service was restored---Appeal was allowed accordingly.

(b) Civil service---

----Misconduct---No loss caused to Government exchequer or loss recovered---Not a mitigating circumstance---Mere fact that despite commission of the offence no loss was caused to the Government exchequer or the loss caused was recovered could not be a mitigating factor in punishing a government servant whose misconduct stood established.

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

----S. 5---Powers of Service Tribunal to confirm, set aside, vary or modify the order passed by department/competent authority---Scope---Once misconduct was established, it was the prerogative of the department to decide on the quantum of punishment, out of the various penalties provided in law---Unless the Tribunal found exercise of such prerogative by the departmental authority to be perverse and totally disproportionate to the gravity of the offence/misconduct, for which reasons had to be recorded, penalty imposed by the departmental authorities could not be interfered with---Such reasons must be valid and meet the standards of logical and judicial reasoning --- Powers of the Tribunal under S. 5 of the Punjab Service Tribunals Act, 1974 to confirm, set aside, vary or modify orders appealed against were neither discretionary nor unbridled---Such powers had to be exercised cautiously, carefully and with circumspection where the order imposing the penalty was wholly perverse or ex facie so demonstrably disproportionate and excessive for the offence/misconduct, that to let it stand would be unfair, unjust and inequitable---Further, where powers were exercised under S. 5, detailed reasons must be recorded justifying such exercise which would withstand the test of judicial scrutiny by the Supreme Court.

Ch. Faisal Fareed, Additional Advocate General, Punjab, Babar Hayat Tarar, Senior Member Board of Revenue, Ishrat Ali, Commissioner, Faisalabad and Faizan Ahmad, A.C., Shorkot for Appellants.

Shahid Azeem, Advocate Supreme Court and Ahmad Nawaz Ch., Advocate-on-Record for Respondent with Respondent in person.

2020 P L C (C.S.) 1291

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE

Versus

MUHAMMAD ALI SAQIB

Civil Appeal No. 36-L of 2020, decided on 10th July, 2020.

(Appeal from the judgment dated 12.08.2014 passed by the Punjab Service Tribunal, Lahore in Appeal No. 3767 of 2010)

(a) Civil service---

----Reinstatement in service---No specific allegation proved through evidence---Orders of the competent authority as well as departmental appeal were on the basis that they agreed with the recommendation of the Inquiry Officer; they had not scrutinized the evidence available on the file themselves, but awarded major penalty of dismissal from service by relying upon the recommendation of the Inquiry Officer and ignored the fact that no specific allegation through evidence was proved against the respondent-civil servant---Prosecution was duty bound to prove the allegations for which the respondent was charge sheeted---Service Tribunal had rightly reinstated the respondent in service---Appeal was dismissed.

(b) Civil service---

----Dismissal from service---Inquiry proceedings---Order for dismissal from service could not be passed only on the ground that the respondent-civil servant had not joined the inquiry proceedings.

Rana Shamshad Khan, Additional A.G. Punjab and Dr. Khadim Hussain, DEO/D.I.R. for Appellant.

Malik Mateeullah, Advocate Supreme Court for Respondent.

2020 P L C (C.S.) 1311

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

PROVINCE OF THE PUNJAB through Secretary School Education, Government of the Punjab,Lahore and others

Versus

Mst. NARGAS PARVEEN and others

Civil Petitions Nos. 194-L, 229-L to 233-L, 243-L to 247-L, 271-L to 275-L, 283-L to 285-L, 322-L, 323-L, 330-L to 332-L, 348-L, 349-L, 370-L, 378-L, 381-L, 397-L to 404-L, 422-L to 433-L, 443-L, 444-L, 452-L to 455-L and 478-L to 480-L of 2020, decided on 24th July, 2020.

(On appeals from the order of Punjab Service Tribunal dated 09.10.2019 passed in Appeals Nos. 565, 865 to 902 of 2015)

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

----R. 22(5), proviso---Punjab Civil Servants Act (III of 1974), S. 2(1)(a)---Ad hoc employees regularized in service---Seniority---Seniority in the case of ad-hoc employees was to be granted from the date of their regularization and not from the date of their ad-hoc appointment.

In the present case the respondents were appointed in the year 1995 on ad-hoc basis and their services were terminated after one year in accordance with Rule 22(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. However, the respondents and others challenged their termination and were successful in obtaining injunctive orders in their favour and since then the matter of regularization remained pending before the courts or the administrative authorities. Finally in the year 2009, the Government was directed by the court that the case of the ad-hoc employees be considered in light of a certain Supreme Court precedent. As a result vide order dated 15.06.2012 passed by the department the services of the respondents were regularized from the date of issuance of the order. The respondents while accepting their regularization from the said date contended that their seniority be reckoned from the date of their ad-hoc appointments. Any such claim of the respondents was opposed to proviso to Rule 22(5) of the Civil Servants (Appointment and Conditions of Service) Rules, 1974. Seniority in the case of ad-hoc employees was to be granted from the date of their regularization.

Abu Bakar Farooq through Chairman and others v. Muhammad Ali Rajpar and others 2019 SCMR 830; Nadir Shah, S.D.O. 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; Federation of Pakistan and others v. Rais Khan 1993 SCMR 609 and Mian Muhammad Afzal and others v. Government of the Punjab and others 1982 SCMR 408 ref.

In light of provision of proviso to Rule 22(5) of the Civil Servants (Appointment and Conditions of Service) Rules, 1974, especially when the department was not at fault and did not extend any expectations to the ad-hoc employees in such regard, the regularization of ad-hoc employee shall be reckoned from the order of regularization and seniority was also to be reckoned from the date of regularization and not from the date of their ad-hoc appointment.

Petitions for leave to appeal were converted into appeals and allowed. [p. 1314] C

Rana Shamshad Khan, Additional A.G., Asif Afzal Bhatti, Additional A.G. along with Ali Ahmad Sial, CEO, Faisalabad, Aftab Ahmed, CEO, T.T. Singh, M. Ramzan, Litigation Officer, Saeed Shahid, Litigation Officer, Ahmed Naseem, Litigation Officer and Ammad ud Din, Litigation Officer for Petitioners (in all Petitions).

Sharjeel Adnan Sheikh, Advocate Supreme Court for Respondents (in all Petitions except C.Ps. Nos. 233-L, 397-L, 443-L and 444-L of 2020).

Nemo for Respondents (in C.Ps. Nos. 233-L, 397-L and 444-L of 2020).

Mahmood Ahmed Qazi, Advocate Supreme Court for Respondents (in C.P. No. 443-L of 2020).

2020 P L C (C.S.) 1329

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

AAMIR SIDDIQUE

Versus

ADDITIONAL INSPECTOR GENERAL OF POLICE PHP, LAHORE and another

Civil Petition No. 2366 of 2018, decided on 12th March, 2020.

(Against the judgment dated 11.04.2018 of the Punjab Service Tribunal, Lahore passed in Appeal No. 4638 of 2016)

Punjab Police Efficiency and Discipline Rules, 1975---

----Rr.3(b) & 4(1)(b)(iv)---Police official---Absence from duty without any explanation---Misconduct---Dismissal from service---Petitioner (police official) deliberately avoided the disciplinary proceedings and offered no defence for his period of absence---Service record of petitioner reflected 23 previous bad entries for similar misconduct---As a member of the disciplined force the petitioner clearly acted in defiance of the code of conduct governing police officers---Petitioner had been rightly dismissed from service in circumstances---Petition for leave to appeal was dismissed and leave was refused.

Malik Matee Ullah, Advocate Supreme Court for Petitioner and Petitioner in person.

Shaukat Rauf Siddiqui, Additional A.G. and Farooq Ahmed, SSP for Respondents.

2020 P L C (C.S.) 1370

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

PAKISTAN RAILWAYS through Chairman, Islamabad and another

Versus

SAJID HUSSAIN and others

Civil Appeals Nos. 17 to 29 of 2020, decided on 7th August, 2020.

