PLCCS 2021 Judgments

2021 P L C (C.S.) 14

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

RASOOL KHAN and 29 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Information and Technology and 2 others

W.P. No.523 of 2012, decided on 3rd March, 2020.

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

----Ss.35, 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9 (since repealed)---Constitution of Pakistan, Arts.199, 25, 189 & 190---Equal protection of law---Employees of Pakistan Telegraph and Telephone Department transferred to Pakistan Telecommunication Corporation and then to Pakistan Telecommunication Company Limited Terms and conditions of service---Employees seeking similar retirement benefits as extended by the Federal Government for retired civil servants---Validity---Departmental employees after their transfer to Pakistan Telecommunication Company Limited were no more civil servants but their terms and conditions prior to their transfer were those of civil servants---Terms and conditions of petitioners 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 departmental employees should not be varied to their disadvantage---Employees-petitioners were entitled to all those service benefits to which civil servants were entitled, in circumstances---Departmental employees were entitled to all those retirement benefits which were payable to retired civil servants---Petitioners had lost their status of civil servants and they could not invoke the jurisdiction of Service Tribunal to agitate the matter with regard to terms and conditions of their service---Petitioners had not sought relief in the present constitutional petition with regard to a matter concerning the terms and conditions of their service---Employees were bound to extend the same benefit to the petitioners which had been given to the similarly placed departmental employees who were parties to the petitions wherein same relief had been given by the Courts---Employers had not increased pension at the same rate as announced by the Federal Government from time to time and had not extended other retirement benefits to the petitioners which had been given to the retired civil servants---Employers were directed by the High Court to calculate the arrears of pension and grant all other retirement benefits at the same rate which had been given by the Federal Government to the retired civil servants---Constitutional petitions were allowed, accordingly.

Sahibzadi Maharunisa v. Mst. Ghulam Sughran PLD 2016 SC 358; Pakistan Telecommunications Corporation v. Riaz Ahmad PLD 1996 SC 222; Divisional Engineer Phones, Phones Division, Sukkur v. Muhammad Shahid 1999 SCMR 1526 and P.T.C.L. v. Masood Ahmed Bhatti 2016 SCMR 1362 ref.

Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif 2015 SCMR 1472; Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783; Masood Ahmed Bhatti v. Federation of Pakistan 2012 SCMR 152; WAPDA v. Abdul Ghaffar 2018 SCMR 380; Federation of Pakistan v. Ghulam Mustafa 2012 SCMR 1914; Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185; Tara Chand v. Karachi Water and Sewerage Board 2005 SCMR 499; Abdul Hameed Nasir v. National Bank of Pakistan 2003 SCMR 1030; Government of Punjab v. Samina Parveen (2009 SCMR 1; A.A. Zuberi v. Additional Accountant General, Pakistan Revenue, Lahore 2010 PLC (C.S.) 1211 and Additional Accountant General, Pakistan Revenue, Lahore v. A.A. Zuberi 2011 PLC (C.S.) 580 rel.

(b) Pakistan Telecommunication Corporation Service Regulation, 1996---

----Pakistan Telecommunication Corporation Act (XVIII of 1991) (since repealed)---Constitution of Pakistan, Art.199---Employees of Pakistan Telecommunication Corporation employed after enactment of Pakistan Telecommunication Corporation Act, 1991---Constitutional petition---Maintainability---Pakistan Telecommunication Corporation Service Regulations, 1996, had not been notified in the official gazette and it had no statutory status employees of Pakistan Telecommunication Corporation employed 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 through constitutional petition---Constitutional petition was dismissed, in circumstances.

Pakistan Telecommunication Company Limited v. Iqbal Nasir and others PLD 2011 SC 132 rel.

(c) Constitution of Pakistan---

----Art.25---'Equality before law'---Meaning---Equal protection of law and "equality before law" means that all persons similarly placed should be treated alike. Party who does not litigate ought to be given the same relief/benefit as a similar party who had litigated.

(d) Administration of justice---

----Party who had not litigated ought to be given the same relief as of a similar party who had litigated.

Petitioners by

Khalil-ur-Rehman Abbasi (in Writ Petitions Nos.2587, 3287, 3559, 3851, 3854, 4081 of 2017, Writ Petitions Nos.523 and 653 of 2012, Writ Petitions Nos.1177, 1178, 1256, 1263, 1268, 1419 and 1638 of 2018, Writ Petitions Nos.2215 and 3513 of 2019).

Khizar Hayat Khan (in Writ Petition No.932 of 2018).

Muhammad Sarwar Malik (in Writ Petition No.1330 of 2018).

Mushtaq Hussain (in Writ Petitions Nos.1603 of 2018 and 3696 of 2018).

Muhammad Tariq Asad and Muhammad Anwar Dar (In Writ Petition No.2146 of 2018).

Manzoor Hussain (in Writ Petition No.2229 of 2018).

Hafiz Farman Ullah (in Writ Petitions Nos.746 and 1598 of 2019).

Jameel Hussain Qureshi (in Writ Petition No.4588 of 2018).

G.M. Chaudhry (in Writ Petition No.1226 of 2017).

Respondent by

Arshid Mehmood Kiani, learned Deputy Attorney-General.

Nadeem Khan Khakwani, learned Assistant Attorney-General.

Barrister Junaid Zamurd Khan (in Writ Petition No.1256 of 2018).

Shahid Anwar Bajwa for P.T.C.L.

Sheikh Junaid Nadeem (in Writ Petition No.1603 of 2018).

Saad Hasan (in Writ Petition No.2146 of 2018).

Barrister Mustafa Munir Ahmad and Malik Omair Saleem, (in Writ Petition No.2229 of 2018).

Rashid Anwar (in Writ Petition 3559 of 2017).

Shafique ur Rehman Dab (in Writ Petitions Nos.1220 of 2018 and 932 of 2018).

Muhammad Matee ur Rehman Manager (Legal) P.T.E.T. and Raheel Zafar, S.M.L. P.T.C.L.

Akhlaq Ahmad Bhatti for P.T.C.L. (in Writ Petition No.1226 of 2017).

Muhammad Munir Paracha and Nauman Munir Paracha for P.T.C.L. (in Writ Petition No.523 of 2012).

2021 P L C (C.S.) 79

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. Sheikh AKHTAR HUSSAIN

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.882 of 2019, decided on 17th September, 2020.

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

----S.5---Drug Regulatory Authority of Pakistan Employees Service Regulations 2015, Regln. 10(1)---Appointment, cancellation of---Petitioner was appointed as Chief Executive Officer of Drug Regulatory Authority of Pakistan (DRAP) but the appointment was cancelled on the ground that the PhD degree was not recognized by Higher Education Commission---Validity---Procedure for removal of Chief Executive Officer (CEO) of DRAP was not prescribed in the provisions of Drug Regulatory Authority of Pakistan Act, 2012---Federal Government could remove the CEO or any Director of Drug Regulatory Authority of Pakistan under the provisions of Regln. 10(1) of Drug Regulatory Authority of Pakistan Employees Service Regulations, 2015, on the recommendations of Policy Board with two-third majority for CEO and simple majority for Directors, after serving ninety days' notice---Policy Board reconsidered the case of petitioner under Regln. 10(1) of Drug Regulatory Authority of Pakistan Employees Service Regulations, 2015, and unanimously decided to recommend termination of his services on the ground that he was awarded eight additional marks by each member of the Interview Committee and on the basis of his unrecognized PhD degree and that after deduction of such additional marks, he had lost his first position in the merit list---High Court declined to interfere in the order passed by authorities---Constitutional petition was dismissed in circumstances.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Haji Nasir Mehmood v. Mian Imran Masood PLD 2010 SC 1089; The Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207; Shahid Masood Nadeem v. DY. C.A.A.F. Lahore Cantt. 2003 PLC (C.S.) 1262; Nazir Ahmad Panhwar v. Government of Sindh 2005 SCMR 1814; Muhammad Sadiq v. Punjab Service Tribunal, Lahore 2007 SCMR 318; Senate through Chairman v. Shahiq Ahmed Khan 2016 SCMR 460; Government of the Punjab v. Muhammad Imran 2019 SCMR 643; Moazzam Husain Khan v. Government of Pakistan PLD 1958 (W.P.) Kar. 35; Allauddin Akhtar v. Government of Punjab 1982 CLC 515; Dr. Aftab Ahmad Malik v. University of Engineering and Technology 2005 PLC (C.S.) 80; Homoeopathic Doctor Muhammad Zahir v. Federation of Pakistan 2011 CLC 427; Mrs. Jamshed Naqvi v. Azad Jammu and Kashmir Government 2013 PLC (C.S.) 1037; Babar Sattar v. Federation of Pakistan 2016 CLD 134; P.L. Dhingra v. Union of India AIR 1958 SC 36; L.P. Agarwal v. Union of India AIR 1992 SC 1872; P. Venugopal v. Union of India (2008) 5 SCC 1; Secretary to Government of the Punjab v. Muhammad Khalid Usmani 2016 SCMR 2125; Al-Jehad Trust v. Federation of Pakistan PLD 2011 SC 811; Naveeda Tufail v. Government of Punjab 2003 SCMR 291; Pakistan Railways, through GM, Lahore v. Zafarullah, Assistant Electrical Engineer 1997 SCMR 1730; Javed Nawab v. Chief Secretary, Government of Balochistan 1998 SCMR 2337 and Rab Nawaz Dhadwana v. Muhammad Akram PLD 2014 Lah. 591 ref.

Barrister Haroon Dugal, Muhammad Shah Rukh Sheikh, Salman Saeed Sheikh, Muhammad Aftab Alam Rana and Hafiz Muhammad Mazhar for Petitioners.

Khurram Ibrahim Baig for H.E.C./Respondent No.2

Muhammad Wasiq Hassan Kiani for Respondents Nos.9 to 11.

Arshid Mehmood Kiani, learned Deputy Attorney-General.

Hafiz Bilal Bin Akbar, Assistant Director (Legal) and Ulfat Rasool, Assistant Director (Admin), D.R.A.P.

2021 P L C (C.S.) 140

[Islamabad High Court]

Before Ghulam Azam Qambrani, J

NISAR KHAN KHATTAK

Versus

Haji ADAM, DIRECTOR GENERAL (ADMIN), PEMRA HEADQUARTER, MAUVE AREA, ISLAMABAD and another

Writ Petition No.3712 of 2013, decided on 24th September, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Quo warranto, writ of---Public office holder---Conduct of petitioner---Laches---Scope---Petitioner called in question the appointment of respondent as General Manager by (Pakistan Electronic Media Regulatory Authority) [PEMRA]---Validity---Chairman and the Members of PEMRA were public office holders for the purposes of Art. 199 of the Constitution but not every officer performing minute functions could be regarded as a public office holder---Post of General Manager was a senior position but it was not appointed by Federal Government---Basic purpose of filing the constitutional petition seemed to be the issuance of show cause notice to the General Manager (Operations)---Petitioner had not challenged the appointment of similarly placed person, who was appointed with the respondent, which showed his mala fide and personal grudge---Petition was hit by laches being filed after a lapse of 04 years of the appointment---Respondent was appointed on the recommendation of the Selection Board---Service regulations of PEMRA were non-statutory and its employees were not public servants---Petitioner had also failed to explain as to how he was able to lay his hands on the confidential/important documents of the department which was annexed with the petition---Petition was dismissed.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Limited, Tokht Bhai and 10 others PLD 1975 SC 244; Sohail Baig Noori v. High Court of Sindh through Registrar and 2 others 2017 PLC (C.S.) 1142; Amjad Ali v. Federation of Pakistan and others Writ Petition No.2060/2018; State Bank of Pakistan v. Imtiaz Ali Khan 2012 PLC (C.S.) 218; Member (S&R)/Chief Settlement Commissioner v. Ashfaque Ali PLD 2003 SC 132; Muhammad Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774; Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571 and Muzaffar Hussain, Principal, Government Weaving and Finishing Institute, Shahdarah, Lahore v. Punjab Public Service Commission through Secretary and 2 others 2001 PLC (C.S.) 634 rel.

Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571; Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.) 1328; Ashfak Jumani v. Federation of Pakistan and 2 others Writ Petition No.1538/2011 and S. Sharif Ahmed Hashmi v. The Chairman, Screening Committee, Lahore and another 1980 SCMR 711 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Quo warranto, writ of---Public office holder---Scope---Person against whom a writ in the nature of quo warranto under Art. 199(1)(b)(ii) of the Constitution is sought must hold a public office---Writ in the nature of quo warranto would not be competent if the person, against whom it is being sought, does not hold a public office.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quo warranto, writ of---Scope---Writ of quo warranto calls upon the holder of a public office to show to the Court under what authority he is holding that office---Court may oust a person from an office to which he is not entitled---Quo warranto is issued against the usurper of an office and the appointing authority is not a party---Quo warranto proceedings afford a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty so that his title to the same may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order---Procedure of quo warranto gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right.

Sohail Baig Noori v. High Court of Sindh through Registrar and 2 others 2017 PLC (C.S.) 1142 rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---Quo warranto, writ of---Public office holder discharging public duty---Scope---Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests---All powers so vested in him are meant to be exercised for public good and promoting the public interest; this is equally true of all actions even in the field of contract---Every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quo warranto, writ of---Scope---Conduct and motive of the petitioner while deciding writ of quo warranto cannot be ruled out.

Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.) 1328 ref.

(f) Constitution of Pakistan---

----Art.199---Constitutional petition---Quo warranto, writ of---Conduct of petitioner---Effect---Granting relief in the nature of quo warranto is within the discretionary power of the superior Courts and this relief cannot be allowed as a matter of course, rather the conduct and the bona fides of the petitioner, the cause and the object of filing such petition are also of considerable importance, which are to be examined---If the petition has been filed with some mala fide intent or ulterior motive and to serve the purpose of someone else, the remedy of quo warranto cannot be allowed to be a tool in the hands of the petitioner, who approached High Court with mala fide intentions and either had his own personal grudge and score to settle with the holder of a public office or is a proxy for someone else, who had a similar object or motive---Remedy of quo warranto should not be allowed to be used as a pressure tactic for purposes of restraining the respondent from performing functions and discharging their duties in accordance with the Constitution and the law---Relief of quo warranto should not be allowed as matter of course, more so when the candidature of a candidate was duly scrutinized at the time of the scrutiny of his appointment to ascertain whether he was qualified or disqualified in terms of the Constitution and the law---Court is not required to go into the merits of the case and should summarily dismiss the petition on the basis of lack of bona fides and extraneous motives of the petitioner and on account of the petition being frivolous.

Afnan Karim Kundi for Petitioner.

Shoaib Shaheen and Saif-ur-Rehman Bukhari along with Respondent No.1.

Hafiz Hifz ur Rehman and M. Anwar Mughal for Respondent Nos.2.

2021 P L C (C.S.) 168

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Syed MUHAMMAD ZARARULLAH and 7 others

Versus

FEDERATION OF PAKISTAN through Secretary, Finance Division and 2 others

Writ Petition No.3908 of 2018, decided on 30th December, 2019.

Agriculture Development Bank of Pakistan (Reorganization and Conversion) Ordinance (LX of 2002)---

----S.6---Agriculture Development Bank Employees' Pension and Gratuity Regulations, 1981, Regln. 18---Employees, status of---Commuting of pension---Petitioners were retired employees of Agriculture Development Bank of Pakistan (ADBP) who had got commuted their pensions at the time of their retirement--- Petitioners sought increase in their pensions at the same rates as announced by Federal Government--- Validity--- Agriculture Development Bank Employees' Pension and Gratuity Regulations, 1981, (which were non-statutory) and Promotion Policy, 1999, had acquired a statutory status under new dispensation created through Agriculture Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002 and employees had acquired a legal right for their enforcement--- Petitioners and employees of Zarai Taraqiati Bank Limited (Agriculture Development Bank of Pakistan) employed prior to promulgation of Agriculture Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002, could enforce circulars and non-statutory Regulations of Zarai Taraqiati Bank Limited, issued or framed prior to the promulgation of Agriculture Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002, through Constitutional jurisdiction of High Court--- Petitioners were entitled to receive restored pension after completion of fifteen years commutation period at the same rate at which non-commuted portion of pension was paid to them--- High Court directed the authorities to determine/calculate pension payable to petitioners from the date of restoration of their commuted pension at the rate at which they were drawing 50% non-commuted pension--- Petition was allowed in circumstances.

A.A. Zuberi v. Additional Accountant General, Pakistan Revenue, Lahore 2010 PLC (C.S.) 1211; Additional Accountant General, Pakistan Revenue, Lahore v. A.A. Zuberi 2011 PLC (C.S.) 580 and Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer and others 2014 SCMR 1136 ref.

Zarai Taraqiati Bank v. Said Rehman 2013 SCMR 642 rel.

Saeed Ahmed Zaidi for Petitioner.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General.

Rashid Mahmood Ansari for Respondents Nos.2 and 3.

Muhammad Yunas, O.G-I, Z.T.B.L.

2021 P L C (C.S.) 212

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

Dr. AAMNA SALEEM KHAN

Versus

NATIONAL UNIVERSITY OF SCIENCES AND TECHNOLOGY (NUST), ISLAMABAD through Rector and 4 others

Writ Petition No.4476 of 2019, decided on 23rd September, 2020.

West Pakistan Maternity Benefit Ordinance (XXXII of 1958)---

----S.7--- West Pakistan Employees' Social Security Ordinance (X of 1965), S.38---ILO (International Labour Organization) Convention on Maternity Protection (183 of 2000), Arts.3, 4 & 5--- Convention on Elimination of Discrimination against Women 1979, Arts.2 & 11--- Universal Declaration of Human Rights, Art.23--- Constitution of Pakistan, Arts. 9, 18, 27 & 35---Women rights--- Maternity leave--- Mother and child, protection of--- Petitioner was Associate Professor in National University of Science and Technology who was granted maternity leave and then her services were terminated--- Validity--- It was obligatory of the government to provide a favourable working atmosphere, which in ordinary sense, included security, protection, remuneration, leave, right of dignity, self-respect and other economic and social rights with job hierarchy--- Cancellation of already granted maternity leave amounted to denial of favourable condition which was warranted under different instruments---Any penalization of woman employee, who was unable to attend work due to compelling family responsibilities of child care was to be eliminated--- Pregnancy was not a medical condition, which arose unexpectedly and same required preferential and humanly treatment to be given to a female employee, who was going through such life cycle---Quranic injunctions provide a complete mechanism of protection to a lactating mother, whereby no harm can be given to such mother and even father of a child has been directed to provide due care and maintenance---Concept of provision maintenance has also been referred in the Quranic injunctions and such obligations if not fulfilled are considered to be a sin and violation of Almighty Hukam (Direction)--- High Court directed that all departments, corporations, institutions, divisions, companies, public sector companies were under obligation to protect and provide maternity leave/pay to female workers / employees whether provided in their rules or regulations or otherwise--- High Court also directed that every female worker, employee whether temporary or contract, ad-hoc, daily wages, contingent paid, domestic worker or permanent was entitled for maternity leave benefits with pay and job protection--- High Court restrained everyone from terminating female employee/worker due to her pregnancy or deprive her from her paid leave rights, any such order under law, Constitutional guarantee or international Covenant was considered to be illegal and such employee, worker was entitled for compensation in addition to her substantive financial rights--- High Court further directed that no notice of termination from a job or employment could be given by employer during maternity leave to a female worker / employee nor notice period would be considered valid during pregnancy--- High Court set aside office order issued by the University (Employer) and petitioner was reinstated in her service with all back benefits--- Petition was allowed in circumstances.

The Rector National University of Science and Technology (NUST), Islamabad and others v. Driver Muhammad Akhtar C.P. No. 495 of 2010; Tajwali Shah v. Bakhti Zaman 2019 SCMR 84 ; Rupa Sayed v. Pakistan International Airlines Corporation 2009 PLC (C.S) 928; Air India v. Nergesh Meerza (1981) 4 SCC 335; Neetu Bala v. Union of India 2016 SCC Online P&H 602; Seema Gupta v. Guru Nanak Institute Management 2006 SCC Online Del 1421; Sureh Baqarah verse 232, 233 and Sureh Talaq verse 65 rel.

Aaqib Siddique for Petitioner.

Aasim Shafi for Respondent.

2021 P L C (C.S.) 280

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

HASEEB IFTIKHAR AHMAD

Versus

The SECRETARY, LAW AND JUSTICE DIVISION, GOVERNMENT OF PAKISTAN and another

Writ Petitions Nos.324 and 532 of 2017, decided on 14th February, 2018.

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

----R.3---SRO No.747(I)/98, dated 01-07-1998---Writ of quo warranto---Scope---Petitioners sought issuance of writ of quo warranto against authorities, challenging his appointment by transfer as Assistant Registrar---Validity---Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (the Rules) provided that the method of appointment and qualifications and other conditions applicable to a post shall be laid down by the Establishment Division---Ministry of Law, Justice and Human Rights in pursuance of R.3(2) of the Rules vide notification SRO No.747(I)/98, dated 01-07-1998 had laid down the method of appointment against the post of Assistant Registrar which provided that the post shall be filled in by initial appointment and failing that by transfer---Representative of Ministry of Law admitted that no process was initiated at any stage for the appointment of Assistant Registrar to be made by initial appointment---Use of words "failing that" in the said notification implied that an appointment by transfer could only be made if the process initiated for filing the post of Assistant Registrar by initial appointment was not successful---Constitutional petitions were allowed and the impugned appointment by transfer was declared as unlawful.

Muhammad Ali v. Province of Khyber Pakhtunkhwa 2012 SCMR 673 and Mubashir Raza Jaffari v. Employees Old-Age Benefits Institution 2014 SCMR 949 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Writ of quo warranto---Scope---Essential condition for the issuance of writ of quo warranto is that the appointment in question should have been made without the authority of the law or in other words contrary to the relevant statutory provisions.

Muhammad Shahid Kamal Khan and Chaudhary Amjad Ali for Petitioners.

Ghulam Muhammad Khan for Respondent No.2 (in W.P.No.324/2017) and for Respondent No.6 (in W.P.No.532/2017).

Raja Ahsan Mehmood Satti, learned Assistant Attorney-General.

Shafique Ahmad, Deputy Secretary (Law-I), Ministry of Law, Justice and Human Rights.

Kamran Raffat, Deputy Director, Federal Public Service Commission.

2021 P L C (C.S.) 351

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

RASHID MEHMOOD CHAUDHRY

Versus

MINISTRY OF SCIENCE AND TECHNOLOGY and another

Writ Petition No.1634 of 2020, decided on 9th December, 2020.

Civil service---

----Scrapping of recruitment process---Scope---Petitioner assailed the departmental decision to scrap the recruitment process and sought direction to the department to issue him appointment letter as he was amongst the shortlisted candidates who were interviewed---Validity---No person was appointed pursuant to the recruitment process and the petitioner had re-applied for appointment in response to fresh advertisement, therefore, petitioner's fundamental rights were not transgressed by the departmental decision---Establishment Division's office memorandum provided inter alia that ministries/ divisions/ departments/ attached departments/ sub-ordinate offices/ autonomous bodies/ semi-autonomous bodies/ corporations authorities, etc were required to finalize the recruitment process within 120 days from the date of advertisement, which was not done in the present case and it was a valid ground for scrapping the recruitment process---Second ground on which the recruitment process was scrapped was that the Director General of the concerned department who was holding the post on look after charge basis had chaired the Departmental Selection Committee which was contrary to administrative instructions or policy contained in the office memorandum issued by Establishment Division on the subject of "exercise of administrative/financial powers while holding look after charge"---Constitutional petition was dismissed.

Muhammad Shahzad Siddiq for Petitioner.

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

Akhtar Ali Boghio, Director General, Pakistan Halal Authority.

Muhammad Ahmed Iqbal, Law Officer, Ministry of Science and Technology.

2021 P L C (C.S.) 399

[Islamabad High Court]

Before Lubna Saleem Pervez, J

KHUSHDIL KHAN MALIK

Versus

The ACCOUNTANT GENERAL PAKISTAN REVENUES (AGPR) and another

R.F.A. No.97 of 2020, decided on 29th July, 2020.

Civil Servants Act (LXXI of 1973)---

----S.17---Civil Service Regulations (CSR), Art.38---Federal Service Tribunals Act (LXX of 1973), S.4---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration and recovery of honorarium---Terms and conditions of service---Plaint, rejection of---Appeal before Service Tribunal, filing of---Requirements---Trial Court rejected the plaint on the ground that plaintiff was a civil servant and Civil Court had no jurisdiction to adjudicate terms and conditions of service---Validity---Plaintiff-civil servant had been granted honorarium by the Cabinet Division---Defendant had refused to release duly sanctioned special incentive to the plaintiff---Civil servant had no other option but to file a suit for recovery of said amount before the Civil Court---Special pay, incentive and honorarium had not been included in the pay of a civil servant---Appeal against the order of the departmental authority lay before Service Tribunal---No adverse order of any departmental authority had been passed against the plaintiff-civil servant---Honorarium and special incentive did not form part of terms and conditions of a civil servant---No appeal could be filed before Service Tribunal as there did not exist order of departmental authority---Civil Court had jurisdiction to entertain the case of plaintiff, in circumstances---Impugned order passed by the Court below was set aside and matter was remanded for decision on merits---Appeal was allowed, in circumstances.

Madiha Ishaq v. Estate Officer 2020 PLC (C.S.) 510 ref.

Chief Secretary, Government of Punjab, Lahore v. Zia-ur-Rehman 2020 SCMR 436 and Mirza Muhammad Tufail v. District Returning Officer PLD 2007 SC 16 rel.

Raheel Azam Khan Niazi for Appellant.

Ms. Ruqayya Sami, A.A.G., Raja Waqas Khan, Sr. Auditor, AGPR and Shahid Imran (Superintendent), Ministry of Commerce for Respondents.

2021 P L C (C.S.) 486

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ZAIGHAM ABBAS and 10 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of OP and HRD and 14 others

Writ Petition No.1147 of 2020, decided on 29th July, 2020.

(a) Civil service---

----Amendments in policy---Retrospective effect---Scope---Petitioners assailed retrospective application of amendments approved by the Prime Minister in the "Policy Guidelines for Foreign Appointments and Postings in Pakistan's "Diplomatic Missions Abroad" and against Pakistan's "Seats in International, Multilateral", "Bilateral and Regional Organizations, Fora" and "Bodies"---Effect of the Prime Minister's approval was that 60% weightage was to be given to the written test scores and 40% weightage was to be given to the interview scores---High Court observed that when the petitioners sat in the written test, they did so bearing in mind that their result in written test would play a dominant role in the appointment process---Provisions of previous policy were amended to the petitioners' disadvantage after they had obtained the qualifying scores in the written test---Amendments in the policy could not be given retrospective effect---Petitioners were ordered by the High Court to be dealt with by giving 80% weightage to their written test scores and 20% weightage to the interview scores and it was also ordered that they shall not be considered as failed by not obtaining 50% marks in their interview---Constitutional petition was allowed, in circumstances.

Government of N.-W.F.P. v. Rukhsar Ali 2007 PLC (C.S.) 833; Flying Cement Co. Ltd. v. Government of Pakistan PLD 2015 Lah. 146; Muhammad Ali v. Lahore Development Authority 2017 YLR 1087 and Additional Chief Secretary, Government of Punjab v. Mansoor-ul-Haq 2017 PLC (C.S.) 358 rel.

(b) Constitution of Pakistan---

---Art.199---Constitutional jurisdiction---Judicial review of administrative actions---Policy decision---Scope---There are no fetters on the Government in amending its policies for the better---Superior Courts have generally exercised judicial restraint in interfering with the policy-making domain of the Executive while exercising its power of judicial review of administrative actions.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Government of Pakistan v. Zamir Ahmed Khan PLD 1975 SC 667; Watan Party v. Federation of Pakistan PLD 2006 SC 697; Suo Motu Case No.10 of 2007 PLD 2008 SC 673; Dr. Akhtar Hussain v. Federation of Pakistan 2012 SCMR 455; Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd. 2013 SCMR 1749; Ghulam Rasool v. Government of Pakistan PLD 2015 SC 6 and Ministry of Inter-Provincial Coordination v. Major (R) Ahmad Nadeem Sadal 2014 CLC 600 ref.

Azra Jamali v. Federation of Pakistan through Secretary, Ministry of Commerce 2017 PLC (C.S.) 533 rel.

(c) Notification---

----Retrospective effect---Scope---Notifications do not operate retrospectively unless the statute under which they are issued provides for such retrospectivity---Same principle applies to the policies made by the Executive.

Shahid Mehmood Khokhar for Petitioner.

Arshid Mehmood Kiyani, learned Deputy Attorney-General.

Jehangir Khan Jadoon and Fayyaz Brohi for Respondents Nos.5 to 13.

Umair Majeed Malik, Advocate for Respondents Nos.14 and 15.

Nadeem Arshad, Section Officer Establishment Division.

Omer Farooq Rana, Human Resource Advisor.

Noor-ul-Ain, Section Officer Ministry of OP&HRD.

2021 P L C (C.S.) 513

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

GUL MUHAMMAD

Versus

CHAIRMAN, FEDERAL BOARD OF REVENUE / SECRETARY REVENUE DIVISION, ISLAMABAD and 3 others

Writ Petition No.1351 of 2018, decided on 25th February, 2021.

Civil service---

----Medical treatment of public officials in foreign countries ---- Reimbursement of expenses occurred in such treatment --- Federal Government's Policy Regarding Medical Treatment Abroad --- Scope--- Petitioner, who was a retired civil servant, sought reimbursement of medical expenses incurred on liver transplant, which procedure was performed abroad ---Contention of petitioner, inter alia, was that he had applied for grant of such funds before procedure, which request was declined by the Department, and therefore had paid the expenses on his own, and was entitled to reimbursement of same ---- Validity--- High Court directed that unless Federal Government abided by its earlier decision to ban medical treatment at State expense for public officials, henceforth guidance should be taken by the Prime Minister from "Policy Regarding Medical Treatment Abroad" dated 14.01.1996 while deciding applications for medical treatment by public officials, until such time a fresh policy was formulated by the Government ---- Per said Policy, prior sanction was to be obtained for reimbursement of any medical expenses, and nothing on record showed that petitioner obtained such sanction, therefore no direction for payment of reimbursement amount could be made by High Court---Constitutional petition was dismissed, in circumstances.

Muhammad Aslam v. Federation of Pakistan 2019 PLC (C.S.) 652 and Tariq Aziz ud Din and other's case 2010 SCMR 1301 rel.

Abdul Rahim Bhatti, Yaser Rahim Bhatti and Qaiser Rahim Bhatti for Petitioners.

M.D. Shahzad and Ch. Talib Hussain, Muhammad Nadeem Khan Khakwani, Assistant Attorney-General for Respondents.

Majid Khan, A.D. (Legal), Ministry of N.H.S.R.&C.

2021 P L C (C.S.) 615

[Islamabad High Court]

Before Aamer Farooq, J

MUHAMMAD AMIN and another

Versus

MINISTRY OF INTERIOR, through Secretary, Government of Pakistan and 2 others

Writ Petitions Nos. 444, 703, 4248, 3083 and 831 of 2018, decided on 10th November, 2020.

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

----Ss.3 & 44---Constitution of Pakistan, Art.199---Constitutional petition---Quo warranto, writ of---Appointment of Chairman National Database and Registration Authority (NADRA)---Non-framing of rules---Official record, copies of---Petitioner assailed appointment of Chairman on the plea that criteria was changed with malice and preset mind---Validity---Criteria for appointment of Chairman NADRA vested with Federal Government / relevant Ministry---Lack of rules did not per se made exercise of discretion by appointing Authority or persons concerned with selection process wrong---All that was to be seen was whether discretion had been exercised in a reasonable and structured manner---Advertising the post was not required as no such requirement existed in S.3(5) of National Database and Registration Authority Ordinance, 2000, and there were no rules for appointment of the post of Chairman NADRA or Members---Appointment was to be in a transparent manner the entire process of advertisement and selection was carried out---If malice or preset mind was to be attributed to Federal Government, it could have done so right from its inception---Cabinet i.e. Federal Government approved appointment of respondent as Chairman NADRA and communication of approval was intimated---High Court declined to interfere as there was no legal flaw in the appointment of Chairman NADRA and respondent fulfilled eligibility requirement as provided in S.3(7) of National Database and Registration Authority Ordinance, 2000 or the advertisement---High Court directed the Federal Government to look into the matter that its internal record or confidential documents should not end up in the hands of person who were not authorized to have access to the files and in case such had happened an inquiry should be held and culprits were to be proceeded with in accordance with law---High Court directed Establishment Division to issue circular intimating all departments to ensure confidentiality of record---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; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 PTD 1100; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Dr. Farzana Bari v. Ministry of Law, Justice and Human Rights through Secretary and 3 others PLD 2018 Isl. 127; Arshad Mehmood and others v. Government of Punjab through Secretary Transport Civil Secretariat Lahore and others PLD 2005 SC 193; Obaidullah and another v. Habibullah and others PLD 1997 SC 835; Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Director General Multan Development Authority and another v. Nasir Ahmad Tanveer Bajwa 2016 PLC 245; Bashir Ahmed v. Government of Pakistan and others PLD 2011 SC 1742; Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; The Montgomery Flour and General Mills Ltd. Montgomery v. The Director Food Purchases and others PLD 1957 (W.P.) Lahore 914; Haji Ghulam Zamin and another v. A.B. Khondhar and others PLD 1965 Dacca 156; Padfield and others v. Minister of Agriculture Fisheries and Food and others (1968) 1 All ER 694; Muhammad Azram v. National Institute of Health and others 2015 PLC (C.S.) 537; Zainab Garments (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2010 Kar. 374; Federation of Pakistan and others v. Qamar Hussain Bhatti and others PLD 2004 SC 77; Muzaffar Hussain, Principal, Government Weaving and Finishing Institute, Shahdarah, Lahore v. Punjab Public Service Commission through Secretary and 2 others 2001 PLC (C.S.) 634; Dr. Azim ur Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Senator Taj Haider and others v. Government of Pakistan, through Secretary, Finance Division and others 2018 CLC 1910; Amin Jan v. Director-General, T&T and others PLD 1985 Lah. 81; Tariq Aziz ud Din and others (Human Rights Cases) 2010 SCMR 1301; Lt. Col. (R) Muhammad Talha Saeed v. Federation of Pakistan and others W.P. No.20/2018; Government of Khyber Pakhtunkhawa v. Hayat Hussain 2016 SCMR 1021; Dr. Alyas Qadeer v. Secretary Ministry of Education 2014 SCMR 997 and Muhammad Ishaq v. Government of Punjab 2005 SCMR 980 rel.

(b) Discretion

----Scope---Exercise of discretion always has to be structured and has to be exercised in a fair and reasonable manner.

Hafiz Arfat Ahmed Chaudhary, Kashifa Niaz Awan, Adnan Saeed Chaudhary, Zaman Tariq Chaudhary and Qasim Duggal for Petitioners.

Afnan Karim Kundi, Hafiz S.A. Rehman, Hafiz ur Rehman Syed and Adil Aftab for Respondents.

Raja Khalid Mehmood Khan, Deputy Attorney-General.

Saqib Jamal, (Director Legal), Ubaid ur Rehman, Umer Ali Khan and Khalid Ishaq, Law Officers.

Muhammad Faridoon, Section Officer (NADRA/NACTA).

2021 P L C (C.S.) 653

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

WALEED KHAN

Versus

WORKERS WELFARE FUND through Secretary and 3 others

Writ Petition No.668 of 2018, decided on 19th March, 2021.

(a) Civil service---

----Ad hoc appointment---Scope---Petitioner sought direction to the parent department to release his salary and other service benefits including promotion, seniority, posting and other service benefits admissible under the applicable rules---Borrowing department of petitioner in pursuance of orders passed by Supreme Court in 2013 SCMR 1752 and 2015 SCMR 456 had repatriated the petitioner to his parent department---Parent department had not permitted him to join his duties---Contention of parent department was that the petitioner was an ad hoc employee appointed for a period of six months and that at no material stage his services were regularized---Validity---Petitioner was appointed in the parent department on ad hoc basis---Very nature of petitioner's ad hoc appointment implied that it was made otherwise than in accordance with the prescribed method of recruitment---Petitioner's claim for salary against parent department was based on a misconception either that he was a permanent employee or that the ad hoc nature of his appointment stood extended beyond the initial period of six months---Parent department's refusal to take the petitioner back in service and not to give him salary did not suffer from any legal infirmity---Constitutional petition was dismissed, in circumstances.

Abu Bakar Farooq v. Muhammad Ali Rajpar 2019 SCMR 830; Muhammad Wasay Tareen v. Chief Justice of Balochistan 2005 SCMR 464; Mrs. Naila Khalid v. Pakistan through Secretary Defence PLD 2003 SC 420; Dr. Naveeda Tufail v. Government of Punjab 2003 SCMR 291; Amjad Ali v. Board of Intermediate and Secondary Education 2001 SCMR 125; Muhammad Azam Khan Government of N.-W.F.P. 1998 SCMR 204; Federation of Pakistan v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Azam Ali v. Government of the Punjab 1985 SCMR 1408; Ghulam Sarwar v. Province of Punjab 1982 SCMR 46 and Muhammad Afzal v. Government of the Punjab 1982 SCMR 408 rel.

(b) Civil service---

----Ad hoc appointment---Scope---An ad hoc or a contract employee cannot be absorbed in the borrowing department unless his services are regularized and he is made a permanent employee in his parent department.

Muhammad Umair Baloch and Saif-ur-Rehman Shah Bukhari for Petitioners.

Tahir Mehmood Abbasi, Muhammad Nadeem Khan Khakwani, Assistant Attorney-General and Faisal Tariq, Deputy Director, W.W.F. for Respondents.

2021 P L C (C.S.) 689

[Islamabad High Court]

Before Lubna Saleem Pervez, J

NARGIS SHAZIA CHAUDHRY

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman

Writ Petition No.2405 of 2016, decided on 11th January, 2021.

Constitution of Pakistan---

----Art.189---Judgment of Supreme Court---Scope---Judgment per incuriam---Determination---Petitioner assailed order passed by Federal Public Service Commission on the directions of judgment passed by Supreme Court---Plea raised by petitioner was that judgment of Supreme Court was per incuriam---Validity--- Judgments and orders of Supreme Court, unless held by the Supreme Court to be per incuriam, could neither be considered nor could be treated as per incuriam by High Courts or other subordinate Courts---Judgments and orders of Supreme Court are binding under Art.189 of the Constitution on all Courts subordinate to it---Directions were given to Federal Public Service Commission to re-decide petitioner's representation afresh---Federal Public Service Commission validly issued recommendations for reallocating petitioner in other service group---Constitutional petition was dismissed, in circumstances.

Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan 2006 SCMR 1317; Ferozuddin and others v. Mazhar Hussain Shah PLD 2009 Kar. 397; Qaiser Mehmood v. Secretary Land and Parliamentary Affairs 2012 PLC (C.S.) 669; Secretary Economic Affairs Division, Islamabad and others v. Anwar ul Haq Ahmed and others 2013 SCMR 1687; Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari 2012 SCMR 366; Rehmatullah and others v. Saleh Khan 2007 SCMR 729; Muhammad Sabir Khan v. Rahim Bakhsh PLD 2002 SC 303; Moulana Atta-Ur-Rehman v. Al-Hajj Sardar Umar Farooq PLD 2008 SC 663; Application by Abdul Rehman Farooq Pirzada's case PLD 2013 SC 829; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice and others PLD 2009 SC 879 and Syed Shabbar Raza Rizvi and others v. Federation of Pakistan, Ministry of Law And Justice Division through Secretary, Islamabad and others 2018 SCMR 514 ref.

Abdul Rehman Khan for Petitioner.

Raja Saim ul Haq Satti for Respondent.

Farrukh Shahzad Dall, A.A.G. and Syed Nazar Hussain Shah, A.A.G.

Ms. Aisha Bashir Wani, Joint Secretary, Jamil Akhtar, Deputy Secretary (Lit.), Nadeem Arshad, S.O and Mahmood Khan Lakho, S.O, Establishment Division.

Haroon Rashid, Deputy Director, FPSC.

2021 P L C (C.S.) 740

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD YAQOOB

Versus

HYDRO-CARBON DEVELOPMENT INSTITUTE OF PAKISTAN

Writ Petition No.2750 of 2017, decided on 8th November, 2019.

Hydrocarbon Development Institute of Pakistan Act (I of 2006)---

----Ss.22 & 21---Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 6 & 7---Employees of the Hydrocarbon Development Institute of Pakistan---Disciplinary proceedings against public officials---Procedure to be observed by the Inquiry Officer and Inquiry Committee---Scope---Petitioner, an employee of Hydrocarbon Development Institute of Pakistan, impugned Departmental disciplinary proceedings and penalty imposed on him, inter alia, on ground that such proceedings were not conducted per applicable rules--Validity---Since no regulations under Hydrocarbon Development Institute of Pakistan Act, 2006 had been prescribed for governing efficiency, conduct and discipline of employees of the Institute, therefore until such regulations were prescribed, Government Servants (Efficiency and Discipline) Rules, 1973 would apply---Under R.6(1) of Government Servants (Efficiency and Discipline) Rules, 1973, an authorized officer or Inquiry Committee was to frame a charge and communicate same to an accused together with statement of allegations explaining such charge and relevant circumstances, and in present case, complete disregard was shown in Departmental proceedings against petitioner---Nothing on record revealed a regular inquiry against petitioner was dispensed with --- Proceedings were therefore not in conformity of requirements of Government Servants (Efficiency and Discipline) Rules, 1973, and were liable to be set aside---Constitutional petition was allowed, accordingly.

Muhammad Ismail Shahid v. Executive District Officer (Revenue), Lahore 2008 SCMR 609; Shams-ud-Din Khawaja v. Government of Pakistan PLD 2003 SC 187; Tariq Mehmood v. District Police Officer PLD 2008 SC 451; Khuda-i-Nazar v. The Curator 2000 SCMR 1743; Major Muhammad Nawaz v. Pakistan through Secretary Communications, Government of Pakistan, Islamabad PLD 1970 Lah. 811; Clifton and Defence Traders Welfare Association through General Secretary v. President Clifton, Cantonment Board 2003 PLD Kar. 495; Walt Dad v. Mst. Tasneem Kausar 1999 CLC 163; Fazl ur Rehman v. Youtius Ali Gillani 1999 MLD 1565 and PK Muhammad v. Karachi Building Control Authority 2003 YLR 1547 rel.

Muhammad Yaqoob Javaid for Petitioner.

Rehan ud Din Golra for Respondent.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General.

2021 P L C (C.S.) 777

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Mrs. NUSRAT RASHEED and another

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Education and 2 others

Writ Petition No.194 of 2020 (and other connected petitions), decided on 11th December, 2020.