(Against the judgment dated 18.07.2019 passed by the Federal Service Tribunal, Islamabad in Appeals Nos. 1885(R)CS to 1887(R)CS of 2016 and 1960(R)CS to 1969(R)CS of 2016)

(a) Civil service---

----Temporary Labour Appointment Workers of Pakistan Railways---Regularization in service---Gatekeepers operating gates on railway level crossings receiving salaries from other government departments under an agreement between Pakistan Railways and various government departments---Whether posts of gatekeeper "temporary project posts"---Held, that gatekeepers (respondents) had been in continuous service of Pakistan Railways in excess of 10 years since their initial appointment with a gap of one day after expiry of every 89 days---Level crossings for all intents and purposes were permanent in nature and in any event the same would continue to exist as long as trains plyed on the tracks passing through areas where level crossings were constructed---Posts of gate keepers were permanent in nature in so far as where level crossings existed and gate keepers were hired, it could not possibly be argued that such hiring was for a limited period---Service Tribunal had rightly given directions to Pakistan Railways for extending the benefit of Regularization Policy, 2012 to the respondents.

Respondents (employees) joined service of the Pakistan Railways as Temporary Labour Appointment Workers (TLAs) on 15-04-2010 initially for a period of 89 days and after a gap of one day they were reappointed and such process was repeated over a period of 10 years inasmuch as the respondents continued to serve in the same capacity and under the same system. On the basis of various Regularization Policies announced by Pakistan Railways from time to time, the respondents sought regularization of their services in terms of the Regularization Policies applicable to them, however, such relief was declined to them.

Service Tribunal directed Pakistan Railways to extend the benefit of Regularization Policy, 2012 to the respondents on the same lines as had been given to other TLAs. Arguments advanced by Pakistan Railways were that the respondents were employed against project posts and were paid out of contingency funds under the Project Head; that a document titled "agreement for the public road manned level Crossing provided at the cost of other Government/Semi-Government Departments and Autonomous Bodies" executed between Pakistan Railways and various Government Departments including Highways Department and Local Governments envisaged construction and maintenance of level crossings falling within the jurisdiction of the respective Departments and local Governments by Pakistan Railways at the cost and expense of such Departments and Local Governments; that said agreement also envisaged that in addition to maintenance charges of level crossings payable to Pakistan Railways from time to time the Government Departments/Local Governments shall also provide the requisite funds for paying salaries of Gatekeepers appointed by Pakistan Railways to operate the gates on such level crossings. The question arose as to whether the said arrangement could be termed as a project and Pakistan Railways was justified in holding that the respondents had been appointed against temporary project posts.

Respondents had been in continuous service of Pakistan Railways in excess of 10 years since their initial appointment in 2010 with a gap of one day after expiry of 89 days. Level crossings for all intents and purposes were permanent in nature and in any event the same would continue to exist as long as trains plyed on the tracks passing through areas where level crossings were constructed, and gate keepers were hired to operate the gates on such level crossings. The posts of gate keepers were permanent in nature in so far as where level crossings existed and gate keepers were hired, it could not possibly be argued that such hiring was for a limited period. The arguments of Pakistan Railways fell short of meeting the requirements of a project with funding for duration of the project only in view of the fact that neither the so-called project nor the funding made available by the Government Departments/Local Governments was for a limited period. The arrangement between Pakistan Railways and the Government Departments/Local Governments was of a permanent nature which was evident from the contents of the agreement placed on record. Therefore, the argument of Pakistan Railways that the respondents were employed temporarily for duration of the project was misconceived and without lawful basis in addition to being unsupported by the record.

Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 ref.

Prima facie Regularization Policy of Pakistan Railways dated 20-12-2012 was attracted to the case of the respondents. Service Tribunal had rightly given directions for extending the benefit of Regularization Policy, 2012 to the respondents. Appeals were dismissed.

(b) Civil service---

----Project posts---Scope---In ordinary terms the word 'project' was used to denote any undertaking which was for a limited period and after the objective for which the said project had been set up was achieved; funding for the same dried up and employees who were hired for a limited period for duration of the project had to be relieved of their duties owing to the fact that the project had concluded---Funding ceased and the very basis on which such employees were hired came to an end.

Jawad Mahmood Pasha, Advocate Supreme Court, Raja Ghazanfar Ali Khan, Advocate Supreme Court, Syed Rafaqat H. Shah, Advocate-on-Record, Habib-ur-Rehman Gillani, Secretary, Pakistan Railways and Shoaib Adil, D.S. Multan for Appellants.

M. Ramzan Khan, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondents (in C.A. No. 17 of 2020).

Nemo for Respondents (in all other cases).

2020 P L C (C.S.) 1391

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Yahya Afridi, JJ

DISTRICT POLICE OFFICER, MIANWALI and another

Versus

MUHAMMAD HANIF

Civil Appeal No. 324 of 2020, decided on 30th July, 2020.

(Against the order dated 31.07.2019, passed by the Punjab Service Tribunal, Lahore in Appeal No. 360 of 2018)

Punjab Police Efficiency and Discipline Rules, 1975---

----Rr. 3(b) & 4(1)(b)(iv)---Police official---Receiving a bribe/illegal gratification---Serious misconduct---Dismissal from service---Taking/accepting of illegal gratification itself was a heinous offence and a serious misconduct requiring imposition of major penalty---Civil servant who was found guilty of the offence of accepting illegal gratification could not be retained in the civil service and major penalty had to be imposed on him.

Respondent was proceeded against departmentally under Punjab Police (E&D) Rules, 1975. He was issued a charge sheet; the department conducted an inquiry into the matter and the competent authority i.e. District Police Officer, after issuing final show cause notice awarded him major penalty of dismissal from service. The respondent filed a departmental appeal before RPO, Police who took a lenient view of the matter and partially accepting the appeal converted the major penalty of dismissal from service to that of compulsory retirement. Aggrieved, the respondent filed a service appeal before the Tribunal which found the act of the respondent a minor act which did not deserve an extreme penalty. Accordingly, the Tribunal modified the major penalty of compulsory retirement from service into "withholding of one increment for one year". The respondent was directed to be reinstated into service and the intervening period was to be treated as leave of the kind due.

A thorough investigation and inquiry was conducted by the department through its internal Accountability Division/Cell. Independent evidence in the form of statement of a Constable was recorded who was approached by the complainant to inform the respondent to return his money which he had obtained from him to arrange a DNA test. Recordings in a CD produced by the complainant also showed that the version of the complainant was correct. The internal accountability mechanism of the department found enough material against the respondent to prove him guilty. The appellate authority (RPO, Police) also heard the respondent, gave him an opportunity to defend himself and produce whatever evidence or material he wished to produce in order to show that the findings of the inquiry were incorrect. Respondent was unable to do so. Other than pleading that he was innocent nothing specific was said by the Respondent at any stage to explain his position. Even the appellate authority (RPO, Police) after examination of the entire record and hearing the respondent found him guilty of the charge.

Taking of illegal gratification itself was a heinous offence, requiring imposition of major penalty. Accepting illegal gratification was a heinous offence and a civil servant, who was found guilty of such offence, could not be retained in the civil service and major penalty had to be imposed on him. The impugned decision of Member, Provincial Service Tribunal considering it a minor act and imposing a minor penalty showed that the said Member was neither sensitive nor alive to the offence of taking illegal gratification, which by law was considered serious misconduct.

Bashir Ahmad, Line Superintendent-I Lahore v. Water and Power Development Authority, through its Chairman, Lahore 1991 SCMR 2093; Muhammad Inam v. Federal Service Tribunal 1995 SCMR 37; Javed Akhtar v. WAPDA through Chairman, WAPDA House, Lahore and 2 others 1996 SCMR 867; Ali Akbar v. Inspector-General of Police 2001 SCMR 83; Safdar Ali v. D.I.G. Traffic, Lahore and others 2007 PLC (C.S.) 1284; Ghulam Rasool Ranjha v. Government of the Punjab through Chief Secretary, Province of Punjab, Lahore and others 2008 SCMR 1265 and Muhammad Shehzad Zaheer v. Federation of Pakistan through Secretary, Establishment Division and others 2014 SCMR 1169 ref.