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

----Rr.7, 9 & 20-A---ESTACODE, 1989 Edition, Srl. Nos.28 & 29---Establishment Manual, Vol.I (O& M)---Establishment Division's O.M. No.1(28)/75-D.II, dated 6-3-1975---Civil Service Regulation No.77, 2014 Edition (Revised)---Deputation---Absorption---Repatriation to parent department---Petitioners were civil servants posted for many years on deputation in Federal Directorate of Education (FDE)---Petitioners assailed notifications issued by authorities repatriating them to their respective departments and sought their absorption in FDE---Validity---Deputationists serving in FDE against posts in Basic Pay Scale 16 and above were not holding appointment on regular basis under Federal Government---Appointment on deputation was on temporary nature---Any officer was said to be on deputation under Civil Service Regulation No.77, 2014 Edition (Revised) when he was detached on special 'temporary duty' for performance of which there was no permanently or temporarily sanctioned appointment---Deputationists appointed to posts in Basic Pay Scale 16 and above in FDE could not be considered for appointment by transfer in FDE as they did not hold an appointment on regular basis under Federal Government---Petitioners deputationists were permanent employees of Provincial Education Departments or they were employees of Education Department of Azad Government of the State of Jammu and Kashmir or Gilgit-Baltistan---Procedure for absorption of a deputationist in borrowing department prescribed in Establishment Division's O.M. No.1 (28)/75-D.II, dated 6-3-1975, could not override the method of appointment prescribed in recruitment rules and in particular the procedure for appointment by transfer prescribed in recruitment rules---Deputationist serving in FDE could not be absorbed if he/she did not meet the eligibility criteria for appointment by transfer prescribed in recruitment rules---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Islamic Republic of Pakistan v. Israr ul Haq PLD 1981 SC 531; Muhammad Arshad Sultan, Section Officer, Cabinet Division v. Prime Minister of Pakistan, Islamabad PLD 1996 SC 771; Province of Punjab v. Ikram-ul-Haq 1986 SCMR 1994; 2013 SCMR 1752; Rasheed Tareen v. Chairman Workers Welfare Board, Balochistan 2012 PLC (C.S.) 54; Muhammad Ali v. Province of Khyber Pakhtunkhwa 2012 SCMR 673; Syed Mubashir Raza Jaffari v. Employees Old-Age Benefits Institution 2014 SCMR 949; Dr. Shamim Tariq v. International Islamic University, Islamabad 2020 PLC (C.S.) 499; Muhammad Sharif Tareen v. Government of Balochistan 2018 SCMR 54 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

Zubair v. Federation of Pakistan 2016 PLC C.S. 259; Rashid Gul v. Controlling Authority, Board of Intermediate and Secondary Education, Mardan 2017 PLC (C.S.) Note 32; Dr. Altaf Hussain v. Federation of Pakistan 2013 PLC (C.S.) 1178; Safeer Hussain v. Federation of Pakistan 2013 PLC (C.S.) 28; Syed Imtiaz Ali Shah v. Government of Sindh 2012 PLC (C.S.) 1232; Safdar Ali Sahito v. Province of Sindh 2011 PLC (C.S.) 956; Ghansham Das v. Federation of Pakistan 2017 PLC (C.S.) 191; Muhammad Yousaf v. Abdul Rashid 1996 SCMR 1297; Azra Riffat Rana v. Secretary, Ministry of Housing and Works PLD 2008 SC 476; Fazali Rehmani v. Chief Minister, N.-W.F.P. PLD 2008 SC 769; Fazl-i-Qadir v. Secretary, Establishment Division PLD 1988 SC 131; Suo Motu case No.24/2011 PLD 2011 SC 277; Pir Muhammad Qureshi v. Chairman, P.O.F. Board, Wah Cantt. 1998 PLC (C.S.) 476 and Muhammad Masroor-ul-Haq v. Federation of Pakistan through Secretary, Ministry of Overseas Pakistani and HRD, Islamabad 2017 PLC (C.S.) 1365 rel.

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

----Rr.7 & 9---Deputationists---Absorption---Principle---Deputationists cannot be considered for absorption without considering other persons eligible in terms of Rr.7 & 9 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, for appointment by transfer to the posts by subjecting both categories to a process of selection--- Any appointment by transfer is distinguished from an ordinary transfer in exigency of service for which a process of selection is not mandatory--- Appointment by transfer is a regular appointment in a particular department as a result of transfer from another one and that for such an appointment one has to go through the process of selection--- Deputationists cannot be given priority or preferential treatment over other candidates who are eligible for appointment by transfer in terms of Rr. 7 & 9 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---High Court observed that Public functionaries who facilitate or cause such appointments of deputationists without having carried out a process for promotion or initial appointment to fill post in question are not just guilty of inefficiency and misconduct by violating applicable recruitment rules but also of misuse of authority by bestowing a service advantage on the deputationists.

(c) ESTACODE---

----Object, scope and purpose---ESTACODE is a compendium of laws, rules and administrative instructions pertaining to terms and conditions of service of civil servants---ESTACODE serves as a standard reference work in officialdom.

(d) Civil service---

----Administrative instructions and policy guidelines---Scope---Breach of administrative instructions and policy guidelines by public functionaries amounts not only to inefficiency but also misconduct and exposes delinquent official to disciplinary action.

Ghansham Das v. Federation of Pakistan 2017 PLC (C.S.) 191; Muhammad Yousaf v. Abdul Rashid 1996 SCMR 1297; Azra Riffat Rana v. Secretary, Ministry of Housing and Works PLD 2008 SC 476 and Fazali Rehmani v. Chief Minister, N.-W.F.P. PLD 2008 SC 769 rel.

(e) ESTACODE, 1989 Edition---

----Srl. No.28---Deputation---Tenure---Failure to report to parent department---Effect---Upon completion of maximum permissible deputation period of five years, it is obligatory upon borrowing department to repatriate a deputationist to parent department---Failure on the part of borrowing department to repatriate a deputationist who completes maximum permissible deputation period of five years is an actionable wrong---High Court observed that payment of salary to a deputationist beyond maximum deputation period of five years is an unnecessary and unjustified burden on exchequer and has to be made good from personal coffers of public functionaries in borrowing department who are derelict in their duty in not relieving a deputationist upon completion of the period.

(f) Civil service---

----ESTACODE, 1989 Edition, Srl. No. 28---Deputation---Tenure, completion of---Repatriation---Principle---Deputationist may not necessarily complete tenure for which he/she was sent on deputation---Power is vested with competent authority to repatriate a deputationist without assigning any reason---Transfer on deputation---No vested right accrues to a deputationist to continue for period of deputation---Competent authority is empowered to repatriate a deputationist as and when exigencies of service require.

Dr. Shafi-ur-Rehman Afridi v. CDA Islamabad 2010 SCMR 378; Mst. Robia Ayub v. Federation of Pakistan, 2013 PLC (C.S.) 915; Syed Imran Qadir Gilani v. Federation of Pakistan 2020 PLC (C.S.) 815; S. Masood Abbas Rizvi v. Federation of Pakistan and others 2014 SCMR 799; Pakistan v. Fazal Rahman Khundkar PLD 1959 SC 82; Abdul Majeed v. Chief Secretary, Punjab 2015 PLC (C.S.) 1381 and Lal Khan v. Employees Old Age Benefit Institution 2010 PLC (C.S.) 1377 rel.

(g) Fundamental Rules---

----R.14-A(a)---ESTACODE, 1989 Edition, Srl. No. 28---Lien of deputationist--- Scope--- Lien of government servant holding substantively a permanent post is terminated on his appointment substantively to a permanent post outside the cadre on which he is borne---Government servant on deputation from Provincial Government retains a lien on permanent post in his parent office till his confirmation in borrowing department.

Chief Secretary, Government of N.-W.F.P. v. Zafarmand Ali 2005 SCMR 1212; Muhammad Israrullah v. Assistant Director, Manpower 2005 SCMR 716; Executive Engineer, Provincial Building Circle, Lahore v. Muzaffar Bil Haq 2000 SCMR 656; Secretary Education v. Viqar-ul-Haq 2000 SCMR 1780 and Mazhar Ali v. Federation of Pakistan 1992 SCMR 435 rel.

Petitioner by.

Muhammad Asif Gujjar, Muhammad Masroof Khan and Amna Ali for petitioners' (in W.Ps. Nos.194, 932, 1212, 1425, 1471, 1486, 1800, 1851, 2447 and 2634 of 2020).

Raja Saif-ur-Rehman for Petitioner (in W.P.s Nos.1520 and 2242 of 2020).

Ali Murad Baloch for Petitioner (in W.P. No.1146 of 2020).

Syed Sadaqat Ali for Petitioner (in W.P. No.1158/2020).

Zil-e-Huma and Ahmad Shahzad Awan for Petitioner (in W.P.No.2216 of 2020).

Syed Mumtaz Mazhar Naqvi for Petitioner (in W.P. No.2677 of 2020).

Respondent by

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General.

Saqib Shahab, Director (P&D) F.D.E.

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

Tahir Taj, Deputy Director A.E.P.A.M.

Zafar Ismail, Deputy Secretary (Regulation) and Nadeem Arshad Section Officer, Establishment Division.

2021 P L C (C.S.) 839

[Islamabad High Court]

Before Babar Sattar, J

Qazi ZAHEER AHMAD

Versus

FEDERAL OMBUDSMAN SECRETARIAT FOR PROTECTION AGAINST HARASSMENT AT WORKPLACE, ISLAMABAD and 2 others

Writ Petition No.91 of 2021, decided on 13th January, 2021.

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

----S.8---Ombudsperson to inquire into complaint---Preference of complaint either to the Ombudsperson or Inquiry Committee---Complaint before both forums---Scope---Petitioner assailed maintainability of complaint filed by respondent before the Federal Ombudsman for Protection Against Harassment at Workplace---Contention of petitioner was that the respondent had earlier preferred a complaint to the Inquiry Committee, which was withdrawn through a compromise agreement and that under S.8 of the Protection Against Harassment of Women at the Workplace Act, 2010, the respondent could either file a complaint before the Inquiry Committee or before the Federal Ombudsman and not before both the forums---Validity---Where a complainant was dissatisfied with the action or inaction of the Inquiry Committee or the Competent Authority, it was the Ombudsman that the complainant ought to approach for redressal of such grievance---Constitutional petition was dismissed with cost.

S.M. Waseem Ashraf v. Federation of Pakistan 2013 SCMR 338 distinguished.

Sardar Farooq Ahmed Khan Laghari's case PLD 1992 SC 57; District Bar Association's case PLD 2015 SC 401 and Chief Justice of Pakistan v. President of Pakistan PLD 2010 SC 61 ref.

Saleem Baig Javed v. Federal Ombudsman and others PLD 2016 Lah. 433 rel.

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

----S.6---Appeal---Scope---Intent of the legislature in promulgating the Protection Against Harassment of Women at the Workplace Act, 2010 is to provide a safe working environment to women to protect them against harassment and to provide an informal but efficacious remedy to have the complaints of harassment adjudicated before the Inquiry Committee or the Ombudsman at the option of the complainant---Section 6 of the Protection Against Harassment of Women at the Workplace Act, 2010, provides that any party aggrieved by the decision of the Competent Authority has a right to file an appeal before the Ombudsman.

(c) Federal Ombudsman Institutional Reforms Act (XIV of 2013)---

----S.18---Constitution of Pakistan, Art.199---Protection Against Harassment of Women at the Workplace Act (IV of 2010), S.8---Constitutional jurisdiction---Scope---Complaint---Bar of jurisdiction---Scope---Federal Ombudsman Institutional Reforms Act, 2013, is to be read together with the Protection Against Harassment of Women at the Workplace Act, 2010, having been included within the definition of "relevant legislation"---Section 18 of the Federal Ombudsman Institutional Reforms Act, 2013, is an ouster clause that prohibits courts from assuming jurisdiction in relation to a matter that (i) "falls within the jurisdiction of an Ombudsman", or is (ii) "pending with or decided by an Ombudsman"---Jurisprudence in relation to ouster clauses is well-established: orders and proceedings are amenable to judicial review to the extent they suffer from lack of jurisdiction, corum non judice or mala fides and that ouster clauses cannot oust jurisdiction of constitutional courts in relation to acts and/or proceedings that suffer from such infirmity---High Court can only exercise jurisdiction in relation to a proceeding pending before the Ombudsman or an order passed by the Ombudsman if one of the following conditions is satisfied: (i) the subject-matter of the complaint pending before the Ombudsman or that forms the subject-matter of an order passed by the Ombudsman is such that falls beyond the authority and jurisdiction of the Ombudsman as defined in the Act and thus suffers from jurisdictional defect and the Ombudsman is coram non judice; (ii) the order passed by the Ombudsman is such that the Ombudsman has no authority to pass and it, thus, suffers from lack of jurisdiction or excess of jurisdiction and consequently mala fide in law; (iii) the proceedings being conducted and/or order passed suffers from mala fide in fact; (iv) the proceedings continuing before the Ombudsman or the order passed by the Ombudsman undermine the fundamental rights of a citizen, especially the right guaranteed under Art.10-A of the Constitution.

Syed Mazhar Hussain and others v. President of the Islamic Republic of Pakistan and others 2018 MLD 327 rel.

(d) Interpretation of statutes---

----Constitutional Courts are under an obligation to give effect to statutory law as opposed to interpreting text such that it renders provisions of law redundant.

2021 P L C (C.S.) 906

[Islamabad High Court]

Before Ghulam Azam Qambrani, J

Hafiz MUHAMMAD ABDULLAH

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 2 others

Writ Petition No.1971 of 2020, decided on 22nd October, 2020.

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

----R.8.04---Resignation from service---Scope---Petitioner was employee of National Accountability Bureau who tendered his resignation which was accepted by authorities and he was released from service---Petitioner sought withdrawal of his resignation on the plea of coercion and duress---Validity---Petitioner submitted his resignation on 20-11-2019 which was accepted on 6-1-2020 by competent authority---Before acceptance of resignation he was asked to deposit training costs incurred upon him, which he voluntarily deposited on 19-12-2019---Petitioner raised disputed question of fact which could not be resolved in Constitutional jurisdiction---Whether or not the resignation was tendered out of free will or under duress, could not be adjudicated while exercising jurisdiction under Art. 199 of the Constitution---Disputed questions of fact could not be determined while exercising jurisdiction under Art. 199 of the Constitution--- Constitutional petition was dismissed in circumstances.

Anwar-ul-Haq v. Secretary, Ministry of Industries and Production, Government of Pakistan Islamabad and others 2010 SCMR 1386; Registrar, Lahore High Court, Lahore v. Syed Javed Akbar and another 2007 SCMR 792; Chaudhry Khush Akthar Subhani v. Returning Officer and another 2008 YLR 2132; Dr. M.A. Haseeb Khan and others v. Sikandar Shaheen and 9 others PLD 1980 SC 139; Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others 1980 SCMR 933; Khawaja Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt Election Authority (Tribunal) and another 1981 SCMR 291; Benedict F.D' Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918; Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476; Muhammad Younis Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Shah Wali and others v. Ferozuddin and others 2000 SCMR 718; Collector of Customs and others v. Messrs Fatima Enterprises Ltd. and others 2012 SCMR 416 and Sher Afgan Khan Niaz v. Ali S. Habib and others 2011 SCMR 1813 rel.

Khaliq-ur-Rehman Saifi for Petitioner.

Yasir Saleem Rana for Respondents.

2021 P L C (C.S.) 931

[Islamabad High Court]

Before Athar Minallah, CJ and Babar Sattar, J

NADEEM BASIT KHAN

Versus

DIRECTOR GENERAL, INTELLIGENCE BUREAU, ISLAMABAD and 3 others

I.C.A. No.280-W of 2012, heard on 19th January, 2021.

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

----Preamble & Ss.2(f), 4 & 16---Civil Servants Act (LXXI of 1973), S.11---Notification dated 19-02-1997---Office Memorandum dated 06-01-2011---Reversion---Scope---Employees of the Intelligence Bureau were reverted in the year 1997---Contention of the employees was that they had the right for appointment and benefits under Ss.4 & 16 of the Sacked Employees (Reinstatement) Act, 2010 ('the Reinstatement Act, 2010')---Reversion under the Reinstatement Act, 2010---Scope---Held, that employees, were undisputedly reverted to their original posts within Intelligence Bureau through Notification dated 19-02-1997---Through Memorandum dated 06-01-2011, employees were given the option to resume service on the post of Inspector in a higher Scale (BS-17) than the scale in which they were serving upon being reverted to their original post in 1997---Employees were advised by the said Notification that they would be placed at the bottom of the seniority list of the post in which they were being reinstated and regularized and that they would not be entitled to any additional compensation pursuant to S.16 of the Reinstatement Act, 2010, and that they would have no right to claim seniority or arrears of pay after being promoted to BS-17---Through later circular dated 03-02-2011, respondent (DG Intelligence Bureau) advised all Heads of the Intelligence Bureau Wings that the option offered to the employees of the respondent by memorandum dated 06-01-2011 could not be exercised on conditional basis and pursuant to the said memorandum, the employees accepted the option offered to them under the said memorandum---Preamble and other provisions, including S.2(f) of the Reinstatement Act, 2010, stipulated that the intent of the Legislature was to create a beneficial legislation for various categories of employees who were dismissed, removed or terminated from service within the period specified in the Reinstatement Act, 2010---Employees were never dismissed/removed/terminated from service and were only reverted to lower posts against which they held lien---Employees remained in the service of respondent all along---Reversion of the civil servant or employee was not a subject matter within the Reinstatement Act, 2010---Reinstatement Act, 2010, neither created any right for a civil servant or employee that had been subjected to reversion to a lower post within specified period nor a mechanism to remedy an employee aggrieved by such action---No illegality or infirmity was found in the impugned order and judgment passed by the single bench of High Court dismissing the constitutional petitions of the employees/appellants---Intra-Court Appeal was dismissed, in circumstances.

(b) Doctrine of casus omissus---

----Sacked Employees (Reinstatement) Act (XXII of 2010), Preamble & Ss. 2(f), 4 & 16---Casus Omissus, doctrine of---Courts could not supply language that was provided in the statute---As Reinstatement Act, 2010, did not cater to purport grievance of the appellants, they could not claim right or remedy under the same ---Court could not interpret provisions of the Reinstatement Act, 2010, such as to include therein what was not provided in the text of the statute---No illegality or infirmity was found in the impugned order and judgment passed by the single bench of High Court dismissing the constitutional petitions of the employees/appellants---Intra-Court Appeal was dismissed, in circumstances.

(c) Constitution of Pakistan---

----Art.212---Civil Servants Act (LXXI of 1973), Preamble---Terms and conditions of civil servant------Jurisdiction of High Court---Scope---Appellants/employees were civil servants covered by Civil Servants Act, 1973 and their invoking constitutional jurisdiction to seek adjudication of terms and conditions of their service were barred under Art.212 of the Constitution---No illegality or infirmity was found in the impugned order and judgment passed by the single bench of High Court dismissing the constitutional petitions of the employees/appellants---Intra-Court Appeal was dismissed, in circumstances.

S.A. Mehmood Khan Saddozai for Appellant.

M. Saif Ullah Gondal, Assistant Attorney General for Respondents.

Amjad Iqbal, Assistant Director (Litigation) Intelligence Bureau.

2021 P L C (C.S.) 951

[Islamabad High Court]

Before Tariq Mehmood Jahangiri, J

GHULAM YASEEN JALBANI

Versus

SECRETARY MINISTRY OF SCIENCE AND TECHNOLOGY, ISLAMABAD and 3 others

Writ Petition No.893 of 2016, decided on 3rd February, 2021.

(a) Constitution of Pakistan---

----Art.199---Civil service---Constitutional petition---Laches, doctrine of---Petitioner-employee (trainee engineer) sought release of his outstanding salary accrued to him nine years ago---Petitioner invoked constitutional jurisdiction to get benefits of previous judgment passed three years back by the High Court, in which he was not a party---Held, that petitioner could not claim the benefit of the judgment, wherein he was not a party---Petitioner had filed the constitutional petition with the delay of more than nine (09) years, which was badly barred by time and hit by the principle of laches---Petitioner failed to pursue his case vigilantly and woke from deep slumber after nine years which could not be ignored without sufficient justification---Existence of laches was sufficient for dismissal of the constitutional petition---Constitutional petition was dismissed, in circumstances.

Ahmed and 25 others v. Ghama and 5 others 2005 SCMR 119; 2016 SCMR 183; PLD 2016 SC 872; 2019 SCMR 1720 and PLD 2016 SC 514 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Factual controversy---Effect---Petitioner, civil servant sought release of his outstanding seven months salary---Authorities contended that petitioner was not entitled for the salary sought for, as he had failed to attend the office during the claimed period---Held, that record revealed that there had been series of correspondence between the petitioner and the authorities wherein authorities kept asserting but he failed to attend the office during said period the petitioner continued to negate the orders of authorities---Petitioner contended that he could submit affidavit showing that he was not gainfully employed and had not drawn salary from any other source during the claimed period---Matter-in-question that whether or not the petitioner had performed his duties during said period was the case of factual controversy---High Court could not resolve such factual controversy under its constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Pakistan WAPDA Employees PEGHAM Union v. Member, National Industrial Relations, Commission Islamabad and others 2014 SCMR 1676; PLD 2011 SC 44; 2011 SCMR 1813 and 2011 SCMR 1023 ref.

Muhammad Aslam Sandhu for Petitioner.

2021 P L C (C.S.) 989

[Islamabad High Court]

Before Athar Minallah, CJ and Miangul Hassan Aurangzeb, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED

Versus

Ch. MUHAMMAD YOUSAF and others

I.C.A. No.200 of 2014, decided on 7th June, 2017.\

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

----S.19---Civil Service Regulations, Regln. 418---Government Servants (Efficiency and Discipline) Rules, 1973, R. 4---Pension and gratuity---Resignations and dismissals---Scope---Respondent's services were terminated by the employer department (appellant) in the year 1978 on the ground that he was unauthorizedly occupying a government quarter---Respondent did not challenge his termination order---Respondent, however, belatedly filed Constitutional petition for grant of pensionary benefits contending therein that he had earlier served in another government department from 1965 till his resignation in the year 1975 for taking up appointment in the employer department---Single Judge of High Court held that the respondent was so entitled on the basis of Civil Service Regulation No. 418---Appellant while referring to S.19(3) of Civil Servants Act, 1973, contended that respondent's services were terminated on the ground of misconduct, therefore, he was not entitled to pensionary benefits---Contention of respondent was that he was neither 'dismissed' nor 'removed' from service---Validity---Rule 4 of Government Servants (Efficiency and Discipline) Rules, 1973, provided for major penalties including; reduction to a lower post or time scale; compulsory retirement; removal from service and dismissal from service---Respondent's termination letter could not be read as 'dismissal' or 'removal' from service---Termination of the relationship of employer and employee could take place through dismissal, removal or compulsory retirement---Interpretation beneficial to the subject was to be adopted---Doubt created by use of the word 'termination' in the letter had to be interpreted in favour of the respondent---Respondent was held entitled to be paid his pensionary benefits---Appeal was dismissed.

(b) Interpretation of statutes---

----Penal provision---Every word in a statute is to be given its literal meaning and in case of penal provisions they are to be strictly construed, and in case of any doubt, the benefit is to be given to the subject.

Mirza Aamer Baig for Appellant.

Respondent No.1 in person.

Raheel Zafar (Manager/Legal/PTCL) for Respondents.

2021 P L C (C.S.) 1071

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. Sheikh AKHTAR HUSSAIN

Versus

FEDERATION OF PAKISTAN, through Secretary, Ministry of National Health Services, Regulation and Coordination and others

Writ Petition No.3003 of 2020, decided on 13th October, 2020.

Drug Regulatory Authority of Pakistan Employees' Service Regulations, 2015---

----Regln.10---Constitutional petition---Scope---Petitioner assailed the recommendations made by the Policy Board of the Drug Regulatory Authority of Pakistan (DRAP) to terminate the petitioner's services as the Chief Executive Officer (CEO) of DRAP primarily on the ground that the Ph.D. degree submitted by him along with other credentials was not recognized by the Higher Education Commission---Validity---Expressions "decision" and "recommendation" had different connotations---Decision was a binding adjudication of rights and claims between two or more persons whereas recommendation denoted something in the nature of a suggestion---Regulation 10(1) of the Drug Regulatory Authority of Pakistan Employees' Service Regulations, 2015 gave power to the Federal Government to remove the CEO of DRAP on the recommendations of the Policy Board---Till date, the Federal Government had not taken a decision to remove or not to remove the petitioner from the position of CEO of DRAP, therefore, constitutional petition was liable to be dismissed being premature.

Dr. Qaimuddin v. Government of N.-W.F.P. 1995 SCMR 876; Dr. Habib ur Rehman v. The West Pakistan Public Service Commission, Lahore PLD 1973 SC 144; Secretary, Establishment Division v. Aftab Ahmed Manika 2015 SCMR 1006 and Secretary, Establishment Division, Government of Pakistan v. Dr. Muhammad Arif 2018 PLC (C.S.) 907 rel.

Waheed Shahzad Butt v. Federation of Pakistan PLD 2016 Lah. 872 fol.

2021 P L C (C.S.) 1130

[Islamabad High Court]

Before Athar Minallah, CJ

SHAHID TUFAIL KHAN and others

Versus

ZARAI TARAQIATI BANK LIMITED and others

Writ Petitions Nos.1177, 1084, 1143, 1144, 1181, 1394, 1714, 1715 and 1716 of 2020, heard on 2nd March, 2021.

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

----S.11(1)---Agriculture Development Bank (Staff) Service Regulations, 1961, Regln. 17--- Agriculture Development Bank (Staff) Service Regulations, 2005---Promotion Policy, 1999, Cls. 2 & 3---Promotion of staff--- Board of the Bank---Implementation of judgment passed by Supreme Court--- Respondent-Bank had two categories of employees who were separately being governed by Agriculture Development Bank (Staff) Service Regulations, 1961 and Agriculture Development Bank (Staff) Service Regulations, 2005---Question was with regard to promotion of employees governed by two different Regulations--- Validity--- Competent authority was the Board of respondent Bank and it was not constituted when judgment was rendered by the Supreme Court nor such crucial fact was brought to the notice of Supreme Court---Judgment of Supreme Court could not have been implemented in absence of validly constituted Board---Fate of notifications/memorandums dated 8-4-2015 and 21-4-2015 were dependent on implementation of first limb of the direction i.e. formulation of a policy by competent authority regarding human resource management while second limb was to set a specified timeframe for such purpose---If the competent authority after considering the matter had come to the conclusion that it was not possible to overcome legal hurdles, only then promotion notifications were to be recalled---Failure on the part of Federal Government to constitute a Board delayed implementation of judgment in letter and spirit---Board had been constituted and impediment in implementing the judgment of Supreme Court was removed---High Court directed the authorities to place before newly constituted Board so that directions given by Supreme Court could be considered and appropriate policy decision were taken---High Court set aside the orders passed by the authorities---Constitutional petition was allowed, in circumstances.

Zarai Taraqiati Bank Ltd., Islamabad and another v. Syed Shad Muhammad Shah and others Civil Petitions Nos.797 and 834 to 836 of 2018 rel.

Barrister Afzal Hussain, Umer Ijaz Gillani, Arsalan Binyamin and Abdur Rashid Awan for Petitioners.

Habib Ahmed Bhatti, Tahira Rashid and Hafeez ur Rehman for ZTBL for Respondents.

Syed Muhammad Tayyab, Deputy Attorney General.

2021 P L C (C.S.) 1200

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

AFTAB AHMED

Versus

REGIONAL HEAD/DIRECTOR, EMPLOYEES OLD-AGE BENEFITS INSTITUTION (EOBI), ISLAMABAD and 2 others

Writ Petition No.41 of 2020, decided on 23rd December, 2020.

(a) Employees's Old-Age Benefits Act (XIV of 1976)---

----S.22---Constitution of Pakistan, Art.199---Constitutional petition---Monthly pension/gratuity/other benefits---Length of service---Contributions towards Employees Old-Age Benefits Institution (EOBI) Funds---Petitioners' appeal for award of pensionary benefits was dismissed by relevant Board of Trustee/Appellate Board on ground that petitioners had less than 14 years of insurable employment to become entitled for the pensionary benefits---Held, that wisdom laid down behind Employees' Old-Age Benefits Act, 1976 (the Act) had to be considered as a Beneficial legislation, which provided its own scheme without any vagueness and doubt therein, therefore, the respondent Department would not travel beyond the same, rather beneficial legislation should be given widest possible interpretation in favour of the subject---Court while applying principle of interpretation where language was plain and unambiguous nothing could be read by implication as referred in impugned Departmental Circular No.03/2017-18---Interpretation given by the respondent Department in the said Circular was an incorrect view, which could not be considered against the rights of the petitioners---High Court directed the respondents/Department to decide the matter and extend the benefits to three categories of employees as enumerated in S.22(1) of the Act---Constitutional petition was disposed of accordingly.

Employees State Insurance Corporation v. R.K. Swamy AIR 1994 SC 1154; Dayal Singh and others v. Union of India and others AIR 2003 SC 1140 and Balram Kumawat v. Union of India and others (2003) 7 SCC 628 rel.

(b) Employees' Old-Age Benefits Act (XIV of 1976)----

----S.22---Pension, right to, determination of---Three groups of employers---Entire scheme of S.22 Employees' Old-Age Benefits Act, 1976 (the Act) created three groups of employers as to determine the right of awarding pension/gratuity/other benefits: firstly, general group under S.22(1), person registered as insurable employee under S.2(i) of the Act, within the age 18 to 40 years, he would have to pay the contributions for 15 years in terms of S.22(1)(b); secondly, if the employee was between 40 to 45 years of age at the time of his/her registration under S.2(i) of the Act, he would pay the contribution for next 07 years; and, thirdly, if an employee was over 45 years of age at the time of registration under S.2(i) of the said Act, he/she would have to pay the contributions for the period of 05 years.

(c) Interpretation of statutes---

----As a statute is understood to be directory when it contains matter merely of direction, but it is mandatory when directions are followed by express provision that in default to follow them, the acts shall be null and void.

Khalid Nabi Khan v. Haq Nawaz 2012 YLR 126 rel.

(d) Interpretation of statutes---

----If words of statute were precise and unambiguous, nothing more was necessary than to expound those words by their natural and ordinary sense---Words by themselves in such case best declare intention of the legislature.

Maxwell Interpretation of Statutes; and Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 rel.

(e) Interpretation of statutes---

----Statute to be read as a whole---Statute must be read as a whole and one provision could not be interpreted in isolation of the other---Provision of section/statute or rule must be interpreted in a manner to harmonize its various sections and subsections while determining its nature.

Mst. Kousar Begum v. Matloob Hussain Shah 2007 CLC 281 rel.

(f) Interpretation of statutes---

----Irrespective of language and phraseology used by legislature, the legislative intent and end result of the Statute is to be discovered in order to reach the conclusion that particular provision is mandatory or of directory nature.

Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana PLD 2007 Lah. 141 rel.

(g) Interpretation of statutes---

----Proviso would only limit the operation of main enacting part to the extent it was indicated in proviso, meaning thereby that but for the proviso the case would fall within the ambit of enacting part.

Commissioner of Income Tax v. Nasir Ali 1999 SCMR 563 rel.

(h) Interpretation of statutes---

----Where wordings of the statute were absolutely clear unambiguous; rule of literal construction was to be applied and recourse to other principles of interpretation was not required.

Swedish Match AB v. Securities and Exchange Board, India AIR 2004 SC 4219 rel.

Raja Muhammad Rafiq Janjua, Syed Amir Kazmi, Ch. Ali Abbas, Waheed Akhtar, Muhammad Shahid Kamal Khan for Petitioner (in respective writ petitions).

Khurram Mehmood Qureshi, Abdul Rauf Qureshi, Tariq Bilal, Muzammil Aftab, Shahzadi Samreen Tariq and Ansar for Respondents (in respective writ petitions).

Raja Muhammad Aftab Ahmad, A.A.G.

Abdul Rehman, A.D. (Legal), EOBI.

2021 P L C (C.S.) 1309

[Islamabad High Court]

Before Athar Minallah, CJ, Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

WAQAS RAFI AWAN

Versus

NATIONAL ENGINEERING AND SCIENTIFIC COMMISSION, ISLAMABAD through Chairman and 2 others

Writ Petition No.1502 of 2019, decided on 6th May, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Master and servant---Employment dispute---Remedy---Expression 'master and servant' is not in any manner demeaning nor connotes a degrading status---Such refers to a generic legal phrase having specific consequences---Employment disputes in such relationship are not amenable to jurisdiction of High Court under Art.199 of the Constitution---When such relationship exists between an employer and employee then in case of termination the latter cannot claim a right to be reinstated but is entitled to ask for damages, if he/she is able to establish his wrongful removal.

The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Sindh Road Transport Corporation through its Chairman v. Muhammad Ali G. Khokhar 1990 SCMR 1404; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others 1995 SCMR 453; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Gohar Ali and another v. Messrs Hoechst Pakistan Limited 2009 PLC (C.S.) 464 and Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Employment of public sector entities---Scope---Employees of public sector entities, which are established through legislation by Majlis-e-Shoora (Parliament) are regulated by codes, regulations or rules made under statutes--- Statute determines nature of relationship between employer and employee---Such relationship does not fall short of fundamental tenets of the Constitution nor infringes any rights.

(c) Interpretation of statutes---

----Court, powers of---Principle---Court is not empowered to legislate but only to interpret law---Fundamental principle of interpretation is to discover and determine intent of the legislature---While interpreting a provision, statute has to be read as a whole in its context---Object and purpose of statute is of paramount importance and a provision cannot be read and interpreted in isolation---Guiding principles.

Following are the granting principles:

i. There is presumption in favour of Constitutionality and a law must not be declared unconstitutional unless statute is placed next to the Constitution and no way can be found in reconciling the two;

ii. Where more than one interpretation is possible, one which makes the law valid and the other void, Court must prefer the interpretation which favours validity;

iii. Statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt and reasonable doubt must be resolved in favour of statute being valid;

iv. Court should abstain from deciding Constitutional question, if a case can be decided on other or narrower grounds;

v. Court should not decide a larger Constitutional question than is necessary for determination of the case;

vi. Court should not declare a statute unconstitutional on the ground that it violated spirit of Constitution unless it also violates letter of the Constitution;

vii. Court should not be concerned with wisdom or prudence of Legislation but only with its Constitutionality;

viii. Court should not strike down statutes on the principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; and

ix. Mala fides should not be attributed to Legislature .

Pepper (Inspector of Taxes) v. Hart' (1992) 3 WLR 1032; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Zahoor Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231; Afzal Khan Shinwari v. Federation of Pakistan and others PLD 2019 Isl. 422; Independent Newspapers Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others 1993 SCMR 1533; Middleton v. Texas Power and High' Co.' 249 U.S. 152; Radice v. People of the State of New York 264 US 292; The State v. Zia-ur-Rehman PLD 1973 SC 49; Sh. Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P and another PLD 1995 SC 66; A. K. Fazalul Qader Chaudhry v. Syed Shah Nawaz and others PLD 1966 SC 105; Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry Finance, Islamabad and 6 others PLD 1997 SC 582 and Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---Judicial review---Wisdom of Legislature---Scope---Wisdom of Legislature is beyond the scope of judicial review.

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

----Ss.3(6), 11, 8 & 15 proviso [as inserted by National Command Authority (Amendment) Ordinance (I of 2016)]---Constitution of Pakistan, Art. 199---Constitutional petition---Law laid down by Legislature and Court--- Applicability--- Contractual employment---Regularization--- Procedure--- Petitioners were contract employees of National Command Authority, which was a strategic organization--- Petitioners sought regularization of their services on the basis of judgment passed by Supreme Court--- Plea raised by petitioners was that insertion of amendment in law could not affect the law laid down by Supreme Court--- Validity--- As proviso was inserted in S.15 of National Command Authority Act, 2010, competently and validly therefore, High Court could not refuse to enforce it even if result of it was to nullify a judgment--- Petitioners after availing all remedies available under S.11 of National Command Authority Act, 2010 or Rules made thereunder had a grievance of exceptional or extraordinary nature based on the ground of mala fide or coram non judice then the latter could submit a representation before the Authority and the Authority was to constitute a Committee pursuant to powers conferred under S.3(6) of National Command Authority Act, 2010, for consideration of grievances--- Petitioners were regulated and governed under non-statutory rules and were not amenable to jurisdiction of High Court under Art.199 of the Constitution--- Constitutional petition was dismissed accordingly.

Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377; Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; 'Contempt Proceedings Against Chief Secretary, Sindh and others 2013 SCMR 1752; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Syed Faisal Ali and 16 others v. Federation of Pakistan through Secretary Water and Power Development Authority Islamabad and 4 others 2019 PLC (C.S.) 751; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831; The Chairperson, National Commission for Human Development and others v. Abdul Jabbar Memon and others 2018 PLC (C.S.) 73; Haji Ghulam Rasul and others v. Government of the Punjab through Secretary, Auqaf Department, Lahore 2003 SCMR 1815; Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; Messrs Mamukanjan Cotton Factory v. The Punjab Province and others PLD 1975 SC 50; Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and justice and others PLD 2012 SC 923; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 ref.

The State v. Zia-ur-Rehman PLD 1973 SC 49 fol.

Messrs Mamukanjan Cotton Factory v. The Punjab Province and others PLD 1975 SC 50; Messrs Nizam Impex and another v. Government of Pakistan and others 1990 SCMR 1187; Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917; Government of Pakistan and others v. Muhammad Ashraf and others PLD 1993 SC 176; Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan and others 1993 SCMR 1905; Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367; Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance, Economic Affairs and others PLD 2005 SC 605; Income Tax Officer, Central Circle II, Karachi and another v. Cement Agencies Ltd. PLD 1969 SC 322 and Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923 rel.

Muhammad Shoaib Shaheen, Sajee Sheryar Swati, Syed Saif Ur Rehman Shah Bukhari, Ali Murad Baloch, Nauman Munir Paracha, Sifat Ullah, Ehsan Ali Qazi, Zubair Shah, Asim Shafi, Ms. Shireen Imran, Mudassar Hussian Malik, Syed Amar Hussain Shah, Muhammad Rizwan, Amir Mehmood, Junaid Iftikhar Mirza, Khalid Munir, Ammad Nasir Kundi, Ms. Saira Khalid Rajput, Ms. Aqsa Zahid, Rashid Hafeez, Saad Khan Akhunzada, Aamir Abbasi, Aftab Alam Yasir, Syed Shahbaz Shah, Rana Liaqat, Syed Umer Sohaib Shah, Abid Majeed, Riaz Hussain Azam Bopera, Faisal Iqbal Khan, Raheel Azam Khan Niazi, Malik Nasir Abbas Awan and M. Umair Baloch for Petitioners.

Ghulam Murtaza Dahar, M. Saleem Shahzad, Akhtar Zaman, Usman Naveed, Alaud Din, Muhammad Afzal, Abdul Hameed, Nisar Bhatti, Shayal Islam, Munawar Ahmed, Rashid Maqsood Ahmed, Raja M. Sarfraz, Raja Mansoor Ul Haq, Mumtaz Ali, Ashiq M. Hanif, M. Ismail Gill, Syed Atif Mehmood, Gohar Rehman, Bilal Zaman, Abdul Rehman, Naveed Ali, Aurangzeb Abbasi, Farman Ullah, Akhtar Mehmood, M. Waqas Qureshi, M. Naseer Ashraf and Intizar Hussain Petitioners in person.

Ahmer Bilal Soofi, Barrister Iqbal Khan Nasir, Masood Ahmed Khattak, Usman Jillani, Ms. Bakhtawar Bilal Soofi, Ms. Zainab N. Khan, Ali Ahmed Bhatti and M. Majid Bashir for Respondents.

M. Umer Asghar Pasha, A.M. (Legal), PMO, NESCOM., Naveed Aslam, Law Officer, YNDC., Khalid Mehmood, Law Officer, PAEC., Obaid, Law Officer, MTC., Cdr. Hussain Shahbaz, Law Officer, SPD and Zaheer Ud Din Babar, SPTO, KRL for Respondents.

2021 P L C (C.S.) 1394

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

AYAZ AHMED KHAN

Versus

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

Writ Petition No.2490 of 2021, decided on 12th July, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Quo-warranto writ of---Mala fide of petitioner---Scope---Petitioner serving as Director General (Design) in the Capital Development Authority (CDA) sought issuance of a writ of quo warranto to remove the respondent from the post of Chairman, CDA---Contention of petitioner, inter alia, was that the respondent could not have been appointed as Chairman, CDA, since he was already serving as Chief Commissioner, ICT and that the appointment was in violation of S.6(2) of the Capital Development Authority Ordinance, 1960, which provided that the Chairman was to be appointed from amongst the members of the CDA Board---Validity---Chairman, CDA, had issued a show-cause notice to the petitioner; Chairman, CDA, was the administrative head of the organization which had conducted a fact-finding inquiry against the petitioner and had given findings adverse to his interests; and a criminal complaint was also filed by the CDA against the petitioner---Petition was vexatious and spirited by personal vendetta---High Court had to be prudent and careful to see that the person who approached the Court was acting bona fide and not for personal gain or oblique consideration---Constitutional petition was dismissed in limine with costs despite the fact that notice was not issued to the respondents---Capital Development Authority was directed to deduct the costs from the salary of the petitioner and deposit the same in the Government treasury---High Court clarified that a bona fide litigant could challenge the legality of appointment of Chairman, CDA and the judgment was not to be treated as a verdict on the legality of the impugned notification.

Muhammad Arif v. Uzma Afzal 2011 SCMR 374; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh 2004 SCMR 1299; Ashok Kumar Pandy v. The State of West Bengal AIR 2004 SC 280; Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413 and Aziz-ur-Rehman Ch. v. M. Nasiruddin and others PLD 1965 SC 236 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Discretionary jurisdiction---Conduct of petitioner---Scope---High Court's power under Art. 199 of the Constitution to grant relief to a petitioner by issuance or directions, orders or writs is purely discretionary---Such power can be exercised to grant relief only to a person whose conduct does not disentitle him to obtain such relief---Exercise of writ jurisdiction has to be founded on sound discretion and on consideration of recognized judicial principles governing exercise of such discretion---High Court cannot refuse to take into consideration a petitioner's conduct which disentitles him from such relief.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Quo warranto, writ of---Discretionary jurisdiction---Conduct of petitioner---Scope---Writ of quo warranto cannot be issued as a matter of course---Issuance of the writ is in the discretion of Court to refuse or grant it according to the facts and circumstances of the case---Foremost obligation of the Court while hearing a petition seeking a writ of quo warranto is to inquire into the conduct and motive of the relator and may, in its discretion, decline to issue a writ where it would be vexatious to do so.

Tariq Mehmood A. Khan v. Sindh Bar Council 2011 YLR 2899; Muhammad Shahid Akram v. Government of Punjab 2016 PLC (C.S.) 1335 and Mirza Luqman Masud v. Government of Pakistan 2015 PLC (C.S.) 526 ref.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Quo warranto, writ of---Scope---For issuing a writ of quo warranto, it is not necessary that any fundamental or legal right of petitioner is infringed---Any person is free to challenge the validity of an appointment to a public office, however, the Court must be satisfied that the petition is bona fide and not motivated by any malice against the person whose appointment is under challenge---Writ of quo warranto was to be refused where it is an outcome of malice and ill-will---Court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object.

Muhammad Arif v. Uzma Afzal 2011 SCMR 374; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh 2004 SCMR 1299; Ashok Kumar Pandy v. The State of West Bengal AIR 2004 SC 280; Dr. Muhammad Tahir-ul-Qadi v. Federation of Pakistan PLD 2013 SC 413 and Aziz-ur-Rehman Ch. v. M. Nasiruddin and others PLD 1965 SC 236 rel.

2021 P L C (C.S.) 1450

[Islamabad High Court]

Before Athar Minallah, CJ and Lubna Saleem Pervez, J

SIKANDAR HAYAT MAKEN

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Divisions Government of Pakistan and others

Writ Petition No.08 of 2020, decided on 29th September, 2020.

(a) Constitution of Pakistan---

----Art.199---Judicial review---Separation of powers, doctrine of---Scope---High Court exercises power of judicial review in order to determine whether actions taken by Executive are consistent with the Constitution and law---Questionable actions of Executive, which involve abuse of discretion or based on unfairness and arbitrariness are exposed to judicial scrutiny and amenable to judicial review under Art.199 of the Constitution--- Great caution has to be exercised so as to ensure that scheme of Constitution i.e. doctrine of separation of powers is respected and is not unnecessarily disturbed by encroaching into domain of other branches.

Dosani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another PLD 2012 SC 466; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 and Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Civil service---Policy making---Scope--- High Court cannot interfere in policy making domain by curtailing freedom of competent authority nor can dictate factors which should or should not be considered---Authority competent to formulate policy promotion is the best judge because it has a better understanding of nature of job and requirements related to a particular post.

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

----S.9---Promotion---Eligibility and fitness---Determination---Clear distinction between "eligibility" and "fitness" exists---Question of "eligibility" relates to terms and conditions of service--- Such grievance becomes amenable to jurisdiction of Federal Service Tribunal---Fitness, on the other hand involves 'subjective evaluation on the basis of objective criteria'---Onerous task of carrying out 'subjective evaluation' has been entrusted to Board which is subject to approval after careful scrutiny by competent authority---Determination of 'fitness' by competent forum or authority entails taking numerous factors into consideration--- Opinion formed or subjective evaluation is not possible to be substituted by a tribunal or a Court for that of its own---Question of fitness or suitability for promotion is within the exclusive jurisdiction of competent authority and it cannot be interfered with by a Court or Tribunal---Wisdom or reason for such exclusivity is based on certain foundational principles.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Dr. Ahmed Salman Waris, Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Muhammad Umar Malik and others v. Federal Service Tribunal and others PLD 1987 SC 172; The Central Board of Revenue, Government of Pakistan v. Mr Asad Ahmad Khan PLD 1960 SC (PAK.) 81; Abid Hussain Sherazi v. Secretary Ministry of Industries and Production, Government of Pakistan, Islamabad 2005 SCMR 1742; Muhammad Yousaf v. Chairman, Railway Board/Secretary 1999 SCMR 1559; Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCMR 682; Dr. Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143; Government of N.W.F.P. v. Muzaffar Iqbal 1990 SCMR 1321; Muhammad Insha Ullah v. Chief Conservator of Forests (P&E), Punjab PLD 1988 SC 155; Muhammad Ishaque and others v. Government of Punjab, through Chief Secretary and others 2005 SCMR 980; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021 and Dr. Alyas Qadeer Tahir v. Secretary Ministry of Education (now M/O CADD), Islamabad and others 2014 SCMR 997 rel.

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

----S.9---Promotion---Entitlement---Promotion is not a vested right---All that a civil servant can claim is to be considered for promotion when cases of similarly placed eligible civil servants are taken up.

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

----S.9---Promotion---Eligibility criteria---Prerogative---Sole prerogative of government and competent authority to prescribe qualifications and other conditions relating to eligibility criteria--- Civil servant cannot claim that prescribed qualifications or eligibility criteria be applied retrospectively, nor to restrain competent authority from changing or altering rules, regulations or policies to his / her prejudice--- No vested right is involved in promotion to a post nor rules determining or prescribing qualification and eligibility criteria.

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

----Rr.7 & 7-A---Civil Servants Act (LXXI of 1973), S 9---Civil Servants Promotion (BPS-19 to BPS-21) Rules, 2019, Rr.6, 7, 8 & 18--- Constitution of Pakistan, Art. 199---Constitutional petition---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, vires of---Promotion---Eligibility criteria---Mala fide---Proof---Petitioners were civil servants in BPS-19 to BPS-21 who were not promoted and were superseded---Validity---Qualifications, eligibility criteria and methodology of evaluation of Board were prescribed in Civil Servants Promotion (BPS-19 to BPS-21) Rules, 2019---Such fell within exclusive domain of competent authority and it was an administrative function--- Competent authority was the best judge to decide what factors were to be given preference and to what extent--- Weightage given to a particular factor e.g. qualifications or quantum of allocation of marks to the Board, was not amenable to judicial scrutiny--- Such were policy matters and not justiciable by a Court of law--- Court could not curtail freedom of competent authority to formulate policy for promotion nor limit its prerogative to prescribe qualifications, conditions, eligibility criteria and methodology required to be adopted for the purposes of evaluation--- Presumption of regularity, fairness and reliability of proceedings and subjective evaluation of Board could not be interfered with except when mala fide was demonstrably shown to float on the surface of record---High Court declared that Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 were validly framed and were not inconsistent with principles and law enunciated in on the subject---High Court declined to interfere in the matter as proceedings of Board and its affirmation by competent authority were impartial, unbiased, fair and result of careful consideration---Petitioners failed to rebut presumption of regularity and fairness attached with the proceedings and actions of Board or competent authority---Constitutional petition was dismissed, in circumstances.

Secretary Establishment Division, Government of Pakistan v. Aftab Ahmed Manika and others 2015 SCMR 1006; Mrs. Irum Adnan and others v. Federation of Pakistan and others 2012 PLC (C.S.) 1355; Liaqat Ali Chugtai v. Federation of Pakistan through Secretary, Railways and 6 others PLD 2013 Lah. 413; Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak Secretariat, Islamabad v. Government of Pakistan through its Secretary, Establishment Division (Cabinet Secretariat, Cabinet Block, Constitution Avenue, Islamabad and 4 others 2003 PLC (C.S.) 503; Syed Ijaz Hussain v. Federation of Pakistan and others 2017 PLC (C.S.) 115 and The Secretary Establishment Division, Government of Pakistan v. Dr. Muhammad Arif and others 2018 PLC (C.S.) 907 ref.

Federation of Pakistan through Secretary Establishment Division and others v. Dr. Muhammad Arif and others 2017 SCMR 969; Tariq Aziz-ud-Din and other's case 2010 SCMR 1301; Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment Division and others 2014 SCMR 817; Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed Manika and others 2015 SCMR 1006; Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another 1990 SCMR 999; Shaukat Javed Farooqi, Under Secretary Civil Secretariat, Lahore v. District and Sessions Judge, Lahore and another 1999 SCMR 2141; Mehar Khan Meo v. High Court of Sindh 2007 SCMR 632; Muhammad Yahya Khan Kulachi v. Registrar, Lahore High Court, Lahore 2011 SCMR 1381; Shabbir Hussain v. Registrar, Lahore High Court PLD 2004 SC 191; Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157; Athar Hussain Khan Sial, Joint Secretary, Ministry of Interior, Islamabad v. The Government of Pakistan through Federal Secretary, Establishment Division, Islamabad and another (Civil Petition No. 1178 of 2011); Government of West Pakistan and another v. Begum Agha: Abdul Karim Shorish Kashmiri PLD 1969 SC 14; The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151 and The State v. Zia ur Rahman and others PLD 1973 SC 49 rel.

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

----S.9---Constitution of Pakistan, Arts. 10-A & 199---Constitutional petition---Promotion---Due process and fair trial---Applicability---Promotion is not a vested right, therefore Constitutionally guaranteed right under Art.10-A of the Constitution was not attracted as it was relatable to 'determination of civil rights and obligations'---Candidate has a right to be dealt with fairly---'Fairness' means to be impartial and to treat an individual without favoritism or discrimination---'Unfairness' or unfair treatment renders an action or proceedings 'mala fide' or based on 'bad faith'.

Abdul Rahim Bhatti, Shoaib Shaheen, Azid Nafees, Natalya Kamal, Shireen Imran, Mudassir Khalid Abbasi, Imran Shaukat Rao, Misbah Ullah Khan, Tahir Mahmood, Neeli Khan, Adnan Haider Randhawa, Aziz Ul Haq Nishtar, Faheem Raza and Hamid Azim Laghari for Petitioners. (in their respective petitions).

Amir Rehman, Addl. Attorney General and Saeed Ahmed Zaidi for Respondents.

Saqlain Haider Awan, Assistant Attorney General.

Tauseef Inayat, Assistant Director Ministry of Energy.

Awais Manzoor Samra, Addl. Secretary, M. Jahanzeb and Salman Mufi, Joint Secretaries, Establishment Division.

2021 P L C (C.S.) 1516

[Islamabad High Court]

Before Babar Sattar, J

KHALID MEHMOOD and 128 others

Versus

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

Writ Petition No.3391 of 2018, decided on 27th May, 2021.

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

----Ss.3 to 22---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9---Pakistan Telecommunication (Re-organization) Act (XVII of 1996), Ss. 35 & 36---Civil servant, terms and conditions of---Pensionary benefits, entitlement of------Statutory protection---Petitioners were originally employees of the Telegraph and Telephone Department (T&T Department) and their services were transferred to Pakistan Telecommunication Corporation (PTC) and were subsequently transferred to Pakistan Telecommunication Company Limited (PTCL) subject to protection afforded under Ss.35 & 36 of the Pakistan Telecommunication (Re-organisation) Act, 1996---Petitioners contended that terms and conditions of service protected under S. 9 of the Pakistan Telecommunication Corporation Act, 1991 and Ss. 35 & 36 of the Pakistan Telecommunication (Re-organization) Act, 1996 were the terms and conditions of service provided for by Ss. 3 to 22 of the Civil Servants Act, 1973---Petitioners claimed pensionary benefits and consequential increases therein---Protection afforded to the terms and conditions of service of the transferred employees was rooted in the statutory protection afforded to such terms and conditions under S.9 of Act, 1991 and Ss. 35 & 36 of the Act, 1996 and not in the employment status of the transferred employees---High Court did not feel obliged to rehash the legal analysis carefully undertaken in Rasool Khan's case [2021 PLC (C.S) 14] and adopted the reasoning and conclusions drawn therein---Constitutional petitions were accepted in terms of ratio and dicta in Rasool Khan's case and the direction issued therein to the extent of extent of Pakistan Telecommunication Employees Trust.

Rasool Khan and 29 others v. Federation of Pakistan through Secretary Ministry of Information and Technology and 2 others 2021 PLC (C.S) 14 and P.T.C.L and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362 ref.

(b) Constitution of Pakistan---

----Arts. 189 & 203---Precedents, binding force of---Brevity and efficiency---Principle---Where a court was satisfied with the reasoning/conclusions of the judgment challenged before it and it did not find any cause for interference, the court could simply endorse the impugned judgment and adopt the reasoning of the Court below without re-tracing the path travelled by such court in interest of saving public time which could be allocated to other cases---Same principle of brevity and efficiency would apply to a case in which the High Court was to follow a binding precedent of the same court wherein all issues impinging on the controversy before it had already been addressed at length in such binding precedent.

Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and Farooq Hussain v. Sheikh Aftab Ahmed (C.R.P No. 104-L/2019 etc.)

Khalil ur Rehman Abbasi, Advocate Supreme Court for Petitioners.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondent No.2 (in Writ Petitions Nos.4394 of 2018 and 104 of 2021).

Abdullah Alim Qureshi for Respondent No.2 (in Writ Petition No.3391 of 2018).

2021 P L C (C.S.) 1563

[Islamabad High Court]

Before Babar Sattar, J

JUBILEE LIFE INSURANCE COMPANY LIMITED through Assistant Executive Officer

Versus

The FEDERAL GOVERNMENT through Secretary Law and 2 others

Constitutional Petition No.2593 of 2015, decided on 26th March, 2021.

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

----Ss. 7 & 10---Petitioner/Insurance company challenged the impugned order passed by Ombudsman that the one of the respondents be reinstated in the employment of the petitioner---Said respondent (female) was allegedly harassed by the Branch Manager and Operations Manager at Bank by false allegation of theft and encashment of a check and was removed from service on the basis of a bogus inquiry conducted by the petitioner---Petitioner contended that Federal Ombudsman had no jurisdiction in relation to an occurrence that took place in Punjab; that complaint related to a service matter; order for reinstatement did not fall within the list of penalties prescribed under S.4 of the (Federal) Protection Against Harassment of Women at the Workplace Act, 2010; that petitioner was other than the individuals who purportedly harassed---Federal Ombudsman's jurisdiction was ousted in relation to events that emanate in a province and fall within the domain of the Provincial laws---Respondent made no allegation of harassment against the petitioner---Allegation was rather against two employees of the Bank; and also the allegation was not regarding sexual harassment---Federal ombudsman did not impose any penalties that could have been affixed under the Act, 2010---Actions complained of did not constitute sexual harassment on part of the petitioner as defined under S.2(h) of the Act, 2010---High Court set aside the impugned order for being void ab initio and Constitutional petition was allowed accordingly.

Salim Javed Baig v. Federal Ombudsman PLD 2016 Lah. 433 and Shahina Masood v. Federal Ombudsman Secretariat 2020 PLC (C.S.) 186 rel.

Mudassir Bashir Awan for Petitioner.

Raja Saad Sultan, Assistant Attorney General for Respondent.

Ikram Haider for Respondent No.3.

2021 P L C (C.S.) 51

[Sindh High Court]

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

MOHAMMAD ISHAQUE

Versus

PROVINCE OF SINDH through Secretary and 4 others

Constitution Petition D-679 of 2017, decided on 20th September, 2019.

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

----S.3---Work charge employee---Regularization of service---Scope---Petitioner was work charge employee and Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 was not applicable to the present case---Petitioner had accepted the contingent terms of service and he could not blow hot and cold in the same breath to claim regularization of his service---Contingent/work charged service could not be converted into regular service---Department had rightly declined the regularization of service of the petitioner, in circumstances---Petitioner had failed to make out his case for regularization of his service---Constitutional petition was dismissed, in circumstances.

Hakim Ali Ujjan v. Province of Sindh and others 2012 PLC (C.S.) 127 ref.

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

Shamshad Ali Qureshi for Petitioner.

Ali Safdar Depar, Assistant Advocate General, Sindh for Respondents.

2021 P L C (C.S.) 109

[Sindh High Court]

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

MUHAMMAD ISMAIL

Versus

The CHAIRMAN PAKISTAN STEEL, BIN QASIM KARACHI and another

C.P. No.D-4356 of 2014, decided on 16th September, 2019.

(a) Civil service---

----Negligence in duty---Misconduct---Demotion from service---Scope---Inquiry against petitioner was conducted and competent authority imposed penalty of demotion upon him---Appeal filed by him was dismissed---Contention of petitioner was that charges against him had not been proved---Validity---Petitioner-employee was found guilty of the charges levelled against him---Penalty of demotion had been imposed upon him and his appeal had been dismissed---Competent Authority had followed procedure and rules while imposing penalty---Petitioner had been found guilty of misconduct and he had violated service discipline---No malice on the part of competent authority to falsely implicate the petitioner had been pointed out---Authority was competent to impose minor penalty of demotion upon the employee---No illegality or irregularity had been pointed out in the impugned order passed by the competent authority---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition against Pakistan Steel Mills---Maintainability---Pakistan Steel Mills was a 'Person' performing functions in connection with the affairs of the Federation---Constitutional petition was maintainable in circumstances.

Syed Abdul Waheed for Petitioner.

Muhammad Nishat Warsi, DAG for Respondent No.1.

Moin Azhar Siddiqui and Ali Ahmed Turabi for Respondent No.2.

2021 P L C (C.S.) 179

[Sindh High Court]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MUHAMMAD JIBRAN NASIR and 5 others

Versus

FEDERATION OF PAKISTAN through Secretary and 5 others

C.P. No.D-6382 of 2019, decided on 29th January, 2020.

(a) Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act (XI of 2019)---

----Arts.13, 15(1)(3) proviso & 17---Postings and transfers---Consultation---Dispute was with regard to surrendering of services of Deputy Inspector General of Police (DIG) and Superintendent of Police (SP) and assuming of charge by the officials after suspending of notification by High Court---Plea raised by petitioner was that consultation with Inspector General of Police (IG) was binding on provincial government---Validity---If Provincial Government was to exercise powers under assumption or guesswork that for surrendering services to Establishment Division of Federal Government consultation with IG was not required then the same would amount to circumvention and sidestepping unequivocal provisions of Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 and the whole ideology of consultation would frustrate and he redundant---If violation of self-contained provision was allowed to be deflected or repelled at the whims and caprices of government then it would lead to a situation to chaos and as and when any upright officer was found undesirable or unwanted (not involved in misconduct) then government instead of adhering to provisions contained in Arts.13 & 17 of Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019, or to avoid precondition of consultation due to apprehensive or foreseeable opposition of IG against transferring / posting would directly surrender services which would tantamount to a situation that what could not be done directly could not be done indirectly---High Court directed that surrendering the services and posting of Additional Inspector General of police and DIG could not be made without meaningful consultation of Inspector General of Police in terms of Art.13 of Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019---High Court further directed that posting of Superintendent of Police and Assistant or Deputy Superintendent of Police could only be made by Inspector General of Police within the parameters of Art.17 of Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019--- Application was allowed accordingly.

Karamat Ali v. Federation of Pakistan PLD 2018 Sindh 8; PLD 2003 SC 979; Balochistan Medical Association v. Government of Balochistan and others 2017 CLC 1195; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Premier Battery Industries Private Limited v. Karachi Water and Sewerage Board and others 2018 SCMR 365; Kasani Narayana v. Government of A.P. and others AIR 1989 Andhra Pradesh 51 and Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju and others 2017 MLD 785 ref.

(b) Police---

----Object, purpose and scope---In the perspective of every citizen and public at large, good police or bad police both really carry some weight and importance---State was responsible to eliminate and eradicate crime, provide protection to person and property and in order to perform such fundamental responsibilities good policing is necessary which can only be possible if good police officers are posted on merits and allowed to combat against crimes and social evil with accountability but not on the basis of Sifarish, favoritism or nepotism or with abrupt removal from place of posting with preconceived notion or confrontation and hostility which creates uncertainty--- En masse, police is answerable to people and the law--- Honesty, integrity, nice behavior and sober mannerism must be part of ethical practice which is quite essential for good policing and good police officers--- Good police officers must not only be upright officers but also good citizens as well and should have the audacity and nerve to listen all persons equally especially to those without social power or status--- Everyday job of police includes enforcement of laws, prevention of crimes, protection of person and property, investigation of crimes and to respond emergency calls--- Making good laws by the corridors of power in public interest is so virtuous and a good deed but if laws are not implemented in its letter and spirit with the interest of bringing some improvements and or revamping or restructuring in any institution then such situation leads to lawlessness and turmoil affecting public at large.

Faisal Siddiqui for Petitioner.

Salman Talibuddin Advocate General Sindh along with Jawad Dero and Ghulam Shabbir Shah Additional Advocate-General Sindh.

Zulfiqar Mahar, AIGP (Legal) along with Raza Mian and Akbar Ali, DSP (Legal).

2021 P L C (C.S.) 221

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

Syed ALI HAIDER and 2 others

Versus

PAKISTAN INTERNATIONAL AIRLINE CORPORATION LIMITED through Company Secretary

Suit No.1798 and C.M.A. No.11526 of 2016, decided on 23rd December, 2019.

(a) Administration of justice---

----Rights of parties---Principle---Any order whereby rights accrued to a party are affected cannot be passed without affording opportunity to aggrieved party to plead its case.

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

----Ss.42 & 54---Suit for declaration and injunction---Rights, withdrawal of---Principle---State owned Corporation---Plaintiffs were employees of Pakistan International Airline Corporation (PIAC) who were promoted/upgraded to next scale of salary---Subsequently the Corporation withdrew increase in benefits extended by Administrative Order in question---Validity---Upgradation or promotion of plaintiffs was not by way of mistake, fraud or misrepresentation, rather it was a conscious decision of the then management and was duly acted upon in a lawful manner---No irregularity in issuance of Administrative Order in question, as plaintiffs could not be non-suited and made to suffer adversely without any fault on their part---No employee of any organization working and under the control of government could in any manner be relegated or demoted to a lower grade or rank, without notice and opportunity of being heard, which even otherwise was to be read in every statute and rules---Promotion orders of plaintiffs could not be deemed to have been cancelled / withdrawn impliedly on the basis of some subsequent Administration Order whereas the Administration Order in question was to be treated as existing and valid---Suit was decreed in circumstances.

Government of N.W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72; The Engineering-in-Chief Branch through Ministry of Defence and another v. Jalaluddin PLD 1992 SC 207; Mst. Sajida Javed v. Director of Secondary Education, Lahore Division and others 2007 PLC (C.S.) 364; Shams ur Rehman v. Military Accountant General, Rawalpindi and another C.P.No.4439 of 2017 and C.M.A. No.8554 of 2017; Federation of Pakistan v. C.M. Sharif 1990 SCMR 250; Nazeer Ahmed Chkrani v. Government of Pakistan 2004 SCMR 623 and Pakistan International Airlines v. Nasir Jamal Malik 2001 SCMR 934 ref.

Muhammad Ali Lakhani and Mujtaba Sohail Raja for Plaintiffs.

Khalid Javed and Ms. Farkhanda Shaheen for Defendants.

2021 P L C (C.S.) 295

[Sindh High Court (Hyderabad Bench)]

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

MUHAMMAD ALI SHAH and 45 others

Versus

FEDERATION OF PAKISTAN through Ministry of Labour and Manpower, Islamabad and 5 others

Constitution Petition No.D-404 of 2013, decided on 24th January, 2019.

(a) Civil service---

----Contract employees of Gas Company, a state enterprise---Regularization of service---Discrimination---Effect---Regularization of employees was not part of terms and conditions of service of employees for which statutory rules were required but it would depend upon the length of service---Petitioners were entitled to similar treatment which had been extended to their similarly placed colleagues for their regularization---Company could not act whimsically while making fresh appointments against the posts already held by the petitioners who had been appointed in a transparent manner---Employees had served the Company for a long period and refusal to regularize them was unjustified and against principles of natural justice and equity---Petitioners were entitled to the benefit contained in Office Memorandum dated 11-05-2017---Employees having satisfactory performance should have been considered for regularization by the employer Company---Company was directed to consider the employees for regularization of their service---Constitutional petition was allowed, accordingly.

Hadeed Welfare Trust (A subsidiary of Pakistan Steel Mills) 2017 PLC (C.S.) 1020; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Government of Khyber Pakhtunkhwa and others v. Adnanullah and others 2016 SCMR 1375; Fuji Fertilizer Company Ltd. v. National Industrial Relations Commissions and others 2013 SCMR 1253 and 2017 PLC (C.S.) 1192 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition against Sui Southern Gas Company Limited, a state enterprises---Maintainability.

Khawaja Muhammad Asif v. Federation of Pakistan PLD 2014 SC 206; Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274; Pakistan Defence Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Aitcheson College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326; Pakistan International Airlines v. Tanweer-ur-Rehman PLD 2010 SC 676; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 and Pakistan Defence Housing Authority and others v. Mrs Itrat Sajjad Khan and others 2017 SCMR 2010 rel.

Shabbir Shar for Petitioner.

Muhammad Aslam Bhatti for SSGCL.

2021 P L C (C.S.) 329

[Sindh High Court]

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

Dr. WAHID BUX and 6 others

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh and another

C.P. No.D-1559 of 2019, decided on 29th May, 2019.

(a) Civil service---

----Public Service Commission---Appointment against the post of Medical Officers---Petitioners qualified written test but their candidature was rejected on the ground that they had failed to submit Registration Certificate from Pakistan Medical and Dental Council before cut-off date for receiving application---Validity---Grievance of petitioners was not with regard to their terms and conditions of service but they had sought relief of appointment---Constitutional petition was not barred under Art.212 of the Constitution and was maintainable---Authorities had processed the scrutiny of documents of the petitioners after written test and no illegality had been found therein---Petitioners were provisionally allowed to appear in the examination for the post in question and their eligibility was to be determined after professional test---Registration Certificates in favour of petitioners had been issued from Pakistan Medical and Dental Council before cut-off date for receiving applications---Mere submission of documents with Public Service Commission with a delay did not disqualify a candidate to appear in the interview---Constitutional jurisdiction was meant to foster the cause of justice and fair play---Petitioners had made out a case for their participation in the interview to be conducted by the Public Service Commission---Public Service Commission was directed to allow the petitioners to participate in the interview for the post of Medical Officers and if they did qualify in the interview then their result be announced accordingly---Constitutional petition was allowed, accordingly.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction was meant to foster the cause of justice and fair play.

Ali Tahir for Petitioner.

Abdul Jalil Zubedi, A.A.G.

Muhammad Yousuf Alvi, Law Officer, Sindh Public Service Commission.

2021 P L C (C.S.) 374

[Sindh High Court]

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

Ms. FARYAL KALEEM SHAIKH

Versus

FEDERAL OMUDSMAN FOR PROTECTION AGAINST HARASSMENT WOMEN AT THE WORKPLACE through Chairperson, Government of Pakistan and another

Constitutional Petition No.D-1310 of 2019, decided on 17th September, 2019.

Civil service---

----Posting and transfer of female government employee---Requirements---Petitioner being unmarried female employee was transferred from the place of residence of her parents---Contention of employee was that she had been transferred against policy decision of the Government---Validity---Transfer was an incident of service and transfer policy did not vest an enforceable right in favour of employee---Unmarried female employee was to be posted at the place of residence of her parents or family---Transfer of employee was declared against the policy decision of the Government---Constitutional petition was allowed, in circumstances.

Ali Asadullah Bullo for Petitioner.

Muhammad Nishat Waris, D.A.G. for Respondents.

2021 P L C (C.S.) 415

[Sindh High Court]

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

UMER YAMIN

Versus

INSPECTOR GENERAL OF POLICE and another

Constitutional Petition No.D-948 of 2015, decided on 17th September, 2019.

Police Act (V of 1861)---

----S.12---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 11-A---Standing Order No. 260/2011---Appointment as Junior Clerk against son quota in Police Department---Inspector General of Police, powers of---Standing Order issued by Inspector General of Police---Scope---Contention of petitioner was that he was entitled for appointment as Junior Clerk in view of Standing Order issued by the Inspector General of Police---Validity---Candidates who had met the requisite criteria could be appointed against the post of Junior Clerk---Petitioner had failed to establish case of discrimination and/or violation of any law---Authorities had rightly rejected candidature of the petitioner, in circumstances---Inspector General of Police had powers to pass orders and frame rules with regard to recruitment, organization, classification and distribution of police force---Standing Order issued by the Inspector General of Police had to be approved by the Provincial Government---Subject Standing Order had not been approved by the Provincial Government therefore, no sanctity could be attached to the same---Authorities could not circumvent the law to make recruitment against the son quota by issuing Standing Order without approval of Provincial Government---Appointment in Police Department could only be made through competitive process on merit under recruitment rules and not otherwise---Constitutional petition was dismissed, in circumstances.

2010 PLC 924 ref.

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 rel.

Qaim Ali Memon for Petitioner.

Shahriyar Mahar, Assistant Advocate-General Sindh for Respondents.

2021 P L C (C.S.) 430

[Sindh High Court]

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

SAJID HUSSAIN

Versus

PROVINCE OF SINDH and others

Constitutional Petition No.D-5026 of 2015, decided on 14th November, 2018.

Civil service---

----Appointment against the post of Constable in Police Department---Contention of petitioner was that he had qualified written test and interview but he had not been appointed---Validity---Grievance of petitioner did not relate to the "terms and conditions" of service as he had sought appointment---Constitutional petition was maintainable, in circumstances---Name of petitioner did not appear in the list of successful candidates petitioner had been declared failed candidate for the post, therefore, he was not eligible for appointment---Provincial Ombudsman had dismissed complaint of the petitioner and he had not availed appropriate remedy available under the law---Nothing was on record that candidate had passed written test and interview for the post he had applied for---Petitioner had failed to make out his case for indulgence of High Court in its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Sajid Hussain Petitioner present in person.

Shehryar Mehar, Assistant Advocate General Sindh.

2021 P L C (C.S.) 452

[Sindh High Court]

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

Mst. IMTIAZ BIBI

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division/Finance Division Constitution Avenue, Islamabad and 3 others

Constitution Petition No.D-4461 of 2017, decided on 28th February, 2020.

Civil service---

----Family pension, grant of---Entitlement of wife to receive pension after death of civil servant---Petitioner was second wife and deceased civil servant and she had claimed for remaining portion of pension which had not been paid to the first wife who had also expired---Validity---If government servant had more than one wife then pension should be divided equally among the surviving widows and children---Petitioner's deceased husband had retired from service and his first wife being widow was getting family pension during her life time and she had also expired---Petitioner after demise of first wife of deceased civil servant had become entitled for all the pensionary benefits of her deceased husband---Petitioner had claimed outstanding pensionary benefits which could not be drawn by the first wife of deceased civil servant---Any financial benefit which an employee could claim from his employer in his life time could be treated as an absolute right of employee---Service benefit which had not fallen due to an employee during his life time was a grant or concession on the part of the employer and same after death of employee was to be distributed among family members who were entitled---Petitioner and her unmarried daughter were receiving entire family pension---Authorities were directed to distributed outstanding amount of pension of deceased civil servant among widow and unmarried daughter who were his family members---Constitutional petition was allowed, accordingly.

Mst. Imtiaz Bibi present in person.

Muhammad Khalil Dogar for Respondents Nos.3 and 4.

Ms. Durdana Tanweer, Assistant Attorney General.

2021 P L C (C.S.) 463

[Sindh High Court]

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

OKASH KHALID MEMON and 4 others

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petition No.D-591 of 2018, decided on 18th February, 2020.

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

----Rr. 3, 4, 6, 7, 8 & 9---Sindh Civil Servants Act (XIV of 1973), Ss.5, 8 & 10---Constitutional petition---Civil service---Provincial Transport Department---Secretary, District Regional Transport Authorities---Appointment by transfer---Scope---Contention of petitioners was that authorities were posting officers of other cadre against the posts of Secretary, District Regional Transport Authorities---Validity---Term 'transfer' had to be interpreted in its common parlance and was subject to the limitations contained in Rr. 3, 4, 6, 7 & 8 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Any appointment by transfer under R.9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had to be for a fixed term and on completion of such term the civil servant had to join back his parent department---Word 'appointment' used in R.6(A) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, could not be equated with the word 'initial appointment' used in Sindh Civil Servants Act, 1973 which did exclude appointment by transfer and promotion---Rule 9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not permit transfer of non-civil servant to a non-cadre post or to a cadre post---No civil servant of a non-cadre post could be transferred out of cadre to be absorbed to a cadre post which was meant for recruitment through competitive process---Civil servant could be transferred out of cadre to any other department of the Government subject to the restrictions contained under R.9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Six posts of Secretary Regional Transport Authority and one post of Secretary Provincial Transport Authority fell within the ambit of cadre schedule posts to be filled as per recruitment rules subject to eligibility and entitlement---Constitutional petition was dismissed in circumstances.

Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 and Ali Azhar Baloch and others v. Province of Sindh and others 2015 SCMR 456 rel.

Ali Asadullah Bullo for Petitioners.

Ali Safdar Depar, Assistant Advocate-General.

2021 P L C (C.S.) 507

[Sindh High Court]

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

ZAHEER-UDDIN AHMED QURAISHI and 13 others

Versus

The PROVINCE OF SINDH through Chief Secretary and 4 others

Constitutional Petition No.D-4646 of 2017, decided on 4th March, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Judgment of Supreme Court---Implementation--- Dispute was with regard to pension for which matter was finally decided by the Supreme Court---Petitioner alleged that order passed by Supreme Court was not implemented---Validity---Calculation made by Provincial Government was not correct for the reason that Supreme Court directed to determine pension from the date of restoration of their commuted pension at the rate at which they were drawing 50% remaining pension which meant that petitioner at the time of his retirement commuted his 50% pension and that portion of pension was to be increased after a period of 15 years (commuted period)---Increases made on commuted pension had already been drawn by petitioner, therefore, his claim that at the time of restoration of his commuted portion, he was drawing Rs.28211.03 and increases to be made in that amount was misconceived---High Court declined to interfere in the matter as calculation prepared by authorities as well as Accountant General Sindh was in accord with judgment passed by Supreme Court---Constitutional petition was dismissed, in circumstances.

Federation of Pakistan v. Ghulam Mustafa and others 2012 SCMR 1914 and Secretary Government of Punjab v. M. Ismail Tayer and others 2014 SCMR 1336 rel.

Abdul Salam Memon for Petitioners.

Jamal Bukhari for Respondents/SESSI.

Hakim Ali Shaikh, Additional Advocate-General.

2021 P L C (C.S.) 526

[Sindh High Court]

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

Dr. FARRUKH MIRZA

Versus

The SECRETARY, FINANCE DIVISION, ISLAMABAD and 3 others

Constitution Petition No.D-6090 of 2017, decided on 26th February, 2020.

Constitution of Pakistan---

----Art.199--- Constitutional petition--- Judgment of Supreme Court--- Implementation--- Dispute was with regard to pension for which matter was finally decided by Supreme Court--- Petitioner alleged that order passed by Supreme Court was not implemented---Validity---Calculation of pension made by petitioner was factually incorrect on the ground that residual pension amount of petitioner as on 20-5-1999 was Rs.6,612.5 which was retained portion for restoration of commuted amount of pension and that amount was to be doubled after attaining the age of 72 years--- As per Finance Division's O.M. No.F.4(1)-R6/99 dated 23-7-1999, O.M. No.F.16(1)-Reg. 6/2010-1071 dated 18-10-2019, O.M. No.F.13(13)-Reg. 6/2011 dated 21-1-2013 and O.M. No.F.13(13)-Reg. 6/2011 dated 11-3-2013, regarding restoration of pension, petitioner's entitlement for Rs.62,330/- at the double rate of current rate as claimed by him was unfounded and not in accordance with order of Supreme Court--- High Court was satisfied with explanation offered by authorities that compliance of judgment of Supreme Court had been made in letter and spirit--- Application was dismissed in circumstances.

Petitioner in persons.

2021 P L C (C.S.) 537

[Sindh High Court (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

MANSOOR and another

Versus

FEDERATION OF PAKISTAN through Secretary Information and Technology, Islamabad and 2 others

Constitution Petition No.D-2115 of 2014, decided on 17th September, 2020.

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

----Ss.35 & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9 [since repealed]---Constitution of Pakistan, Art.199---Constitution petition---Maintainability--- Transfer of departmental employees of corporation---Statutory terms and conditions of service of such employee---Petitioners were appointed in Pakistan Telecommunication Corporation Limited to serve anywhere in the region of their initial appointment---Services of all employees of Pakistan Telecommunication Corporation Ltd. having been transferred to Pakistan Telecommunication Company Limited in terms of Ss.35 & 36 of Pakistan Telecommunication (Re-organization) Act, 1996, terms and conditions of their services had remained the same---Petitioners could not be transferred/posted outside the region for which they were initially appointed---Said protected terms and conditions could not be varied to their (employees') disadvantage --- Said employees did not remain civil servants and Legislature also bound the Federal Government to guarantee the existing terms and conditions of service of transferred employees which were essentially statutory---Violation of any of them would, thus, be amenable to the constitutional jurisdiction of the High Court---Constitutional petition was held to be maintainable.

P.T.C.L v. Masood Ahmed Bhatti 2016 SCMR 1362 ref.

(b) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----Ss. 35 & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9 [since repealed]---Transfer---Cancellation of---Employees of Pakistan Telecommunication Corporation Limited which department was converted into Pakistan Telecommunication Company Limited---Petitioners (telephone operators) sought cancellation of their transfer, out of region, on the ground that they were illegally transferred just to pressurize them to accept Voluntarily Separation Scheme (VSS) ---Petitioners were appointed in Pakistan Telecommunication Corporation Limited to serve anywhere in the region of their initial appointment---Since services of all employees of Pakistan Telecommunication Corporation Ltd. were transferred to Pakistan Telecommunication Company Limited in terms of S.9 of Pakistan Telecommunication Corporation Act (XVIII of 1991) as well as Ss. 35 & 36 of Pakistan Telecommunication (Re-organization) Act, 1996, with the terms and conditions of their services remaining the same---Petitioners could not be transferred outside the region for which they were initially appointment---Transfer orders were illegal and unlawful, which had been issued without any justification--- High Court set aside the impugned transfer memos/orders of the petitioners---Constitutional petition was allowed, in circumstances.

Ms. Nasim Abbasi for Petitioners.

Hymayoon Khan, Deputy Attorney General for Pakistan.

Mumtaz Alam Laghari for Respondents Nos.2 and 3.

2021 P L C (C.S.) 591

[Sindh High Court]

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

ZEESHAN USMANI and others

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 2 others

Constitutional Petitions Nos.D-5850 and D-5851 of 2018, decided on 7th April, 2020.

Civil service---

----Contract employee---Regularization of service---Scope---Employees of Company functioning with the affairs of Pakistan---Plea of petitioners-employees was that they had served in employer-company on contract basis as executive for five years but were not regularized by the employer-company despite their appearing in the prescribed test---Employer-company contended that only those contract employees, who could obtain 60% marks in the prescribed test, were regularized and petitioners had not achieved the targeted marks ---Validity---High Court had already passed judgment in another constitutional petition (in the year 2017) disposing off the same by directing the employer, company to consider the cases of the petitioners for regularization of service in accordance with law, however, the policy introduced by the company for the regularization of service was discussed at length and the same was repealed---Employer-company assailed the said judgment before the Supreme Court but the same was upheld by the Supreme Court---High Court observed that case of petitioners was similar to the case decided by the High Court and upheld by the Supreme Court, as such petitioners were entitled to similar treatment as given to their similarly placed colleagues for regularization and absorption, as nothing adverse against them in terms of qualification, character and performance in their respective fields was observed by the competent authority during their entire period of service---High Court directed employer-Company to consider the case of the petitioners for regularization of their service in accordance with law within a period of two months ---Constitutional petitions were disposed of accordingly.

Kamran Mallah and others v. Federation of Pakistan and others 2019 PLC (C.S.) 41 ref.

Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital and others 2019 PLC (C.S.) 928; Amir Jamil v. University of Karachi and others 2018 PLC (C.S.) 542; Javed Akhtar v. Secretary, Education and Literacy Department, Government of Sindh and others 2019 PLC (C.S.) 989; Irrudiyanandan Francis v. Deutsche Bank A.G., 2019 PLC (C.S.) 1028; Shahzad Gohar v. Government of Punjab and Aitchison College 2018 PLC (C.S.) Note 1; Government of Balochistan, Department of Health through Secretary v. Dr. Zahida Kakar and others 2009 PLC (C.S.) 206 and Raja Iviz Mehmood and others v. Federation of Pakistan and others 2018 SCMR 162 distinguished.

Faizan Hussain Memon for Petitioners.

Asim Iqbal for Respondents Nos.2 and 3.

Muhammad Nishat Warsi, D.A.G.

2021 P L C (C.S.) 662

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Yousuf Ali Sayeed, JJ

Syed ANWAR ALI SHAH

Versus

ZARAI TARQIATI BANK LTD. through President and 2 others

Constitutional Petition No.D-1257 of 2019, decided on 16th July, 2020.

Fundamental Rules---

----Rr.54 & 54-A---Employee who was suspended/dismissed pending enquiry attained the age of superannuation---Grant of pensionary benefits---Scope---Petitioner, employee of Government owned Bank sought direction to the respondent to grant full pensionary benefits---Contention of Bank authorities was that petitioner, during his service, had remained dismissed for a period of four years and was reinstated in service without back benefits as the period of dismissal was treated as "Extra Ordinary Leave (EOL)" without pay---Validity---Fundamental Rule, 54-A did not support the case of Bank authorities which provided that if Government servant, who was suspended pending inquiry into his conduct, attained the age of superannuation before the completion of inquiry, the disciplinary proceedings against him would abate and such Government servant shall retire with full pensionary benefits and the period of suspension shall be treated as period spent on duty---Petitioner had qualifying length of service to claim his pensionary benefits from the respondent but it had calculated the pensionary benefits without pay, allowances and other allied benefits as admissible under the law---No deduction, as per Fundamental Rule 54, could be made from the pensionary benefits on attaining the age of superannuation---Bank authorities could not fix two separate categories for paying the service benefits, only to be paid to the other employees of the bank and excluding the petitioner---Bank was directed to award post-retirement benefits to the petitioner without discrimination.

Superintendent Engineer GEPCO Sialkot v. Muhammad Yusuf Civil Petition No.1097-I of 2004 and I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others PLD 1992 SC 144 rel.

Petitioner in person.

Fayyaz Ahmed A. Soomro along with Ali Raza Patthan, Assistant Attorney General for Respondents Nos.1 to 3.

2021 P L C (C.S.) 683

[Sindh High Court]

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

SHAKIR ALI and another

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, Islamabad and another

Constitutional Petitions Nos.D-876 and D-877 of 2020, decided on 4th December, 2020.

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

----R.11.03(1)(b)---Major/minor penalty, imposition of---Principle---Non-holding of Regular inquiry---Petitioners were employees of National Accountability Bureau who were dismissed from service on the allegation of misconduct---Validity---Purpose of providing major and minor penalties was to give choice to departmental authorities to determine quantum of punishment in the light of nature of misconduct---Authorities concerned could in their discretion award major or minor penalty---Such power must not be exercised in an unjust and arbitrary manner, except in special circumstances---Civil servant must not be awarded major penalty of dismissal from service without proper inquiry and providing him fair opportunity to explain his position--- Imposition of major penalty of dismissal from service without inquiry would suggest element of bias and unfair treatment at least in the matter of quantum of sentence---Findings of fact-finding inquiry/committee without joining civil servant against whom the findings were compiled were contrary to the principles of natural justice enshrined in the maxim audi alteram partem--- Competent authority must not dispense with the inquiry that was necessary to probe into charge, particularly when there was a likelihood of imposition of major penalty of removal from service, if the allegation would prove---If inquiry was dispensed with without any plausible reason, such dispensation was not justified---Imposition of major penalty of removal from service without holding inquiry resulted in grave miscarriage of justice and prejudice to aggrieved civil servant--- While deciding statutory appeals, President of Pakistan or Governor of a Province, as appellate authority under statute concerned, were not immune to such important and fundamental legal requirement--- High Court set aside orders of dismissal from service and remanded the matter to competent authority of National Accountability Bureau for holding regular inquiry against petitioners after providing opportunity of hearing / representation to them---Constitutional petition was allowed in circumstances.

Muhammad Idris Khan v. Secretary / Chairman, Ministry of Railways Islamabad and 5 others 2006 SCMR 104; Fatima Bibi v. Deputy District Education Officer and others 2007 PLC (C.S.) 597; Divisional Forest Officer Kasur and another v. Zahid Ali 2011 PLC (C.S.) 1382; Muhammad Afzal v. Regional Police Officcer, Bahawalpur and others 2012 PLC (C.S.) 728 and Muhammad Naeem Akhtar v. Managing Director Water and Sanitation Agency LDA, Lahore and others 2017 SCMR 356 rel.

Hassan Raza v. Federal Board of Revenue through Chairman and others 2020 SCMR 994 distinguished.

Malik Nadeem Iqbal for Petitioner.

Akram Javed, Special Prosecutor NAB.