Perusal of the impugned judgment (of the Tribunal) showed that the Tribunal was of the view that the departmental inquiry was defective. However, no reasons were recorded by the Tribunal to substantiate its conclusions. It was also observed that defective procedure was adopted to award major penalty to the respondent. However, the said observation was neither elaborated nor reasoned as to how and why the Tribunal was of the view that the procedure adopted by the department was defective. Tribunal did not explain as to how and on what legal basis and in exercise of which jurisdiction it came to the conclusion that the respondent deserved lenient treatment, and that what was the basis for finding that the act of an official of a disciplined force of receiving illegal gratification/bribe constituted, "a minor act". Perusal of the impugned judgment of the Tribunal ex facie indicated that it did not qualify as a judicial order, had been passed in a slipshod manner, without due appreciation and application of the relevant laws, rules, regulations and principles of law enunciated by the Supreme Court. Member of the Tribunal who authored the impugned judgment lacked the requisite professional capacity and was unable to perform functions within the parameters mandated by law. Member in question had shown a trend of writing judgments in a number of cases similar to the impugned judgment. His continuing to hold his position would not be in the best interest of the litigants or the system of administration of justice.

Impugned judgment of the Tribunal was set aside. Consequently, the major penalty of dismissal from service awarded to the respondent by the department was maintained. Appeal was allowed accordingly with the directions that the Provincial Government shall replace the Member, Tribunal in question with some other qualified person whose knowledge, aptitude and experience was suitable for the post in question; that in the meantime, said Member was restrained from performing functions as a Member of the Provincial Service Tribunal.

Barrister Qasim Ali Chohan, Additional A.G. Punjab and Zaka Ullah, Acting DSP, Legal Mianwali for Appellants.

Muhammad Bashir Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 P L C (C.S.) 1404

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, QUETTA and others

Versus

ASMATULLAH KAKAR

Civil Appeal No. 507 of 2020, decided on 18th August, 2020.

(Against the judgment dated 30.09.2018 passed by the Balochistan Service Tribunal Quetta in Service Appeal No. 611 of 2018)

Balochistan Government Initial Appointment to Civil Service Posts (Age and Relaxation of Upper Age Limit), Rules, 2012---

----R. 3(6)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, R. 11---Civil servant---Date of birth, change in---Principles---Date of birth of a civil servant once recorded in his service book and other service record at the time of his entry into the Government service could not be changed, except where an error occurred in recording the correct date of birth on account of a clerical error or in accordance with the exceptions provided in the Rules themselves.

Before joining service the respondent-civil servant filed an application form in order to sit for the civil service examination. In the said form which the respondent filled in his own hand and was duly signed by him, he mentioned his date of birth as 08-01-1959. The form was accompanied by his Secondary school certificate which also reflected the same date of birth. Likewise, the same date of birth was entered in his service record from the day he joined service and was not changed within the time frame provided by law. Date of birth of a civil servant once recorded in his service book and other service record at the time of his entry into the Government service could not be changed, except where an error occurred in recording the correct date of birth on account of a clerical error or in accordance with the exceptions provided in the Rules themselves. In this respect all relevant service rules including Rule 3(6) of the Balochistan Government Initial Appointment to the Civil Service Posts (Age and Relaxation of Upper Age Limit) Rules, 2012 as well as the Balochistan Civil Servants (Appointments, Promotions and Transfers) Rules, 2009 were clear and categorical. It was never the case of the respondent that his case fell within any of the exceptions or that his date of birth was wrongly recorded on account of a clerical error.

Qamaruddin v. Pakistan through Secretary, Establishment Division, Islamabad and another 2007 SCMR 66; Dr. Muhammad Aslam Baloch v. Government of Balochistan through Secretary Health Department and others 2014 SCMR 1723, Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 and Dr. Zulfiqar Ahmed Malik v. Federation of Pakistan through Secretary Revenue Division, Chairman FBR, Islamabad and others 2019 SCMR 1973 ref.

Respondent filed a declaratory suit before the civil court in the year 1983 for changing his date of birth and obtained a judgment and decree dated 07-09-1989. However significantly in the said suit respondent only impleaded the Provincial Chairman, Board of Intermediate and Secondary Education, and the Headmaster, Government High School. He did not implead his employer namely, the Provincial Government which was the most material and necessary party in the suit in question. Further, armed with the said judgment and decree, he filed an application for alteration in his date of birth which was rightly declined vide letter dated 07-04-1991 issued by the Provincial Government, Services and General Administration Department. He did not agitate this matter any further which became past and closed transaction. Thereafter, the respondent kept quiet for the next 17 years. It was only on the eve of his retirement when the notification for his retirement was issued, that he moved an application agitating the matter again knowing that the request had already been declined in 1991, and thereafter filed the service appeal. Such act on part of the respondent was a mala fide and seemingly clever attempt to hoodwink the system and extend his date of retirement by a few years.

Appeal was allowed and judgment of Service Tribunal was set aside.

Arbab Muhammad Tahir, A.G. Balochistan (in video link from Quetta), and Ayaz Khan Swati, Additional A.G. Balochistan (from Islamabad) for Appellants.

M. Akram Shah, Advocate Supreme Court (via video link from Quetta (appeared without filing of enter appearance)) for Respondent.

2020 P L C (C.S.) 1423

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

PROVINCE OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others

Versus

FARASATULLAH and others

Civil Appeals Nos. 188 to 193 of 2020, decided on 15th July, 2020.

(Against the judgment dated 07.02.2018, 20.06.2019, 19.09.2019, 21.11.2019, 30.10.2019 and 24.10.2019 passed by the Peshawar High Court, Peshawar and Peshawar High Court, Abbottabad Bench in Writ Petitions Nos. 2243-P/17, 4328-P/18, 1472-A/18, 4595-P/17, 3952-P/18 and 4397-P/2019)

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

----S. 10---Government notification allowing grant to a particular set of employees---Interpretation---M.Phil allowance/grant for employees having a M.Phil degree---Whether employees having LL.M degree or MS in Agriculture were also eligible for M.Phil allowance on the basis that said qualifications were equivalent to M.Phil as held by the (defunct) University Grants Commission (now Higher Education Commission)---Held, that the perusal of impugned notification showed that the M.Phil allowance was specifically meant for persons who held M.Phil degrees which were recognized by the Higher Education Commission, and that it was not expressly or by implication mentioned that the allowance would be payable to all who held an "M.Phil or equivalent degree"---Intent and purpose of the competent authority in granting the allowance was clear and unambiguous and there was no room to read something into the notification which was not there --- Higher Education Commission did not have any power or authority to advise that all those who held LLM or MS degrees should be eligible to draw the allowance in question.

The main controversy involved in the present case related to a notification dated 14-07-2016 issued by the Provincial Secretary, Government of Khyber Pakhtunkhwa, Finance Department ('the impugned notification') through which an allowance @ Rs.2500/- per month was granted to the employees who held M.Phil degrees. The said notification was challenged by the respondents before the High Court praying that the respondents may also be granted the M.Phil allowance because they held LLM degrees or MS degrees in Agriculture, which were equivalent to M.Phil. The High Court allowed the constitutional petitions filed by respondents and directed the concerned authorities to grant M.Phil allowance to all employees who held any degree equivalent to M.Phil i.e. LLM and MS in Agriculture from the date of acquiring such degree. The High Court based its judgment on a letter of the University Grants Commission (UGC) dated 23-08-2000 stating that Master of Law degree was equivalent to M.Phil.

Plain reading of the impugned notification made it abundantly clear that the intent of the competent authority was to grant M.Phil allowance @ of existing amount of Ph.D allowance @ Rs.2500/- per month; that the allowance in question was not admissible to those who were already getting Ph.D. allowance @ Rs. 10,000/-: per month; that the M.Phil allowance was specifically meant for persons who held M.Phil degrees which were recognized by the Higher Education Commission; that it was not expressly or by implication mentioned in the impugned notification that the allowance would be payable to all who held an "M.Phil or equivalent degree". Intent and purpose of the competent authority in granting the incentive was clear and unambiguous and there was no room to read something into the notification which was not there.