Muhammad Nishat Warsi, D.A.G.

2021 P L C (C.S.) 718

[Sindh High Court (Hyderabad Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

NAVEED AHMED and 5 others

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others

Constitution Petition No.D-1551 of 2010, decided on 21st August, 2019.

Civil service---

----Contract/daily wages employees---Regularization of service---Scope---Petitioners sought regularization of their services---Validity---Petitioners were taken up against different posts on contract/daily wages basis for a period of one year---Very program in which petitioners were appointed had been abandoned---Summary for regularization of services of petitioners had been regretted by the Finance Department and said "regretting order" had not been challenged by the petitioners before any forum---Petitioners could not be ordered to be taken back in service on regular basis with all back benefits by the High Court in exercise of its constitutional jurisdiction--Constitutional petition was dismissed.

Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405 distinguished.

Syed Muhammad Soulat Rizvi for Petitioners.

Muhammad Ismail Bhutto, Additional Advocate General Sindh for Respondents.

2021 P L C (C.S.) 860

[Sindh High Court]

Before Muhammad Junaid Ghaffar, J

PAKISTAN AIRLINE PILOTS' ASSOCIATION through Honorary General Secretary and 4 others

Versus

FEDERATION OF PAKISTAN through Secretary for Ministry of Interior, Islamabad and another

Suit No.538 and C.M.As. Nos.4391, 4437 of 2020, decided on 29th July, 2020.

(a) Arbitration Act (X of 1940)---

----S.34---Stay of legal proceedings---Principle---Stay of proceedings is subject to the condition that applicant i.e. the party filing an application under S.34 of Arbitration Act, 1940, was at the time of proceedings commenced and still remains ready and willing to do all things necessary to the proper conduct of arbitration.

(b) Arbitration Act (X of 1940)---

----Ss. 20 & 41--- Procedure and power of Court---Scope---Provisions of S.41 of Arbitration Act, 1940, are available to a party which itself is conceding to and willing to go for arbitration and not by way of suit for declaration under ordinary jurisdiction of Court--- Such provision, at the best be available to a party who has come before Court under S.20 of Arbitration Act, 1940, showing its willingness and readiness to go for arbitration and applies to Court for appointment of arbitrator pursuant to arbitration clause and at the same time seeks assistance of Court to exercise its discretion conferred under S.41 of Arbitration Act, 1940---Not that firstly a party to arbitration agreement files an ordinary suit for declaration and injunction and when defendant comes up with an application under S.34 of Arbitration Act, 1940, then a shelter could be sought under S.41 of Arbitration Act, 1940.

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

----Ss.39, 72 & 73---Agreement, termination of--- Principle---Agreement cannot continue for life time or indefinite period--- If a party is unable to perform its part of agreement, then disability of such party itself results into termination of agreement.

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

----S.21---"Service agreement"---Enforcement of such agreement is barred under S.21 of Specific Relief Act, 1877.

(e) Arbitration Act (X of 1940)---

----S. 41---Powers of Court--- Interim orders--- Arbitration proceedings--- Scope--- No jurisdiction and discretion under S.41 of Arbitration Act, 1940, has been conferred upon Court to pass interim orders--- Such proceedings are only applicable in respect of arbitration proceedings before Court--- Arbitration Act, 1940 is a special law and is a complete code in itself--- Use of words 'arbitration proceedings' were not to be so stretched to include all proceedings before the Court like an ordinary civil suit as well.

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

----Ss. 42 & 54--- Industrial Relations Act (X of 2012), Ss.3 & 19--- Arbitration Act (X of 1940), S. 34--- Constitution of Pakistan, Art. 17 (1)--- Suit for declaration and injunction--- Stay of proceedings--- "Service agreement"--- Association of employees--- Trade Union, role of--- Plaintiff was an association of pilots who assailed notification issued by defendant Airline pertaining to terms and conditions of service of pilots--- Plaintiff relied upon an agreement executed between the parties--- Defendant Airline sought stay of proceedings to invoke arbitration clause in the agreement---Validity---Held, it was only to the extent that Airline was no more willing to treat plaintiff as a body, which could enter into negotiations with regard to working conditions of Airline pilots--- Defendant Airline did not dispute or derecognize any other independent and individual activity of plaintiff association according to their own Charter and Memorandum of Association--- Mere registration under Societies Act, 1925 did not create any statutory obligations on an employer to enter into negotiations in respect of terms and conditions of service of members of such society--- Industrial Relations Act, 2012, had specifically provided formation of Trade Union and election of Collective Bargaining Agent to a certain category of employees for which pilots stood disqualified--- Recourse to Societies Act, 1925 could not be equated or termed parallel for plaintiff Association to act as a representative body or a Collective Bargaining Agent with regard to terms and conditions of service of pilots--- What was not provided in law could not be read into it by other means--- Plaintiff might have a legal status as a society to act for betterment of its members but could not claim as a matter of right to be representative body or a Collective Bargaining Agent for negotiating terms and conditions of service of pilots in defendant Airline--- High Court stayed the proceedings of civil suit as there was an arbitration clause in agreement and termination of agreement fell within all disputes provided in the agreement and parties were to go for arbitration accordingly to agreed terms---Application was allowed, in circumstances.

Messrs Sunrise Textile Limited v. Messrs Tomen Corporation and 4 others 1994 CLC 2000; Messrs Franklin Credit and Investment Company Ltd. v. Export Processing Zones Authority and another 2016 MLD 952; Shah Muhammad v. Export Processing Zones Authority 2011 YLR 2413; Liaquat Ali Ghanghro v. Province of Sindh and another 2007 CLC 923; Karachi City Cricket Association, Karachi v. Mujeebur Rehman, Chairman, Ad Hoc Committee, Pakistan Cricket Board, Lahore and 2 others PLD 2003 Kar. 721; Civil Aviation Authority, Islamabad and others PLD 1997 SC 781; Union of Civil Aviation Employees, Lahore and another PLD 1993 Lah. 306; Government of N.W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72; Zainab Zahid Naseem and others v. Federation of Pakistan and others (Suit No. 663/2014); Shariq ul Haq and 5 others v. Pakistan International Airlines Corporation Limited and another 2018 PLC (C.S.) 975; Muhammad Mubeen us Salam and others v. Federation of Pakistan and others PLD 2006 SC 602; Imran Ahmed Khan v. Pakistan and another 2008 CLC 697; Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568; Shahid Khalil v. Messrs Pakistan International Airlines Corporation, Karachi PLD 1972 Kar. 477; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Tarbela Joint Venture and Chief Camp Commandant v. Labour Appellate Tribunal N.W.F.P. and 2 others PLD 1975 Pesh. 240; M/s. Sui Southern Gas Company Limited v. Registrar of Trade Union and others (Civil Petition No.449 of 2019); K-Electric Limited and another v. Federation of Pakistan and others PLD 2014 Sindh 504; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Shell Pakistan v. Ashiq Muhammad Malik 2006 PLC 477; Joint Action Committee of PIA Employees v. Federation of Pakistan and others (Writ Petition No.1104/2016); Muhammad Yusuf Shah v. PIAC PLD 1981 SC 224; Muhammad Zaman v. Government of Pakistan 2017 SCMR 571; Democratic Workers Union CBA v. SBP 2002 PLC (C.S) 614; Pakistan Diploma Engineers Federation v. Federation of Pakistan 1987 CLC 2154; Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan PLD 1964 Lah. 138; Nisar Ahmed Khan v. Federation of Pakistan and others 1999 SCMR 1338; Messrs Khas Traders v. Registrar, Trade Union 1990 PLC 351; Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and another 1997 PLC 653; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Habib Bank Limited and 2 others v. National Industrial Relation Commission and others 1998 PLC 674; Husain Ali Chandio v. The Secretary Ministry of Communication Islamabad and 3 others 1992 SCMR 32; Islamic Republic of Pakistan v. M. Zaman Khan 1997 SCMR 1508; The Hub Power Company Limited and another v. Wapda and others PLD 2000 SC 841; Firm Karam Narain Daulat Ram and another v. Messrs Volkart Bros and another AIR (33) 1946 Lahore 116; Karachi Shipyard and Engineering Works Ltd. Karachi v. Messrs General Iron and Steel Works Ltd. PLD 1971 Kar. 501; Pakistan Burmah Shell Ltd. v. Tahir Ali 1983 CLC 2745; Island Textile Mills Ltd. Karachi v. V/O Techno Expert and another 1979 CLC 307; Lahore Stock Exchange Limited v. Fredrick J. Whyte Group (Pakistan) Ltd. and another PLD 1990 SC 48; Port Qasim Authority, Karachi v. Al-Ghurair Group of Companies and 3 others PLD 1997 Kar. 636; Messrs Sadat Business Group Ltd. v. Federation of Pakistan and another 2013 CLD 1451; Pakistan Mobile Communication Ltd. (Mobilink) Islamabad v. Naimatullah Achakzai and 3 others 2012 CLC 12; Hidayatullah and 10 others v. Shamimuddin and 14 others 1993 MLD 993; Messrs Haji Muhammad Ibrahim and Sons and others v. Karachi Municipal Corporation and others PLD 1960 (W.P.) Karachi 916; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549; Haji Mojakkir Ali v. Regional Transport Authority , Sylhet and others PLD 1967 Dacca 6; The Punjab Miner's Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum PLD 1972 Lah. 489; The Marriage Hall Association v. The Chairman, Central Board of Revenue Islamabad and 2 others 1998 CLC 33; Messrs Mutual Funds Association of Pakistan (MUFAP) v. Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan and another 2010 PLC 306; Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others 2012 SCMR 152; Karachi Pipe Mills Employees Union, Karachi v. Karachi Pipe Mills Ltd., Karachi 1992 SCMR 36; Muhammad Ali and 4 others v. Lahore Development Authority through Director-General and 4 others 2002 MLD 607; Pakistan v. Muhammad Ahsan 1991 SCMR 2180; Chief Commissioner, Karachi v. Jamil Ahmad and Municipal Commissioner Karachi PLD 1961 SC 145; Aurangzeb v. Gool Bani Dr. Burjor Ankalseria 2001 SCMR 909; All India Bank Employees' Association v. The National Industrial Tribunal (Bank Disputes), Bombay and others AIR 1962 SC 171; Dharam Dutt and others v. Union of India and others AIR 2004 SC 1295; Democratic Workers Union CBA v. SBP 2002 PLC (C.S) 614; A. Javaid, President, Pakistan International Airlines Corporation Employees' Union, Karachi v. National Industrial Relations Commission, Government of Pakistan, Islamabad through its Chairman and another PLD 1978 Kar. 64; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549; Shashi Bhusan Basuri v. Moti Bala Dassi and others AIR 1945 Cal. 317; Sukumar Banerjee v. Dilip Kumar Sarkar and others AIR 1982 Cal. 17; Mst. Maroof Jan and 2 others v. Yaqoob and 4 others 1990 CLC 19; Muhammad Iqbal through L.Rs v. Mehmood Hasan and others 2016 MLD 1243; Allah Ditta v. Abdul Ghafoor 1992 MLD 1301; Zulfiqar Ali Khan and another v. District Government, Ghotki at Mirpur Mathelo and others 2006 CLC 20; Muhammad Hanif Khan v. Province of Sindh through Secretary, Land Utilization Department, Karachi and 8 others PLD 2006 Kar. 531; Managing Director, Century Textile Industries Limited v. Manju Gupta and others AIR 2009 MP 124; Ranjit Chandra Mitter v Union of India AIR 1963 Cal 594; Chedilal v. Brit Over Ltd., 52 CWN 45; MANU/WB/0198/1947; New Central Book Agency (Pvt.) Ltd. v. Madhusri Konar MANU/WB/1467/2014; Resbird Technologies (Pvt.) Ltd. v. R.S. Travel and Tours (India) (Pvt.) Ltd. and others MANU/DE/1084/2018; Rajasthan Breweries Ltd. v. The Stroh Brewery Company AIR 2000 Delhi 450; Bank Alfalah Limited v. Neu Multiplex and Entertainment Square Company (Pvt.) Limited 2015 YLR 2141; Indian Oil Corporation Ltd. v. Amritsar Gas Service and others (1991)1 SCC 533; Classic Motors Ltd. v. Messrs Maruti Udyog Ltd., MANU/DE/0586/1996 and Heyman v. Darwins Ltd. [H.L.(E) 1942 AC 350 ref.

Muhammad Ali Lakhani and Sohail Mujtaba Raja for Plaintiffs.

Kashif Paracha, D.A.G. for Defendant No.1.

Jawad A. Sarwana along with Anees Ahmed for Defendant No.2.

2021 P L C (C.S.) 919

[Sindh High Court]

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

GHULAM HUSSAIN

Versus

PAKISTAN TELECOMMUNICATION EMPLOYEES TRUST through Managing Director and Director Pension, Islamabad and 2 others

Constitutional Petition No.D-3840 of 2020, decided on 13th October, 2020.

Civil service---

----Pension, deduction in---Scope---Petitioner challenged the action of department whereby it was deducting certain amount of sum from his pension on account of rent---Validity---No amount on account of rent could have been deducted from petitioner's pension---Department undertook to refund the amount illegally deducted from the petitioner's pension and from other retired employees---Constitutional petition was allowed.

Syed Ansar Hussain Zaidi for Petitioner.

Altamash Arab along with Kanwar Mohsin Ali Khan, Senior Manager (Admn.) KTR-II, PTCL for Respondent.

Muhammad Nishat Warsi, D.A.G.

2021 P L C (C.S.) 949

[Sindh High Court]

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

SHAFIQUE AHMED SHAH

Versus

The ADMINISTRATOR KARACHI METROPOLITAN CORPORATION and 5 others

Constitutional Petition No.D-5344 of 2020, decided on 29th October, 2020.

(a) Civil service---

----Transfer and posting---Scope---Grievance of petitioner was that despite successful completion of the process of appointment and issuance of posting order in pursuance thereof, he was not being allowed to join his duties---Petitioner had statedly filed a representation in that behalf before the Administrator concerned, but till date no action was taken thereon---High Court observed that if any application/representation/complaint was filed by the petitioner before the competent authority, the same shall be decided within fifteen days from receipt of the order strictly in accordance with law---Constitutional petition was disposed of accordingly.

(b) Civil service---

----Transfer and posting---Constitutional petition under Art.199 of the Constitution---Maintainability---High Court observed that common practice has developed that constitutional petitions are filed before the High Court seeking posting or questioning transfer---Such petty issues should not be brought before the High Court under Art. 199 of the Constitution and the Secretary or Head of the relevant department should be approached first in case posting is denied or delayed after appointment or the employee is aggrieved by his transfer---Secretary/Head of such department shall decide the matter strictly in accordance with law within fifteen days from the date of receipt of his application/representation---Office of the High Court was directed not to entertain any constitutional petition relating to posting and/or transfer unless the above remedy was exhausted by the person approaching the Court.

Tarique Ahmed Jakhrani for Petitioner.

2021 P L C (C.S.) 968

[Sindh High Court]

Before Muhammad Faisal Kamal Alam, J

Dr. ISHAQUE MUHAMMAD SHAH

Versus

NATIONAL BANK OF PAKISTAN through President

Suit No.1258 of 2010, decided on 6th July, 2020.

National Bank of Pakistan (Staff) Service Rules, 1980---

----R.18---National Bank of Pakistan (Staff) Service Rules, 1973, R.17---Suit for declaration and recovery of damages---Superannuation---Removal from service---Plaintiff was aggrieved of end of his service without issuance any prior notice---Validity---Upon attaining sixtieth year of his age employee's employment was to come to an end under Rr.17 & 18 of National Bank of Pakistan (Staff) Service Rules, 1973 and 1980 respectively--- Notice for removal from service ended employment of plaintiff as he attained retiring age for which no prior notice was required as every employee was in knowledge of his retirement age---Plaintiff was not separated from defendant Bank as a result of any disciplinary proceedings for which any prior show cause notice or any domestic proceedings relating to misconduct was required to be issued or initiated---Plaintiff was given post retirement dues as per his entitlement---Plaintiff failed to prove violation of any service Rules by defendant Bank due to which he was deprived of any of his service / employment dues and had suffered mental torture and trauma as claimed by him, relating to post retirement period---When neither any illegality was committed nor wrong was done by defendant Bank to plaintiff, then there was no question to award liquidated or special damages against defendant Bank---Plaintiff did not bring on record that he was a regular and confirmed employee of Bank---Suit was dismissed in circumstances.

Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal Lahore and others 1999 SCMR 2557; Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others 2018 SCMR 325; Board of Intermediate and Secondary Education and others v. Tanveer Sajid and others 2018 SCMR 1405; Muhammad Tarim Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 and Nazeer Ahmed and others v. Haji Nazeer Ali and others 2006 MLD 207 ref.

Abrar Hassan Mehreen Ebrahim and S. Masroor Ahmed Alvi for Plaintiff.

Chaudhry Muhammad Ashraf Khan for Defendant.

2021 P L C (C.S.) 1012

[Sindh High Court]

Before Muhammad Faisal Kamal Alam, J

ASADULLAH KHAWAJA

Versus

INVESTMENT CORPORATION OF PAKISTAN (ICP) through Managing Director

Suit No.1347 of 2006, decided on 20th April, 2020.

(a) Civil service---

----Employee of Investment Corporation of Pakistan---Voluntary Retirement Scheme (VRS)---Recovery of services dues and benefit---Past and closed transaction--- Plaintiff was ex-employee of defendant-corporation and was retired under Voluntary Retirement Scheme---Defendant withheld funds of plaintiff due to an audit objection contained in correspondence according to which government commercial auditors were of the view that plaintiff had received an irregular payment---Validity---Such portion of correspondence was illegal because it had already been decided in a meeting of defendant-corporation that the amount received by plaintiff was treated as a valid payment and was a past and closed transaction---In addition to such decision, suit filed by defendant-corporation against plaintiff for recovery of excess amount was subsequently withdrawn---Defendant-corporation was liable to pay unpaid amount to plaintiff as the same was illegally withheld--- High Court directed defendant-corporation to pay the amount withheld along with markup at the rate of 10% per annum as the plaintiff was deprived from his legitimate service dues for almost two decades--- Suit was decreed accordingly.

Pakistan Telecommunication Employees Trust (PTET) through M.D., Islamabad v. Muhammad Arif 2015 SCMR 1472; Mubin-ul-Islam and others v. Federation of Pakistan PLD 2006 SC 602; Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer 2015 PLC (C.S.) 296; Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer 2014 SCMR 1336; Syed Mubashir RazaJaffri v. Employees Old-Age Benefits Institutions (EOBI) 2014 SCMR 949; Nadeem Ahmed v. Federation of Pakistan 2013 SCMR 1062; Abdul Rehman Farooq Pirzada v. Begum Nusrat Ali Gonda v. Federation of Pakistan PLD 2013 SC 829; Federation of Pakistan through Secretary, Government of Pakistan Establishment Division, Islamabad v. FLt. Lt. Farrukh Rashid 2008 SCMR 544; Inbox Business Technologies Ltd., v. Pakistan through Secretary Revenue Division 2018 PTD 621; Salman Adil Siddiqui v. Province of Sindh 2008 PLC (C.S.) 220; Shahid Pervaiz v. Ejaz Ahmad 2017 SCMR 206; Abdul Samad alias Dadda v. Khan Iqbal Ahmad Khan Lodhi, P.C.S., District Tribunal, Lahore and another PLD 1972 Lah. 41; Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376; Said Hussain Khan v. Muhammad Hussain Khan and another PLD 1996 SC (AJ&K) 25; Abdul Rashid v. The State PLD 1957 (W.P.) Lahore 400; Shahid Bibi and others v. Habib Bank Limited and others 2016 CLD 2025; Zila Council Jehlum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd., and others PLD 2016 SC 398 and Mst. Alia Riaz v. Government of Punjab and others 2015 CLC 1640 ref.

Al-Noor Sugar Mills Limited v. Federation of Pakistan 2018 SCMR 1792 and Muhammad Kashif v. Karachi Dock Labour Board through Chairperson 2013 PLC 374 distinguished.

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

----Art.114---Principle of acquiescence---Scope---Principle of acquiescence was evolved through interpretation of Art.114 of Qanun-e-Shahadat, 1984---Said principle stated that if an individual does not assert his known right or remains quiet by way of his conduct or otherwise then it is construed that such individual has waived / relinquished such right.

Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573; Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166 and Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 SCMR 1761 rel.

Khalid Mehmood Siddiqui and Mateen Ahmed for Plaintiff.

Nabeel Kolachi and Muhammad Ilyas for Defendants.

2021 P L C (C.S.) 1040

[Sindh High Court]

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

ANJUM BADAR

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitutional Petitions Nos. D-6241, D-828, D-5115 of 2016, D-2683, D-4516, D-6229 of 2017, D-2732, D-4271, D-5995, D-9016 of 2018, D-4107, D-7376 of 2019, D-1572, D-4292, D-4902 of 2020, decided on 8th April, 2021.

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

----S. 3---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 10---Sindh Public Service Commission (Functions) Rules, 1990, R. 3---Contractual employees seeking regularization in service---Petitioners sought regularization of their contractual appointments in BPS-17 under S.3 of the Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013---Validity---Rule 10 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and R.3(1)(i) of the Sindh Public Service Commission (Functions) Rules, 1990, mandated that initial appointments to the posts in BS-16 to BS-22 were to be made by the Commission on the basis of examination or test to be conducted by it, if the posts fell within its purview---Petitioners had to go through the mandatory competitive process of selection that was required for the appointment of a civil servant---Argument of petitioners that it would be discriminatory if they were not regularized after serving for a considerable period or they would not be able to get another job if they were relieved at this stage, had no force---Petitioners had voluntarily applied for appointment on contract and after fully understanding the implications and consequences of a contractual appointment had voluntarily accepted the same---Petitioners' regularization would in fact be discriminatory against the serving civil servants if contractual employees were granted the status of a civil servant without having gone through the mandatory competitive process prescribed for the selection and appointment of a civil servant---Constitutional petitions were dismissed, in circumstances.

Administrator Lucky Marwat v. Izzat Khan 2000 SCMR 777; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Government of KPK v. Adnanullah, 2016 SCMR 1375; Government of N.W.F.P. (Now KPK) through its Chief Secretary v. Kaleem Shah 2011 SCMR 1004; Ghulam Mustafa v. Omaid Ali 1984 SCMR 1126; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350; Chairman, Minimum Wage Board, Peshawar v. Fayyaz Khan Khattak 1999 SCMR 1004; Muhammad Akhtar Shirani v. Punjab Textbook Board 2004 SCMR 1077; Federation of Pakistan v. Gohar Riaz 2004 SCMR 1662; Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159; Government of N.W.F.P. through Secretary, Education Department, Peshawar v. Qasim Shah 2009 SCMR 382; Sumara Umar Awan v. Chancellor Gomal University, D.I. Khan 2014 PLC (CS) 526; Rafaqat Ali v. Executive District Officer (Health) 2011 PLC (C.S.) 1615; Shabana Akhtar v. District Coordination Officer, Bhakkar 2012 PLC (C.S.) 366; Shahid Habib v. Government of Khyber Pakhtunkhwa 2019 PLC (C.S.) 1426 and Suo Motu Action Regarding Eligibility of Chairman And Members of Sindh Public Service Commission and others 2017 SCMR 637 ref.

Dr. Iqbal Jan and others v. Province of Sindh and others 2014 PLC (C.S.) 1153 not fol.

C.P. No.D-5397 of 2019 per incuriam.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Shahid Pervaiz v. Ejaz Ahmed and others 2017 SCMR 206 and Akhtar Umar Hayat Lalayka and others v. Mushtaq Ahmed Sukhaira and others 2018 SCMR 1218 rel.

(b) Constitution of Pakistan---

----Art. 199---Contractual employment---Regularization of service---Writ of mandamus---Scope---Writ of mandamus could not be claimed as a matter of right and, for issuance of direction in the nature of mandamus, there must be a legal right existing in favour of the person seeking a writ of mandamus and a corresponding legal duty imposed upon the public officer or authority against whom the writ is sought---Petitioners, who were contractual employees, did not have any vested right to seek appointment on regular basis; and, they had also not acquired any legal right from the appointment made by the Provincial Government and accepted by them admittedly on contract---No corresponding legal duty was cast on the Government to appoint them on regular basis, and thus, writ of mandamus, for by the petitioners, could not be granted---Constitutional petitions were dismissed, in circumstances.

(c) Constitution of Pakistan---

----Art. 199---Master-servant relationship---Constitutional petition filed by contractual employees seeking regularization of their services---Maintainability---Contract employee, whose terms and conditions of service are governed by the principle of 'master and servant', does not acquire any vested right for regular appointment, or to claim regularization, or to approach High Court in its constitutional jurisdiction to seek redressal of his grievance relating to regularization; in fact he is debarred from approaching High Court in its constitutional jurisdiction and the only remedy available to him is to file a suit for damages alleging breach of contract or failure on the part of the employer to extend the contract---After accepting the terms and conditions for contractual appointment, the contract employee has no locus standi to file a constitutional petition seeking writs of prohibition and/or mandamus against the authorities from terminating his service and/or to retain him on his existing post on regular basis---Contract employee, whose period of contract expires by efflux of time, carry no vested right to remain in employment of the employer and the courts cannot compel the employer to reinstate him or to extend his contract; and, no rights would accrue to a de facto holder of a post whose right to hold the said post is not established subsequently.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Government of Balochistan, Department of Health, through Secretary Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642; Dr. Mubashar Ahmed v. PTCL, through Chairman, Islamabad, and another 2007 PLC (C.S.) 737; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Abid Iqbal Hafiz v. Secretary, Public Prosecution Department, Government of Punjab, Lahore and others PLD 2010 SC 841; Suo Motu Case No.15 of 2010 (In re; Sou Motu action regarding regularization of contract employees of Zakat Department and appointment of Chairman of Central Zakat Council) 2013 SCMR 304; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Province of Punjab through Secretary Agriculture Department Lahore and others v. Muhammad Arif and others 2020 SCMR 507; Naureen Naz Butt v. Pakistan International Airlines 2020 SCMR 1625; Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068 and judgment dated 18.02.2021 Civil Appeals Nos. 936 and 937 of 2020 ref.

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

----R. 10---Sindh Civil Servants Act (XIV of 1973), S.5---Sindh Public Service Commission (Functions) Rules, 1990, R. 3---Constitution of Pakistan, Arts. 240 & 242---Appointments to service of Pakistan and conditions of service---Initial appointments---Public Service Commission, function of---Scope---Provincial Government and/or the competent authority cannot bypass the mandatory requirement of filling the post of BS-17 through the Public Service Commission after advertisement and substitute a parallel mechanism to appoint a person in BS-16 to BS-22 against the language of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which have been framed under the dictates of the Sindh Civil Servants Act, 1973, as mandated under Art. 240 of the Constitution---Article 242 of the Constitution provides the mechanism for appointment of a civil servant through the Commission---Said Article, which is a safety valve to ensure the transparent process of induction in the civil service, provides appointment by the Commission with the sole object that meritorious candidates join civil service---Provincial Government through executive or legislative instruments cannot withdraw any post from the purview of the Commission in negation to the command of Art. 242 of the Constitution; and, the Provincial Government had to make all the appointments in BS-16 to BS-22 through the Commission.

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

----S. 3---Constitution of Pakistan, Arts. 240 & 242---Appointments to service of Pakistan and conditions of service---Regularization of services of contractual employees---Public Service Commission, function of---Scope---Section 3 of the Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013, to the extent of regularization/ appointment in BS-16, 17 and 18 without the mandatory competitive process of selection by the Public Service Commission, being ultra vires the Constitution, cannot be applied or enforced.

(f) Constitution of Pakistan---

----Art. 189---Decisions of Supreme Court binding on other Courts---Scope---Supreme Court is the Court of last resort and the law declared or principles enunciated by it are binding on all the subordinate Courts and authorities in Pakistan; and, all the Courts and public institutions are bound to follow the principles laid down by the Supreme Court.

(g) Vires of statute---

----If the statute, or any part thereof, under which relief is sought is ultra vires the Constitution or is against the law laid down by the Supreme Court, the High Court, while declining the relief, would be fully justified and competent to look into the vires of such statute and to declare it ultra vires---High Court would be failing in its constitutional duty if it keeps its eyes shut by allowing such statute to remain in the field.

(h) Vires of statute---

----Only such law is valid and effective which is made in accordance with law and not which violates the law or which will have the effect of frustrating the law---Piece of legislation which is against the command of the Constitution and or the law laid down or direction given by the Supreme Court cannot be applied or enforced.

Shahid Pervaiz v. Ejaz Ahmed and others 2017 SCMR 206 and Muhammad Azam Khan and 10 others v. Government of NWFP through Chief Secretary, NWFP, Peshawar and 4 others 1998 SCMR 204 rel.

M. M. Aqil Awan, Abdul Salam Memon, Malik Naeem Iqbal, Muhammad Arshad Khan Tanoli, Ali Asadullah Bullo, Faizan Hussain Memon, Danish Rashid and Altaf Ahmed Sahar for Petitioners.

Salman Talibuddin, Advocate General Sindh and Ali Safdar Depar, Assistant Advocate General Sindh for Respondents.

2021 P L C (C.S.) 1095

[Sindh High Court]

Before Nadeem Akhtar and Mahmood A. Khan, JJ

MUHAMMAD NADEEM AQEEL RAJPUT

Versus

The FEDERATION OF PAKISTAN, through Secretary Ministry of Commerce and Textile, (Commerce Division) Government of Pakistan, Islamabad and 2 others

Constitution Petition No.D-7096 of 2019, decided on 29th April, 2021.

Public Sector Companies (Corporate Governance) Rules, 2013--

----Rr.2(1)(g) & 13---Constitution of Pakistan, Art.199---Constitutional petition---Mandamus, writ of---Scope---Contract employment---Regularization---Scope---Petitioner was working as Company Secretary with Trading Corporation of Pakistan who sought regularization of his service---Validity---Petitioner was a contractual employee having no vested right for regular appointment or to seek regularization of his service---Petitioner was debarred from invoking Constitutional jurisdiction of High Court---Writ of mandamus could not be claimed as a matter of right---For issuance of direction in the nature of mandamus, there must be a legal right existing in favour of the person seeking writ of mandamus and a corresponding legal duty imposed upon public officer or authority against whom the writ was sought---Company Secretary of a public sector company under R.13 of Public Sector Companies (Corporate Governance) Rules, 2013 was to be appointed by Board of that company---Petitioner did not have any vested right to seek regularization of his contractual service and he also did not acquire any legal right from appointment made by respondent company who accepted his employment on contract---No corresponding duty was cast on Trading Corporation of Pakistan to appoint petitioner on regular basis---High Court declined to grant writ of mandamus in favour of petitioner---Constitutional petition was dismissed, in circumstances.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Government of Balochistan, Department of Health, through Secretary Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642; Dr. Mubashar Ahmed v. PTCL, through Chairman, Islamabad and another 2007 PLC (C.S.) 737; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Abid Iqbal Hafiz v. Secretary, Public Prosecution Department, Government of Punjab, Lahore and others PLD 2010 SC 841; Suo Motu Case No.15 of 2010 (In re : Sou Motu action regarding regularization of contract employees of Zakat Department and appointment of Chairman of Central Zakat Council) 2013 SCMR 304; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Province of Punjab through Secretary Agriculture Department Lahore and others v. Muhammad Arif and others 2020 SCMR 507; Naureen Naz Butt v. Pakistan International Airlines 2020 SCMR 1625 and Government of Khyber Pakhtunkhwa, Workers Welfare Board, through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068 rel.

Faizan Hussain Memon for Petitioner.

Muhammad Nishat Warsi, DAG for Respondent No.1.

Manzar Bashir for Respondents Nos.2 and 3.

2021 P L C (C.S.) 1144

[Sindh High Court]

Before Muhammad Ali Mazhar and Arshad Hussain Khan, JJ

Prof. Dr. MUHAMMAD ZAHID

Versus

The CHANCELLOR, FEDERAL URDU UNIVERSITY OF ARTS, SCIENCE AND TECHNOLOGY (FUUAST), ISLAMABAD and 8 others

C.P. No.D-5205 of 2020, decided on 28th April, 2021.

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

----S.12---Recruitment of Vice Chancellor---Outsourcing search of candidates---Petitioner assailed notification appointing respondents as members of Search Committee for appointment of Vice Chancellor---Validity---Outsourcing task of shortlisting and marking / scoring by Search Committee to independent enumerators was in violation of basic structure of S.12 of Federal Urdu University of Arts, Sciences and Technology, Islamabad Ordinance, 2002---High Court set aside exercise of shortlisting and marking / scoring conducted by independent enumerators on the directions of respondents who were members of Search Committee---High Court further directed Search Committee to conduct selection process de novo by itself and scrutinize and appraise in a fair and transparent manner all curriculum vitae/resume submitted by candidates for appointment to the post of Vice Chancellor pursuant to advertisements published in newspapers for inviting applications---High Court further directed Search Committee to award marks consistent with yardsticks/benchmarks and to shortlist candidates for interview, after due diligence, assessment and proper appraisal of Curriculum vitae/resume, supporting documents and feedback forms including information if any submitted by candidates for rectifying any bona fide mistake in feedback form--- High Court further directed the Search Committee to forward recommendations compliant with S.12 of Federal Urdu University of Arts, Sciences and Technology, Islamabad Ordinance, 2002, for appointment of Vice Chancellor of Federal Urdu University---Constitutional petition was allowed accordingly.

Pakistan Medical Association (Centre) v. Chancellor Dow University of Health Sciences 2016 PLC (C.S.) 1232; Rana Aamer Raza Ashfaq v. Doctor Minhaj Ahmed Khan 2012 SCMR 6 and Kalyani Mathivanan v. K.V. Jeyaraj and others AIR 2015 SC 1875 rel.

Muhammad Safdar and Ms. Asmaa Javaid for Petitioner.

Anwar Mansoor Khan and Muhammad Ali Talpur for Respondents Nos.1 to 5, 7 and 8.

Barrister Hussain Bohra, Assistant Attorney General.

2021 P L C (C.S.) 1226

[Sindh High Court]

Before Nadeem Akhtar and Mahmood Ahmed Khan, JJ

NASIR KAMAL

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Maritime Affairs, Islamabad and another

Constitutional Petition No.D-1497 of 2020, decided on 3rd June, 2021.

(a) Fundamental Rules---

----R.54-A---Withholding of pensionary benefits---Scope---Petitioner sought declaration to the effect that the department's action of withholding his post-retirement benefits was illegal and in violation of his fundamental rights---Contention of department was that it was fully justified in withholding the post-retirement benefits as formal disciplinary proceedings were initiated against the petitioner during his tenure of service on ground of serious misconduct; that the Federal Investigation Agency (FIA) had directed it to freeze/hold the outstanding dues of the petitioner and that a recovery suit was pending against the petitioner---Validity---Disciplinary proceedings initiated against the petitioner had not concluded during his tenure of service and as such the charges against him could not be established---Disciplinary proceedings against an employee or public servant could not continue after his retirement from service and if the disciplinary proceedings had not been finalized before his retirement such proceedings stood abated upon his retirement---Fundamental Rule 54-A provided that on attaining the age of superannuation, disciplinary proceedings which had not been completed would automatically abate---Disciplinary proceedings initiated against the petitioner stood abated and he was/is entitled to full post-retirement benefits permissible under the law---Federal Investigation Agency had no jurisdiction or authority to give any such direction to the department and likewise it was not bound under the law to follow such illegal direction, especially when the petitioner was acquitted---Constitutional petition was allowed, in circumstances.

Syed Sajjad Haider Kazmi v. Director-General (S&GAD) WAPDA and another 2007 SCMR 1643 ref.

Abdul Wali v. WAPDA through its Chairman and others 2004 SCMR 678; Deputy Director Food v. Akhtar Ali 1997 SCMR 343; Muhammad Zaheer Khan v. Government of Pakistan through Secretary Establishment and others 2010 PLC (C.S.) 559; Haji Muhammad Ismail Advocate PLD 2007 SC 35 and Province of Punjab, through Conservator of Forest, Faisalabad and others v. Javed Iqbal 2021 SCMR 328 rel.

(b) Constitution of Pakistan---

----Arts.199 & 9---Constitutional petition---Civil service---Withholding of pensionary benefits---Scope---Question of payment of pension, being purely a matter pertaining to fundamental rights, could be looked into in the constitutional jurisdiction of High Court irrespective of the fact whether the service Rules of the concerned department were statutory or not---Pension was a measure of socio-economic justice which inheres economic security in the fall of life; a person who enters the Government/public service has also something to look forward to after his retirement viz. his retirement benefits, the grant of pension being the most valuable of such benefits; pension was like a salary and was no longer a bounty, but was a right acquired after putting in satisfactory service for the prescribed minimum period; pension could not be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules; and, pension becomes the property of the retiring employee or civil/public servant as a matter of right upon the termination of his service---Pension, like salary, was a regular source of livelihood, and thus was protected by the right to life enshrined in and guaranteed by Art.9 of the Constitution.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; D.S. Nakara and others v. Union of India AIR 1983 SC 130; Government of N.W.F.P. through the Secretary to the Government of N.W.F.P. Communications and Works Department, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514 and Pensionary Benefits of the Judges of Superior Court's case PLD 2013 SC 829 rel.

(c) Fundamental Rules---

----R.54-A---Disciplinary proceedings after attaining the age of superannuation---Scope---Fundamental R.54-A is mandatory because of the word "shall" used therein.

Waleed Khanzada for Petitioner.

Muhammad Nishat Warsi, Deputy Attorney General for Respondent No.1.

Abdul Ghaffar along with Zafarullah Khan, G.M. (Legal Affairs), PNSC for Respondent No.2.

2021 P L C (C.S.) 1275

[Sindh High Court]

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

KHIZER HAYAT KHAN

Versus

PROVINCE OF SINDH through Secretary Local Government Department, Government of Sindh and 4 others

Constitutional Petitions Nos.D-1051 of 2019, D-8911 of 2018, D-1951, D-3367 of 2020, D-7505, D-7208 of 2019 and D-4056 of 2020, decided on 29th October, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Pensionary benefits---Fundamental rights---Petitioners were retired employees of Karachi Development Authority who were aggrieved of withholding of their pensionary benefits by the Authority--- Validity--- Pension is an unalienable fundamental right guaranteed by the Constitution to a person who dedicates his entire life, expertise, experience, energy and loyalty to his employer with the hope that after retirement when he may no longer be able to earn any other livelihood in his old age, will receive a monthly pension as a regular income, without recourse to employer and / or legal proceedings, to cater to its own needs and those of his family---Karachi Development Authority failed to discharge its statutory obligation and had deprived about 1000 retired employees of such precious and unalienable fundamental right---High Court appointed Court official as Commissioner to ensure compliance to orders of High Court in letter and spirit within stipulated time.

Muhammad Arshad Khan Tanoli for Petitioner (in C.P.No.D-1051 of 2019).

Syed Sultan Ahmed for Petitioners (in C.Ps. Nos.D-1951 and D-3367 of 2020).

Muhammad Waseem Sammo for Petitioner (in C.P. No.D-7505 of 2019).

Khurram Ghyas for Respondents/KDA along with Nasir Abbas Soomro, Director General KDA and Atta Abbas, Director Finance and Accounts KDA.

Syed Iftikhar-ul-Hassan, Law Officer, KDA

Ali Safdar Depar, Asstt. A.G. Sindh.

2021 P L C (C.S.) 1304

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Agha Faisal, JJ

Prof. Dr. LUBNA ANSARI BAIG

Versus

PROVINCE OF SINDH through Secretary University and Boards Department and 3 others

High Court Appeal No.108 of 2021, decided on 14th July, 2021.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Interim injunction---Disobedience or breach of injunction---Consequences---Expunction of observations---Scope---On the strength of credentials and being number one in the list of candidates, short listed for appointment of Vice Chancellor, appellant filed a suit as she viewed discrimination at the hands of the authority---Injunctive order was passed directing the Authority not to make final list in respect of the selected candidates---While the injunctive order was operating, a Vice Chancellor was appointed---Appellant being aggrieved of the notification yet again filed an application for seeking appropriate injunctive orders---Single Judge of High Court apart from issuing notices observed that suspension of notification would not be proper as it would adversely affect the functioning of the University and that the interim orders passed earlier were to continue till the next date of hearing---Validity---Once an earlier injunctive order was passed, a follow up order to carry the real object of the earlier order should have been passed---Single Judge of High Court was empowered to revisit and decide the applications finally but not in a cursory manner and that too after passing adverse remarks---Single Judge of High Court could have conveniently avoided the observation as only notices were ordered---Selection of observation by the Single Judge of High Court had perhaps overlapped and overshadowed the earlier order and the mandate without the applications being actually heard and decided---Impugned order was set aside to the extent of observations, in circumstances---Appeal was allowed.

2010 YLR 2426 ref.

Haider Waheed for Appellant.

Salman Talibuddin, Advocate General Sindh along with Abdul Jaleel Zubedi, Assistant Advocate General for Respondents Nos.1 and 2.

Arshad Tayabaly for Respondent No.3.

Ovais Ali Shah for Intervener.

2021 P L C (C.S.) 1404

[Sindh High Court]

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

MANZAR HUSSAIN

Versus

FEDERATION OF PAKISTAN through Secretary Revenue, Revenue Division, Ministry of Finance, Revenue, Economic Affairs, Statistics and Privatization, Islamabad and 3 others

C.P. No.D-2393 of 2019, decided on 23rd May, 2019.

(a) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Constitutional petition---Writ of quo warranto---Locus standi---Principle---Person invoking jurisdiction of High Court under Art.199 of the Constitution is not required to fulfill stringent conditions required for bringing himself within the meaning of an 'aggrieved person'---Any person can move High Court and challenge usurpation or unauthorized occupation of a public office by any person on the ground that such person is not qualified to hold that public office---Issue of locus standi is insignificant and immaterial---Proceedings in the nature of quo warranto are not strictly adversarial in nature but it does not mean that a premium can be given to a civil servant to continue with such post for which he is not qualified to hold.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 rel.

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

----R.8-B---ESTACODE Edition 2010, Part II, Srl. No. 117---Constitution of Pakistan, Art.199---Constitutional petition---Quo warranto, writ of---Stop gap arrangement---Own Pay Scale, appointment---Petitioner was a BS-19 officer who was appointed against a vacant post in BS-20 on Own Pay Scale basis---Validity---In case where appointing authority was satisfied that no suitable officer was available to fill post and it was expedient to fill the same, the authority could appoint to that post on acting or current charge basis the most senior officer otherwise eligible for promotion in the cadre or service as the case could be but not on Own Pay Scale basis---Appointment/posting of respondent as Director in BS-20 on Own Pay Scale basis was violative of law---High Court set aside notification of posting of respondent as the same was without lawful authority---Constitutional petition was allowed accordingly.

Province of Sindh and others v. Ghulam Fareed and others 2014 SCMR 1189; Mst. Iffat Nazir v. Government of Punjab and others 2009 SCMR 703; Muhammad Asif Chatha and others v. Chief Secretary, Government of Punjab, Lahore and others 2015 SCMR 165; Tariq Aziz-ud-Din and others: in re Human Rights Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009 (2010 SCMR 1301); Khan Muhammad v. Chief Secretary Baluchistan and others 2018 SCMR 1411 and Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 ref.