It was not understandable as to how and under what authority of law had the Higher Education Commission advised that all those who held M.Phil or MS degrees should be eligible to draw Higher Education Commission allowance @ Rs.2500/- per month. There was neither any power nor authority available with the Higher Education Ordinance to issue any such letter or clarification as the mandate of Higher Education Commission was limited only to academic matters and determining equivalence for academic reasons. High Court erred in law in relying upon letters issued by the Higher Education Commission/University Grants Commission (defunct) which was clearly beyond its mandate in granting relief to the respondents.

There was intelligible differentia between holders of M.Phil degrees and those who did not hold such degrees. Holders of M.Phil degrees in different disciplines constituted a class by themselves and could be granted incentives without offering similar incentives to holders of equivalence certificates from Higher Education Commission. To hold otherwise would in effect negate and nullify the very concept of the rule of "intelligible differentia". A class of employees who held M.Phil degrees had been earmarked for grant of an allowance which had specifically been called and termed as "M.Phil allowance". All those who fulfilled the requirement of the notification had been granted the allowance and were entitled for the same. It was not the case of the respondents that some of them had M.Phil degrees and had been refused or that the employees holding degrees other than M.Phil had been allowed the such allowance. Appeals were allowed and judgments of High Court were set-aside.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Discrimination, plea of---Allowance/grant allowed by Provincial Government of one Province but not by other(s)---If certain actions had been done in a certain Province(s) within the powers available to it/them under the Constitution, it was not necessary that the same be replicated in all other Provinces.

S.M.C. No.15 of 2010 and C.M.As. Nos.2689, 3244 of 2010 and C.M.As. Nos.5383, 3068 of 2011 (Suo Motu action regarding Regularization of the Contract Employees of Zakat Department as well as appointment of Chairman of Central Zakat Council 2013 SCMR 304 ref.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Mian Saadullah Jandoli, Advocate-on-Record (absent), Shafiullah, Deputy Director (Legal), M. Imran, Deputy Director, Agriculture, M. Arif, L.O., Archaeology, Tauheed Iqbal, A.D. and Ilyas Khan (Sr. Statistician) for Appellants.

Khalid Rehman, Advocate Supreme Court for Respondents (in C.A. No. 189 of 2020).

Afzal Malik, Advocate Supreme Court for Respondents (in C.A. No. 193 of 2020).

M. Adeel Qureshi, Sajid Khan and Ehtasham (all in person).

Nemo for Respondents (in other cases).

2020 P L C (C.S.) 1437

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

GOVERNMENT OF BALOCHISTAN through Chief Secretary Quetta and others

Versus

Dr. MUHAMMAD TARIQ JAFAR and others

Civil Appeals Nos. 429, 430 and 442 of 2020, decided on 20th August, 2020.

(Against the judgment dated 12.04.2019 passed by the Balochistan Service Tribunal, Quetta in Service Appeals Nos. 195 and 404 of 2017 and 326 of 2016)

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

----S.5---Constitution of Pakistan, Art. 185---Appeal to Supreme Court---Condonation of delay---Scope---Three appeals filed before the Supreme Court against the same judgment of the Service Tribunal---Two appeals barred by time, whereas one filed within time---Held, that admittedly one of the three appeals was filed within time---Further, important questions of law had been raised in the three appeals and in order to avoid legal complications and anomalous situations arising out of the judgment of the Tribunal being left intact in appeals which were barred by time and possibly setting aside the same in the appeal which was filed within time, a case had been made out for condonation of delay---Accordingly, applications for condonation of delay were allowed and the delay caused in filing the two appeals was condoned.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Distinct and separate groups---Intelligible differentia---Orderly allowance and special additional pension in lieu of such orderly allowance after retirement ('allowances in question'), payment of---Doctors working in teaching cadre as Professors (BS-20) in Province of Balochistan not paid allowances in question, whereas, officers and employees of Grade-20 and above working in the Civil Secretariat of the Province of Balochistan, the Federal Government as well as the other Provinces (Punjab, Sindh and Khyber Pakhtunkhwa) paid the allowances in question---Whether the doctors were discriminated against---Held, that respondents by reason of their job descriptions, service structure, emoluments and allowances constituted a distinct and separate group of officers compared to the Secretaries and other officials placed in Grade-20 and above in Balochistan Civil Secretariat---Intelligible differentia existed between the two sets of officers which could easily be differentiated and such differentiation was clearly understood as logical and lucid and it was neither artificial nor contrived---Furthermore respondents had and continued to be adequately and sufficiently compensated by reason of special allowances which were specific and germane to their cadre and were not available to other civil servants despite the fact that such civil servants were working in BS-20 and above---Respondents had not been discriminated against as alleged by them and none of their rights guaranteed by the Constitution had been violated by reason of denial of the allowance in question.

Respondents were doctors working in teaching cadre as Professors (BS-20) and their grievance was that orderly allowance and special additional pension in lieu of orderly allowance was given to officers in Grade-20 and above who were working in the Civil Secretariat of the Province of Balochistan; that allowance in question had also been extended to Government employees in BS-20 and above working in the Federal Government as well as the Governments of the Provinces of Punjab, Sindh and Khyber Pakhtunkhwa, however, the respondents were singled out and discriminated against by denial of such allowance and pension. Respondents filed departmental representations which were not responded to. This prompted them to file Service Appeals before the Tribunal, which allowed their appeals vide the impugned judgment.

The respondents on the one hand and the civil servants including Secretaries and others placed in Grade-20 and above working in the Province of Balochistan Civil Secretariat on the other, could neither be placed in the same category nor were in the same classification in so far as they belonged to two totally different cadres, performed totally different functions, had different job descriptions and career progression channels. Such difference and classification based on such aspects could clearly and unambiguously be understood on the basis of an intelligible differentia.

By reason of different classifications and job descriptions, the respondents were receiving a number of additional allowances which were not paid to the Secretaries and other employees working in Grade-20 and above in Balochistan Civil Secretariat. Such Secretaries and others placed in Grade-20 and above working in Balochistan Civil Secretariat had not and could not claim the same additional allowances as were being paid to the respondents.

On the basis of different classifications, job descriptions, salary and allowances structure, a considered policy had been formulated by the Government of Balochistan on the basis of its own ground realities by incentivising various cadres with different allowances. Such policy decisions unless they were arbitrary, capricious and ex facie discriminatory or violative of constitutional guarantees and norms of justice could not be interfered with in exercise of powers of judicial review.

The facts and circumstances of the present matter did not admit of interference in policy matters and the Tribunal had not recorded any reasons or furnished any justification other than a perceived and an overly simplistic view and interpretation of the concept of discrimination to support its judgment.

The finding of the Tribunal that since the allowance in question was being paid to all civil servants working in Grade-20 and above in the Federal as well as other Provincial Governments, the respondents are also entitled to the same was clearly and patently in ignorance of the law laid down by the Supreme Court in its order dated 10-03-2015 passed in Civil Appeals Nos.46 and 47 of 2013 titled Government of Balochistan through Secretary Public Health Engineering Department, Quetta and others v. Muhammad Daud and others.

Finding of the Tribunal that there was no intelligible differentia was also ex facie erroneous and incorrect in so far as the job descriptions, nature of job and qualifications, career structures and progression scheme of civil servants, Secretaries etc working in Balochistan Civil Secretariat was diametrically different from that of the respondents who were medical doctors and working in the teaching cadres as Professors. One could not be equated with the other, both constituted a different class and the concept of intelligible differentia between the two was clearly and patently discernable could be easily understood being logical and lucid and it was neither artificial nor contrived. There has been no discrimination against the respondents as alleged by them and held in the impugned judgment of the Tribunal and none of their rights guaranteed by the Constitution had been violated by reason of denial of the allowance in question.

Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Alleged Corruption in Rental Power Plants etc in the matter of Human Rights Cases Nos.7734-G/2009, 1003-G/2010 and 56712 of 2010, decided on 30th March, 2012 2012 SCMR 773 and Mehar Muhammad Nawaz v. Managing Director, Small Business Finance Corporation and 2 others 2009 SCMR 187 distinguished.

Each Province had its own ground realities, policies and priorities and freedom to formulate such policies as were permissible within the framework of the Constitution while maintaining provincial autonomy provided under the law and the Constitution. The policy subject matter of present appeals which had been framed by the Government of Balochistan was not in conflict with any provision of the Constitution or the law. Appeals were allowed and judgment of Service Tribunal was set-aside.

Ayaz Khan Swati, Additional A.G. Balochistan for Appellant.

M. Rauf Atta, Advocate Supreme Court for Respondents Nos. 1, 3 to 6 (in C.A. No. 429 of 2020).

Nemo for Respondents (in C.As. Nos. 430 and 442 of 2020).

2020 P L C (C.S.) 1475

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

Dr. SHAHNAWAZ MUNAMI and others

Versus

The FEDERAL GOVERNMENT OF PAKISTAN and others

And

H.R.C. No. 8267-G/2014 in Const. P. 64/2013 (Application by Muhammad Waqas Ilyas)

And

C.M.A. No. 2872/2017 in Const. P. 64/2013 (Application for impleadment by Muhammad Saleem Akhtar)

And

H.R.C. No.14017-P/2018 in Const. P. 64/2013 (Application by Syed Umair Ali Shah)

And

Const.P. No. 77/2014 (Muhammad Ikhlaq Khan and others v. Federation

of Pakistan and others)

And

C.M.A. No. 10803/2018 in Const. P. 77/2014 (Impleadment application on behalf of Muhammad Bilal)

And

H.R.C. No. 40739-P/2018 (All Blind Persons through Dr. Abdul Qayum Naz)

And

H.R.C. No. 41415-P/2018 (Yousaf Alkarim Nomani)

And

H.R.C. No. 42482-P/2013 (Rasheed ul Hasan)

And

Const. P. No.54/2018 (Adeel Hussain v. Federation of Pakistan through Secretary, Ministry of Law Justice and Parliamentary Affairs, Islamabad and others)

And

H.R.C. No.41408-S/2013 (Saleem Qasim Olia)

And

C.M.A. No. 10499/2018 in Const. P. 77/2014 (Impleadment application on behalf of Shoukat Ali)

And

C.M.A. No. 10500/2018 in Const. P.77/2014 (Impleadment application on behalf of Inam-ud-Din)

And

C.M.A. No.3068/2019 in Const. P.64/2013 (Impleadment application on behalf of Khurram Ejaz)

And

C.M.A. No.3069/2019 in Const.P.64/2013 (Impleadment application on behalf of Ejaz Ahmed)

And

C.M.A. No 3131/2019 in Const. P. 64/2013 (Application for impleadment of Muneeba Ishfaq)

And

C.M.A. No.5239/2019 in Const. P.64/2013 (Application for impleadment of Muhammad Saleem)

Constitutional Petition No. 64 of 2013, decided on 14th July, 2020.

(Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973)

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

----Preamble---Constitution of Pakistan, Art. 184(3)---Constitutional petition before the Supreme Court for welfare of persons with disabilities---Supreme Court observed that it was satisfied that the broad framework of guidelines provided by it from time to time to ensure implementation of laws and providing Fundamental Rights to persons with disabilities were being followed and implemented by the Federal as well as the Provincial Governments, however much more still needed to be done; that it was encouraging to note that the process had been initiated and earnest efforts were being made to create an environment and framework where citizens with disabilities were given respect, protection and support and the requisite facilities were also made available to provide them opportunities of getting education, training and a conducive environment where they could be assimilated in the mainstream of the society---Constitutional petition along with connected applications were disposed of with relevant directions.

In relation to differently abled persons Supreme Court issued the following directions and guidelines to the Federal and Provincial Governments and all concerned Ministries, Divisions, Departments, Agencies, Authorities and other entities working in connection with the affairs of the Federation, the Provinces or any local authorities:

(i) All vacant posts in the employment quota of Federal Government as well as Provincial Governments should be advertised and filled. It must be ensured that disabled persons from the same area/region were accommodated/ appointed against regional quotas;

(ii) The provisions of laws relating to rehabilitation and employment of the disabled persons be followed and implemented in letter and spirit;

(iii) The Federal and Provincial Governments shall ensure establishment of grievance redressal mechanisms to redress grievances of disabled persons, and awareness campaigns regarding availability of these grievance redressal mechanism should be run;

(iv) The Federal Government, Provincial Governments, PEMRA, PTV, PBA and PBS shall raise awareness through public service broadcasts of programs or messages;

(v) The Federal and Provincial Governments as well as development authorities shall ensure enforcement of the Accessibility Code of Pakistan, 2006;

(vi) Road Transport Authorities shall make public transport accessible for persons with disabilities;

(vii) Pakistan Railways shall progressively build proper ramps at train stations;

(viii) The transport and development authorities will ensure availability of accessible toilets at train stations, local bus stands, service areas of bus stations, motorways and highways;

(ix) The transport and development authorities shall arrange for construction of ramps and arrange safe and reliable facilities for boarding of buses and trains by disabled persons;

(x) The concerned authorities and agencies at the Federal as well as Provincial level shall make appropriate arrangements for availability of accessible parking and ramps at public parks, and provision of accessible washroom and ramps in malls, parks and public places;

(xi) All development authorities will ensure enforcement of quota in allotment of residential plots and houses as provided in the relevant laws, rules and regulations;

(xii) All concerned were to implement order of the Supreme Court dated 11-10-2018 in letter and spirit; and

(xiii) Pakistan Bureau of Statistics in consultation with NADRA and other departments and agencies of the Federal and Provincial Governments shall publish and periodically update, complete, accurate and updated figures and statistics regarding persons with disabilities and upload the same on its website. [p. 1482] A & B

Raheel Kamran Sh., Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record (absent) for Petitioners (in Const. P. No. 64 of 2013).

M. Qasim Mirjat, Advocate Supreme Court/Advocate-on-Record for Petitioners (in Const. P. No.77 of 2014).

M. Iqbal Hashmi, Advocate Supreme Court and M. Bilal for Petitioners (in C.M.A. No.10803 of 2018).

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan, Syed Abdul Kalam Ashrafi, Asstt. Commissioner, Junaid Akhlaq, J.S. (A/E) Ministry of Law and Wajid Aziz Qureshi, S.O. for the Federation.

Niazullah Khan Niazi, A.G. for the ICT.

Ch. Faisal Fareed, Addl. A. G. Pb., Tariq Ismail, L.O. (S.W.), M. Ashraf Janjua, Director (S.W.), Zahid Mehmood, L.O. (Labour), Adnan Bashir, L.O. (Spl. Education) and Aflan Khan, Dy. Director for Government of the Punjab.

Shabbir Shah, Addl. A.G. (through video link from Karachi) and Farhan Ali, Dy. Director (PCRDP) for Government of Sindh.

M. Ayyaz Sawati, Addl. A.G. for Government of Balochistan.

Zahid Yousaf Qureshi, Addl. A.G. KP for Government of Khyber Pakhtunkhwa.

Malik Javed Iqbal Wains, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for CDA.

2020 P L C (C.S.) 1502

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

Miss NAUREEN NAZ BUTT

Versus

PAKISTAN INTERNATIONAL AIRLINES through Chairman, PIA and others

Civil Appeal No. 451 of 2017, decided on 14th July, 2020.

(On appeal against the judgment dated 24.01.2017 passed by the Lahore High Court, Lahore in Intra Court Appeal No. 608 of 2009)

(a) Master and servant---

----Airhostess of Pakistan International Airlines---Contract appointment---No vested right to remain in employment after expiry of contract period---Contract employee, whose period of contract employment expired by afflux of time, carried no vested right to remain in employment of the employer and the Courts could not force the employer to reinstate or extend the contract of such employee.