Dr. Azeem ur Rehman v. Government of Sindh 2004 SCMR 1299; Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97; Muhammad Iqbal v. National Database Registration Authority through Chairman and 3 others 2011 MLD 541; Sajid Hussain v. Shah Abdul Latif University, Khairpur through Registrar and 4 others PLD 2012 Sindh 232; Iqbal Ahmad Dhudhi v. Federation of Pakistan and 5 others 2014 CLC 1348; Asghar Khan and 5 others v. Province of Sindh through Home Secretary, Government of Sindh and 3 others 2014 CLC 1534; Prof. Muhammad Wali Khan v. Secretary, Government of Sindh and others 2003 MLD 719; Province of Sindh and others v. Ghulam Fareed and others 2014 SCMR 1189; Sarwar Ali Khan v. Chief Secretary to Government of Sindh PLD 1994 SC 233 and Syed Noorul Hasan v. The Secretary, Ministry of Industries Government of Pakistan, Islamabad and others 1987 SCMR 598 distinguished.

Sarmad Hani for Petitioner.

Dr. Amjad Hussain Bokhari along with Shah Nawaz for Respondent No.4.

Muhammad Nishat Warsi, D.A.G.

2021 P L C (C.S.) 1510

[Sindh High Court (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

HYDERABAD ELECTRIC SUPPLY COMPANY (HESCO) through Executive Engineer

Versus

MUHAMMAD TANVEER and 3 others

Miscellaneous Appeal No.01 of 2017, decided on 18th September, 2020.

(a) Civil service---

----Service benefits---Demise of employee during service---Inheritance/"Tarka"---Scope---In case of service benefits which formed part of "Tarka", it was the responsibility of the nominee to collect such amount and to distribute the same amongst the legal heirs; and if the amount/asset was not part of "Tarka" then it must ordinarily go to the Nominee as otherwise it would defeat the purpose/intention of any such nomination.

(b) Civil service---

----Service benefits---Demise of employee during service---Inheritance/"Tarka"---General Provident Fund---Whether the amount of General Provident Fund available was part of "Tarka" or not--- Held, that General Provident Fund was to be treated as "Tarka" because the same could be claimed by a deceased employee from the employer at the stage of retirement or even before that---Amount of general Provident Fund was, thus, to be distributed amongst the legal heirs and not to be given to the nominee of the deceased.

Federal Government v. Public at Large PLD 1991 SC 731; Messrs Pakistan International Airlines Corporation v. Mst. Alia Siddiqa and 3 others 2001 MLD 1; Naseem Akhtar alias Lali v. Khuda Bux Pechoho and others 2006 CLC 1589; Mst. Fauzia Noureen v. Muhammad Asghar 2010 CLC 219; In re: Mst. Shamim Akhtar and other's case PLD 1994 Kar. 237 and Muhammad Mumtaz v. Umra Bevi 1999 PLC (C.S) 793 ref.

Mst. Ameeran Khatoon v. Mst. Shamim Akhtar 2005 SCMR 512; Fatima Bi v. Mehnar Gul 1999 YLR 759; Zahoor Mehdi Faisal v. Additional District Judge 2006 YLR 3236 and Rukia v. Ghulam Shah PLD 1994 Pesh. 1 distinguished.

(c) Civil service---

----Service benefits---Grant or concession---Scope---Inheritance---Scope---Any service benefit which an employee could claim from his employer in his lifetime and the same became payable to him in his lifetime, but for any reason remained unpaid, then to such extent only it would become part of his estate and was inheritable by all his legal heirs according to their respective shares---However, a service benefit which had not fallen due to the deceased employee in his lifetime and was of a nature definable as a grant or concession on the part of the employer, then whatever amount that became payable after the death of employee was to be distributed only to those members of his family who were entitled for the same as per rules and regulations of service--- Benefits such as gratuity, group insurance and family pension, being grants and concessions on the part of the employer, if payable to employee after his death could not be treated as inheritable by all heirs of the employee, but were to be distributed to those who were entitled to it under the rules and regulations of employment or under any law for the time being in force.

(d) Civil service---

----Service benefits---Grant or concession---Employer, discretion of---Scope---Employer had the discretion to make rules and regulations in relation to any grant or concession that the employer intended to give an employee or after the employee's death to any member of his family.

(e) Civil service---

----Service benefits---Death of employee during service---Benefits that formed part of "Tarka"---Scope---Appellant (Electricity Distribution Company) contented that all service of deceased employee available with it (appellant) did not form part of "Tarka" and they (benefits) were to be given to the Nominee and not to be distributed amongst the legal heirs of deceased---Held, that in the present case, group insurance, family pension and gratuity payable after the death of an employee, being a 'grant' or 'concession' on the part of employee, could not be treated as part of inheritance and were to be received by the person entitled to it under the service rules and regulations of the employer---Group Term/Life Insurance, Insurance against General Provident Fund, arrears of family pension, and arrears of Benevolent Grant were not part of "Tarka" as the same could not have been claimed by the deceased in her lifetime---Whereas deceased employee could have claimed the amount of General Provident Fund, salary of some days and pension commutation, at least when she was to retire, therefore, said categories of benefits available were part of "Tarka", hence were to be distributed amongst the legal heirs .

(f) Civil service---

----Female employee dying during service intestate------Appellant (Electricity Distribution Company) contented that documents (legal heir-certificate etc.) produced by the respondent in the Trial Court were managed/manipulated to claim himself as brother of the deceased employee in order to fraudulently receive her pensionary benefits---Held, that the very basic fact of the case, that whether the respondent was brother of deceased and was entitled to the service benefits of deceased in accordance with the pension rules of the employer , was disputed which could be ascertained only by recording of evidence by a Civil Court having jurisdiction---High Court directed the respondent to approach the competent Court by filing a civil suit and in case of success, he could institute appropriate proceedings for disbursement of service/pension benefits of deceased; and in case of his failure, the appellant could take decision for management of said benefits---Appeal was disposed of accordingly.

Muhammad Arshad S. Pathan for Appellant.

Farooq son of Muhammad Tanveer present in person.

Allah Bachayo Soomro, Additional Advocate General, Sindh.

2021 P L C (C.S.) 1573

[Sindh High Court]

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

Raja NAVEED

Versus

PROVINCE OF SINDH through Secretary and 6 others

C.P. No.D-9013 of 2018, decided on 12th February, 2020.

Civil service---

----Salary---Stoppage of salary---Scope---Petitioner while claiming to be a police constable assailed the action of his stoppage of salary---Contention of department was that basic appointment of the petitioner was fake---Validity---Petitioner was called upon to produce the advertisement, call letter, interview letter, offer letter, medical letter and other requisite documents to show that the petitioner's appointment for the post of police constable was genuine---Petitioner relied on a letter which was neither on proper official letter head nor stamped, which document was disputed by the department being fake one, therefore, subsequent documents could not be relied upon---Once the competent authority probed into the fake appointments and salary drawn scam and in the terms of the findings action was taken against the beneficiaries, such factual aspect could not be looked into in the constitutional jurisdiction under Art. 199 of the Constitution---Terms and conditions of service included salary and only the Service Tribunal had jurisdiction to decide such issue---Petition under Art. 199 of the Constitution being not maintainable was dismissed.

SHO PS Sachal Malir v. The State and another Criminal Petition No.89-K of 2014; Inspector General of Police, Sindh and others v. Nasrullah Lolai and others Civil Petition No.820-K of 2016; Punjab Textbook Board Lahore and others v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032 and Ali Azhar Khan Balouch v. Province of Sindh and others 2015 SCMR 456 ref.

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

Jan Muhammad Kashkheli for Petitioner.

Ali Safdar Depar, Assistant Advocate General along with Raza Mian, DSP (Legal) and Saeed Ahmed Rind, DSP, CIA for Respondents.

2021 P L C (C.S.) 1

[Lahore High Court (Multan Bench)]

Before Tariq Saleem Sheikh, J

RIAZ HUSSAIN

Versus

PROVINCE OF PUNJAB and 6 others

W.P. No.5624 of 2020, decided on 19th June, 2020.

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

----S.4---Misconduct---Scope---Show-cause notice---Object, purpose and scope---Due process, requirement of---Intermediate action/step---Petitioner was civil servant who assailed show-cause notice issued to him by authorities for proceeding against misconduct---Validity---Show-cause notice was merely a statement by department/organization against its employee to the effect that some of his act or acts constituted misconduct which called for disciplinary proceedings---Show-cause notice was a first step in compliance with requirements of 'due process'---Purpose of show-cause notice was to put concerned person on notice about allegation against him and provide an adequate opportunity to explain his position---If satisfied with explanation, authorized officer was under a statutory duty to terminate the proceedings---Interference by High Court at such stage of show-cause notice would stultified and retarded the adjudicatory process provided by law---Intermediate action or step in departmental disciplinary proceedings could not be assailed through Constitutional petition---Constitutional petition was dismissed in circumstances.

Case law referred.

(b) Order---

----Mala fide---Scope---Order is mala fide if there is express mala fide or 'malice in fact' or implied or legal malice or 'malice in law'---Former is actuated by extraneous consideration whereas the latter arises where a public authority deliberately acts contrary to the objects, requirements and conditions of a valid exercise of power even though that may be without any ulterior motive.

Case law referred.

Muhammad Muddassar Sumra for Petitioner.

2021 P L C (C.S.) 104

[Lahore High Court]

Before Jawad Hassan, J

KHALID HUSSAIN and others

Versus

The INSPECTOR GENERAL PUNJAB POLICE and others

Writ Petition No.57052 of 2020, decided on 6th November, 2020.

(a) Civil service---

----Appointment to advertised post---Scope---Petitioner assailed objection raised in the rejection list whereby his application for appointment was rejected on the ground of being over-aged---Validity---Ex-army personnel could apply for the post, however their age must not be above forty years whereas the date of birth of petitioner as per his CNIC was about forty three years and he did not meet with the requisite requirement of the advertisement---Constitutional petition was dismissed.

Mati Ullah and another v. Khyber Pakhtunkhwa Public Service Commission, Peshawar through Chairman and 5 others 2020 PLC (C.S.) Note 28 and Waqas Aslam and 2 others v. Lahore Electric Supply Company (LESCO) through Chief Executive and 4 others 2018 PLC (C.S.) 243 distinguished.

(b) Civil service---

----Appointment to advertised post---Scope---Petitioner assailed objection raised in the rejection list whereby his application for appointment was rejected on the ground of non-attaching his CNIC with the application---Validity---Petitioner had only attached acknowledgement receipt of the application form with the petition but had not attached the application form along with attested photocopy of the CNIC---Constitutional petition was dismissed.

Mati Ullah and another v. Khyber Pakhtunkhwa Public Service Commission, Peshawar through Chairman and 5 others 2020 PLC (C.S.) Note 28 and Waqas Aslam and 2 others v. Lahore Electric Supply Company (LESCO) through Chief Executive and 4 others 2018 PLC (C.S.) 243 distinguished.

(c) Civil service---

----Appointment to advertised post---Scope---Court cannot prescribe the eligibility or experience qualifications and work experience in assessment of suitability of a particular nature of job and its scope in the context of a particular employer.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Policy decision of government---Interference---Scope---High Court cannot interfere in the policy matters of a department---High Court cannot embark upon an inquiry as to whether a particular policy is wise and acceptable or whether better policy can be drafted---High Court can interfere if the policy framed is absolutely capricious and non-informed by reasons or totally arbitrary, offending the basic requirement of the Constitution---Department has to decide how and in what manner the reservation should be made and such a policy decision normally will not be open to challenge subject to its passing the test of reasonableness.

The Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others 2019 SCMR 124 and M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363 rel.

Raja Ijaz Ahmad for Petitioners.

2021 P L C (C.S.) 115

[Lahore High Court]

Before Jawad Hassan, J

ABU BAKAR SIDDIQUE

Versus

I.G. PUNJAB POLICE LAHORE and others

Writ Petition No.11427 of 2017, heard on 14th October, 2020.

(a) Civil service---

----Appointment to advertised post---Scope---Grievance of petitioner was that he had passed written test, endurance test as well as appeared in general interview however, he was declared 'Fail' in general interview despite the fact that he had been on top in other tests---Validity---Petitioner could not obtain 8 marks out of 20 marks in general interview, therefore, he was declared 'Fail' by the interview committee---Clause 19 of the advertisement clearly demonstrated that the candidates had to pass all exams/interview and in case of failure at any stage, they would not be recruited---Constitutional petition, being meritless, was dismissed.

(b) Civil service---

----Appointment to advertised post---Scope---Advertisement is a promise stating all the rules which the authority undertakes to observe in consideration for giving employment to the most suitable candidate.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court, exercise of---Object---Scope---Object of proceedings initiated under Art. 199 of the Constitution is only the enforcement of Fundamental Rights and not the establishment of rights

Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 rel.

Ch. Anees ur Rehman for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate General for Respondent.

2021 P L C (C.S.) 158

[Lahore High Court]

Before Shujaat Ali Khan, J

MUHAMMAD IQBAL BRAR

Versus

NATIONAL BANK OF PAKISTAN through President/Chief Executive and others

Writ Petition No.2358 of 2012, heard on 14th October, 2020.

Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S.10---Petitioners assailed their demotions and dismissal of their appeals by the competent authority---Petitioners were proceeded against under the Removal from Service (Special Powers) Ordinance, 2000 and according to S.10 of the Ordinance, an aggrieved person could approach Federal Service Tribunal after expiry of 60 days of filing of the departmental appeal and the petitioners, though filed their departmental appeal, had not availed the statutory remedy provided under the law---Perusal of replies submitted by the petitioners to the show cause notice revealed that they had not denied the allegations levelled against them rather their case was that certain SOPs were relaxed to encourage the exporters---Petitioners, while holding important portfolio in the banking sector, had flouted the policies in a casual manner---Petitioners did not deserve any leniency---Constitutional petitions were dismissed, in circumstances.

Muhammad Tariq Badar and another v. National Bank of Pakistan and others 2013 SCMR 314 rel.

Noman Razzaq v. Faryad Hussain Chaudhary and 13 others PLD 2015 SC (AJ&K) 7; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Ghulam Mustafa Channa v. Muslim Commercial Bank Ltd. and others 2008 SCMR 909; Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan, Islamabad through Secretary and others PLD 2008 SC 395; Muhammad Aslam Sultan v. Federation of Pakistan through General Manager, Pakistan Railways, HQRs, Lahore and another 2006 SCMR 1465; Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development 2002 SCMR 805; Secretary to Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Muhammad Latif v. Chief Settlement Commissioner and others 1975 SCMR 217; Muhammad Farooq Zulfiqar v. The President National Bank of Pakistan and others 2017 PLC (C.S.) 870; Umar Hayat Khawaja v. National Bank of Pakistan through President and 2 others 2015 PLC (C.S.) 1331; Umar Hayat Khawaja v. National Bank of Pakistan through President and 2 others 2014 PLC (C.S.) 871; Kokab Iqbal v. Manager National Bank of Pakistan, Lahore and 3 others 2014 PLC (C.S.) 876; Muhammad Alamgir v. National Bank of Pakistan through Regional Head and others 2014 PLC (C.S.) 963; Tayyab Iqbal v. Member, (Colonies), Board of Revenue, Punjab, Lahore and 3 others 2005 CLC 1447; Democratic Workers' Union C.B.A. v. State Bank of Pakistan and others 2002 PLC (C.S.) 614; Muhammad Tufail and others v. Government of Pakistan and another 2000 PLC (C.S.) 957; National Bank of Paksitan v. Messrs Taufiq Impex Inc. through Proprietor Muhammad Tufail and another 2000 CLC 774; Iqbal Haider v. National Bank of Pakistan and others 1989 PLC (C.S.) 713; Divisional Personnel Officer v. Punjab Labour Appellate Tribunal 1987 CLC 1397; Cashier, United Bank Ltd. v. The State 1987 PLC (C.S.) 122; Pakistan Defence Officers's Housing Authority and other's case 2013 SCMR 1707; Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another 2009 PLC (C.S.) 19; Chairman, Pakistan Agricultural Research Council (PARC), Islamabad and another v. Dr. Abdul Rashid, Scientific Officer 2005 PLC (C.S.) 1095; Habib Bank Limited through Attorneys v. Muhammad Abdul Samad Khan and another 2004 SCMR 1305; Pakistan International Airlines Corporation through Chairman and others v. Koural Channa and others 1999 PLC (C.S.) 1539; Zonal Head, National Bank of Pakistan, Faisalabad and another v. Punjab Labour Appellate Tribunal, Lahore and 2 others PLD 1996 SC 200; Walayat Ali Amir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650; Collector, Sahiwal and 2 others v. Mohammad Akhtar 1971 SCMR 681; Bashir Ahmed v. Government of Sindh through Secretary, Home Department and 3 others 2003 PLC (C.S.) 1249 and Muhammad Nawaz v. WAPDA and others W.P. No.40249 of 2015 ref.

Munawar Ahmad Javed for Petitioner.

Omar Abdullah for Respondent-NBP.

2021 P L C (C.S.) 195

[Lahore High Court]

Before Masud Abid Naqvi and Jawad Hassan, JJ

MUHAMMAD YOUSAF

Versus

SECRETARY FINANCE and others

Intra Court Appeal No. 530 of 2014, heard on 15th October, 2020.

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

----S.23---Civil Servants Act (LXXI of 1973), S. 25---Constitution of Pakistan, Art.240 & Fourth Sched.---Provincial legislative autonomy---Scope---Civil service---Policy notification of Federal Government---Question as to whether it was obligatory upon the Provincial Government while adopting a policy notification of the Federal government regarding a matter, which was within the competence and domain of the Province after Eighteenth Constitutional Amendment, to follow and give effect to the same from the very date as given by Federal Government---Held, that it was within the exclusive domain of a Provincial Government to adopt a policy/notification of the Federal government, which fell within the Province's legislative competence and it could make its applicability within the province from such date, which it found appropriate---Mere adopting of such notification of the Federal government did not make the same ipso facto applicable in entirety (in the Province) unless directed so by the Provincial Government as it is within the Province's competence to limit or extend such applicability and it was not obligated to adopt a policy on the same date as made applicable by the Federal Government.

Appellant retired from the service of Provincial Government on 09.08.2013, where after he was granted his pensionary benefits. Later on, the Federal Government amended Revised Leave Rules, 1980 by enhancing the period for leave preparatory to retirement from 180 days to 365 days with effect from 01-07-2012. The Provincial Secretary Finance Department also adopted aforesaid notification on 09-09-2013 by giving it effect from 01-09-2013. The grievance of the appellant was that since the Provincial Government had adopted the notification of Federal Government regarding enhancement of leave preparatory to retirement period therefore, the Provincial Government had to give effect to the said notification from the same date as made by the Federal Government had done i.e. 01-07-2012 and not from 01-09-2013. The appellant challenged notification dated 01-09-2013 (the "Notification") issued by the Provincial Government in the writ petition which was dismissed. Main issue in the present case was whether it was obligatory upon the Provincial Government that while adopting the Notification of Federal Government on 09-09-2013, it should have given it effect from 01.01.2012, the date when the Federal Government had given it effect and no choice was available with the Provincial Government to effectuate the same with effect from 01-09-2013.

In relation to service matters, the employees of Federal Government were regulated under the Civil Servants Act, 1973 while the employees of Provincial Government were regulated under the Punjab Civil Servant Act, 1974. Appellant performed his duties and retired from the service in connection with the affairs of a Province and his services were regulated under the Punjab Civil Servant Act, 1974. Argument of the appellant to implement the Notification of the Federal government in the province was not tenable because Provincial law had its own mechanism, rules and regulations and the amendments therein were to be made by the provinces through the Provincial Assembly. Under the Punjab Government Rules of Business, 2011, the Services and General Administration Department of the Government of the Punjab had the mandate to administer Punjab Civil Servants Act, 1974 and make rules therein hence, Notification in question was rightly passed by the Provincial Assembly. Furthermore, after 18th Amendment to the Constitution, in set up of service matters, the Constitution had drawn a line between the services of Pakistan with the Federation and Provinces, hence they were distinguished from each other in respect of making laws.

Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489; Government of Sindh and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 and Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

After abolishment of concurrent list in Fourth Schedule to the Constitution, Provincial Assembly became absolute once the domain of a legislation fell within its competence. In service matters, each province had separate laws because under Article 240 of the Constitution, each province had legislation similar to that of the Federal Government's Civil Servants Act, 1973. Words used under Article 240 of the Constitution were very clear on the appointment and conditions to service of Pakistan and in connection with affairs of provinces the same were to be determined by the Provinces under an Act of the Provincial Assembly.

Muzaffar Khan and others v. Government of Pakistan and others 2013 SCMR 304 ref.

The (Federal) Ministry of Finance and Revenue (Finance Division) functioning under the Rules of Business, 1973, by exercising powers conferred under section 25 of the Civil Servants Act, 1973, amended its Revised Leave Rules, 1980 on 29-08-2012. The effect and benefit of such amendment was applicable only to civil servants functioning under the Federal Government. On the other hand, the Finance Department, Government of Punjab, which functioned under the Punjab Government Rules of Business, 2011 exercised the powers conferred under section 23 of the Punjab Civil Servant Act, 1974, and amended the Revised Leave Rules, 1981 and by adopting the same relief, as given by the Federal Government, extended the same benefit to its employees.

After omission of the Concurrent List from the Fourth schedule of the Constitution post Eighteenth Constitutional Amendment, now Provinces had exclusive domain and legislative competence to legislate and regulate upon all those matters, which were earlier part of that list. It was therefore within the exclusive domain of Provincial Government to adopt a policy/Notification of the Federal government, which falls within its legislative competence and it could make its applicability within the province from such date, which it found appropriate. Mere adopting of such Notification of the Federal government did not make the same ipso facto applicable in entirety (in the Province) unless directed so by the Provincial Government as it is within its competence to limit or extend such applicability and it was not obligated to adopt a policy on the same date as made applicable by the Federal Government

Matter of service of persons serving at posts in connection with the affairs of the Province including their terms and conditions, including pensionary matters, fell within the embrace of authority of the Province because under the concept of Provincial Autonomy, the Province was free from outside control and interference and also was well within its rights to follow and pursue any scheme/Notification or any policy from any date, as it deemed appropriate. Appeal filed by appellant was dismissed.

(b) Words and phrases---

----'Autonomous' and 'autonomy'---Definition. [p. 201] B

Black's Law Dictionary 11th Edition and Advanced Law Lexicon 4th Edition ref.

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

----Art. 9---Constitution of Pakistan, Art. 175---Findings of Mohtasib/ Ombudsman---Scope and nature---Such findings were of recommendatory nature and not a judgment/decision---Performance of quasi-judicial functions by (the Mohtasib/Ombudsman) itself did not convert an authority into a Court---In order to constitute a Court in stricto senso, it should have power to give a decision or a definite judgment, which had finality and authoritativeness---Office of Wafaqi Mohtasib was neither a Court nor a judicial Tribunal within the scope of Art. 175 of the Constitution.

Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142 and Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637 ref.

Mian Abdul Qudoos for Appellant.

Barrister Hassan Khalid Ranjha, Assistant Advocate General along with Shahbaz Ahmad Sheikh, Law Officer for Respondents.

2021 P L C (C.S.) 245

[Lahore High Court]

Before Masud Abid Naqvi and Jawad Hassan, JJ

PROVINCE OF PUNJAB through Secretary Schools Education Department, Punjab Civil Secretariat, Lahore and 2 others

Versus

MUHAMMAD AMIR HAYAT and 4 others

I.C.A. No.3201 of 2020, in W.P. No.254853 of 2018, decided on 12th November, 2020.

(a) Civil service ---

----Contractual employees --- Such employees had no vested right to claim extension of their contractual period.

Contractual employees could not claim extension of their contract as a matter of right rather it was the prerogative of the competent authority either to dispense with services of such employees or continue with the same by extending the contract.

Mubashar Majeed v. Province of Punjab and 3 others 2017 PLC (C.S.) Lah. 940 ref.

Contractual employees after accepting terms and conditions of their contract employment and submitting their joining report had no right to claim extension in their contract period as a vested right.

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

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Scope---Policy decisions of the Executive---Generally the High Court in its constitutional jurisdiction did not interfere in transparent policy decisions of the Executive, which were aimed at achieving the best possible results in managing its affairs.

Courts ordinarily did not interfere with the (Executive's) decisions with regard to a policy matter. However, Courts did not abdicate their right to scrutinize whether the policy had been formulated keeping in mind all relevant facts and whether it was discriminatory or unreasonable on the basis of the material on record. Unless the policy or action was inconsistent with the Constitution and the laws, was arbitrary or irrational, or there was abuse of power, the Courts did not interfere with such policy matters.

The High Court while exercising jurisdiction under Article 199 of the Constitution, did not interfere in transparent policy decisions of the Executive, aimed to achieve the best possible results in managing its affairs. Court had very limited jurisdiction for examining such criteria.

Barrister Hassan Khalid Ranjha, Assistant Advocate General, Punjab for Appellant along with Humayun Akhtar DS (Legal), SED, Abdul Sattar, Law Officer o/o CEO (DEA), Faisalabad and Muhammad Sajjad, Law Officer, o/o CEO (DEA), Sheikhupura.

Mehmood Ahmad Qazi for Respondents.

Rizwan Afzal Tarar for Respondent (in I.C.A. No.3205 of 2020).

Zulfiqar Ahmad Bhulla for Respondents (in I.C.A. No.3227 of 2020).

Barrister Mukhtar Ahmad Tatry for Respondents (in I.C.As. Nos.3214, 3219, 3235, 3207 and 3231 of 2020).

Mirza Abdul Khaliq for Respondent (in I.C.A. No.3237 of 2020).

Malik Saleem Iqbal Awan for Respondent (in I.C.A. No.3224 of 2020).

Muhammad Suleman for Respondent (in I.C.A. No.3243 of 2020).

Ch. Muhammad Hussain for Respondent (in I.C.A. No.3233 of 2020).

Syed Musa Raza for Respondent (in I.C.A. No.3240 of 2020).

2021 P L C (C.S.) 263

[Lahore High Court]

Before Jawad Hassan, J

BILAL HASSAN

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.65421 of 2017, heard on 21st October, 2020.

Civil service---

----Contract of employment, cancellation of---Scope---Petitioner assailed termination of his contract of employment---Stance of department was that work and conduct of petitioner had remained unsatisfactory and his contract was terminated on the basis of unsatisfactory performance; that an explanation notice was served upon him but instead of giving reply, he along with others manhandled with the officer and injured some other officials, violated discipline and created harassment and terrorism in the office premises; that the incident was ordered to be probed/investigated and that on the recommendations of the inquiry committee, guilty persons were recommended to be dealt with under the rules---Validity---Petitioner was terminated on the recommendations of the inquiry committee by invoking relevant clause of the letter of appointment---Petitioner at the time of joining had accepted all the terms and conditions of his contract employment and could not resile from the same and it was also established from the record that his performance had remained unsatisfactory---No illegality or perversity was found in the impugned order which was passed in accordance with law---Constitutional petition was dismissed.

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.

Munawar Ahmad Javed for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate General for Respondents.

Zia Ahmad Mujahid for Respondent No.3.

2021 P L C (C.S.) 285

[Lahore High Court]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

The WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA and 3 others

Versus

JEHANSHER, JUNIOR ENGINEER and 9 others

I.C.A. No.121623 of 2017 in Writ Petition No.17047 of 2015, heard on 10th November, 2020.

Civil service---

----Contractual employees---Appointment on ad-hoc basis---Regularization of service---Scope---Petitioner Department impugned order of High Court whereby Constitutional petition of respondent employees was allowed, and petitioner Department was directed to place cases of respondents before Board for regularization of service and restrained Department from filling posts of respondents till such time regularization was decided---Validity---Respondents were appointed on ad-hoc basis upon relaxation of settled mode of law and had no rightful claim for extension or regularization of services without following prescribed policy---Ad-hoc appointees could not be regularized as they had neither any right to hold such post beyond prescribed period nor Government owed any obligation to maintain continuity in their service for an unlimited period---Impugned order was therefore liable to be set aside---Intra-court appeal was allowed, accordingly.

GEPCO v. Malik Waqas Ahmad and others PLD 2013 Lah. 339; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Abu Bakar Farooq through Chairman and others v. Muhammad Ali Rajpar and others 2019 SCMR 830; Muhammad Wasay Tareen v. Chief Justice of Balochistan through Registrar of High Court of Balochistan, Quetta 2005 SCMR 464 and Mrs. Naila Khalid v. Pakistan through Secretary Defence and others PLD 2003 SC 420 rel.

Aurangzeb Mirza for Petitioner.

Hafiz Tariq Naseem for Respondents.

2021 P L C (C.S.) 304

[Lahore High Court]

Before Shahid Waheed, Shams Mehmood and Muhammad Sajid Mehmood Sethi, JJ

Prof. Dr. ASAD ASLAM KHAN and others

Versus

GOVERNMENT OF PUNJAB through Secretary Specialized Health Care and Medical Education Department, Civil Secretariat, Lahore and 11 others

Writ Petitions Nos.256002 of 2018 and Writ Petition No.41040 of 2020, decided on 27th October, 2020.

Per Shahid Waheed, J; Shams Mehmood Mirza and Muhammad Sajid Mehmood Sethi, JJ, agreeing.

(a) Civil service---

----Tenure post---Scope---Once a person is appointed to a tenure post, his appointment to that office begins when he joins and it comes to an end on completion of the tenure but no right is conferred to hold the post for entire period--- Tenure can be curtailed on attaining age of superannuation by incumbent of the post.

Pakistan (through the Secretary, Cabinet Secretariat, Karachi) v. Moazzam Hussain Khan and another PLD 1959 SC 13 and Pakistan v. Fazal Rahman Khundkar and another PLD 1959 SC 82 rel.

(b) King Edward Medical University Lahore Act (V of 2005)---

----S.15---University of Agriculture Faisalabad Act (XII of 1973), S.15-A---Qanun-e-Shahadat (10 of 1984), Art. 114---Constitution of Pakistan, Art.199---Constitutional petition---Writ of quo-warranto---Pro-Vice Chancellor, appointment of---Estoppel, principle---Applicability---Petitioner assailed appointment of Pro-Vice Chancellor appointed in King Edward Medical University (KEMU)---Validity---Notification appointing respondent in KEMU was issued on the basis of interpretation made in an earlier case decided by High Court---Interpretation made in that earlier case did not find favour with Full Bench of High Court and the notification in question was not valid---Respondent appointed in KEMU could not plead estoppel nor he could gain any right on the basis of such notification--- High Court directed to make fresh appointment to the post of Pro-Vice Chancellor KEMU within a period of one month as the post could not be left vacant for unlimited period---Constitutional petition was allowed accordingly.

Ch. Shoaib Saleem v. The King Edward Medical University and others (W.P. No.9316 of 2015) dissenting.

Dr. Muhammad Iqbal Zafar v. Province of Punjab (W.P. No.217977 of 2018); Prof. Dr. Muhammad Iqbal Zafar v. The Province of Punjab through Secretary to the Government of Punjab, Agriculture Department, Lahore and others 2019 PLC (C.S.) 63; Pakistan v. Messrs Zeal Pak Cement Factory Ltd. 1985 SCMR 1968; Magor and St. Mellons Rural District Council v. Newport Corporation (1950) 2 All. E.R. 1226; Magor and St. Mellons Rural District Council v. Newport Corporation (1951) 2 All. E. R. 839; Abdul Haque Indhar and others v. Province of Singh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Muhammad Ikhlaq Memon v. Zakaria Ghani and others PLD 2005 SC 819 rel.

Per Muhammad Sajid Mehmood Sethi, J.

(c) King Edward Medical University Lahore Act (V of 2005)---

----S.15---University of Agriculture Faisalabad Act (XII of 1973), S.15-A---Constitution of Pakistan, Art. 199--- Constitutional petition--- Pro-Vice Chancellor, appointment of--- Petitioners assailed appointments of Pro-Vice Chancellors appointed in King Edward Medical University (KEMU) and University of Agriculture Faisalabad--- Validity--- One of the three senior most Professors could be nominated by Chancellor to hold office of Pro-Vice Chancellor for a term of three years under S.15 of King Edward Medical University Lahore Act, 2005 and under S.15-A of University of Agriculture Faisalabad Act, 1973--- There was no prohibition regarding nomination of a Professor with less than three year service for the post of Pro-Vice Chancellor--- High Court suggested the authorities to incorporate necessary amendments in King Edward Medical University Lahore Act, 2005, and University of Agriculture Faisalabad Act, 1973, by adopting due course of law to manifest its intention regarding terms of post of Pro-Vice Chancellor--- Constitutional petition was disposed of accordingly.

(d) Interpretation of statute---

----Prohibition---Applicability---Whatever is not specifically prohibited is permissible and prohibition cannot be presumed.

Additional Collector-II Sales Tax, Lahore v. Messrs Abdullah Sugar Mills Ltd. 2003 SCMR 1026 and Asma Zafarul Hassan v. United Bank Ltd. and another 1981 SCMR 108 rel.

(e) Interpretation of statute---

----Express intention---Harmonious construction, doctrine of---Scope---In construing provisions of a statute, Court has to find out express intention from the words of statute and eschew construction which leads to absurdity and give rise to practical inconvenience or make provisions of existing law nugatory---In order to remove apparent defect and to give force and life to intention of legislature, doctrine of harmonious construction has to be adopted.

Barrister Imran Aziz Khan and Muhammad Azam Zafar Khan for Petitioner (in Writ Petition No.256002 of 2018).

Agha Itizar Ali Imran for Petitioner (in Writ Petition No.41040 of 2020).

Akhtar Javaid, Additional Advocate General, Punjab for Respondent No.1.

Mian Abdul Sattar Ijaz with Abid Iqbal Hafeez, Senior Law Officer and Muhammad Junaid Riaz, Liaison Officer KEMU for Respondents Nos.2 to 5 (in Writ Petition No.256002 of 2018).

Rana Muhammad Afzal for Respondent No.7 (in Writ Petition No.256002 of 2018).

Malik Muhammad Awais Khalid for Respondents (in Writ Petition No.41040 of 2020).

2021 P L C (C.S.) 336

[Lahore High Court]

Before Muhammad Qasim Khan, J

ARSALAN BARI and others

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.34937 of 2016, decided on 24th May, 2017.

Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013---

----R.5---Police Rules, 1934, R.19.25---Punjab Civil Servants Act (VIII of 1974), S.5---Petitioners being Assistant Sub-Inspectors (ASIs) applied for the post of Sub-Inspectors and were appointed on the recommendations of the Public Service Commission---Grievance of petitioners was that they could not be forced to join Probationer Training Class Course as compared to newly recruited Sub-Inspectors---Validity---Appointment by selection amongst ASIs through Public Service Commission was new recruitment of Sub-Inspectors for all intents and purposes---Rule 5 of the Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013, provided that in case Sub-Inspector who was appointed through initial selection failed, he shall be discharged from service, whereas, in terms of sub-rule (3) the use of word "revert" clearly indicated that in case Sub-Inspector from in-service quota failed to complete the said requirement, he shall stand reverted to his previous post---Rule 19.25 of Police Rules, 1934, also made it mandatory to successfully go through the training courses---Once the petitioners had joined as Sub-Inspectors they had become civil servants and all training courses were covered under the terms and conditions of a civil servant, which were applicable to newly recruited officer/officers even if they were on probation---Jurisdiction of High Court under Art.199 of the Constitution of Pakistan to entertain such like petitions was barred---Petitioners could approach the departmental hierarchy or the Service Tribunal---Constitutional petition was dismissed.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel.

Dilnawaz Cheema for Petitioners.

2021 P L C (C.S.) 355

[Lahore High Court]

Before Muhammad Qasim Khan, J

MUHAMMAD ASHFAQ and others

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.38980 of 2016, decided on 16th May, 2017.

(a) Standing Order No. 06 of 2015---

----Paras. 22, 23, 24 & 25, (Issued by Government of Punjab, Police Department)---Merit list---"Final selection"/"appointment orders"---Distinction---Scope---Grievance of the petitioners was that after issuance of merit list some appointees were not issued appointment letters---Waiting list of 115 candidates including petitioners was prepared, affixed but they were not offered appointments against the remaining vacant posts and the department published new advertisement to fill the vacant seats through fresh process---Contention of department was that waiting list was valid for thirty days after display of final list, therefore, after lapse of thirty days the waiting list became redundant and as such fresh advertisement was issued---Validity---Merit list was prepared on the basis of marks obtained by the candidates in the written test, family claim and interview, whereas, final list was to be prepared after verification of antecedents of the candidates as per merit list after medical checkup and then they would be allowed to join and at such stage final list shall be prepared, hence, there was a hell of difference between the "merit list" and the "final list"---Merit list prepared by the department was not the final list and it could not be said that after thirty days the list of the waiting candidates would stand scratched---List of waiting candidates would come to surface only after completion of recruitment process from the merit list and preparation of final list of the candidates who joined their posting---Constitutional petition was allowed and department was directed to issue appointment letters to the petitioners and to all the remaining candidates whose names figured in the waiting list on the ground of equality and good governance.

Government of N.-W.F.P through Secretary, Education Department, Peshawar and others v. Qasim Shah 2009 SCMR 382 and Sumara Umar Awan v. Chancellor Gomal University, D.I. Khan and 4 others 2014 PLC (C.S.) 526 rel.

(b) Civil service---

----Reserved quota---Scope---If the seats against reserved quota (excluding those reserved for minorities) remain vacant, the same would convert into open merit and had to be filled accordingly.

Malik Muhammad Awais Khalid for Petitioners.

2021 P L C (C.S.) 377

[Lahore High Court]

Before Muhammad Ameer Bhatti, J

Mst. NARGIS YASMEEN

Versus

Mst. ISMAT KHATOON and 7 others

Civil Revision No.44031 of 2017, decided on 9th November, 2020.

West Pakistan Civil Servants Pension Rules, 1963---

----Rr.4.7 & 4.10---Succession Act (XXXIX of 1925), S.373---Pensionary benefits---Succession certificate---Islamic Law---Tarka---Nominee, entitlement of---After death of civil servant during his service, his legal heirs applied for succession certificate which included Bank accounts, general provident fund, leave salary, leave encashment, gratuity and group insurance---Validity---Test to determine any service benefit heritable by and for considering it 'Tarka' for all his legal heirs, was invariably availability thereof to the concerned employee during his service or on/after retirement--- All other benefits allowed by employer out of his discretion, even to be paid during his lifetime or on the eve of his retirement or on his death were regarded as a grant or concession, to the exclusion of 'Tarka'--- Benefits accrued on end of service or after death of person like gratuity, group insurance, benevolent fund and general provident fund, were grant/concession/compensation and could not be regarded as hereditary in nature nor could be interpreted to mean 'Tarka'--- High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court as petitioner/widow was entitled to receive gratuity, general provident fund, group insurance and benevolent fund---Revision was allowed in circumstances.

Federal Government of Pakistan v. Public at large and others PLD 1991 SC 731; Erum v. Mst. Ameena and 5 others PLD 2015 Sindh 360; Zaheer Abbas v. Pir Asif and 6 others 2011 PLC (C.S.) 1288; Shabaz Wali Khan and others v. Government of Pakistan, Establishment Division Regional Board Federal Employees 2019 PLC (C.S.) 1467; Mst. Riffat Yasmeen v. Hassan Din and another 2014 CLC 126; Muhammad Javed and another v. Mst. Roshan Jahan and 2 others PLD 2019 Sindh 1 and Dr. Nasar Ullah v. Abdul Majeed Soomro and others 2009 PLC (C.S.) 263 rel.

Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 and Succession of the Assets Securities, Properties and Accounts of late Javed Iqbal Ghaznavi PLD 2010 Kar. 153 distinguished.

Muhammad Mumtaz Faridi for Petitioner.

2021 P L C (C.S.) 392

[Lahore High Court (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

YOUSAF SIDDIQUE

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Home Department, Lahore and 5 others

Writ Petition No.18642 of 2018, decided on 28th February, 2020.

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

----R.21-A---Police Rules 1934, Rr. 12.14 & 12.18---Constitution of Pakistan, Arts.199 & 25---Equality of citizens---Appointment of Sub-Inspectors---Recruits---Verification of character---Scope---Petitioner assailed exclusion of his name from the list of candidates recommended for appointment---Contention of department was that the petitioner was declared to be unsuitable for the post of Sub-Inspector on the ground that his brothers had remained proscribed persons---Validity---Only personal character of a candidate was relevant while making recruitment for any post including that of Sub-Inspector---No one could be penalized/made accountable for acts of others---Excluding the name of petitioner from the list of Sub-Inspectors was unwarranted and uncalled for---Department, before excluding the name of petitioner, had neither issued a notice nor passed a speaking order which fact alone hinted that it had acted in utter disregard of the law, whereas it was universally recognized principle of law that nobody should be condemned unheard---Other candidates for the posts were appointed by the department, as such the petitioner, being similarly placed person was also entitled to similar treatment---Constitutional petition was allowed and the department was directed to issue appointment letter in favour of the petitioner.

Muhammad Avais Khan v. Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs and 6 others 2018 PLC (C.S.) Note 31 and Abdus Salam v. Inspector General of Police, Punjab and 2 others 2019 PLC (C.S.) 503 ref.

Verse 286 Surah Al-Baqarah Para 3; Verse 164 Surah Al-Anaam Para 8; Verse 15 Surah Bani Israeel Para 15 and Verse 18 Surah Fatir Para 22 rel.

(b) Constitution of Pakistan---

----Art.227---Provisions relating to Holy Quran and Sunnah---Scope---Article 227 of the Constitution mandates that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah and no law shall be enacted which is repugnant to such injunctions.

(c) Constitution of Pakistan---

----Art.4---Right of individuals to be dealt in accordance with law---Scope---Inalienable right of every citizen to be treated in accordance with law.

(d) Administration of justice---

----No one can be penalized / made accountable for acts of others.

(e) Administration of justice---

----Nobody should be condemned unheard.

Gen. (R) Pervez Musharraf v. Nadeem Ahmed (Advocate) PLD 2014 SC 585; Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451; Commissioner of Income Tax, East Pakistan v. Fazlur Rehman PLD 1964 SC 410 and Naik Muhammad v. Muhammad Shabbir 2019 CLC 164 ref.

Shakeel Javaid Chaudhry for Petitioner.

Malik Shaukat Mahmood Mahra, Assistant Advocate General.

2021 P L C (C.S.) 411

[Lahore High Court]

Before Ayesha A. Malik and Shahid Bilal Hassan, JJ

Dr. JAMSHED DILAWAR and 2 others

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and 4 others

I.C.A. No.15249 of 2020, heard on 1st December, 2020.

Civil service---

----Ad hoc employee--- Regularization--- Appellants were appointed as Medical Officers BS-17 on ad hoc basis and sought their regularization--- Validity--- If all ad hoc employees were to be considered for regularization it would be done in accordance with rules and for the purposes of appointments in BS-17 as per process set out by relevant department and Punjab Public Service Commission--- Appellants had to go through Public Service Commission because although they participated in recruitment process in year 2017 yet they did not come on merit--- Appellants were not selected or appointed against sanctioned seats---Appearance of appellants before Public Service Commission did not absolve them from requirement of undergoing process for selection by the Commission--- Even if the authorities were to consider appellants for regularization, they had to be selected by Public Service Commission for appointment on merit--- Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court in exercise of Constitutional jurisdiction--- Intra Court Appeal was dismissed in circumstances.

Naveeda Tufail v. Government of Punjab 2003 SCMR 219 rel.

Dr. Zaheer Iqbal and others v. Province of Punjab through Chief Secretary and others 2018 PLC (C.S.) 712; Abu Bakar Farooq and others v. Muhammad Ali Rajpar and others 2019 SCMR 830 and Dr. Adnan Rasool and others v. Government of Punjab through Chief Secretary, Lahore and others W.P. No.16185/2019 ref.

Pervaiz Inayat Malik for Appellants.

Aliya Ijaz, A.A.G. for Respondents.

2021 P L C (C.S.) 426

[Lahore High Court]

Before Jawad Hassan, J

KHALID IMRAN KHAN BARKI

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.108956 of 2017, heard on 1st October, 2020.

(a) Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2012)---

----Ss.21 & 1---Punjab Civil Services Pension Rules, 1963, R. 18---Proceedings against retired employees---Limitation---Scope---Petitioner impugned show cause notice issued by department after 4 years and 9 months of his retirement without mentioning the relevant provision of law---Validity---Petitioner was neither convicted nor proven guilty of misconduct either by the Government itself or by any other forum---Clause 1.8(b) of the Punjab Civil Services Pension Rules, 1963, was not applicable to the petitioner because during his service Government had neither alleged nor proved that he had caused financial losses to the Government due to his negligence or fraud nor any departmental proceedings were initiated against him within a year from the date of his retirement---Proceedings against retired employee could be initiated during his service or within one year of his retirement---Constitutional petition was allowed and proceedings initiated through show cause notice were set aside.

Muhammad Masood Joya v. Government of the Punjab and others 2000 PLC (C.S.) 864; Muhammad Siddique v. Divisional Forest Officer, Okara 2014 PLC (C.S.) 253 and Syed Raza Mehdi Baqari v. Province of Punjab through Secretary, LG & CD Department and 2 others 2016 PLC (C.S.) 1046 rel.

(b) Administration of justice---

----Where an authority passes an order which is within its competence, such an order cannot fail merely because it cites a wrong provision of law.

(c) Interpretation of statutes---

----Directory or mandatory provision---Scope---Where a time frame is prescribed to do certain act by public functionaries, the same is directory if such act is not likely to affect the rights of any person---However, where public functionary is empowered to create liability or impose penalties against any person within prescribed time then the time so prescribed is not directory but mandatory.

Ms. Rizwana Anjum Mufti for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate-General for Respondents.

2021 P L C (C.S.) 468

[Lahore High Court]

Before Muhammad Ameer Bhatti, J

LATIF AHMED

Versus

The CHIEF SECRETARY PUNJAB, LAHORE and another

Writ Petition No.55193 of 2019, decided on 26th October, 2020.

(a) Civil service---

----Appointment---Demand of fresh medical certificate from government servant on account of his another appointment---Scope---Petitioner, who was a Senior Special Education Teacher (BS-17), applied for the post of Headmaster (BS-18) through proper channel---Petitioner was eventually selected as such by the Public Service Commission, yet the department denied issuance of his appointment letter on the premise that he had failed to furnish the medical certificate as a pre-requisite---Validity---Government through a notification had issued instructions to all the appointing authorities to abstain from foisting the production of fresh medical certificate of fitness upon any government servant on account of his/her another appointment in the government department---Action of the department qua non-issuance of appointment letter to the petitioner was declared to be without lawful authority and illegal, therefore, the same was set aside---Department was directed to issue appointment letter to the petitioner---Constitutional petition was allowed.

(b) Punjab Civil Services (Applications for Posts) Rules, 1987---

----Rr.4 & 5---Forwarding of Applications---Release on selection for appointment to a post for which application was forwarded---Scope---Application for appointment in another post of employee could only be accepted if it was forwarded through the office of competent authority and thus, was enough to regard the fitness of that person as valid and consent of that department not to object to relieve him on his selection.

Mehr Asif Iqbal for Petitioner.

Saqib Haroon Chishti, A.A.G.

2021 P L C (C.S.) 576

[Lahore High Court]

Before Jawad Hassan, J

Dr. HAROON AZIZ KHAN BABAR

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.35666 of 2020, heard on 12th November, 2020.

Civil service---

----Transfer and posting---Scope---Petitioner, who was regularized by the authorities on the basis of judgment passed by Division Bench of the High Court, was posted at district 'M' but he approached the authorities for his posting at district 'L'---Due to no response, petitioner approached the High Court and sought directions regarding his pending application---Petitioner again approached the authorities for compliance of directions issued in said petition and when no response was received, he filed another constitutional petition---Authorities submitted report and parawise comments and attached certain documents including the impugned order wherein it was concluded that certain important facts were not submitted before the Provincial Selection Board at the time of recommendations for regularization of the petitioner and his subsequent clearance for promotion on regular basis---Validity---Matter with regard to the regularization and subsequent promotion was put by authorities before the Provincial Selection Board where they could have pointed out all the facts and grounds and objections on the regularization and promotion or even could defer the matter till the decision of petition for leave to appeal pending before the Supreme Court but instead they proceeded to grant regularization and promotion to the petitioner after approval from the Chief Minister---Authorities had not mentioned the relevant law/rule under which decision of Provincial Selection Board could be challenged by the Administrative Department, hence, the impugned order was sketchy and non-speaking---Constitutional petition was allowed, impugned order was set aside and the authorities were directed to give posting to the petitioner.

Water and Sanitation Agency, Lahore through MD v. Lottee Akhtar Beverages (Pvt.) Ltd. Lahore and others 2019 SCMR 1146; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 and National Assembly Secretariat v. Manzoor Ahmed and another 2015 SCMR 253 ref.

Muhammad Ismail v. State PLD 1974 Kar. 29; Yousaf A. Mitha and others v. Abo Bakar and others PLD 1980 Kar. 92 and Nazar and others v. Member (Judicial-II), BOR 2010 SCMR 1429 rel.

Khawaja Adnan Ahmad, Advocate Supreme Court for Petitioner.

Barrister Umair Niazi, Additional Advocate General, Barrister Hassan Khalid Ranjha, Assistant Advocate General along with Amir Ghazi, Additional Secretary and Abbas Ali, Law Officer, Specialized Healthcare Department for Respondents.

2021 P L C (C.S.) 596

[Lahore High Court]

Before Masud Abid Naqvi and Jawad Hassan, JJ

ABDUL WAJID

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY and others

Intra Court Appeal No.44 of 2014, heard on 18th November, 2020.

(a) Civil service---

----Contractual employment---Scope---Appellant assailed the dismissal of his constitutional petition which was filed against the termination of his contractual employment---Validity---Contract of employment explicitly showed that the appointment was purely temporary which could be terminated on thirty days' notice or in lieu of payment without assigning any reason---Appellant, at the time of joining, had accepted all the terms and conditions of his contractual employment and he could not resile from the same at belated stage---Record established that the appellant's performance had remained unsatisfactory---Intra court appeal, being bereft of any force, was dismissed.

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

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; Mubashar Majeed v. Province of Punjab and 3 others 2017 PLC (C.S.) 940; IPC through Secretary v. Arbab Altaf Hussain 2014 SCMR 1573; Kamran Ahmad v. WAPDA 2014 PLC (C.S.) Lah. 332; Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 SCMR 1625 and Pakistan International Airlines v. Naureen Butt 2017 PLC (C.S.) 923 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Contractual employment---Scope---Contract employee cannot seek enforcement of contractual obligations by invoking constitutional jurisdiction.

Maj. (Retd) Syed Muhammad Tanveer Abbas v. Federation of Pakistan through Secretary Ministry of Interior and another 2019 SCMR 984 and Chairman NADRA, Islamabad v. Muhammad Ali Shah and others 2017 SCMR 1979 ref.

Salman Mansoor for Appellant.

Imran Malik, Law Officer-NADRA for Respondents.

2021 P L C (C.S.) 606

[Lahore High Court]

Before Jawad Hassan, J

SHAHID IQBAL

Versus

CHAIRMAN EVACUEE TRUST BOARD and others

Writ Petition No.32015 of 2017, heard on 5th October, 2020.

Civil service---

----Contract of employment, cancellation of---Scope---Petitioner assailed order passed by authorities whereby his request for regularization of services was declined and his contract of employment was also not extended but the petitioner himself marked his attendance in the attendance register by adding his name at his own---Validity---Petitioner was appointed on work charge basis for a period of 89 days and his appointment was purely temporary---Relevant clauses of the agreement explicitly showed that the work charge appointment was only for specific period, which would automatically be terminated on expiry of the period---Petitioner, at the time of joining, had accepted all the terms and conditions of his ad-hoc employment and he could not resile from the same at belated stage---No illegality or perversity was found in the impugned order, which was passed in accordance with law---Constitutional petition was dismissed.

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.

Ch. Muhammad Awais Zafar for Petitioner.

Rana Zahid Nasim Shahid for Respondents.

2021 P L C (C.S.) 639

[Lahore High Court]

Before Jawad Hassan, J

SAIQA ANWAR

Versus

SECRETARY SCHOOL EDUCATION and others

Writ Petition No.46164 of 2017, decided on 20th October, 2020.

Civil service---

----Contract of employment, cancellation of---Scope---Petitioner challenged the cancellation of her contract of employment---Contention of petitioner was that the department was informed about her absence due to murder threats by her husband; that her contract was cancelled without issuing any notice and that an opportunity of personal hearing was not provided---Validity---Application under Ss.22-A & 22-B, Cr.P.C., produced by petitioner before the department showed that it was filed against certain persons who were causing illegal harassment to her and her husband which apparently contradicted her stance that she had a threat of murder or dire consequences by her husband---Impugned order reflected that the petitioner was afforded an opportunity of hearing which she had duly availed---Charges levelled against the petitioner had been proved through concurrent findings of two authorities, credibility of which could not be shaken by the petitioner---Constitutional petition was dismissed.

Muhammad Kafeel Salik Niaz for Petitioner.

2021 P L C (C.S.) 672

[Lahore High Court]

Before Shujaat Ali Khan, J

Syed MUHAMMAD ARIF

Versus

CHAIRMAN, PUNJAB PUBLIC SERVICE COMMISSION (PPSC), LAHORE and 2 others

Writ Petition No.20431 of 2012, decided on 19th June, 2020.

Constitution of Pakistan---

---Arts. 199 & 240---Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, R.3(v)---Constitutional petition---Appointments to service of Pakistan and conditions of service---'Government servant'---Employees of Local Government---Scope---Petitioner assailed the rejection of his candidature by Public Service Commission on the ground of being overage and it was also asserted that the petitioner being employee of Local Government was not entitled for relaxation in upper age limit---Contention of petitioner was that he was a government servant and was entitled to relaxation of upper age limit as was envisaged in R.3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, (Relaxation Rules)---Validity---Employees of Local Government had nothing to do with the affairs of the Provincial Government---Petitioner did not fall within the definition of the "Government servant" as envisaged under R.3(v) of Relaxation Rules as employees of Local Government were not covered under Art.240 of the Constitution---Relaxation Rules were expressed to be in derogation of or a departure from the normal rule for recruitment to the services---Not only the Relaxation Rules were expressed to be so their effect was also the same---Where an exemption or relaxation was sought to be created in respect of certain category a restricted and not an extended meaning was given for understanding and applying the statutory provision---Extended or the popular meaning could not be introduced defeating thereby the legislative intent and the purpose---Public Service Commission had also clarified in the advertisement that relaxation in upper age limit was not permissible to the employees of Local Bodies---Constitutional petition was dismissed, in circumstances.

Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and Muhammad Mubeen-Us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 ref.

UPSC v. Jamuna Kurup AIR 2008 SC 2463 rel.

Saleem-ur-Rehman and another v. Government of the Punjab through Secretary, S&GAD, Lahore and others 1986 SCMR 747 foll.

Rao Muhammad Akbar Khan Mayo for Petitioner.

Rana Shamshad Khan, Additional Advocate General for Respondent.

Mian Muhammad Iqbal for PPSC.

2021 P L C (C.S.) 705

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD RIAZ and 2 others

Versus

PROVINCE OF PUNJAB, through Home Secretary Punjab, Lahore and 2 others

Writ Petitions Nos.23900, 23928, 21758 of 2016, 11074 of 2017 and 129729, 192925, 249575, 169408 of 2018, heard on 25th January, 2019.

(a) Civil service---

----Contract employee---Regularization---Scope---Regularization of employee was not a part of the terms and conditions of service of the employee and for the same there needed to be some statutory rules, but the same also depended upon the length of service---In terms of equity it had to be seen whether a person who had given his prime life to a department was kept in dark and his services were taken in a very exploitive manner---Contract employee could invoke constitutional jurisdiction of the High Court in respect of any grievance qua terms and conditions of his service.

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

(b) Civil service---

----Contract employee---Regularization of service---Contention / objection of the Provincial Government was that after having accepted terms and conditions of their contract, petitioners/contract employees were barred to invoke constitutional jurisdiction of the High Court---Held, that petitioners could not be non-suited only on the basis of said contention---Employees, after having been selected for a promised post, were offered the contract instead---In view of the rate of unemployment in the country, petitioners had no option but to sign the contract in order to avoid disappointment---Such a contract could not be an obstructive instrument in their way of regularization.

Zarai Taraqiati Bank Ltd. v. Muhammad Asim Rafique and others 2016 SCMR 1756 ref.

(c) Civil service---

----Contract employee----Regularization of service---Discrimination---Equal treatment---Scope---Petitioners (ex-Army personnel) were employed as constables in Provincial police in their respective districts on contract basis---Provincial government vide notification had directed regularization of services of all the contract employees except the petitioners (police officials)---Provincial government contended that the said notification was not applicable to the petitioners as they being contract employees had no right of regular appointment ---Validity---Said notification showed that its benefit was extended to various departments of provincial government and if the intention of the competent authority was to exclude the provincial police from it then the same might have been specifically incorporated in the said notification---Pursuant to satisfactory performance of the petitioners , their contract had been extended from time to time which was sufficient to believe that there was nothing adverse on their part---Government notification for regularization of services of all the contract employees was issued without any distinction, therefore, employees of one particular class/department could not be deprived of getting the benefits of said notification merely at the whims or caprice of the authority at the helm of affairs---Services of some of equally placed colleagues of the petitioners had already been regularized , therefore, the petitioners were also entitled to get the said benefit---High Court deprecated that the tendency of running the affairs of institutions on day to day basis and exploiting services of the employees for an indefinite period---Constitutional petitions were allowed.

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

Malik Muhammad Nadeem Ali for Petitioners (in Writ Petitions Nos.129729, 192925 of 2018, 23928, 23900, 21758 of 2016 and 110741 of 2017).

Malik Zafar Iqbal for Petitioner (in Writ Petition No.249575 of 2018).

Ch. Abdul Ghaffar for Petitioner (in Writ Petition No.169408 of 2018).

Akhtar Javed, Additional Advocate General along with A.D. Dhakku Inspector Legal and Akmal Inam, S.I. for Respondents.

2021 P L C (C.S.) 752

[Lahore High Court]

Before Abid Aziz Sheikh and Shahid Karim, JJ

MUHAMMAD ARIF AMEEN and 4 others

Versus

The PROVINCE OF PUNJAB through Secretary, Home Department, Lahore and 12 others

I.C.A. No.33280 in Writ Petition No.26039 of 2020 and (other connected ICAs and Writ Petitions), heard on 4th March, 2021.

(a) Law Reforms Ordinance (XII of 1972)---

----S.3(2)---Intra Court Appeal---Maintainability---Right of appeal, non-availing of---Effect---If right of appeal available under statute is not availed even then bar contained in provision to S.3(2) of Law Reforms Ordinance, 1972, is applicable---Intra Court Appeal is not maintainable in such circumstances.

Mst. Karim Bibi and others v. Hussain Bakhsh and others PLD 1984 SC 344; Ch. Nazir Ahmad v. Moulvi Masood ur Rehman Khan and others PLD 2008 Lah. 405; Secretary Education (Schools), Government of Punjab and others v. Tariq Mehmood 2005 PLC (C.S.) 851; National Electric Power Regulatory Authority, Islamabad v. Gujranwala Energy (Pvt.) Ltd. 2020 CLC 173; Willam Lawrence v. Government of Pakistan and others 1986 SCMR 1077; Government of Pakistan through Secretary, Ministry of Interior v. Muhammad Yasin and others PLD 1997 SC 401; Al Ahram Builders (Pvt.) Ltd v. Income Tax Appellate Tribunal 1993 SCMR 29 = 1992 PTD 1671; Raja Muhammad Ramzan and others v. Union Council and others 1994 SCMR 1484; Wealth Tax Officer and others v. Shaukat Afzal and others 1993 SCMR 1810; Syed Qamar Ahmad and others v. Anjum Zafar and others 1994 SCMR 65 and Muhammad Jameel Sohail and others v. The Income Tax Officer/Tax Recovery Officer, Lahore C.P.S.L.A No.832-L of 1995 rel.

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

----Ss.6 & 12---Constitution of Pakistan, Art.37(d)---Right of appeal---Good governance---Inexpensive and expeditious justice---Appellants were aggrieved of refusal of authorities to regularize their services---Validity---When a power was vested in State functionary empowering him to do something, then concerned functionary was obliged to exercise such power fairly and in the manner provided under relevant statue---Right of appeal was not merely a matter of procedure but a substantive right---Appellate forums had ample powers to scrutinize documents on record and exercise same jurisdiction as vested in original authority---Inexpensive and expeditious justice to people of Pakistan was ensured by State under the provisions of Art.37(d) of the Constitution---Denial of right of appeal by not appointing appellate forum under S.12 of Punjab Regularizing of Service Act, 2018, was not only denial of substantive right but was also against the dictate of Art.37(d) of the Constitution---High Court directed Competent Authority to constitute Appellate Committee under S.12 of Punjab Regularization of Service Act, 2018, and to make the same functional--Intra Court Appeal was dismissed accordingly.

Ch. Muhammad Sarwar, Mehar Alam Sher, Ch. Abdul Ghaffar, Saif-ur-Rehman Jasra, Waqar Ahmed Malik, Bilal Ijaz Ch., Rashid Khan, Zulfiqar Ali Phularwan, Rana Manzar Bashir, Naveed Khalid, M. Gulzar Khan, Malik M. Akbar Awan, Hafiz Allah Yar Sipra, Ch. Tariq Javed, Ch. M. Basharat, M. Faisal Rana, Hafiz M. Gulfam, Usman Ali, M. Arshad Gondal, M.M. Nawaz, Allah Rakha, Syed Ali Abid Tahir, Malik Asif Javed and Tasawar Hussain Virk for Petitioners.

Asif Afzal Bhatti, Additional Advocate General, Punjab, Junaid Razzaq, Assistant Advocate General, Punjab along with M. Saleem, AIG Legal, Ejaz Hameed, DSP, M. Azeem, DSP and M. Shahbaz, Inspector Legal, Punjab Police for Respondents.

2021 P L C (C.S.) 961

[Lahore High Court]

Before Shujaat Ali Khan, J

SAMINA ZAHEER

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED and others

Writ Petition No.13189 of 2009, decided on 16th March, 2017.\

(a) Administration of justice---

----No party's case should be prejudiced due to act of government functionaries.

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

(b) Civil service---

----Employees of Pakistan Telecommunication Company Limited (PTCL)----Voluntary Severance Scheme (VSS)---Eligibility of an employee for VSS---Petitioner employee of PTCL availed Voluntary Severance Scheme (VSS) and retired, however, respondent PTCL later rescinded her entitlement to VSS on ground that she was not eligible for same and same had been granted to her erroneously; and furthermore, refused to reinstate petitioner until she returned all pensionary benefits received under the VSS---Held, that petitioner had neither rejoined employment nor was getting paid the pensionary benefits meaning thereby that petitioner had been put in the lurch---Petitioner could not be made to suffer due to any mistake of departmental authorities while determining her eligibility to qualify for VSS and such approach while dealing with fate of employees could not be allowed---Petitioner's case was fully covered under the VSS as her training period could not be excluded while determining her eligibility in respect of length of service---High Court set aside Departmental order whereby she was denied VSS and directed respondent PTCL to ensure payment of all outstanding and future pensionary benefits to petitioner---Constitutional petition was allowed, accordingly.

Jawad Mir Muhammadi v. Haroon Mirza and others PLD 2007 SC 472; Pakistan Telecommunications Company Ltd. through President and 5 others v. Azhar Ali Babar and 2 others 2013 PLC 345 and Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others 2012 SCMR 152 rel.

Shafique Ahmed Khan and others v. Nescom through Chairman, Islamabad and others PLD 2016 SC 377; Ahsanullah and 11 others v. Federation of Pakistan through Secretary and 4 others 2016 PLC (C.S) 477; I.C.A. No.1035 of 2015; Civil Petition No.2910 of 2015; Writ Petition No.12586 of 2012; Writ Petition No.27890 of 2011; Writ Petition No.20787 of 2012; Writ Petition No.21228 of 2012 and Writ Petition No.5978 of 2011 distinguished.

Pakistan Telecommunications Company Ltd. through President and 5 others v. Azhar Ali Babar 2013 PLC 345; Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others 2012 SCMR 152; Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others v. Muhammad Arif and others 2015 PLC (C.S.) 1417; Nazir Ahmad v. Government of Punjab through Secretary Transport, Lahore and others 2006 PLC (C.S.) 237; Pakistan Telecommunication Company Ltd. v. Aneesa Khatoon 2010 PLC 534; Civil Petition No.D-797 of 2000 and Writ Petition No.223 of 2011 ref.

Mian Mehmood Hussain for Petitioner.

2021 P L C (C.S.) 994

[Lahore High Court]

Before Shujaat Ali Khan, Ayesha A. Malik and Shams Mehmood Mirza, JJ

Dr. KHALID ZAMIR RASIB

Versus

PROVINCE OF THE PUNJAB through Secretary Higher Education Department, Lahore and 4 others

Writ Petition No.245733 of 2018, heard on 9th December, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Chartered university---Petitioner was aggrieved of his dismissal from a Chartered University---Validity---Maintainability of Constitutional petition against a Chartered University by a member of society was entirely distinct as compared to a person who assailed any order passed by university authorities regarding terms and conditions of his service---Entirely different tests were to be applied in such situations, inasmuch as in the first category it was to be seen as to whether university was performing functions in connection with affairs of the state or not and in the subsequent category maintainability of Constitutional petition was to be determined in relation to nature of service rules / regulations governing terms and conditions of service of aggrieved employees of the University---No statutory rules or regulations of the University governing terms and conditions of service were available justifying interference of High Court in exercise of its Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Sheikh Nadeem Ahmad v. G.C. University and others 2016 MLD 1966; Aown Abbas Bhatti v. Forman Christian College and 2 others PLD 2018 Lah. 435; Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326 and Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 Lah. 568 ref.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 and Abdul Rashid Khan v. Registrar Baha ud Din Zikrya University 2011 SCMR 944 rel.

Nadeem Ahmad Sheikh and Safdar Shaheen Pirzada for Petitioner.

Rana Shamshad Khan, Additional Advocate General.

Muhammad Amir Sohial for Respondent No.2.

Muhammad Imran Ramzan for Respondents Nos.3 to 5.

2021 P L C (C.S.) 1037

[Lahore High Court]

Before Asim Hafeez, J

MAIMOONA RAJAB

Versus

PROVINCE OF PUNJAB through Section Officer of Governor of Punjab, Lahore and another

Writ Petition No. 26126 of 2020, decided on 9th March, 2021.

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

----S.2(h)---"Harassment"---Scope and effect---Charge of harassment at workplace, in particular, involving allegation of unwelcome sexual advance and sexually demeaning attitudes entailed serious consequences for the accused person, affecting person's life, career and social relationships---Equally, such deviant behaviour violated social norms, discouraged participation of womenfolk in economic activity and often led to disastrous consequences, hence, called for accountability and strict action.

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

----S.2(h)---"Harassment"---Proof---Quasi-criminal charge of sexual harassment, as a bare minimum, had to be impartial, credible, capable of surviving test of reasonableness and must be reinforced with convincing / independent evidence.

Quasi-criminal charge of sexual harassment, as a bare minimum, had to be impartial, credible, capable of surviving test of reasonableness and must be reinforced with convincing / independent evidence. In the present case, the complainant-petitioner failed to substantiate charge of harassment through independent, convincing and definite evidence. The testimony of the witnesses - claimed as hostile - extended no support to the case of the petitioner, when their assertions otherwise did not bring home the charge of harassment. Accused could not be punished merely on unsubstantiated assertions.

Furthermore, multifariousness of the allegations, mostly manifesting grievances regarding administrative failures, compromised the credibility, seriousness and efficacy of the charges levelled by the petitioner, which fact was evident from perusal of the complaint. Representation filed by the accused before the Governor was rightly allowed where after he was absolved of all charges levelled against him.

High Court observed that since the filing of the complaint, the accused had faced much discomfiture and social disgrace, which constituted sufficient warning, and it was expected that the complainant would demonstrate good and decent behaviour towards colleagues and co-workers. Constitutional petition was dismissed.

Mustafa Shaukat Iman Pasha for Petitioner.

Sardar Qasim Hassan Khan, Assistant Advocate General Punjab for Official Respondent No.1.

2021 P L C (C.S.) 1066

[Lahore High Court]

Before Muhammad Raza Qureshi, J

KIRAN JAAN

Versus

PROVINCE OF THE PUNJAB through Chief Secretary and 4 others

Writ Petition No.31580 of 2021, decided on 24th May, 2021.

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

----Ss.2(c), 2(f), 3, 4 & 5---Contract employee---Regularization---Procedure---Scrutiny Committees---Scope---Petitioner sought regularization of her services under the provisions of Punjab Regularization of Service Act, 2018 (the Act)---Validity---Combined reading and analysis of the definition clauses of "contract employee" and "regularization" clearly spelt that a contract employee meant an eligible person appointed on contract in a department before the commencement of the Act---If an employee passed the test of definitions' sub-clauses, the Act envisaged satisfaction of another condition, which was contained in S.3 of the Act---If an employee qualified the condition of S.3 as well, then the competent authority was bound to submit his case for regularization in the mode, manner and mechanism contained in S.4 of the Act---Case of petitioner fell under S.4(3) of the Act, therefore, her case was required to be considered by the Scrutiny Committee constituted under S.5 of the Act, which direction was issued accordingly---Writ petition was allowed, in circumstances.

Mst. Nabila Niaz and others v. Secretary Health and others 2020 PLC (C.S.) 675 rel.

Ch. Imtiaz Ahmad Taj for Petitioner.

2021 P L C (C.S.) 1091

[Lahore High Court]

Before Faisal Zaman Khan, J

FAIZ ULLAH

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary and 4 others

Writ Petition No. 3176 of 2021, heard on 3rd February, 2021.

Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Transgender rights---Recruitment process---Petitioner was a transgender who applied for a post of Lecturer (female) but Punjab Public Service Commission denied petitioner to participate in recruitment process---Validity---First and foremost duty/responsibility (moral and legal) of Provincial Government was to implement provisions of Transgender Persons (Protection of Rights) Act, 2018, in letter and spirit by not letting government department discriminate between male, female and transgender persons---Transgender person was neither an option nor a preference but a recognized and respectable third gender all over the world---High Court directed Provincial Government to make a comprehensive policy at the earliest for implementing Transgender Persons (Protection of Rights) Act, 2018, in letter and spirit and to ensure that rights of transgender persons were protected like any other citizen of Pakistan---High Court set aside order passed by Punjab Public Service Commission and petitioner was allowed to be participated in recruitment process---Constitutional petition was allowed, in circumstances.

Dr. Muhammad Aslam Khaki and others v. S.S.P. (Operations) Rawalpindi and others PLD 2013 SC 188; Dr. Muhammad Aslam Khaki and another v. Senior Superintendent of Police (Operation), Rawalpindi and others 2013 SCMR 187 and Mian Asia v. Federation of Pakistan through Secretary Finance and 2 others PLD 2018 Lah. 54 rel.

Syed Ali Hassan Zaidi and Muhammad Zeshan Zafar for Petitioner.

Malik Adul Aziz Awan, Addl. A.G., Muhammad Asif Bhatti, Addl. A.G., Ch. Faza Ullah, A.A.G., Mian Muhammad Iqbal, Law Officer on behalf of P.P.S.C. and Abdul Jabbar, Section Officer (DF), Higher Education Department for Respondents.

2021 P L C (C.S.) 1103

[Lahore High Court (Multan Bench)]

Before Muhammad Shan Gul, J

MUHAMMAD SHAHID

Versus

SECRETARY FOOD and others

Writ Petition No.8943 of 2021, heard on 15th June, 2021.

(a) Civil service

----Deputation---Scope---Petitioner assailed order passed by borrowing authority whereby his deputation period of three years was cut short by six months and he was surrendered to his parent department---Validity---Petitioner could not establish as to what vested or legal right of his was at stake, let alone a basic fundamental right---Clause 17 of the Deputation Policy of the Government of Punjab issued vide Notification No. 6-13/97 dated: 13-08-1998 declared the right of the government to withdraw the deputation order at any time without assigning any reason---Borrowing department had sole discretion whether to allow a deputationist to continue or to repatriate him at any time to his parent department---Constitutional petition was dismissed.

Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 and Kandaswamy and others v. The Deputy Registrar of Cooperative Societies, Coimbatore and another AIR 1954 Madras 348 ref.

Islamic Republic of Pakistan v. Israrul Haq and 23 others PLD 1981 SC 531; Muhammad Zia-Ul-Haq and others v. Government of Punjab and others 1996 PLC (C.S.) 134; Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378 and State of Punjab v. Inder Singh AIR 1998 SC 77; Abdul Khaliq Anjum v. Secretary Education, Government of Punjab and 2 others 1998 PLC (C.S.) 839; S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 and Dr. Mst. Robia Ayub v. Federation of Pakistan through Secretary, Ministry of Education and others 2013 PLC (C.S.) 915 rel.

(b) Civil service---

----Deputation---Scope---Dictionary meaning of the term 'deputation' is of no help in understanding the concept of deputation as it exists in the realm of administrative law---Deputation means service outside the cadre or outside the parent department---Such is the act of deputing, transferring or posting an employee to a post outside cadre, to another department on a temporary basis---Deputation can be described as an assignment of an employee of one department or cadre to an organization to another department---Need, of course, is based on exigencies and requirements of public service.

State of Punjab v. Inder Singh AIR 1998 SC 7 rel.

(c) Civil service---

----Deputation---Scope---Deputation, for an employee, is in the nature of a transfer, rather it is a specie of the wider genus of transfer, albeit outside his existing cadre---Transfer and posting being an incidence of service, it naturally follows that deputation also comes within the realm of conditions of service---Fact that a deputationist is not treated as a civil servant during the period of his deputation makes no difference in this respect---Government servant (including both, civil servant and deputationist), in terms of the governing law, can be ordered to serve at any place by the competent authority and short of allegations of political victimization or unfair labour practice, transfer orders of government servants are, generally and ordinarily, not interfered with because the courts show respect to the exercise of discretion by the competent authorities on the administrative and executive side and also because transfer is an incidence of service---Such judicial treatment of transfer and posting being the norm, the exercise of being sent on deputation or of being withdrawn from such deputation and being surrendered, hardly qualifies as a justiciable matter.

Islamic Republic of Pakistan v. Israrul Haq and 23 others PLD 1981 SC 531; Muhammad Zia-Ul-Haq and others v. Government of Punjab and others 1996 PLC (C.S.) 134; Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378 and State of Punjab v. Inder Singh AIR 1998 SC 7 rel.

(d) Civil service---

----Deputation---Scope---Deputationist does not have any vested right to remain at the post of deputation indefinitely or even for a stipulated period---Deputationist can be repatriated to his parent department at any time---Parent department is free and at liberty to recall its officer as and when exigencies of service so require and, likewise, the borrowing department cannot be held hostage to the period of deputation and can send the deputationist back if the exigencies of service or the public interest so demand or even on administrative grounds.

Dr. Shafi-ur-Rehman Afridi v. C.D.A., Islamabad through Chairman and others 2010 SCMR 378; Contempt proceedings against Chief Secretary and others 2013 SCMR 1752 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 ref.

(e) Civil service---

----Deputation---Scope---Principle underlying deputation is that the deputationist can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue on deputation.

Pakistan v. Fazal Rahman Khundkar and another PLD 1959 SC 82 rel.

(f) Civil service---

----Deputation---Scope---Period of deputation may be terminated and the civil servant serving on deputation may be repatriated, at any time, without any reasons by the lending as well as upon the request of the borrowing authority as and when the exigencies of service so require---Rationale behind this trite and established position of law is not hard to discern---Deputation is made purely on account of administrative exigencies and for the purpose of administrative convenience---As and when a particular department is faced with a shortfall of technically savvy personnel trained in a particular field, it can seek the services of technically qualified persons in that field from some other department of the same government or even from another government of the country---Borrowing department was to decide as to when a deputationist is no more required---Deputationist, therefore, cannot be thrust upon an unwilling department, would compromise the autonomy of the department besides heightening and accentuating a non-existent vested right which is alien to trite and established law.

Abdul Khaliq Anjum v. Secretary Education, Government of Punjab and 2 others 1998 PLC (C.S.) 839; Senate Secretariat through Chairman and another v. Miss Faiqa Abdul Hayee 2014 SCMR 522; S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 and Zahoor Khan v. Government of Khyber Pakhtunkhwa and others 2015 PLC (C.S.) 824 rel.

(g) Civil service---

----Deputation---Scope---Borrowing department has sole discretion whether to allow a deputationist to continue or to repatriate him at any time to his parent department.

Mst. Robia Ayub v. Federation of Pakistan through Secretary, Ministry of Education and others 2013 PLC (C.S.) 915 rel.

(h) Civil service---

----Deputation---Scope---Deputation is in the nature of a three-way contract and can be continued only if all the parties want it to continue---Moment this tripartite agreement is repudiated by means of non-adherence by the departments, the employee has no legally enforceable right to continue to complete the agreed period of his deputation.

Muhammad Khalid Farooq for Petitioner.

Azhar Saleem Kamlana, Assistant Advocate General for Respondents.

2021 P L C (C.S.) 1126

[Lahore High Court]

Before Abid Aziz Sheikh, J

UMER ATTA-UR-REHMAN KHAN

Versus

MINISTRY OF ENERGY through Secretary/Chairman, NESPAK and 5 others

Writ Petition No.110187 of 2017, heard on 22nd February, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Contractual employment---Non-statutory rules---Scope---Petitioner assailed his dismissal from contractual service and also the dismissal of his departmental appeal---Validity---Respondent was a private limited company and its rules namely Employees (Efficiency and Discipline) Rules, 1974, were framed by the Board of Directors under the power conferred on them through Articles of Association---Rules were neither framed by the Federal Government nor were they framed under any statute---Said rules could not be termed as statutory rules---Petitioner was appointed for a period of one year and no formal extension was available on record, therefore, the petitioner's contract had already expired---Constitutional petition was dismissed.

Pakistan Defence Officer Housing Authority and others v. Ltd. Cool. Syed Jawaid Ahmad 2013 SCMR 1707; Habib Bank Ltd. v. The State 2013 SCMR 840 and Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278 ref.

Executive Counsel Allama Iqbal Open University Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Pakistan Telecommunication Company through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 and Syed Nazir Gillani v. Pakistan Red Crescent Society and another PLD 2014 SCMR 982 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Contractual employment---Scope---Where contract employee is removed from service and his contract period has already lapsed, no constitutional petition for re-instatement in service is maintainable rather only damages can be claimed before an appropriate forum.

Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others 2011 PLC (CS) 623; Rizwan Ahmed Bhatti v. Federation of Pakistan and 3 others 2012 PLC (C.S.) 681; Naweed Akhtar Cheema v. Chairperson, TEVTA and others 2011 PLC (C.S.) 803; Ag. Crd. (Rtd.) Irshad Ahmad v. National Highway Authority through Chairman and another 2011 PLC (C.S.) 663 and Lt. Col. (Retd.) Aamir Rauf v. Federation of Pakistan through Secretary Ministry of Defence and 3 others 2011 PLC (C.S.) 654 ref.

Federation of Pakistan through Secretary Law Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120; Abdul Wahab and others v. HBL and others 2013 SCMR 1383 and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 rel.

Muhammad Aslam Zar for Appellant.

Aitzaz Aslam Chaudhry for Respondents.

2021 P L C (C.S.) 1154

[Lahore High Court (Bahawalpur Bench)]

Before Muhammad Shan Gul, J

MUHAMMAD IJAZ

Versus

GOVERNMENT OF THE PUNJAB through Director General Fisheries, Punjab, Lahore and 3 others

Writ Petition No.4396 of 2021/BWP, decided on 3rd June, 2021.

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

----R.17-A---Constitution of Pakistan, Art.199---Judicial review---Scope---Petitioners were aggrieved of a clarification issued by the Services and General Administration Department (S&GAD) by means of a notification whereby it was ordered that government servants who were declared incapacitated or invalidated from government service in medical category 'B' could not be given the benefit of R.17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 and any benefit extended to the legal heirs of such persons was to be withdrawn---Validity---Rule 17-A did not specify any division, distinction or bifurcation of categories of incapacitation or invalidation---Either one was incapacitated or not incapacitated---Likewise, invalidated or not---No such thing as being partly invalidated or being semi-incapacitated existed---Rule 17-A was a beneficial rule and had to be construed liberally and departmental instructions could not be allowed to make inroads thereon---Administrative instructions had taken into account an absolutely irrelevant consideration of possible misuse of the facility which rendered the notification illegal---Aim was an improper one---Entire purpose of the rule was defeated by creation of categories at an administrative level---One did not need to think hard to suggest that if at all any bifurcation was to be introduced in the rules then the same ought to be done by amending the rule---What rule gave from one hand, administrative instructions tried and took away with the other---Administrative instructions were neither law nor rules and they could only be subservient to laws and rules and, therefore could not be allowed to dilute the facility or benefit afforded by R.17-A---Constitutional petitions were allowed and the administrative instructions was struck down as being violative of R.17-A.

Aka Lord Greene in Wednesbury Corporation 1948 (1) KB 223; Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 and Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340 ref.

Market Committee, Sahiwal v. Syed Zaigham Ali and others 2012 PLC (C.S.) 319; Mst. Ubaida Manzoor v. Government of the Punjab through Secretary Education (Schools), Lahore and 4 others 2012 PLC (C.S.) 101; Miss Iffat Tahira v. Secretary Schools and others 2010 PLC (C.S.) 1404; Mst. Sumaira v. District Coordination Officer / Chairman, District Recruitment Committee, Sargodha and 2 others 2013 PLC (C.S.) 274; Kalsoom Bibi v. Secretary Education and others 2015 PLC (C.S.) 563 and Ali Razzaq and others v. D.C.O. and others 2015 PLC (C.S.) 1495 rel.

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

----R.17-A---Initial appointment---Deceased quota---Scope and sweep of R. 17-A gradually over the years has been widened horizontally as also vertically in that besides extending the basis of entitlement from death only to incapacitation and invalidation and enlarging those eligible and entitled from unemployed children to wife/widow as well, on the way also granting more respectability and improvement in grade and status, the rule has indeed come of age, and the special beneficial purpose and rationale behind insertion of R. 17-A is much more conspicuous now---Rule 17-A is not based on largesse or state bounty since there is a consideration involved and which is bartering of years of service resulting in death or a permanent incapacitation of the father or husband of a person who seeks benefit of R. 17-A---What is evident is that the rule begins with a non-obstante condition and, therefore, has to be applied and enforced to the exclusion of all other subordinate legislations.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Judicial review---Scope---Improper purpose, misdirection in law, taking into account an irrelevant consideration, are all instances and grounds of judicial review.

GCHQ's case 1985 AC 374 ref.

(d) Interpretation of statutes---

----Beneficial legislation---Scope---Beneficial legislation was to be interpreted in a purposive or teleological manner as opposed to the strict liberal approach because such purposive approach would advance the objects of such welfare legislation---Such purpose oriented approach encourages a liberal construction to promote its objects---Words occurring in Rules of liberal import such as social welfare and unemployment relief rules are not to be shrunk to Lilliputian dimensions---While constructing such rules, the imposture of literal construction must be avoided---Relevant is the colour, the content and the context of such enactments.

1980 (4) SCC 443 rel.

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

----R.17-A---Constitution of Pakistan, Arts. 3, 9 & 14---Elimination of exploitation---Security of person---Inviolability of dignity of man, etc---Initial appointment---Deceased quota---Scope---Welfare enactments must, of necessity, receive a broad interpretation---Where an enactment is designed to give relief to a particular group or class of persons, the court is not to make inroads by making etymological excursions---Raisiond'etre behind insertion of R. 17-A is not hard to discern---Such was specifically added in an already existing catalogue of rules only to compensate and provide a bond of fate to one immediate family member of a government servant who either died or was rendered incapacitated or invalidated while in service---No other possible reason for the insertion of R.17-A existed---One question that arises in the present context is as to how administrative instructions or notifications that do not have the force of law be allowed to whittle down the effect and impact of the Rule---In fact, any notification or instruction that seeks to take away the benefit conferred by R.17-A borders on being exploitative within the meaning of Art. 3 of the Constitution---Such may also be viewed as an unnecessary incursion into the protection afforded by Arts. 9 & 14 of the Constitution---Right to life not only denotes the right to a vegetative life but to be a vibrant life in which basic facilities and amenities required for human and civil existence are accessible and available to a citizen---Likewise, the citizen's dignity which is secured by Art.14 of the Constitution will be compromised if administrative instructions are allowed to make inroads on his dignity.

Babulal Chowdhary v. Editor and Publishers New Bharat 1982 Jab LJ 230 ref.

Mst. Ubaida Manzoor v. Government of the Punjab through Secretary Education (Schools), Lahore and 4 others 2012 PLC (C.S.) 101 rel.

(f) Interpretation of statutes---

----Statutory Rules---Court must interpret statutory rules in accordance with the language used in the rules and not get swayed by government departmental instructions.

Williams Tacks v. Madras AIR 1935 Madras 656 ref.

(g) Notification---

----Retrospective effect---Scope---Administrative instructions or notifications which are not even delegated legislation in the strict sense cannot possibly be allowed to operate retrospectively so as to impair already accrued rights and benefits. [p. 1167] K

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 and Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 ref.

(h) Interpretation of statutes---

----Court was to interpret the beneficial provision liberally so as to give it a wide meaning rather than a restrictive meaning which would negate the very object of the rule.

Madan Singh v. Union of India 1999 (6) SCC 459 ref.

Muhammad Asif Mehmood Pirzada for Petitioner.

2021 P L C (C.S.) 1174

[Lahore High Court]

Before Shujaat Ali Khan, J

NISAR AKHTAR and others

Versus

MINISTRY OF WATER AND POWER, through Secretary, Pak Secretariat, Islamabad and others

Writ Petition No.10371 of 2014, decided on 14th July, 20121.

(a) Jurisdiction---

----Assumption of---Scope---Authority which has not been given specific power/jurisdiction in respect of any matter cannot assume the same by itself.

Allah Rakha (deceased) through L.Rs and others v. Additional Commissioner (Revenue), Gujranwala and others 2020 SCMR 502 rel.