Ms. Samina Abid v. Pakistan International Airlines through its Chairman, PIA Head Office, Karachi and others C.A. No. 450 of 2017 distinguished.

Mubarak Ali and another v. Government of Punjab through Secretary Industries and Mineral Development Department 1997 PLC (C.S.) 284; Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642 and Muzaffar Khan and others v. Government of Pakistan and others 2013 SCMR 304 ref.

(b) Constitution of Pakistan---

----Art. 199---Master and servant relationship of---Employment in Pakistan International Airlines---Constitutional petition filed by an employee of PIA--- Maintainability--- Employment in Pakistan International Airlines, being not governed by 'statutory rules, principle of 'Master and Servant' would apply and thus, a constitutional petition filed by an employee before the High Court would not be maintainable.

PIA Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545 and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehinan and others PLD 2010 SC 676 ref.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court, Ahmed Nawaz Ch., Advocate-on-Record along with Appellant in person for Appellant.

Tariq Aziz, Advocate-on-Record, Adnan Ahmed Channa, Manager HR and Javed Hassan, Assistant Manager, HR for Respondents.

2020 P L C (C.S.) 1521

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

Dr. SOHAIL HASSAN KHAN and others

Versus

DIRECTOR GENERAL (RESEARCH), LIVESTOCK AND DAIRY DEVELOPMENT DEPARTMENT, PUNJAB, LAHORE and others

Civil Petitions Nos. 4185, 4209 and 4504 of 2019, decided on 20th August, 2020.

(Against the judgment dated 28.10.2019 of the Punjab Service Tribunal passed in Appeal No. 2872/2014)

(a) Constitution of Pakistan---

----Art. 13(a)---Civil service---Concurrent departmental proceedings and criminal proceedings---Acquittal in criminal proceedings---Double jeopardy, principle of---Application---Civil servant could not escape departmental proceedings or consequences thereof on account of his acquittal/exoneration on a criminal charge arising out of the same impugned transaction; these two were entirely different jurisdictions with different standards of proof as well as procedures---Criminal prosecution required strict proof through a narrowly jacketed procedure and, thus, State's failure on the criminal plane did not provide shield of double jeopardy to a delinquent officer.

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

----S. 4---Officials of Poultry Research Institute ('the petitioners')---Procurement of birds through an aid package granted by foreign donor organization---Allegation of operating fake departmental accounts for fraudulent transactions; procuring goods of questionable quality to make illicit profit; and receiving commission in procurement---Petitioners who were officials of Poultry Research Institute were found guilty by the inquiry officer and awarded punishments including compulsory retirement and removal from service---Said penalties were maintained by the Service Tribunal---Held, that multiple transactions involving the grant package through privately held bank accounts inescapably established petitioners' culpability, as official channels were available in the form of departmental accounts to effect payments to the vendors---Similarly without approval or authority purchase from outlets through private arrangements could not be viewed as an innocent omission, that too, by officers with considerable standing/experience--- Petitioners' stress on the principle of proportionately in the award of punishment was entirely beside the mark---Petition for leave to appeal was dismissed and leave was declined.

(c) Civil service---

----Public servant, duty of---Financial impropriety---Public trust, breach of---Consequences---Public authority was a most sacred trust and a very high onus was cast upon a State functionary to uphold the highest degree of rectitude in financial matters---Financial corruption or misappropriation of public money were wrongs of most repugnant depravity---Once a public servant was found to have the capacity to betray the public trust, it would be most unwise as well as inexpedient to retain him on the job.

Mrs. Shireen Imran, Advocate Supreme Court for Petitioners (in C.Ps. Nos.4185 and 4209/2019)

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioners (in C.P. No. 4504/2019)

Nemo for Respondents.

2020 P L C (C.S.) 76

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

SECRETARY FINANCE DEPARTMENT and 2 others

Versus

Khawaja MUHAMMAD ANWAR and another

Civil Appeal No.240 of 2018, decided on 7th March, 2019.

(On appeal from the judgment of the High Court dated 19-3-2018 in Writ Petition No.1444 of 2016).

Civil service---

----Pension, grant of---Petitioner-employee filed writ petition for increase of his pension which was accepted---Laches---Applicability---Contention of respondents was that writ petition was not maintainable on the ground of laches---Validity---Pension was a continuing right and principle of laches was not applicable---High Court had not committed any illegality while accepting the writ petition---Impugned judgment was in accordance with law and facts of the case---Objection which had not been raised in the written statement before the High Court could not be allowed to be raised before Supreme Court---Appeal was dismissed, in circumstances.

Sardar Karam Dad Khan Advocate-General for Appellants.

Chaudhry Muhammad Manzoor Advocate, for Respondents.

2020 P L C (C.S.) 107

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, J

MUSHTAQ AHMED RAZA and another

Versus

MUHAMMAD ARIF, SENIOR TEACHER and 11 others

Civil PLA No.594 of 2018, decided on 16th April, 2019.

(On appeal from the judgment of the High Court dated 10-09-2018 in Writ Petition No.599 of 2015).

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R.10-B(2)---Promotion---Writ petition before High Court by the employee was disposed of with the direction to the department to fill the posts in question according to seniority and promotion quota as per service rules---Validity---Appointment of employees appointed on current charge basis was to come to an end on the appointment made on regular basis or on expiry of six months whichever was earlier---High Court had committed no illegality while disposing of writ petition with a direction to fill the posts while adhering to the seniority and promotion quota---No adverse order had been passed against the petitioners-employees---High Court had issued only direction for filling the posts which was quite in accordance with law---Petitioners had no locus standi to file writ petition, in circumstances---No legal question in the petition, for leave to appeal had been pointed out petition for leave to appeal was dismissed, in circumstances.

Ch. Muhammad Kaleem Afsar, Advocate for Petitioners.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents Nos.1 to 9.

2020 P L C (C.S.) 293

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

HABIB HAFEEZ

Versus

UMAR PERVAIZ and 5 others

Civil Appeal No.239 of 2018, decided on 11th April, 2019.

(On appeal from the judgment of the Service Tribunal dated 26-5-2018 in Service Appeals Nos.1147 of 2014 and 705 of 2015).

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

----S. 4---Seniority, determination of---Principles of estoppel and acquiescence---Applicability---Non-impleadment of a necessary party---Effect---Appeal was dismissed due to non-joinder of Authority, as respondent who had issued the impugned order---Validity---Employee, in the earlier appeal was respondent and he was aware with regard to his seniority position but despite that he had not challenged the seniority list by filing, appeal---Matter of seniority to the extent of employee had attained finality, in circumstances---Principles of estoppel and acquiescence were attracted in the light of conduct of present employee---Inter se seniority had been determined according to the merit position and employee had not disputed the same---Impugned judgment passed by the Service Tribunal did not suffer from any illegality or infirmity---Service Tribunal had rightly passed the impugned order---Competent authority which had passed impugned order had not been arrayed as a party in the present appeal---Competent authority should have been arrayed as first respondent in every memorandum of appeal before the Service Tribunal---Findings recorded by the Service Tribunal were consistent with the statutory law---Appeal was dismissed, in circumstances.

Mushtaq Ahmed Janjua, Advocate for Appellant.

Sardar Karam Dad Khan, Advocate-General for Respondents Nos.2 to 4.

Ch. M. Manzoor, Advocate for Respondent No.5.

Meer Sharafat Hussain, Advocate for Respondent No.6.

2020 P L C (C.S.) 337

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

MUHAMMAD MUNIR and 4 others

Versus

INSPECTOR GENERAL OF POLICE AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 125 others

Civil Appeal No.70 of 2018, decided on 9th March, 2019.

(On appeal from the judgment of the Service Tribunal dated 27-12-2017 in Service Appeal No.270 of 2009).