(b) Civil service---

----Seniority, determination of---Jurisdiction---Petitioners were ex-employees of Water and Power Development Authority (WAPDA) who after reorganization of the Authority accepted offers of their employment in different electricity generation / distribution / transmission companies---Plea raised by petitioners was that Pakistan Electric Power Company (PEPCO) had no authority to change service rules framed by WAPDA and could not re-fix seniority of petitioners---Validity---PEPCO could not nominate juniors of petitioners for Middle Management Course---High Court declared such act of authorities as illegal, unlawful and without jurisdiction---High Court directed Federal Government to ensure nomination of prospective participants including petitioners, for Course in question on the basis of seniority finalized by WAPDA in year 2006, in respect of Senior Engineers irrespective of any subsequent policy by PEPCO---PEPCO did not have any authority to deal with terms and conditions of employees who were transferred from WAPDA to different companies---Board of Directors of respective companies had competence to determine terms and conditions of employees of their companies---Terms and conditions of employees transferred from WAPDA to different companies could not be less favorable than their parent department---High Court directed PEPCO authorities to return personal files of employees of companies for determination of their future service prospects---Federal Government was bound to implement Restructuring Reforms regarding framing of rules and regulations by Board of Directors of respective companies regarding terms and conditions of service of employees who were transferred from WAPDA---Any future policy of government or company could not be used to deprive a transferred employee, of a benefit availed by him in his parent department---High Court directed Federal Government to ensure that transferred employees would not posted out of their companies without soliciting their consent in writing---Constitutional petition was allowed, in circumstances.

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; Tariq Mehmood Malik v. Chief Executive Officer and others 2018 PLC (C.S) 664; M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others 1994 SCMR 1024; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 SCMR 1625; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244; P.T.C.L. and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362; Zarai Tarqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 SCMR 1526; Allah Rakha (deceased) through L.Rs and others v. Additional Commissioner (Revenue), Gujranwala and others 2020 SCMR 502; Dr. Zohara Jabeen v. Muhammad Aslam Pervaiz 2021 SCMR 194 and Dr. Yasmeen Jaffar v. Cr. Shehla Sami and others 2019 SCMR 993 rel.

Mian Jaffer Hussain for Petitioners.

Abid Hussain, Assistant Attorney-General for Pakistan.

Fiaz Ahmad Sanghera for Respondents Nos.2 to 4.

Aurangzeb Mirza for Respondents Nos.5 and 7.

2021 P L C (C.S.) 1217

[Lahore High Court (Multan Bench)]

Before Rasaal Hasan Syed, J

MUHAMMAD KHAN

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 2 others

Writ Petition No.8214 of 2019 (and other connected petitions) decided on 25th November, 2020.

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

----Regln.4(ii)(c)(1)&(2)---Review of performance of employees of Insurance Corporation---Operational cost deductions---Petitioners were employees of State Life Insurance Corporation who were downgraded pursuant to review of their performance and deductions made from their salary in the form of 'operational cost'---Validity---Re-categorization, as a measure was not inconsistent in any manner with already existing measures reduction, curtailment or withdrawal of emoluments or perquisites and was less fateful that the prospect of termination of employment on three month notice or equivalent salary in its lieu present in Regulations---No prohibition in State Life Insurance (Employees) Regulations, 1973, in incorporating re-categorization upon un-favourable Performance Review could be pointed out specifically from the side of petitioners--- While re-categorization was a measure that parties agreed at the time of their contract and did not present any unconscionable treatment, contractually, within commercially oriented value-system--- Reclassification was left open to reversal on improvement of performance by petitioners--- Such was not a fate to which petitioners were irreversibly sent--- Direct cost excluded 'Incentive Bonus' and 'Additional incentive Bonus' which formed part of head of 'Emoluments'--- By exclusion of such two kinds of emoluments from category of 'Emoluments' by stipulation given in Appointment Letter, the inference gained considerable fortification that those items that were not explicitly excluded from the head of emoluments was to be protected from being considered as contract--- Adjustment from salary was supported by the principle to recover the amount in excess of 10 % of FYP (First Year's Premium) from the salary was not disapproved--- High Court declined to interfere in the matter--- Constitutional petition was dismissed, in circumstances.

State Life Insurance Corporation of Pakistan and others v. Syed Hassan Ali Shah and others 2010 SCMR 1381; W.P. No.5136 of 2006; W.P. No.230298 of 2018 and I.C.As. Nos.29469 of 2019 and 23515 of 2019 ref.

State Life Insurance Corporation of Pakistan through its Chairperson and others v. Asmat Ullah and another C.P. No.340 of 2017 rel.

Muhammad Yafis Naveed Hashmi for Petitioner.

Shahzada Khush Bakhat Khan, Asst. Attorney General for Pakistan.

Malik Muhammad Tariq Rajwana, Advocate/Legal Advisor State Life Insurance Corporation along with Khizar Hayat Bodla, Officiating Manager (Legal Affairs), Qari Muhammad Zulfiqar, Assistant Manager and Hasan Bakhsh, Superintendent for Respondents.

2021 P L C (C.S.) 1246

[Lahore High Court]

Before Abid Aziz Sheikh and Muhammad Shan Gul, JJ

MUHAMMAD TAYYAB NAZIR and 4 others

Versus

PROVINCE OF PUNJAB through Chief Secretary and 5 others

I.C.A. No.1046 of 2015 in Writ Petition No.2772 of 2015, heard on 20th May, 2021.

Punjab Curriculum and Textbook Board Act (VI of 2015)---

----S.28---Appellant was removed from service who assailed the order without availing remedy of appeal before departmental authorities---Validity---Words 'any person' were clear enough to include the appellant---Words 'any person' were followed by term 'aggrieved' in S.28 of Punjab Curriculum and Textbook Board Act, 2015, therefore, any person aggrieved of any order of the Board could file appeal before government---Division Bench of High Court declined to interfere in the matter---Intra Court Appeal was dismissed, in circumstances.

PLD 2007 SC 405; 2011 SCMR 592; Yousaf Ali Khan Bar-at-Law v. Muhammad Javed Iqbal Cheema Esq. Additional Sessions Judge Llyallpur and 6 others PLD 1975 Lah. 1339; Mst. Kareem Bibi and others v. Hussain Bux and another PLD 1984 SC 344; The Government of Punjab through Secretary Education Department v. Mushtaq Ahmad 1996 CLC 842 ; Ijaz Ahmad v. Registrar, High Court 2000 PLC (C.S) 93; Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman M.D Karachi PLD 2001 SC 182; Yamin v. Mst. Jajan and others 2005 CLC 978; Secretary of the Government of Punjab, Revenue Department v. Sajjad Ahmad and another 2012 SCMR 114; Muhammad Abid Iqbal v. District Election Commissioner and 3 others PLD 2016 Lah. 163; Chairman National Accountability Bureau (NAB) v. Ramzan Sugar Mills Limited and others 2020 CLD 1462; Mst. Shanzey Khan v. Muhammad Asim and another 2020 CLC Note 32; National Electric Power Regulatory Authority v. Gujranwala Energy (Pvt.) Limited 2020 CLC 173; State Life Insurance Corporation of Pakistan through Attorney v. Additional District Judge and others 2019 CLD 144; Tandlianwala Sugar Mills Ltd. v. Province of Punjab through Excise and Taxation and 5 others 2018 PTD 75; Raheel Bahadur and 4 others v. The Province of Punjab through Secretary Environment and 6 others 2021 CLC 462 and SME Bank through President Islamabad and others v. Azhar-ul-Haq 2019 SCMR 939 rel.

Bilal Bashir Mian and Muhammad Iqbal Mohal for Appellants.

Hafiz Tariq Naseem for Respondents Nos.4 to 6.

Nadeem Fazil and Liaqat Ali Channar, Law Officer for PCTB.

Barrister Syed Ali Nouman, Assistant Advocate General Punjab.

2021 P L C (C.S.) 1283

[Lahore High Court (Bahawalpur Bench)]

Before Muhammad Shan Gul, J

RAFI AHMAD

Versus

PROVINCE OF PUNJAB through Chief Secretary and 7 others

Writ Petition No.4351/BWP of 2021, decided on 1st June, 2021.

(a) Civil service---

----Contractual employment---Maintainability---Scope---Petitioner, a contractual employee, after being dismissed from service, sought a direction from the High Court under constitutional jurisdiction to the competent authority to decide his representation---Contention of petitioner was that two regular employees who were dismissed from service along with him had been reinstated in service as the Service Tribunal had remanded their matter for a de novo inquiry---Validity---Contractual services came to an abrupt end upon the employee being held guilty of a misdemeanour let alone a felony (which was the present case)---Petitioner, according to information provided by the administrative department, still had to make good the monetary loss he had been held guilty of embezzling and there was no coming back for him---Employee's relations with his master stood severed by the self-executory contract---Petitioner could not be treated at par with his colleagues who were regular employees---Contractual employee served at the absolute and unfettered pleasure of his master---On the other hand, a regular employee was entitled to statutory procedural protection in the event of facing a charge of misconduct---Court while issuing directions for deciding representations had to give due regard to the rights of such other persons in particular who might be the direct affectees of such direction---Constitutional petition being not maintainable was dismissed, in circumstances.

Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120; Federation of Pakistan, Chamber of Commerce and Industry, Karachi v. Ali Ahmed Qureshi 2001 SCMR 1733 and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

Federation of Pakistan, Chamber of Commerce and Industry, Karachi v. Ali Ahmed Qureshi 2001 SCMR 1733; Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another 2020 SCMR 1041; Secretary, State of Karnataka and others v. Umadevi and others 2006 (4) SCC 1; Province of Punjab through Secretary Livestock and Dairy Development Department, Government of the Punjab, Lahore and others v. Dr. Javed Iqbal and others 2021 SCMR 767; Dr. Lakhte Mustaffa Kazmi v. State of U.P. and others (2003) 2 UPLBEC 1351; 2006 (4) SCC 1; Latham v. R. Johnson & Nephew, Limited 1913 (1) KB 398; Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and others (2004 (2) SCC 130 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Contractual employment---Scope---Person who has been a contractual employee but whose period of contractual service has come to an end has no right whatsoever to invoke constitutional jurisdiction of a High Court.

Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Nadeem Shahid and another v. Chairman, State Life Insurance Corporation of Pakistan and 3 others 2003 PLC (C.S.) 719 and Aurangzeb v. Messrs Gool Bano Dr. Burjor Ankalseria and others 2001 SCMR 909 ref.

(c) Constitution of Pakistan---

----Art.175---Jurisdiction of Courts---Scope---Constitutional Courts can indeed convert and treat one type of proceedings into another and can remit a lis to a forum or authority of competent jurisdiction for decision on merits.

Engineer Musharraf Shah v. Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others 2015 PLC (C.S.) 215 and Thal Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd. and another 1979 SCMR 32 ref.

Province of Sindh v. Muhammad Ilyas 2016 SCMR 189 rel.

(d) Constitution of Pakistan---

----Art.175---Jurisdiction of Courts---Scope---No Court was to exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction had been conferred upon it by the Constitution itself or under any law---Courts only exercise original, appellate, revisional, review or constitutional jurisdiction as mandated under the Constitution and the law.

S.M. Waseem Ashraf v. Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad and others 2013 SCMR 338 @ 345 rel.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Art. 199 of the Constitution under which wide powers are exercised by the High Court is not meant to be used for the purpose of perpetuating illegalities, irregularities or for scuttling the entire scheme of public employment.

2006 (4) SCC 1 rel.

Mukhtar Ahmad Malik for Petitioner.

2021 P L C (C.S.) 1377

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD NASIR

Versus

CHAIRMAN BANK OF PUNJAB

Writ Petition No.38586 of 2021, decided on 21st June, 2021.

Civil service---

----Compulsory retirement---Opportunity of personal hearing---Scope---Allegation against the employee (cash-officer) of a Province owned Bank was of embezzlement of funds, gross negligence in duties, etc.---Contention of the petitioner-cash officer was that he had informed the concerned department regarding the matter and he had deposited the disputed amount from his own pocket---Validity---Record revealed that the petitioner while joining inquiry proceedings did not object to the inquiry officer that inquiry was incomplete or it was not satisfactory---Petitioner, in his reply to show-cause notice, had admitted that he had not been able to execute his responsibilities in accordance with Bank SOPs---Although, from said admission of the petitioner, there was no need of conducting regular inquiry yet the Bank adopted proper procedure and provided him an opportunity of personal hearing---Petitioner did everything intentionally, keeningly and willingly because his 26 years job career was long enough to provide knowledge of law and rules of maintenance of public fund of which he was made custodian---Bank after analyzing the material on record had even found the contention/plea of the petitioner as gross misconduct resulting in a great loss to the reputation of Bank---Petitioner was afforded full opportunity of personal hearing as well as right of defence but he could not counter the charges/allegations through cogent, convincing and confidence inspiring evidence, which otherwise had been proved---Petitioner could not shake the credibility of inquiry---Constitutional petition was dismissed, in circumstances.

Federation of Pakistan through Secretary, Ministry of Law and Justice Divisions, Islamabad v. Mamoon Ahmed Malik 2020 SCMR 1154 and Inam-ul-Haq v. Allied Bank Limited and 4 others 2010 PLC 215 ref.

2021 P L C (C.S.) 1417

[Lahore High Court]

Before Muhammad Shan Gul, J

MOHAMMAD UMER KHALID

Versus

GOVERNMENT OF PUNJAB through Secretary and another

Writ Petition No.9010 of 2021, decided on 21st June, 2021.

(a) Master and servant---

----Contractual employee---Master and servant, relationship---Principle---Contractual employee could not seek extension in contractual service or for that matter reinstatement in service---Employee in the present case, could only seek damages through the Civil Court against arbitrary dismissal, since his relationship with his employer was governed by the principle of "master and servant".

Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120 ref.

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

----Ss. 1(3), 2(c), 4, 5 & 10---Self-executory provisions---Scope---Delegated/supplementary legislation---Necessity---Enforceability by court---Regularization of Punjab contractual employees---Provisions of Punjab Regularization of Service Act, 2018 were self-executory inasmuch as those were not dependent on any further legislative action outside the Act---Provisions of the Act created a right for being considered for regularization which was enforceable by courts without wanting further legislative action; it did not require the crutches of any other rules, bye-laws, policy or notifications for being brought into force.

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

----Ss.1(3), 2(c), 4, 5 & 10---Petitioner sought reinstatement in contractual service and regularization on ground of completion of 3 years in service---Validity---Petitioner being a contractual employee fulfilled the eligibility threshold at the relevant time and his case squarely attracted S.10 of Punjab Regularization of Service Act, 2018---After the expiry of 60 days from the commencement of the said Act, the competent authority was bound to submit his case for regularization either before the Scrutiny Committee constituted under S.5 or before the Commission for recommendation under S.4---Said Act made it abundantly clear that the Act was clear, categorical, self-executory and not dependent on further legislative action---High Court rejected plea for reinstatement but allowed prayer for regularization---Constitutional petition partially allowed accordingly.

Mst. Tanzeela Ilyas v. Government of Punjab and others [W.P. No. 63240/2020] and Government of Khyber Pakhtunkhwa v. Liaquat Ali 2021 SCMR 630 ref.

(d) Interpretation of statutes---

----Statutes "self-executing" and "non-self-executing"---Distinction---Self-executing statutes would announce legal norms that were supposed to govern part of the social world as of the statute's effective date, whether or not an agency was delegated authority---Such statutes purported to govern people immediately, while non-self-executing statutes would permit people to wait until another official spoke before facing the implications of such law---Non-framing of Rules did not render a self-executing statute as nugatory or unworkable unless the legislation indicated an intention to this effect in clear and unmistakable terms.

Cooley on Constitutional Limitations, M. U. A. Khan v. Rana M. Sultan and another PLD 1974 SC 228; Nestle Pakistan Ltd. and others v. Federal Board of Revenue and others 2017 PTD 686 and Aacher and others v. Dur Muhammad Usto and others 2001 SCMR 958 ref.

(e) Interpretation of statutes---

----"Direct applicability"/"Direct effect", doctrine of---Development of---Scope---Doctrine of "direct effect" was another name of "self-executory provisions" and revealed that if a law was clear, unconditional and not dependent on further action outside of that law, then it was directly applicable which meant that the law conferred rights and duties without further Legislative participation whatsoever.

NV Algemene Transport-en Expeditie Onderneming van Gend en Loos v. Nederlandse Belastinggad-ministratie (1963) (case 26/62) and ALfons Gmbh v. Hauptzollamt SaarLouis (1966) (Case 57/65) ref.

Ishtiaq A. Chaudhry for Petitioner.

2021 P L C (C.S.) 1435

[Lahore High Court]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD JAHAN ZAIB KHAN

Versus

MUHAMMAD RAFIQUE KHAN and 2 others

Writ Petition No.56759 of 2020, heard on 18th February, 2021.

Specific Relief Act (I of 1877)---

----S.12---Specific performance of agreement to sell---Balance consideration amount, non-deposit of---Principle---Petitioner-plaintiff sought specific performance of agreement to sell executed by respondent-defendant who had onward sold the property to a third person---Lower Appellate Court directed petitioner-plaintiff to deposit balance consideration amount in Court---Validity---No justification existed to bound down petitioner-plaintiff to deposit a massive sale amount, who purportedly had already paid healthy amount but was out of picture to receive any benefit---Petitioner-plaintiff was yet to prove not only his own case but also to rebut stance of his vendor, besides to shatter claim of third party---Deposit of balance amount was not in aid of justice to either promote case of plaintiff nor even beneficial to other party who till the time was disputing settlement of sale and vendee could not be forced in such behalf---High Court set aside the order passed by Lower Appellate Court directing petitioner-plaintiff to deposit remaining balance consideration---Constitutional petition was allowed, in circumstances.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171 distinguished.

Maksud Ali and others v. Eskandar Ali PLD 1964 SC 381 ref.

Ch. Zahid Majeed, Nasir Mahmud and Daud Ahmad Asif for Petitioner.

Ch. Ishtiaq Ahmad Khan and Anwaar Hussain Janjua for Respondent No.1.

2021 P L C (C.S.) 1495

[Lahore High Court]

Before Shahid Karim and Muhammad Shan Gul, JJ

HABIB BANK LIMITED

Versus

SAQIB MAHMOOD and another

I.C.A. No.287 of 2008, heard on 25th May, 2021.

(a) Master and servant---

----Constitutional jurisdiction---Bank employee---Non-statutory rules of service---Relationship of master and servant---Scope---Appellant assailed order passed by Single Judge of High Court whereby writ petition filed by respondent was allowed and he was ordered to be re-instated in service---Validity---Respondent whose terms and conditions were governed by Bank (employer) Staff Service Rules and who had been dismissed from service under said Rules could not have invoked the remedy afforded by Art.199 of the Constitution, since his relationship with the appellant was governed by the rule of master and servant---Appellant not being a person within the contemplation of Art.199, no writ could have been issued to it---Order passed by Single Judge could not be allowed to remain in field---Appeal was allowed and the impugned order was set aside.

Zahooruddin Sheikh v. Pakistan Atomic Energy Commission, through Chairman, Islamabad 2007 PLC (C.S.) 959; Tariq Akhtar v. Plant Protection Advisor and Director, Department of Plant Protection, Karachi 1997 PLC (C.S.) 182; National Bank of Pakistan and others v. Shamoon Khan and others 2010 PLC (C.S.) 608 and Zarai Taraqiati Bank Ltd., Islamabad and another v. Aftab Ahmad Kolachi and another 2009 SCMR 129 distinguished.

Muhammad Mobeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 and Abdul Wahab v. HBL 2013 SCMR 1383 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Judicial review---Scope---Judicial review is the mechanism whereby the intent of legislature as manifested in a Statute is secured and upheld---What is sought to be remedied by resort to constitutional jurisdiction is the offence caused to a Statute---Such is the overarching aim of judicial review.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Bank employee---Non-statutory rules of service---Relationship of master and servant---Scope---Unless statutory intervention is available to an employee of a government corporation, attached department, autonomous body or next step agencies of the Government who wants to seek resort to constitutional jurisdiction, he can do so if he is able to show some dereliction of Statute, but for such element, the employees whose terms of service are governed by non-statutory dispensation remain in an incessant master and servant relationship with the employer.

(d) Master and servant---

----Non-statutory rules of service---Scope---Principle of master and servant shall only not apply if some statute or statutory rules place fetters upon the terms of the contract between the parties---Where a corporation is set up by a statute but the government does not reserve to itself the power to regulate conditions of service and the statute itself does not prescribe any conditions or if otherwise no statutory prescription is forthcoming and it is the corporation or its management which is given the power to frame rules and regulations to govern the terms of service of its employees, the employee is left with no protection under the statute itself and the corporation has complete control over its employees, since its regulatory power is not fettered by any statutory provision.

Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377; Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Muhammad Nawaz v. Civil Aviation Authority and others 2011 SCMR 523; Chief Manager, State Bank of Pakistan, Lahore v. Muhammad Shafi 2010 SCMR 1994; Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 ref.

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

----Ss.2A & 5---Powers of Service Tribunals---Issuance of directions---Scope---Service Tribunal has no jurisdiction that authorizes it to give a time-line within which an inquiry has to be conducted and completed---While the Service Tribunal has the power to set aside, confirm, vary or modify the order appealed against, it does not have any jurisdiction to supervise, manage or control administrative inquiry proceedings by issuance of a continuous mandamus since it does not possess extra-ordinary jurisdiction such as the one conferred by Art.199 and Art.184(3) of the Constitution---What it can do is to vary or modify the order imposing penalty but it cannot go behind the order and control or supervise inquiry proceedings at an administrative level.

(f) Constitution of Pakistan---

----Art.175---Jurisdiction of Courts---Scope---All Courts of law constituted under the Constitution and the law have only such jurisdiction that has been conferred upon them by the Constitution and the law.

S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others 2013 SCMR 338 and Chief Post Master, Faisalabad, GPO and another v. Muhammad Afzal 2020 SCMR 1029 ref.

Divisional Superintendent, Postal Services, Faisalabad and others v. Muhammad Zafarullah 2021 SCMR 400 rel.

Shahid Anwar Bajwa for Appellant.

Khadim Hussain Tahir and Khalid Pervaiz Warraich for Respondent No.1.

Barrister Syed Ali Nouman Shah, Assistant Advocate General Punjab.

2021 P L C (C.S.) 1540

[Lahore High Court]

Before Anwaar Hussain, J

MASOOD KHAN and another

Versus

FEDERATION OF PAKISTAN through Chairman Federal Board of Revenue, Islamabad and another

Writ Petition No.125479 of 2017, decided on 7th June, 2021.

(a) Constitution of Pakistan---

----Arts. 212 & 199---Civil service---Pro forma promotion---'Eligibility' and 'fitness'---Constitutional petition---Maintainability---Petitioners (retired civil servants) contended that if a civil servant was otherwise eligible for promotion, the bar contained in Art. 212 of the Constitution would not attract---Held, that although the Service Tribunals had exclusive jurisdiction with regard to the matters related to the terms and conditions of a civil servant, however, the terms 'eligibility' and 'fitness' in relation to the promotion entailed different connotation---Question of eligibility primarily related to the terms and conditions of the service and their applicability to the concerned civil servant, therefore, Service Tribunal had jurisdiction in the matter; however, question of fitness was a subjective evaluation on the basis of objective criteria when substitution for an opinion of the competent authority was not possible by that of Service Tribunal or of a Court, and thus, Service Tribunal had no jurisdiction on the question of fitness---Constitutional petition was maintainable.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; National Assembly Secretariat through Secretary v. Manzoor Ahmed and others 2015 SCMR 253 and Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others 2011 SCMR 592 distinguished.

(b) Civil service---

----Proforma promotion---Employees working for fifteen years as Supervisors at Federal Board of Revenue (FBR) were retired without promotion because no meeting of Departmental Promotion Committee (DPC) was held---Record (including comments by the respondent (FBR) revealed that the petitioners were eligible as per applicable rules when they were in service and their promotion was due before their superannuation, however, the same could not be materialized on account of the failure of the respondent department to convene and conduct DPC on administrative ground , which reason was not a plausible one for denying promotion to petitioners---High Court observed that where the right of civil servants to be considered for promotion got frustrated during the service, the Constitutional Courts had recognized the right of such civil servants to be considered for grant of pro forma promotion even after their superannuation---High Court set aside impugned order and directed the respondent-department to re-consider the petitioners for pro forma promotion---Constitutional petition was allowed, in circumstances.

Dr. Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others 2008 SCMR 1535; Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126 and Arshad Ali v. WAPDA and others 2020 PLC (C.S.) 1226 ref.

(c) Civil service---

----Pro forma promotion---Allowing pro forma promotion acts as a balancing tool against department slackness/apathy in not considering the case of a civil servant for promotion during his service despite being eligible.

Kashif Ali Chaudhry for Petitioners.

Ibrar Ahmad for Respondents.

2021 P L C (C.S.) 1553

[Lahore High Court]

Before Abid Aziz Sheikh, J

AKMAL NAZEER and 9 others

Versus

GOVERNMENT OF THE PUNJAB through Secretary School Education Department, Lahore and another

Writ Petition No.8359 of 2017, heard on 10th June, 2021.

(a) Constitution of Pakistan----

----Arts. 8, 25, 37 & 199---Constitutional petition---Judicial Review---Equality of Citizens---Petitioners being residents of urban areas challenged the vires of the recruitment policy for certain posts, under which 12 additional marks were granted to candidates who were residents of rural area in Union Councils of the District---Validity---Framing of recruitment policy fell in the executive domain and High Court could neither assume the role of a policy maker nor that of law maker---Policy being prerogative of concerned Authority could not be challenged in the constitutional petition, unless same had found to be irrational, mala fide, perverse or arbitrary---No such defect had been highlighted in the impugned policy which otherwise seemed to be based on reasons, to redress the grievance of the residents of the under-developed localities, which was also the demand of Art.37 of the Constitution---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts.25 & 199---Constitutional petition---Judicial Review---Recruitment policy---Permissible classification, test of---Intelligible differentia---Held, that when test of permissible classification was applied to the impugned policy, it was noted that the classification of residents of rural area and urban area was based on intelligible differentia which had rational nexus with the object to be achieved; therefore, it could not be said that Art. 25 of the Constitution had been violated.

Government of Khyber Pakhtunkhwa and others v. Syed Sadiq Shah 2021 SCMR 747 rel.

Lehrasip Hayat Dahar for Petitioners.

Barrister Zargham Lukhesar, Assistant Advocate-General, Punjab for Respondents.

2021 P L C (C.S.) 1578

[Lahore High Court]

Before Anwaar Husain, J

HAMID HAYAT

Versus

DIRECTOR GENERAL EXCISE AND TAXATION and 3 others

Writ Petition No.31653 of 2021, decided on 24th May, 2021.

(a) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Disciplinary proceedings against civil servant---Transfer of inquiry---Mala fide---Scope---Petitioner (constable in the office of Excise and Taxation Department) sought transfer of inquiry pending alleging mala fide on the part of the Inquiry Officer---Held, that bar contained under Art. 212 of the Constitution was absolute and inflexible, therefore, the question of mala fide as well as the authority of the Inquiry Officer (respondent) to initiate disciplinary proceedings against the petitioner, admittedly a civil servant, could not be looked into by the High Court in constitutional jurisdiction ---Constitutional petition was dismissed, in circumstances.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 ref.

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

----S.15---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Order by competent authority to allow/disallow the appointment/transfer of inquiry in departmental proceedings---Question was as to whether such order was an administrative and/or executive action not falling within the purview of the bar envisaged under Art. 212 of the Constitution---Held, that in terms of S.15 of the Punjab Civil Servants Act, 1974, (the Act 1974) the inquiry proceedings as well as the appointment of inquiry officer was part of the larger ambit of disciplinary proceedings, which fell within the terms and conditions of service as the initiation of disciplinary proceedings preceded the issuance of show-cause notice or appointment of inquiry officer by the competent authority---No distinction existed between an administrative/executive or a quasi-judicial order envisaged under the Act, 1974---Once the disciplinary proceedings commenced, any step in said proceedings formulated the proverbial rung of the ladder of disciplinary proceedings and to carve out any step out of those proceedings such as appointment of inquiry officer or change/transfer of inquiry on the pretext that it was an executive/administrative action falling outside the jurisdictional tentacles of Service Tribunal was clearly an unwarranted notional stretch --- Petitioner had a right to raise any objections before the competent forum by establishing any irregularity and/or mala fide in and during the disciplinary proceedings or against the recommendations of the inquiry officer, therefore, such was misconception to assert that the appointment and/or change of inquiry officer was a separate/independent administrative and executive action not falling within the scope of disciplinary proceedings and hence, out of the purview of the bar contained under Art. 212 of the Constitution---Such an interpretation would imply that while the punishment inflicted in furtherance of the disciplinary proceedings was to be challenged before the Service Tribunal, the appointment and/or change of inquiry officer did not fall within the jurisdiction of Service Tribunal being an administrative/executive action, the same would engender an anomalous position which was not envisaged under the law---High Court had no jurisdiction even to entertain the proceedings relating to terms and conditions of service of a civil servant.

Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508 ref.

(c) Civil service---

----Proceedings before inquiry officer--- Principle of propriety ---Inquiry officer had to carry out proceedings in accordance with the law and to taint the conduct of proceedings by the inquiry officer on basis of pre-emptive apprehensions in itself did not dovetail to the principle of propriety.

Ch. Irshad Ullah Chatha for Petitioner.

Asif Afzal Bhaati, Additional Advocate General.

Rana Saifullah, Inspector Excise, Hafizabad.

ORDRE

ANWAAR HUSSAIN, J.----Through the instant constitutional petition, the petitioner, presently working as constable in the Office of Excise and Taxation Department, Region-A, Lahore, has assailed the Impugned Order dated 17.05.2021 passed by respondent No.1/Director General, Excise and Taxation Department, Punjab with the following prayer:

"…it is most respectfully prayed that the order dated 17.05.2021 passed by Respondent No.1 may graciously be set aside and the direction may graciously be issued in the interest of law and justice, fair-play and the fair trial as enshrined in Article 10-A of the Constitution by changing the Enquiry from District Hafiz Abad to any other District preferably at Lahore, where the petitioner had been lastly posted."

1. Admittedly, the petitioner is a civil servant. When confronted as to how the instant petition is maintainable in the light of bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution"), the learned counsel for the petitioner vehemently stated that the terms and conditions of a civil servant, as defined under the law in vogue, do not cover the challenge to an administrative or executive action whereby the competent authority has refused to transfer the inquiry from one region to the other, on the basis of alleged bias against the inquiry officer. Further submits that when the hearing was conducted by respondent No.1, on the direction of this Court passed in Writ Petition No.23886/2021, to decide the application of the petitioner to transfer the inquiry to Lahore region from Hafizabad region, the order announced was to the effect that inquiry is to be shifted to Lahore. Learned counsel also submits that he himself and many others including the Law Officer and Steno of the Excise Department as well as representatives of District Office, Excise Hafizabad were present during the hearing before respondent No.1; however, it appeared as a shock to the petitioner when the Impugned Order was released by respondent No.1 whereby the application of the petitioner for transfer of inquiry was declined. Learned counsel has placed reliance on his own affidavit to this extent. Learned counsel further submits that petitioner's right to fair trial envisaged under Article 10-A of the Constitution has been infringed as mala fide on part of the department is evident from the fact that respondent No.3 while holding look after charge as an ETO, cannot initiate the disciplinary proceedings against the petitioner.

2. On the other hand, the learned Law Officer along with departmental representative submits that the instant petition is not maintainable in terms of bar contained in Article 212 of the Constitution. Administrative and executive actions on part of the competent authority such as change/shifting of an inquiry in disciplinary proceedings fall under the purview of Article 212 of the Constitution inasmuch as that once the inquiry is concluded, any adverse outcome based thereon can always be challenged by the petitioner through departmental representation followed by an appeal before the Service Tribunal.

3. Arguments of the learned counsel for the petitioner as well as the learned Law Officer have been heard.

4. Bar contained under Article 212 is absolute and inflexible. The august Supreme Court of Pakistan in case cited as Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54) has clearly held that the ouster clause embodied in Article 212 is a constitutional command, which ousts the jurisdiction of the High Court as well as the civil court. In addition to the pronouncement in case of Peer Muhammad supra, the Hon'ble Supreme Court of Pakistan in case titled Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456) has exhaustively defined the jurisdictional delineations of the High Court pertaining to the matters of terms and conditions of service of civil servants. In the said judgment, the apex Court deprecated the exercise of constitutional jurisdiction in the matters pertaining to terms and conditions of service of civil servants and held that the said exercise is not only in defiance of constitutional contours of Article 212 of the Constitution but also confront and defy Article 189 thereof. Therefore, the question of mala fide as well as the authority of respondent No.3 to initiate disciplinary proceedings against the petitioner, who admittedly is a civil servant, cannot be looked into by this Court in constitutional jurisdiction.

2021 P L C (C.S.) 1600

[Lahore High Court]

Before Tariq Saleem Sheikh, J

SABIRA KHATOON

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.53541 of 2021, decided on 8th September, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review of administrative actions---Doctrine of ripeness---Judicial review was "legal audit" of decisions of public bodies and was power of the Courts to examine actions of the legislative, executive and administrative arms of the government and to determine whether such actions were consistent with the Constitution---Doctrine of ripeness precluded seeking relief of judicial review and requirement of both ripeness and that of exhaustion of administrative remedies were both concerned with timing of judicial review of an administrative action, however said two requirements were separate and distinct --- Ripeness focus was upon the nature of judicial process and upon types of functions that courts should perform ---Exhaustion focus was upon the relatively narrow question whether a party should be required to pursue an administrative remedy before going to court---Ripeness doctrine was founded on principle that judicial machinery should be conserved and reflected concerns that courts should involve themselves only in problems that were real and present or imminent and should not exhaust themselves in deciding theoretical or abstract questions that had no impact on parties at least for the time being.

http://www.Britannica/topic/judicial-review; Harvard Law Review 68, No.7 (1955): 1122-153. doi: 10.2307/1337691; Gillespie v. City of Indianapolis, 13 F. Supp. 2d 811; Able v. U.S., 88 F.3d 1280; Rice v. Cayetano, 941 F.Supp. 1529; Valeria G. v. Wilson, 12 F.Supp 2d 1007; Nebraska Public Power Dist. v. MidAmerican Energy Co., 286 F.3d 1032; Mohammed S. Wattad, "UFO": When the American Doctrine of Ripeness Visited Israel, 9 Penn. Sr. J.L & Int'l Aff. 1 (2021); Abbott Laboratories et al. v. Gardner, Secretary of Health, Education, and Welfare, et al., 387 U.S. 136 (1967); Toilet Goods Association, Inc. et al. v. Gardner Secretary of Health, Education and Welfare, et al., 387 U.S. 158 (1967); Williamson County Regional Planning Commission et al. v. Hamilton Bank of Johnson City 473 U.S. 172 (1985); Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others 2011 PTD 2260; Knick v. Township of Scott, Pennsylvania, 588 U.S. 2019; Muhammad Shafi and another v. Ch. Ilam-ud-Din and others 1968 SCMR 317; Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another 1969 SCMR 154; Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance 1984 CLC 142; Mir Nabi Bakhsh Khan Khoso v. Branch Manager, National Bank of Pakistan, Jhatpat (Dera Allah Yar) Branch and 3 others 2000 SCMR 1017; Muhammad Asaf v. Small Business Finance Corporation through Branch Manager, Lahore Cantt. and 7 others 2001 YLR 1891; Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others 2001 PLC (C.S.) 939; Zulfiqar Ali v. Secretary Education PLJ 2002 Lahore 1475; Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development 2002 SCMR 805; Muhammad Naveed v. Deputy District Officer (Revenue) and 4 others 2005 PLC (C.S.) 129 and Abdul Raheen Khan, Executive Manager (Operation) MEPCO 1st Division, D.G. Khan v. Managing Director PEPCO, WAPDA House, Lahore and 2 others 2011 PLC (C.S.) 1551 rel.

(b) Constitution of Pakistan---

----Arts.212 & 199---Civil Service---Constitutional jurisdiction of High Court---Disciplinary proceedings and investigations into improper / bogus appointment of civil servant---Inquiry and show-cause notice---Doctrine of ripeness---Bar on Constitutional jurisdiction of High Court---Scope---Petitioner who was a Provincial Elementary School Teacher impugned order of inquiry and show-cause notice issued to her to investigate allegations that her appointment letter / order issued by Deputy Educational Officer was bogus --- Contention of petitioner, inter alia, was that such inquiry and show-cause notice were based on mala fide intent and therefore liable to be set aside---Validity----Neither an inquiry nor a show-cause notice was an adverse order and did not mean that a matter would be decided against the public official and possibility existed of a decision in his / her favour---Any Constitutional petition for judicial review of such order or show-cause notice based on apprehension or speculation would be hit by doctrine of ripeness, and would be premature---Disciplinary proceedings against civil servant were part of such person's terms and conditions of service and thus Constitutional jurisdiction of High Court under Art. 199 was barred in view of Art. 212 of the Constitution---High Court observed that exercise of Constitutional jurisdiction in such matters would still be barred even if inquiry order / show-cause notice was based on mala fide intent, or if it was without jurisdiction or was coram non judice; as such grounds should instead be agitated before Service Tribunal---Constitutional petition was dismissed, in circumstances.

Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; The State v. Zia-ur-Rahman and others PLD 1973 SC 49; Khalil-ur-Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750; Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508; Tahir Jamil Butt v. Mian Jehangir Pervez and another 1999 SCMR 2779 and Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442 rel.

Malik Saleem Iqbal Awan for Petitioner.

2021 P L C 218

[National Industrial Relations Commission]

Before Khaqan Babar, Syed Inam-ur-Rehman and Ghulam Siddique Bazai, Members

AKBAR ALI

Versus

Messrs FAUJI FERTILIZER COMPANY LIMITED through Officers

No.12T(592)/2016-L, decided on 2nd December, 2020.

Civil Procedure Code (V of 1908)---

----S.48---Execution---Limitation---Execution barred in certain cases---Scope---Petitioner through contempt petition sought implementation of order dated 17-04-1985, by which he was declared to be a regular and permanent employee of the establishment, and establishment was directed to treat and allow petitioner all the rights and facilities of such an employee---Contention of petitioner was that due to suspension of the order dated 17-04-1985 by the High Court, he could not file the contempt petition---Validity---No application for condonation of delay was filed---Writ petition was dismissed by the High Court on 23-11-1994 whereas contempt petition was filed on 26-06-2012---Time limit for execution of decree was six years as provided in S.48 of the Civil Procedure Code, 1908---Contempt petition was not moved within time rather it was hopelessly barred by time, therefore, dismissed.

Qaiser Pervaiz for Petitioner.

Ahmed Farooq Qureshi for Respondents.

2021 P L C 260

[National Industrial Relations Commission]

Before Noor Zaman, Member

QADIR RASHEED

Versus

UBL and others

Case No.4B(84)/2014-P, decided on 5th March, 2020.

Industrial Relations Act (X of 2012)---

----S.33---Individual grievance---Scope---Petitioner claimed that he was appointed in the (respondent) Bank in the year 1979; that he served grievance notice on the Employer Bank for regularization of his services; that after receiving the grievance notice, the petitioner was terminated without any reason; that the petitioner served another notice against verbal termination and that having no response he filed the present grievance petition---Contention of employer Bank, inter alia, was that the petitioner was not its employee rather he was a godown keeper, who was employed by borrower of the Bank---Validity---Godown keeper had to be loyal to Bank as he was keeping eyes on pledged assets on behalf of the Bank as it was in its interest because Bank had extended finance facility against the assets; contention of Bank that godown keepers were employees of owners of pledged assets was not plausible because the owners of pledged assets would not safeguard assets of Bank---Petitioner had remained godown keeper with various companies/traders on behalf of Bank---Had the petitioner been employee of a particular company he could not have switched over from one owner to another on behalf of the Bank---Besides admission of Bank that petitioner was godown keeper, the petitioner had also provided copies of various documents which were sufficient proof of the fact that the petitioner was performing duties with the Bank as daily wages/casual labourer---Petitioner had attained the status of permanent workman---Petition was allowed, in circumstances and the petitioner was re-instated into service with full back benefits.

Bilal Ahmed Kakaizai for Petitioner.

2021 P L C (C.S.) 57

[Peshawar High Court]

Before Lal Jan Khattak and Ahmad Ali, JJ

RAFIA BIBI

Versus

DIRECTOR GENERAL (HEALTH), KHYBER PAKHTUNKHWA and 2 others

Writ Petition No.2356-P of 2017, decided on 7th November, 2019.

Civil service---

----Contract appointment---Regularization of service---Amendment in the rules---Effect---Department refused to regularize the employee on the ground that qualification for the post of Leady Health Visitor was matriculation with science subjects whereas she had passed her matriculation examination in subjects of arts---Validity---Petitioner had passed Lady Health Visitor examination from Nursing Examination Board---Candidates having matriculation with subjects of arts were eligible to get admission in the Nursing and Lady Health Visitor examination---Certificate of petitioner of passing examination of Lady Health Visitors was valid, authentic and was issued in accordance with rules and policy in vague---Department had amended rules and matriculation with science subjects had been declared compulsory for admission in the Nursing or Lady Health Visitor examinations---Amendment in rules made by the authorities had not invalidated previous degrees/certificates obtained by the candidates having passed matriculation with subjects of arts---Lady Health Visitor Examination Certificate of employee could not be held inoperative or incompetent, in circumstances---Amended criteria/policy of matriculation with science subjects could not be stretched retrospectively to wash away the rights of candidates who were eligible in the past---Lady Health Visitors who had Lady Health Visitor Examination Certificate with matriculation in subjects of arts had been appointed in the Health Department in the past---Petitioner had been appointed by Sarhad Rural Support Programme as Lady Health Visitor to perform duties in Basic Health Units---Sarhad Rural Support Programme was working under the Provincial Government under an agreement---Petitioner was employee of Health Department and she had served as Lady Health Visitor in the Government Basic Health Units which was temporarily given under the control of Sarhad Rural Support Programme---Provincial Government had taken back the administrative control of Basic Health Units and employees were needed there to provide health services---Petitioner was performing duties of permanent nature in the Government Basic Health Units and she was being paid through an outsource organization---Relationship of employee and employer existed between the parties---Sarhad Rural Support Programme had been put to an end and Health Department had taken over the administrative control of Basic Health Units all over the Province---Authorities had adjusted Primary Health Care Technician against existing regular vacancy on the basis of her satisfactory performance report---Petitioner could not be treated apart in circumstances---New vacancies had been created for the purpose of fresh appointments---Services of petitioner had been terminated without any notice who had nine years service at her credit---Authorities were directed to appoint the petitioner as Lady Health Visitor on regular basis---Constitutional petition was allowed, in circumstances.

Mst. Farhana Naz and others v. Government of Punjab and others 2014 PLC (C.S.) 1270; Abdul Ghafoor and others v. The President National Bank of Pakistan and others 2018 SCMR 157; Sohail Ahmed and 3 others v. National Bank of Pakistan through Regional Head, Regional Office Abbottabad, Khyber Pakhtunkhwa and another 2019 PLC (C.S.) Note 7; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Government of Khyber Pakhtunkhwa through Secretary Agriculture and others v. Adnanullah 2016 SCMR 1375; Muhammad Ibrahim v. Province of Sindh through Secretary Irrigation and Power Department and 3 others 2017 PLC (C.S) 307; Rizwan Javed and others v. Secretary Agriculture Livestock and others 2017 PLC (C.S.) 712; Qayyum Khan v. Divisional Forest Officer, Mardan and others 2017 PLC (C.S.) 428 and Pakistan and others v. Public At Large and others PLD 1987 SC 304 rel.