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

----S. 4---Appeal---Limitation---Computation of---Appeal was dismissed being time barred---Contention of employee was that appeal had been filed within time from the date of communication of impugned order---Validity---Neither appellant had specifically averred the date of communication of impugned order nor any other documentary proof had been produced on record---Limitation for filing appeal before Service Tribunal was to be computed from the date of order aggrieved from whether original or appellate irrespective of pendency of any departmental appeal/representation---Departmental appeal / representation filed by the appellant against the original order had also been dismissed on the ground of limitation---Appeal filed by the employee was time barred which had been rightly dismissed by the Service Tribunal---Appeal was disposed of, in circumstances.

IG Police and others v. Muhammad Shehbaz 2016 SCR 1119; Javaid Ejaz v. Authority under Government and others 2015 SCR 744 and Syed Rasheed Hussain Shah v. Azad Government and others 2014 SCR 883 ref.

M. Maqsood Ahmed Sulehria, Advocate for Appellants.

Sardar Karam Dad Khan, Advocate-General and Sardar M.R. Khan, Advocate for Respondents.

2020 P L C (C.S.) 400

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim, CJ and Raja Saeed Akram Khan, J

QURAT-UL-AIN

Versus

QAZI ZAIN-UL-ABADEEN and others

Civil Appeal No.276 of 2018, decided on 4th March, 2019.

(On appeal from the judgment of the High Court dated 21-5-2018 in Writ Petition No.952 of 2017).

(a) Civil service---

----Appointment against the post of Lecturer---Additional marks of distinction---Award of---Subsequent amendment in the rules---Effect---Writ petition was disposed of by the High Court with the direction to the department to act in accordance with recommendations of Selection Board by deleting five marks of distinction awarded to the respondent---Validity---Respondent was not holder of gold medal in the relevant degree of M. Phil but in the Master degree---Petitioner had succeeded to get the first position in the merit list and thus, a right for appointment against the post in question had been accrued in his favour---Retrospective effect could not be given to the subsequent notification---When a right had already been accrued to the petitioner in the light of the policy at the relevant time then respondent could not be benefited on the basis of subsequent notification---Petitioner had got top position in the selection process and he could not be deprived of his right for appointment by making any subsequent amendment in the rules/policy already holding the field---No illegality had been committed by the High Court while passing the impugned order---Appeal was dismissed, in circumstances.

Abdul Shakoor v. Mrs. Shamim Khalid and 5 others 2004 PLC (C.S.) 7 and Azad Government and 4 others v. Shezad Naseem Abbasi 2006 SCR 396 ref.

Muhammad Yaqoob Awan v. Secretary Electricity and 3 others 2014 SCR 1 rel.

(b) Notification---

----Retrospective effect could not be given to a subsequent notification.

Barrister Humayun Nawaz Khan, Advocate for Appellant.

Raja Muhammad Hanif Khan, Advocate for Respondents.

Raja Amjid Ali Khan, Advocate for Respondents.

2020 P L C (C.S.) 528

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

MUHAMMAD ASIF KHAN

Versus

MUHAMMAD RIZWAN, PRIMARY TEACHER GOVERNMENT BOYS MIDDLE SCHOOL and 5 others

Civil Appeal No.319 of 2017, decided on 13th October, 2018.

(On appeal from judgment of Service Tribunal, dated 12-10-2017 in Service Appeal No.475 of 2017).

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

----Ss. 4 & 5 (2)---Transfer of employee was assailed on the ground of disability---Scope---Service Tribunal accepted appeal and transfer order was set aside---Contention of department was that employee was neither disabled nor he had been appointed against the vacancy for disabled persons---Validity---Nothing was on record that appointment of employee was made against the post reserved for disabled persons---Employee had relied upon disability certificate and question whether he was disabled or not was a disputed question of fact---Disputed question of fact could only be resolved by the Court having powers to record evidence and Supreme Court had no power to record the same---Service Tribunal was equipped with all the powers of civil court and competent to record the evidence if needed---Supreme Court remanded the case to the Service Tribunal to attend all the controversial issues involved in the appeal and decide the same afresh---Impugned judgment passed by the Service Tribunal was set aside---Appeal was allowed, accordingly. [p. 531] A & B

Raja Aftab Ahmed, Advocate for Appellant.

Raja Shujaat Ali Khan, Advocate for Respondent No.1.

2020 P L C (C.S.) 741

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ, Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

FINANCE DEPARTMENT, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, through Secretary Finance, Civil Secretariat, Chatter Domail, Muzaffarabad and 10 others

Versus

MAHBOOB AHMED AWAN, SENIOR TEACHER and others

Civil Appeal No.53 of 2019, decided on 9th April, 2019.

(On appeal from the judgment of the High Court dated 11.06.2018 in Writ Petitions Nos. 1315 of 2012, 534, 1361, 1378, 1417, 1459, 1468, 1579, 1691, 1895, 1904 of 2013, 146, 166, 470, 707, 917, 1018, 1210, 1427, 1451, 1589, 1844, 1899, 2044, 93, 2252 of 2014, 370, 1322, 1468, 1519, 2089, 2091, 2456, 2673 of 2015, 267, 1208, 2082, 2331 of 2016 and 594 of 2010).

Azad Jammu and Kashmir Civil Servants Revised Leave Rules, 1983---

----R.25-A---Employees of education department---Deduction of conveyance allowance during summer/winter vacations---Effect---Contention of employees was that they were entitled for conveyance allowance during summer/winter vacations---Writ petition filed before the High Court on behalf of employees was accepted---Validity---Vacations could not be treated as leave rather same would be considered as on duty---Conveyance allowance could not be refused/deducted from the emoluments without amendment in the Rules through some executive order---Impugned judgment of the High Court did not suffer from any legal infirmity---Writ of mandamus could be issued where a public functionary had failed to act in accordance with law and rules---No final order had been passed with regard to deduction of conveyance allowance by the departmental authority---Employees were not bound to approach the Service Tribunal in circumstances---Appeal was dismissed, in circumstances.

Azad Government and others v. Abdul Kabir Qureshi and others 1995 PLC (C.S.) 46 ref.

Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and another v. Syed Zaman Ali Shah and 3 others PLD 1991 SC(AJ&K) 57 and The Accountant General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431 rel.

Sardar Karam Dad Khan Advocate-General for Appellants.

Abdul Rashid Abbasi, Sherzaman Awan, Syed Saroosh Gillani and Amjad Hameed Siddiqui for Respondents.

2020 P L C (C.S.) 810

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

AYESHA NAZIR

Versus

ABIDA GHUFAR and 5 others

Civil Appeal No.39 of 2019, decided on 3rd April, 2019.

(On appeal from the judgment of the High Court dated 24.11.2018 in Writ Petition No.1379/2013)

Civil service---

----Appointment against the post of Primary School Teacher---Respondent applied for appointment against the vacancy reserved for Union Council and qualified written test and interview but thereafter filed application for inclusion of her name in the list of candidates who applied against the vacancy of "Town Committee" which was accepted by the department and she was appointed against the vacancy reserved for "Town Committee"---Petitioner candidate being at the top in the merit list prepared for the candidates of "Town Committee" assailed appointment of respondent---High Court declared appointment of respondent as void ab initio and directed the department to appointment petitioner against the vacancy of "Town Committee"---Validity---Respondent had submitted application for transfer of her name from "Union Council" to "Town Committee" after completion of process of selection for the vacancy of Town Committee---Respondent was refugee and she did not fall in the category of candidates of "Union Council" or "Town Committee"---Six percent reserved quota had been fixed and respondent was entitled for consideration against the said quota of refugee---Petitioner candidate being resident of "Town Committee" and having qualified against the vacancy reserved for the same was entitled for appointment accordingly---Impugned judgment passed by the High Court did not suffer from any illegality or infirmity to the extent of appointment of petitioner in circumstances---Respondent having obtained first merit position was entitled for appointment against reserved quota of refugee---Supreme Court directed the department to adjust respondent against reserved quota of refugee accordingly.

Sajid Hussain Abbasi, Advocate for Appellant.

Ch. Shoukat Aziz, Advocate for Respondent No.1.

2020 P L C (C.S.) 936

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Ghulam Mustafa Mughal, J

TABASAM ASHRAF

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarbad and 4 others

Civil Appeal No.196 of 2019, decided on 7th February, 2020.

(On appeal from the judgment of the Service Tribunal dated 24.11.2018 in Service Appeal No.1042 of 2014)

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

----S.4---Appeal to Service Tribunal---Limitation---Seniority, determination of---Employee filed appeal against the notification of her seniority which was dismissed being time-barred---Contention of employee was that she filed appeal to Tribunal after gaining knowledge of impugned notification which was within time---Validity---Employee had filed appeal after a period of nine months from publication of impugned notification in the official gazette---Fact which had not been raised before the lower forum could not be allowed to be raised before Supreme Court for the first time---Employee had not mentioned any exact date or source of knowledge of impugned notification in her appeal to Tribunal---Any order published in the official gazette was to be deemed communicated to everybody---Where rules or law required any order to be communicated personally then such order was to be deemed to be communicated on personal service---Where Rules or law required any order to be published in official gazette then such order was to be deemed to be communicated on the date of its publication---Employee was bound to explain delay of each and every day to the satisfaction of Court but she had failed to justify delay of six months occurred in filing of appeal to the Service Tribunal---Service Tribunal had committed no illegality while passing the impugned judgment---Appeal was dismissed, in circumstances.

Tariq Javaid v. Azad Government and others 2015 SCR 653 rel.

Sardar Pervaiz Akhtar, Advocate for Appellant.

Sakhawat Hussain Awan, Advocate for Respondents Nos.4 and 5.

2020 P L C (C.S.) 988

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

Civil Appeal No.258 of 2019

MUHAMMAD AYOUB AWAN and 3 others

Versus

AZAD GOVERNMENT OF THE STATE OF THE JAMMU AND KASHMIR through Secretary Services and General Administration Department and 3 others

(On appeal from the order of the Service Tribunal, dated 28-1-2019 in Service Appeal No.64 of 2019).

Civil Appeal No.259 of 2019

MUHAMMAD AYOUB AWAN and 3 others

Versus

AZAD GOVERNMENT OF THE STATE OF THE JAMMU AND KASHMIR through Secretary Services and General Administration Department and 3 others

(On appeal from the order of the Service Tribunal, dated 25-1-2019 in Service Appeal No.56 of 2019).

Civil Appeals Nos.258 and 259 of 2019, decided on 18th January, 2020.

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

----S.4---Appeal to Service Tribunal (appeal)---Limitation---Appeal was dismissed in limine being time barred---Contention of employee was that impugned notifications were never communicated to the him---Validity---Notification which had been issued and published in the official gazette would be presumed to have been issued for the information of general public---Impugned notification was in the knowledge of public at large, in circumstances---Grounds raised in the appeal were self-contradictory---Appeal had been filed after expiry of the period of limitation and explanation offered in that regard was not plausible---Appellant could not be allowed to blow hot and cold in one breath while enjoying the promotion effected through the impugned notification and equally denying its awareness---No illegality or irregularity had been committed by the Service Tribunal while dismissing the appeal through impugned judgment---Service Tribunal had rightly appreciated the material available on record---Impugned judgment had been passed in accordance with law---Appeal was dismissed, in circumstances.

Tariq Javaid v. Azad Government and 5 others 2015 SCR 653 rel.

(b) Notification---

----Notification which had been issued and published in the official gazette would be presumed to have been issued for the information of general public.

Asghar Ali Malik, Advocate for Appellants (in Civil Appeals Nos.258 and 259 of 2019).

Raja Inaamullah Khan, Advocate-General and Syed Asim Masood Gilani, Advocate for Respondents (in Civil Appeals Nos.258 and 259 of 2019).

2020 P L C (C.S.) 1152

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

SECRETARY SERVICES AND GENERAL ADMINISTRATION, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR MUZAFFARABAD and another

Versus

Dr. RAJA MUHAMMAD ARIF, RTD. ADDITIONAL CHIEF SECRETARY GENERAL, MUZAFFARABAD

Civil Appeal No.268 of 2019, decided on 7th November, 2019.

(On appeal from the judgment of the High Court dated 22-1-2019 in Writ Petition No.937 of 2012).

(a) Azad Jammu and Kashmir Grant of and Appointment to BS-21 and BS-22 Rules, 1994---

----Rr.4 & 5---Additional Chief Secretary---Grant of BPS-22 by the Prime Minister---Petitioner filed writ petition for implementation of approval of Prime Minister for grant of BPS-22---High Court accepted writ petition and passed direction to the authorities to promote the employee in the light of approval of Prime Minister---Contention of authorities/department was that only on the recommendations of Selection Board special grade could be granted---Validity---Specific procedure had been provided for grant of BPS-21 & 22 under Azad Jammu and Kashmir Grant of and Appointment to BS-21 and BS-22 Rules, 1994---When an act was required to be performed in a specific manner then it must be performed only in that manner or not at all---Matter for grant of BPS-22 to the employee should have been processed by the Selection Board---Only a legal order had to be considered and implemented by the concerned authority---Order which was not issued in the prescribed manner had to be ignored---Supreme Court observe that claim of employee should be placed before the Selection Board and said Board should dispose of the same in accordance with law without having any influence from the judgment of the Courts or order of the Prime Minister---Appeal was allowed, accordingly.

Muhammad Rehman and other's case 2014 SCR 298 and Shehzad Sharif v. Azad Government and others 2016 SCR 24 rel.

(b) Administration of justice---

----When any act is required to be performed in a specific manner then it must be performed only in that manner or not at all.

Sajjad Ahmed Khan, Advocate for Appellants.

Ch. Shoukat Aziz, Advocate for Respondent.

2020 P L C (C.S.) 1431

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

JUNAID AHMED

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Elementary and Secondary Education, Muzaffarabad and 5 others

Civil Appeal No.267 of 2019, decided on 13th January, 2020.

(On appeal from the judgment of the Service Tribunal dated 13-3-2019 in Service Appeal No.239 of 2018).

(a) Civil service---

----Appointment against the post of Shop Attendant---Re-designation of post as Naib Qasid---Cancellation of appointment as Shop Attendant---Post of Shop Attendant became vacant on the retirement of father of appellant and same was advertised by the department---Appellant was appointed against the advertised post and he submitted his joining report---Department re-designated the post of Shop Attendant as Naib Qasid and shifted it to another institution---Appointment of appellant was cancelled and respondent was appointed against the post of Naib Qasid---Contention of appellant was that he was not afforded opportunity of hearing---Service Tribunal dismissed appeal of the employee on the ground that Selection Committee had not been impleaded as respondent---Validity---Father of appellant sought his retirement for appointment of appellant and he was appointed after advertisement of post of Shop Attendant---Only three candidates appeared against the advertised post---Competent authority had re-designated the post of Shop Attendant as relevant institution had abolished---Appointment of appellant was vacated and respondent was appointed on the very next day---Department while making appointment of appellant and respondent had violated the rule of transparency, merit and good governance---Appeal against appointment order was not competent before Service Tribunal---Appointment order could only be challenged through writ petition before High Court---Appointment order of respondent was set aside, in circumstances---Appointment order of appellant could not be restored as same was also illegal and had been made when process of shifting of post was in progress---Department was directed to initiate the process of appointment to the post in question afresh in a transparent manner and appoint a suitable candidate in accordance with law---Appeal was disposed of, accordingly.

Dr. Ahmed Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 and Munir Qadir v. Chairman, PSC and 4 others 2003 PLC (C.S.) 743 rel.

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

----S.4---Appeal to Service Tribunal against appointment order---Maintainability---Appeal before Service Tribunal challenging the legality and correctness of an appointment order was not competent.

Dr. Ahmed Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382, and Munir Qadir v. Chairman, PSC and 4 others 2003 PLC (C.S.) 743 rel.

Ch. Muhammad Manzoor, Advocate for Appellant.

Raja Ayaz Ahmed Khan, Assistant Advocate-General and Ch. Shoukat Aziz, Advocate for Respondents.