Saifullah Mohib for Petitioner.

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

Saif Ullah, Focal Person, D.G. Health Peshawar.

2021 P L C (C.S.) 92

[Peshawar High Court]

Before Ikramullah Khan and Muhammad Ayub Khan, JJ

UMAR ISLAM and 8 others

Versus

FEDERATION OF PAKISTAN through Secretary Defence, Rawalpindi

Writ Petition No. 2593-P of 2017, decided on 1st November, 2018.

(a) Pakistan Air Force Act (VI of 1953)---

----S.20---Pakistan Air Force Rules, 1957, Rr. 191, 31-A, 31-B & 31---Pakistan Air Force Order, O. 39-1---Constitution of Pakistan, Arts. 199 & 10-A---Dismissal, removal or reduction of employees by Chief of the Air Staff or other officers---Constitutional petition---Maintainability---Right to fair trial---Mala fide of competent authority---Effect---Petitioners, being airmen, were removed from service for involving in homosexual activities with an Upper Division Clerk (UDC)/victim---Validity---Powers exercisable by Chief of Air Staff or any other officer in terms of S.20 of Pakistan Air Force Act, 1953, were not unfettered but were subject to other provisions of the Act, Rules or Regulations---Rules 31-A & 31-B of Pakistan Air Force Rules, 1957, strictly and in unequivocal terms made it mandatory that the show cause notice had to be given to the person, proposed to be removed from service---Show-cause notice was issued to the petitioners by the officer who was authorized under clause (c) of paragraph 3 of the Order 39-1 of Pakistan Air Force Order to recommend the removal and not by the Vice Chief of Air Staff---Provisions of R. 31-B of Pakistan Air Force Rules, 1957, were not followed---Petitioners, in view of R. 31(ix)(c) of Pakistan Air Force Rules, 1957, deserved to be discharged instead of removal from service---Petitioners were not provided fair opportunity of trial in terms of Art. 10-A of the Constitution---Act of authority could easily be construed as mala fide in law---No right of appeal was available to the petitioners and in such situation they could not be denied the right to file constitutional petition on account of Art. 199(3) of the Constitution---Impugned order to the extent of removal of petitioners from their services was set aside and they were treated as discharged from services---Constitutional petitions were disposed of accordingly.

Civil Appeal No.1172 of 2009 and Federation of Pakistan and others v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

(b) Pakistan Air Force Act (VI of 1953)---

----S.20---Pakistan Air Force Rules, 1957, Rr. 191, 31-A, 31-B & 31---Pakistan Air Force Order, O. 39-1---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Member of Armed Forces---Constitutional petition---Maintainability---Mala fide of competent authority---Scope---When any action of the Army Authorities regarding a serving officer of the Armed Forces, subject to any law of Armed Forces, is established to be either mala fide, coram non judice or without jurisdiction, then the same can be assailed through constitutional jurisdiction of High Court.

Federal Government Ministry of Defence, Rawalpindi v. Lt.-Col. Munir Ahmed Gill 2014 SCMR 1530 and Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229 rel.

(c) Pakistan Air Force Act (VI of 1953)---

---S. 20---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Member of Armed Forces---Dismissal, removal or reduction by Chief of the Air Staff or other officers---Non-availability of right of appeal---Effect---No right of appeal is provided under any provision of Pakistan Air Force Act, 1953, to a person, removed from his service, in exercise of power under S. 20 of the Pakistan Air Force Act, 1953 and in such situation an aggrieved person cannot be denied the right to file constitutional petition on account of Art. 199(3) of the Constitution.

Civil Appeal No.1172 of 2009 ref.

Amin-ur-Rehman Yousafzai and Umer Farooq Awan for Petitioners.

Mansoor Tariq and Arbab Saiful Kamal, A.A.Gs. for Respondent.

2021 P L C (C.S.) 119

[Peshawar High Court (D.I. Khan Bench)]

Before S.M. Attique Shah and Sahibzada Asadullah, JJ

MUHAMMAD YAQOOB and another

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Land Revenue Department, Peshawar and others

Writ Petition No.340-D of 2016 with C.Ms. Nos.313-D of 2016 and 713-D of 2019, decided on 27th November, 2019.

(a) Land Records Manual---

----Chap.3 para. 3.6---Patwari, appointment of---Procedure---Contention of petitioners was that they were entitled for appointment as Patwaris according to Register of Patwar candidates---Validity---Maintenance of List of Patwar Passed Persons was mandatory to have ready information with regard to availability of eligible candidates to facilitate filling up the vacancies---Mere entries in the Patwar Register did not give any vested right to the petitioners to be appointed without prescribed procedure provided by the law i.e. written test and interview---Appointment of Patwari could not be made according to the entries of List of Patwar Passed Persons---Government had power to change recruitment policy or to make amendment in the same as per requirements in the public interest---Government had made amendments for appointment of Patwaris which were in line with transparency, fair play and good governance---Petitioners had failed to make out a case for interference by the High Court---Authorities were directed by the High Court to initiate the process of filling up the vacant posts of Patwaris in accordance with law applicable thereto---Constitutional petition was disposed of, accordingly.

Ameer Taimoor and 7 others v. Government of Khyber Pakhtunkhwa through Senior Member, Board of Revenue and 3 others 2016 PLC (C.S.) 106; Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court, Lahore and others 1997 SCMR 1043; Imtiaz Ahmad and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472; Sh. Muhammad Sadiq v. Federal Public Service Public Service Commission and others 2013 SCMR 264 and Zafar Iqbal and another v. Director Secondary Education, Multan Division and 3 others 2006 SCMR 1427 rel.

(b) Interpretation of statutes---

----If there was conflict between the departmental instructions and statutory rules, then the latter would prevail.

The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Limited, Lahore and others 1999 SCMR 1442 and Punjab Beverages Co. (Pvt.) v. Federation of Pakistan through Ministry of Finance and others 2016 PTD 1736 rel.

Muhammad Yousaf Khan for Petitioners.

Kamran Hayat Miankhel, Additional A.G. for Respondents Nos.1 to 4

2021 P L C (C.S.) 235

[Peshawar High Court (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah and Sahibzada Asadullah, JJ

Dr. KARIM SHAH

Versus

CHAIRMAN, SEARCH AND NOMINATION COUNCIL/HEALTH MINISTER, GOVERNMENT KHYBER PAKHTUNKHWA, PESHAWAR and others

Writ Petitions Nos.636-D and 679-D with C.M. No.747-D of 2019, decided on 30th October, 2019.

(a) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Ss.10, 23 & 24----Hospital Director of Medical Teaching Institutions---Disciplinary proceedings without approval of Board of Directors---Contention of petitioner was that disciplinary proceedings without approval of Board of Directors could not be initiated---Validity---Post of petitioner had been created by the statute itself and rules and regulations had also been framed thereunder---Matter was with regard to terms and conditions of service of petitioner, therefore, principle of "master and servant" was not applicable---Constitutional petition was maintainable, in circumstances---Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, did not empower Board of Directors to delegate its powers to any other authority---Chairman Board of Directors in his individual capacity had no authority to initiate disciplinary proceedings through impugned letters---Impugned letters were declared illegal and void ab initio and were set aside---Constitutional petition was allowed, in circumstances.

(b) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Ss.10, 23 & 24---Hospital Director of Medical Teaching Institution---Removal from service---Contention of petitioner was that he had been removed from service without regular inquiry---Validity---Show-cause notice issued to the petitioner contained serious allegations of misconduct---Petitioner ought not to have been removed from the service in a slipshod and perfunctory manner---Statement of allegations on the basis of which petitioner had been removed could not be established without regular inquiry---Efficiency and Disciplinary Rules of the Provincial Government had not been adopted by the Board of Directors of Medical Teaching Institutions---Rules and Regulations had been framed under Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, for giving effect and carrying out the purpose of said Act---Employee could not be left at the mercy of the authorities---When serious allegations of misconduct had been levelled against the employee then it would stigmatize his entire service career and in such eventuality employee must have fair chance of defence in regular inquiry---Authorities should have conducted a regular inquiry before passing the impugned order of major penalty of removal from service---Authorities had violated the principle of transparency and fair play and such illegality could not sustain in the eye of law---Impugned order for removal from service was declared as illegal, unlawful and void ab initio having no legal effect---Authorities could initiate fresh disciplinary proceedings against the employee if so advised---Constitutional petition was allowed, in circumstances.

Muhammad Naeem Akhtar v. Managing Director Water and Sanitation Agency LDA, Lahore 2017 SCMR 356; Muhammad Abdul Moied v. Government of Pakistan 2010 SCMR 1546; Government of Punjab v. Tauqeer Mazhar Bukhari 2008 SCMR 1362; Zulfiquar Ali v. District Health Officer, Okara 2014 PLC (C.S.) 856; Syed Sajjad Haider Kazmi v. Director-General (S&GAD) WAPDA 2007 SCMR 1643; Engineer Majeed Ahmad Memon v. Liaquat University of Medical and Health Sciences Jamshoro 2014 SCMR 1263 and Saleem Wazir Professor Community Medicine v. Government of Khyber Pakhtunkhwa 2019 PLC (C.S.) 224 rel.

(c) Administration of justice---

----When power had been conferred upon a particular person then that person alone had to exercise the said powers and he could not transfer its exercise to another person---In order to enable a person to delegate the powers or functions there must be an authority express or implied to delegate the same. [p. 241] B

Salim Wazir Professor Community Medicine and 6 others v. Government of Khyber Pakhtunkhwa through Secretary Health Peshawar and 2 others 2019 PLC (C.S) 224 rel.

Salimullah Khan Ranazai, Muhammad Yousaf Khan and Zia ur Rehman Qazi for Petitioner.

Kamran Hayat Miankhel, Addl. A.G. for Respondents Nos.1 and 2.

Salim Jan and Saddam Hussain Zakori for Respondents Nos.3 to 4.

2021 P L C (C.S.) 258

[Peshawar High Court]

Before Qaiser Rashid Khan and Ijaz Anwar, JJ

MARIA JABEEN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.4381-P of 2019, decided on 16th September, 2020.

Civil service---

----Employment criteria---Cut-off date---Subsequent amendment in rules---Petitioner applied for post in question but was not selected due to lack of qualification criteria---Plea raised by petitioner was that subsequent amendment in qualification criteria made her eligible for the post---Validity---Cut-off date by reference to which eligibility requirement must be satisfied by candidate seeking public employment was the date specified by relevant service rules---If there was no cut-off date specified by the rules then such date as was mentioned for the purpose in advertisement calling for applications---If there was no such date fixed, then eligibility criteria was to be applied by reference to the last date fixed by which applications had to be received by competent authority---Petitioner was not holding prescribed qualification on the last date of submission of application for her appointment---Subsequent amendment in rules, in no way, could have given any right to petitioner to be treated in accordance with the amended rules---If amended rules were applied to case of petitioner, it would be injustice to numerous other candidates who did not apply because of lacking qualification---Constitutional petition was dismissed in circumstances.

Sh. Muhammad Sadiq v. Federal Public Service Commission and others 2013 SCMR 264; Government of NWFP, Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321; Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472; 2020 SCMR 568; Asif Hassan and others v. Sabir Hussain and others 2019 SCMR 1720; Wasim Shahzad v. Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and others 2018 PLC (C.S) Note 168; Muhammad Muneer Malik and others v. Allama Iqbla Open University and others 2016 PLC (C.S) 896; Shazia Munawwar v. Punjab Public Service Commission through Secretary, Lahore PLD 2010 Lah. 160 and Ashok Kumar Sharma and others v. Chander Shekhar and another 1997 (4) SCC 18 ref.

Danish Khan Afridi for Petitioner.

2021 P L C (C.S.) 366

[Peshawar High Court]

Before Lal Jan Khattak and Ahmad Ali, JJ

RIAZ ALI KHAN and 2 others

Versus

DIRECTOR GENERAL, PESHAWAR DEVELOPMENT AUTHORITY, HAYATABAD, PESHAWAR and 2 others

Writ Petition No.490-P of 2017, decided on 21st November, 2019.

(a) Provincial Urban Development Board Service Rules, 1978---

----R. 23---Employees of Provincial Urban Development Board---Allegation of misconduct---Dispensing with regular inquiry---Effect---Authority while dispensing with regular inquiry issued show cause notice to the employees and they were dismissed from service---Contention of employees was that authorities had not provided copies of record for submitting reply of show-cause notice---Validity---Employees applied for copies of the record to submit reply of show-cause notice but same had not been provided to them---Entire procedure provided in R.23 of Provincial Urban Development Board Service Rules, 1978, was mandatory---Inquiry could not be dispensed with for disciplinary action against the employees of Provincial Urban Development Board---Employees had Fundamental Right to be acquainted with the record and evidence establishing alleged misconduct---Entire departmental action was void ab initio having no legal sanctity in the eye of law---Impugned order passed by the authorities was set aside and employees were reinstated into service with back benefits---Authority would be at liberty to proceed against the employees under Provincial Urban Development Board Service Rules, 1978---Constitutional petition was allowed, in circumstances.

(b) Interpretation of statutes---

----Mandatory or directory provision, determination of---Procedure---Word "shall" used in a provision of law---Significance---Word 'shall' by the legislature brands a provision as mandatory, especially when an authority is required to do something in a particular manner.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 and The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427 rel.

(c) Administration of justice---

----When law required a thing to be done in a particular manner then it must be done accordingly.

Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others 2006 SCMR 129 and Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 rel.

Amin ur Rehman Yousafzai for Petitioners.

Saif Ullah Khalil for Respondents.

2021 P L C (C.S.) 390

[Peshawar High Court]

Before Waqar Ahmad Seth, CJ and Ahmad Ali, J

LIAQAT ALI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA

Writ Petition No.2770-P of 2019, decided on 23rd January, 2020.

Civil service---

----Appointment on contract basis---Regularization of service---Discrimination---Effect---Petitioner was appointed on contract basis in the and his contract was extended time and again---Department refused to regularize the services of petitioner---Contention of petitioner was that he had not been treated at par with similarly placed persons---Validity---High Court had already passed judgment with regard to regularization of similarly placed persons---Supreme Court had upheld the said judgment for regularization of other employees of the department---Department was directed to consider the case of the petitioner in accordance with the guidelines laid down in the judgment passed in the earlier constitutional petition---Constitutional petition was disposed of, accordingly.

Petitioner in person.

2021 P L C (C.S.) 434

[Peshawar High Court (D.I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

Mst. NAJM-UN-NISA

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Education

Writ Petition No.1223-D with C.M. No.1382-D of 2018, decided on 19th February, 2020.

(a) Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011)---

----S.3---Succession Act (XXXIX of 1925), Ss.15 & 16---Appointment of primary school teachers---Domicile acquired by woman on marriage---Wife's domicile during marriage---Scope---Petitioners applied against the post of primary school teacher for which inter alia the eligibility criteria was that the candidate must be the permanent resident of the Union Council where the school was located---Contention of the department was that the petitioners belonged to other Union Councils, therefore, their names were not considered for their appointment in the Union Councils, where they had applied---Validity---Permanent place of residence of the petitioners according to their CNIC were the Union Councils in which the posts were advertised but before interview they were married to persons who were residents of other Union Councils---Petitioners were issued fresh CNICs and their permanent place of residence was changed---Married women normally followed the domicile of her husband during subsistence of the marriage---Constitutional petitions were dismissed.

Dr. Mrs. Munawar Zaheen v. The Secretary Punjab Public Service Commission, Lahore and 2 others PLD 1974 Lah. 36 rel.

(b) Words and phrases---

----"Domicile"---Meaning.

The place at which a person has been physically present and that the person regards as home; a person's true fixed, principal and permanent home, to which that person intends to return and remain even though currently residing elsewhere. Person has a settled connection with his or her domicile for legal purposes, either because that place is home or because law has so designated that place.

Black's Law Dictionary (Eighth Addition) rel.

Muhammad Anwar Awan for Petitioner.

2021 P L C (C.S.) 473

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

ABDUL WALI KHAN and 5 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Revenue and Estate Department Peshawar and 4 others

Writ Petition No.1007-M of 2019, decided on 3rd March, 2020.

Land Records Manual---

----Chap. 3 Para. 3.6---Patwari, appointment of---Procedure---Amendment of recruitment rules in pursuance of judgment of High Court---Effect---Contention of petitioners was that they had passed Patwar examination and were entitled for appointment as Patwaris according to register of Patwar candidates---Authorities had made advertisement wherein it had been mentioned that appointment of Patwaris would be made as a result of test and interview---Validity---When Rules had subsequently been amended then judgment of High Court could not be considered a bar in the way of authorities to fill posts of Patwaris from amongst the "Patwar pass" candidates on the basis of test and interview---Land Records Manual did not provide procedure for appointment of Patwaris but it had provided for maintenance of list of "Patwar pass" persons, qualification for Patwaris and the procedure for maintenance of said list---Method of recruitment had been left therein to relevant service rules and recruitment policy---Relevant service rules had already been amended and a new mechanism for filling posts of Patwaris had been provided---No vested right had been accrued to the petitioners with their entry into the list of "Patwar pass" candidates---Purpose of maintaining list of "Patwar pass" persons was to have ready information with regard to availability of eligible candidates to facilitate filling up the vacancies---Mere entry of name of petitioners in the Patwar register did not give any vested right to the petitioners to be appointed without prescribed procedure provided by the law i.e. written test and interview---Petitioners could not claim to have acquired vested right and their plea against retrospective operation of the Rules was misplaced---Constitutional petition was dismissed, in circumstances.

Ameer Taimoor and 7 others v. Government of Khyber Pakhtunkhwa and 3 others 2016 PLC (C.S.) 106; Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534 and Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497 rel.

Sabir Shah for Petitioner.

Wilayat Ali Khan, A.A.G. for Respondent.

2021 P L C (C.S.) 495

[Peshawar High Court]

Before Lal Jan Khattak and Ahmad Ali, JJ

Dr. Syed TANVEER SHAH

Versus

REGISTRAR, UNIVERSITY OF AGRICULTURE, PESHAWAR and 4 others

Writ Petition No.4168-P of 2018, decided on 6th November, 2019.

Khyber Pakhtunkhwa Agricultural University Teachers Appointment and Scales of Pay Statutes, 2000---

----Necessary party, non-impleadment of---Effect---Appointment against the post of Assistant Professor Horticulture---Withdrawal of---Petitioner appeared before Selection Board for interview and his appointment was recommended by the Syndicate of the University but Vice-Chancellor withdrew the said recommendations---Validity---University of Agriculture Peshawar was a "person" as defined under Art.199(5) of the Constitution---Petitioner had not arrayed the University as respondent to contest the lis---Constitutional petition was not maintainable due to non-joinder of necessary party---Eligibility criteria and competency of a candidate for the said appointment had to be determined in accordance with the provisions of Khyber Pakhtunkhwa Agricultural University Teachers Appointment and Scales of Pay Statutes, 2000---Petitioner did not fulfil the criteria for appointment against the post of Assistant Professor Horticulture under Khyber Pakhtunkhwa Agricultural University Teachers Appointment and Scales of Pay Statutes, 2000---Constitutional petition was dismissed, in circumstances.

Saadullah Khan Marwat for Petitioner.

Ali Gohar Durani for Respondents Nos.1 to 4.

Jehanzeb Mehsud for Respondent No.5.

2021 P L C (C.S.) 551

[Peshawar High Court (Mingora Bench)]

Before Ishtiaq Ibrahim and Syed Arshad Ali, JJ

HAZRAT SAID and others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.117-M of 2014, decided on 18th December, 2018.

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

----S.4---Constitution of Pakistan, Arts. 212 & 25---Constitutional petition---Maintainability---Jurisdiction of Service Tribunal, invocation of---Requirements---Civil servants having retired prior to implementation of revised pay scales and allowances---Claim for pension according to revised pay scales and allowance implemented after retirement of civil servants---Validity---Jurisdiction of High Court had been barred with regard to enforcement of terms and conditions of service of civil servants---Administrative Tribunals had been established for redressal of grievance of civil servants with regard to their terms and conditions of service---Civil servant for invoking jurisdiction of Service Tribunal must be aggrieved of an order original or final affecting terms and conditions of service---Any rule which did offend the terms and conditions of service of a civil servant could be challenged before Service Tribunal---Civil servants were neither aggrieved of any order nor rules relating to their terms and conditions but they had sought a writ of mandamus to treat them at par with the other similarly placed persons---Such relief could not be granted by the Service Tribunal having limited jurisdiction---Civil servants who were in service after implementation of revised pay scales would constitute a different category as compared to those who had retired before implementation of revised pay scales---Such classification was permissible and it would hit at the core of Art. 25 of the Constitution---Employees had not been discriminated by the authorities in the case---Constitutional petition was dismissed, accordingly.

I.A. Sherwani's case 1991 SCMR 1041 and Maqsud Ahmad's case of the august Court 1999 PLC (C.S.) 5 distinguished.

Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost and others 2006 SCMR 1630 and Secretary Finance and others v. Ghulam Safdar 2105 SCMR 534 rel.

Syed Fayaz Muhammad Qazi for Petitioner.

Rahim Shah, Assistant Advocate General for Respondents.

2021 P L C (C.S.) 566

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

ALAMGIR KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary Elementary and Secondary Education at Peshawar and 7 others

Writ Petition No.466-M of 2019, decided on 2nd December, 2019.

Civil service---

----Appointment against the post of Certified Teacher---Candidate having completed degree after cut-off date given in the advertisement for filing of applications---Candidate completed his M. Ed. degree after cut-off date for filing of applications and he was not awarded additional marks---Validity---Candidate was student of M. Ed. on cut-off date for submitting application and after a year he had completed his course and obtained the degree---Claim of candidate that marks of M.Ed. should have been counted towards his total marks was neither reasonable nor justified, in circumstances---Candidate had not completed course and was not qualified for the grant of the degree on cut-off date given in the advertisement---Marks for said degree had rightly been denied to the candidate, which action of authorities could not be termed as unlawful or violative of the rights of the candidate---Constitutional petition was dismissed, in circumstances.

Jehanzeb Malik v. Balochistan Public Procurement Regulatory Authority 2018 SCMR 414 distinguished.

Asif Hassan and others v. Sabir Hussain and others 2019 SCMR 1720 rel.

Syed Abdul Haq for Petitioner.

Wilayat Ali Khan, A.A.G. for Respondents.

2021 P L C (C.S.) 582

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

RUKHSANA BIBI

Versus

DEO (F) BUNER and others

Writ Petition No.231-M of 2018, decided on 25th February, 2020.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.10(2)---Appointment against the post of Laboratory Assistant---Contention of petitioner was that she having first position in merit should have been appointed---Department had contended that post in question had not been advertised and no appointment order could be passed in favour of petitioner---Validity---Applications for the post had not been invited in the present case through public proclamation---No post could be allowed to be filled without a proper advertisement inviting applications from general public---Petitioner had failed to make out a case for intervention of High Court---Constitutional petition was dismissed, in circumstances.

Munawar Hassan v. Chief Secretary Government of Balochistan and 3 others 2017 PLC (C.S.) 81 ref.

Muhammad Ali and 11 others v. Province of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education, Peshawar and others 2012 SCMR 673 and Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287 rel.

Shams-ul-Hadi for Petitioner.

Wilayat Ali Khan, A.A.G. for Respondents.

2021 P L C (C.S.) 632

[Peshawar High Court]

Before Lal Jan Khattak and Muhammad Naeem Anwar, JJ

FAKHR UD DIN and 34 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary

Writ Petition No.1663-P of 2020, decided on 1st September, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches---Disputed questions of fact---Scope---Petitioners impugned notifications whereby their services were terminated---Validity---Petition was filed without proper documentation, disclosure of facts, cause of action and that too without any plausible explanation for filing the petition in the year 2020 irrespective of the fact that almost all the petitioners were terminated in the year 2013---Petitioners had not given the details that after joining their duties for how much period they had performed their duties and from which particular date their salaries were stopped---Such questions could not be resolved by High Court by invoking its constitutional jurisdiction under Art.199 of the Constitution and, similarly, the question of delay was required to be examined with reference to the facts of each case---Constitutional petition was dismissed.

Muhammad Younas and others v. Federation of Pakistan through Secretary Ministry of Overseas Pakistani and Human Resource Development (HRD) and others W.P No. 347-B of 2016 dated 25-10-2018 distinguished.

Member (S&R) Chief Settlement Commissioner Board of Revenue v. Syed Ashfaque Ali PLD 2003 SC 132 rel.

Ardeshir Cowasjee v. Karachi Building Control Authority (KMC), Karachi 1999 SCMR 2883 and Government of Punjab, through Secretary Education, Civil Secretariat Lahore v. Sameena Parveen 2009 SCMR 1 ref.

(b) Equity---

----Delay defeats equity---Scope---Person taking equitable relief must not sleep over his right, if he does so, delay will defeat him.

(c) Maxim---

----Vigilantibus, non dormientibus, aequitas subvenit: Equity assists those who are vigilant and not those one, who are sleeping---Delay defeats equities.

Saadat Ullah Khan Tangi for Petitioners.

Nemo. for Respondent.

2021 P L C (C.S.) 711

[Peshawar High Court]

Before Qaiser Rashid Khan, C.J. and S.M. Attique Shah, JJ

SHAHID IQBAL

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and Secretary to Government of Khyber Pakhtunkhwa, Industries, Commerce and

Technical Education Department, Peshawar

Writ Petition No.3132-P of 2019 with I.R. and C.M. 1339-P of 2020, decided on 26th January, 2021.

(a) Public Sector Companies (Corporate Governance) Rules, 2013---

----R.2(g)---Constitution of Pakistan, Art.199---Constitutional petition---Public sector companies---Contract employment---Scope---Once a company is registered under Company Law and is so governed under the provisions of Public Sector Companies (Corporate Governance) Rules, 2013, funded by Federal Government or Provincial Government and/or fully controlled or owned by them, such company is amenable to jurisdiction of High Court under Art.199 of the Constitution---Contract employment in Public Sector Companies and corporations falls within the scope of Public Employment, unlike pure "Master and Servant" relationship in institutions having no element of public involvement--- Any breach of contract can be agitated in Constitutional jurisdiction of High Court under Art.199 of the Constitution.

Human Rights case in the matter of appointment of MD PTV 2019 SCMR 01; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawad Ahmad 2013 SCMR 1707; Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274 and CDR (Rtd.) Mansoob Ali Khan and others v. Federation of Pakistan 2019 CLC 1444 rel.

(b) Public Sector Companies (Corporate Governance) Rules, 2013---

----R.2(g)---Constitution of Pakistan, Art.199---Constitutional petition---Public sector company---Contract employment---Condemned unheard, principle of---Applicability---Misconduct---Proof---Petitioner was Chief Financial Officer and his services were terminated by Board of Directors on the allegation of misconduct---Plea raised by petitioner was that he was condemned unheard---Validity---Board of Directors did not discuss material produced by petitioner nor referred the same and ignored it the time of maintaining its earlier decision regarding termination of petitioner---Such act of Board of Directors showed bias towards petitioner---Petitioner could be removed from service but strictly in accordance with law and by providing him an opportunity of hearing---Opportunity of hearing was a fundamental right in order to ensure fairness, justness and transparency which could not be denied to him under any circumstances---When dismissal for removal of contract employee was result of allegations of misconduct even then he was to get a fair chance of hearing in order to vindicate his position---To achieve the goal of transparency, petitioner was to be issued a show cause notice with charge sheet in order to provide him a reasonable opportunity of defence, followed by an inquiry in order to keep him abreast of the allegations---High Court set aside termination letter issued by authorities but denied him remunerations under the principle of "no work no gain"---Constitutional petition was allowed, in circumstances.

Secretary Government of Punjab v. Riaz-ul-Huq 1997 SCMR 1552; Aman Ullah and others v. The Federal Government and others PLD 1990 SC 1092; Khawaja Muhammad Asif's case 2013 SCMR 1205 and Tariq Aziz-ud-Din's case and others 2011 PLC (C.S.) 1130 rel.

Amir Javed for Petitioner.

Moeen-ud-Din Hamayun, Additional Advocate General and Muhammad Inam Khan Yousafzai for Respondent.

2021 P L C (C.S.) 727

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

MUHAMMAD USMAN and another

Versus

GOVERNOR KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education and others

Writ Petition No.54-M of 2019 (with Interim Relief) decided on 10th March, 2020.

Constitution of Pakistan---

----Art.199---Qanun-e-Shahadat (10 of 1984), Art.114---Constitutional petition---Judicial review---Policy matter---Estoppel, principle of---Applicability---Petitioner assailed change in rules whereby candidates having educational qualification of BA were also made eligible to apply---Validity---When rules were made by department in exercise of powers vested in them, High Court could not sit in judgment over wisdom of departmental authorities in that respect nor could judge effectiveness or otherwise of the policy laid down by such regulation---Even if criteria for appointment was changed for all candidates by making amendments in relevant rules of appointment, estoppel could not be pleaded in such a case---No estoppel could exist against a statute or rules---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

2019 SCMR 1132 and PLD 2017 Lah. 1 ref.

Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others 2006 SCMR 1427; Dr. Alyas Qadeer Tahir v. Secretary Ministry of Education (Now Ministry of CADD), Islamabad and others 2014 SCMR 997; PLD 1960 SC (Pak.) 81; PLD 1988 SC 155; Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others PLD 1993 SC 210; Muhammad Imran and others v. Province of Sindh through Chief Secretary and others 2019 SCMR 1132; PLD 2017 Lah. 1; Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534; Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497; Government of N.-W.F.P., Health and Social Welfare Department through its Secretary v Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321; Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772; Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066; Justice Muhammad Farrukh Irfan Khan, Judge, Lahore High Court, Lahore v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad and 4 others PLD 2019 SC 509 and Messrs New Shaheen Trading Company through Managing Director v. Government of Pakistan through Secretary, Ministry of Commerce and 2 others 2008 SCMR 17. rel.

Sabir Shah for Petitioners.

Wilayat Ali Khan, A.A.G. for Official Respondents.

2021 P L C (C.S.) 855

[Peshawar High Court (D.I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

Malik MUHAMMAD NAVEED

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Khyber Pakhtunkhwa, Peshawar and others

Writ Petition No.391-D of 2020 with C.M. Nos.390, 654, 1100 and 1166-D of 2020, decided on 10th December, 2020.

Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act (XXVII of 2019)---

----Ss.2-A, 3 & 5---Constitution of Pakistan, Arts.2-A, 4 & 25---Notification vide SO (Budget)HD/15-29/2016 Vol-II dated 08-04-2020--Regularization of constables appointed on contract basis in Special Police Force---Scope---Equal treatment---Petitioner (constable) was reinstated into service from the date of his dismissal, however, vide impugned notification ,his name was omitted and replaced by another person who was at lower number than the petitioner in the list---Department contended that the petitioner was not in service at the time of issuance of impugned notification and thus was not entitled for regularization---Contention of the petitioner was that as he was reinstated into service, so Department had violated his vested rights by not including his name in the list for the regularized employees---Held, that 94 Special Police Officers (SPO) were, admittedly, regularized vide Notification (dated 08-04-2020)---Said Notification was issued in pursuance of the provisions contained in Ss.3 & 5 of the Khyber Pakhtunkhwa Special Police Officers ( Regularization of Services) Act, 2019) ('the Act 2019') after the recommendation of Provincial Police Officer and the approval of provincial cabinet and concerned department---Petitioner was appointed as constable (Special Police Force) however, he was discharged from service on the basis of allegation leveled against him to be involved in notorious activities---Petitioner filed appeal and during proceedings it was found that the allegation leveled against him did not warrant an extreme action of dismissal from service ---Petitioner was finally re-instated into service from date of his dismissal---Petitioner was claiming equal treatment as the other SPOs had been regularized---Plea of the Department was ill-founded and without force as the date when the impugned notification was issued , the petitioner was being proceeded departmentally under disciplinary proceedings and his fate had not been determined yet---Department could not, thus, decide at their ends that the petitioner was not in service---Impugned notification was issued in the intervening period of dismissal and reinstatement of the petitioner, when the guilt of the petitioner was tested departmentally and ultimately he earned exoneration which led that he was in service right from the date of his dismissal---Exoneration of the petitioner fetched him the benefits of notification-in-question and had made the plea of the respondents as unfounded---No distinction existed between the petitioner and those who stood regularized under the Act, 2019 and he deserved the same treatment---Petitioner had succeeded in making out a case for indulgence of the High Court---High Court directed the Department to regularize the services of the petitioner as Constable Special Force under the Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019, right from the date of issuance of Notification dated 08-04-2020---Constitutional petition was allowed, in circumstances.

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

Muhammad Idrees Khan and Hashmat ur Rehman for Petitioner.

Kamran Hayat Miankhel, Additional Advocate General for Respondents.

2021 P L C (C.S.) 913

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

BAKHT MUNIR

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA and 3 others

Writ Petition No.1199-M of 2018, decided on 3rd February, 2020.

Civil service---

----Appointment, cancellation of---Locus poenitentiae, principle of---Applicability---Void order---Petitioner was a school teacher who assailed cancellation of his appointment letter--- Validity--- Where basic order was without jurisdiction, void, unlawful or obtained on fraud, exception to exercise of powers under S.21 of General Clauses Act, 1897, could not be invoked---Order in question was already found by inquiry officer to have been obtained by petitioner as a result of tempering made in his educational testimonials---Petitioner obtained his appointment letter by practicing fraud--- High Court declined to press into service principle of locus poenitentiae of authorities---Constitutional petition was dismissed in circumstances.

Secretary Ministry of Finance v. Muhammad Hamatullah Farooqi PLD 1969 SC 407; Engineer-in-Chief Branch through Ministry of Defence Rawalpindi and another v. Jalal-ud-Din PLD 1992 SC 207; Executive District Officer (Education) Rawalpindi v. Muhammad Younas 2007 SCMR 1835; PLD 2000 SC 58; 2016 SCMR 460; 2019 SCMR 643; 2003 PLC (C.S.) 1262 and 2007 CLC 1364 rel.

Aziz-ur-Rehman for Petitioner.

Wilayat Ali Khan A.A.G. for Official/Respondents.

2021 P L C (C.S.) 936

[Peshawar High Court]

Before Rooh ul Amin Khan and Muhammad Nasir Mehfooz, JJ

IQRA SALIM

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others

Writ Petition No.1761-P of 2020, decided on 10th September, 2020.

Civil service---

----Termination from service---Major penalty imposed on a petty allegation without affording opportunity of being heard---Allegation against petitioners (medical officers) was that they both, instead of marking their respective attendance by themselves, handed over their RFID card to another employee who was caught while swiping the said RFID cards ---Petitioners contended that they by reaching the hospital preferred to attend critically ill patients coming across them---Validity---Record revealed that an inquiry committee was constituted, but after the termination of petitioners---Report of said committee showed that both the petitioners were present on their duties---Petitioners, being medical officers in emergency department, keeping in view the requirement and demand of their profession might have prudently given preference to rescue the life of serious patient(s) instead of marking their attendance themselves---Even competent authority could not deny presence of the petitioners on the duty ---Awarding of major penalty (i.e. termination from service) on a petty matter of not marking attendance by petitioners themselves, that too, without following the codal formalities, expressed mala fide and bias on the part of the competent authority against the petitioners---Flimsy termination orders , without bona fide, were passed but neither any notice for explanation nor any opportunity of hearing/defence was afforded to the petitioners---High Court set aside impugned termination orders declaring the same as illegal, unlawful and void ab initio, and reinstated the petitioner into service with all back benefits---Constitutional petition was allowed, in circumstances.

Barrister Amir Khan Chamkani for Petitioner.

Barrister Ibrahim Khan Afridi for Respondents.

2021 P L C (C.S.) 1074

[Peshawar High Court (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

Syeda HUMAIRA SULTANA

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others

Writ Petitions Nos.723-M, 3331-P and 706-M of 2019 (with Interim Relief (N), decided on 8th October, 2019.

Frontier Crimes Regulation, 1901---

----Ss.4 & 5---Constitution of Pakistan, Arts. 129, 199 & 247(4) & (5) [as amended by Constitutional (Twenty-Fifth Amendment) Act (XXXVII of 2018)]---Regularization of service---Schools in erstwhile Federally Administered Tribal Area---Political Agent, status of---Effect of repeal---Petitioners were teachers who sought their regularization in service after abolition of Federally Administered Tribal Area vide 25th Constitutional Amendment and inclusion of Area in Khyber Pakhtunkhwa Province---Validity---Political Agent mainly derived its existence and authority from Frontier Crimes Regulation, 1901---With repeal of Art. 247 from the Constitution, Frontier Crimes Regulation, 1901 was deemed to have been repealed thereby---With unqualified repeal, the office of Political Agent seized to exist and no other office or officer could claim any legacy of that office as no such law provided for the same---Office of Political Agent was mummified and laid to rest in the cemetery of history along with all its belongings leaving no legacy for anyone else to utilize---Deputy Commissioner was not successor of Political Agent and he was never been a Chairman of Board of Directors of the schools nor was substituted as member of Board of Governors or School Management Board---Besides Political Agent, other members of Board of Directors and Board of Governors had also lost its existence with promulgation of 25th Constitutional Amendment---With repeal of Art.247 from the Constitution, without providing for any saving clause, all Regulations promulgated by President of Pakistan under Art. 247(5) of the Constitution or by Governor under Art. 247(4) of the Constitution or before enactment of the Constitution, seized to exist---As corollary of such development, executive authority also shifted its abode from Governor to Provincial Government which included Chief Minister and Provincial Cabinet, according to Art.129 of the Constitution---Such had become responsibility of Provincial Government to regulate affairs of schools in question in similar other educational institutions existing in Federally Administered Tribal Areas---Provincial Government was duty bound to take interim measures in respect of schools and colleges as well as to take permanent steps for smooth running of institutions in question---High Court directed to reinstate petitioner in service as her termination was without lawful authority and High Court restrained the authorities from initiation of process of recruitment as the process was without lawful authority and of no legal effect and directed Provincial Government to take steps on urgent basis for providing legal framework for schools in question along with other similar schools and colleges situated in Federally Administered Tribal Area---High Court directed Provincial Government to constitute ad hoc Board of Directors till constitution of permanent Board of Directors and other necessary regulatory bodies according to legal framework to be provided by Government---High Court directed Government to notify Principal till appointment of another Principal by Government after giving proper legal framework---Constitutional petition was allowed accordingly.

Tariq Mehmood v. District Police Officer, Toba Tek Singh and another PLD 2008 SC 451; District Coordination Officer, District Dir Lower and others v. Rozi Khan and others 2009 SCMR 663; Samina Kanwal v. Director Punjab Forestry Research Institute, Faisalabad 2011 PLC (C.S.) 1553; Amjad Khan v. Wafaqi Mohtasib (Ombudsman) Secretariat through Secretary, Islamabad and another 2014 PLC (C.S.) 476; Messrs Mustafa Impex's case PLD 2016 SC 808; Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 and Petition Regarding Miserable Condition of the Schools 2013 SCMR 764 ref.

Jehanzeb Masood for Petitioner.

Wilayat Ali Khan, A.A.G. along with for Respondent No.3 in person.

Date of hearing: 8th October, 2019.

CONSOLIDATED JUDGMENT

WIQAR AHMAD, J.----This order is directed to dispose of W.P No. 723-M/2019, W.P No. 3331-P/2019 and W.P No. 706-M/2019 through this single judgment as facts and law are common and related in all the three petitions.

1. Syeda Humaira Sultana petitioner in W.P No. 723-M/2019 and W.P No. 3331-P/2019 has been Principal of Bajaur Public School (hereinafter referred to as 'the Sehool'), Girls Section since 10.04.2010. She has stated in the said writ petitions that she had earlier brought Writ Petition bearing No. 4699-P/2016 along with other staff members for regularization of their services against the newly created fourteen (14) posts for the School which was allowed by this Court vide order dated 03.05.2018 with direction to the respondents to regularize their services. They were waiting for regularization of their services that the Deputy Commissioner, Bajaur who is respondent No. 3 in the Writ Petitions issued a proclamation in the newspaper inviting applications for the post of Principal of the School (boys and girls section). According to the petitioner, respondent No. 3 was not at all competent to invite applications for the post of Principal of the School or to make appointment on the said post.

2. Respondent No. 3 was summoned who filed his para-wise comments, wherein it was disclosed that the petitioner had been terminated on 17.06.2019. Beside the said fact, the assertions in Writ Petitions were rebutted in the para-wise comments. The petitioner filed rejoinder to the comments, wherein she submitted that her services were terminated on 17.06.2019 while an Inquiry Officer was appointed vide order dated 19.06.2019 for conducting an inquiry in the matter subsequently. She further asserted that she had not been heard or made aware of passing of any order of termination and prayed in the rejoinder that the termination order may be declared as null and void. She had also filed another Writ Petition bearing No. 3331-P of 2019 alleging her harassment at the hands of respondent No. 3 and had prayed for the following reliefs;

"It is respectfully prayed that appropriate writ may graciously be issued to the following effect:-

i. Declare that the respondent No. 3 has no legal authority to interfere/intervene into the affairs of the School or take any action against the petitioner or expel her from the official residence;

ii. Declare that any action of the respondent No. 3 against the petitioner as illegal, unlawful, ultra vires of the judgment of this august Court as she has been regularized on the respective post of Principal by the Hon'ble Peshawar High Court, Peshawar in W.P No. 4699-P/2016 dated 03.05.2018;

iii. Set aside any illegal order or adverse action, if taken by the respondent No. 3 which is not in knowledge of the petitioner;

iv. Direct the respondents to treat the petitioner in accordance with law;

v. Any other favorable relief may also graciously be granted to the petitioner as may be deemed just and proper in the facts and circumstances of the case."

1. Petitioner Sultan Muhammad who was the Principal and seven (07) other employees of the School (Boys Section) had brought Writ Petition bearing No. 706-M of 2019, after feeling aggrieved of the issuance of proclamation by the Deputy Commissioner, Bajuar seeking applications for the post of Principal in the School and stated that he was neither competent to invite applications for the post or to make any order of appointment thereon. Sultan Muhammad petitioner has retired during pendency of the writ petition. The other petitioners are however interested in pursuing the matter.

2. Para-wise comments were filed by respondent No. 4, wherein it has been alleged that the School showed no remarkable result due to inefficiency of the Administrative body of the School and therefore, the Deputy Commissioner, Bajaur felt compelled to make appointment of another Principal and take some more steps for rectifying the situation.

3. Learned counsel for the petitioner Syeda Humaira Sultana narrated before the Court the history of past litigations and particularly laid stress on the fact that the petitioner had been ordered to be regularized as Principal by this Court, therefore her termination constituted a contempt of the order of this Court. He further relied on the Notification bearing No. S.O(FATA)EDU/1-0/ Misc/2011/1504-11 dated 26.03.2011 of the FATA Secretariat, Administration and Coordination Department, wherein the Board of Directors (hereinafter referred to as 'BOD') had been constituted and authority in respect to appointment and promotion of junior teaching staff, ministerial staff and other employees in BPS-1 to 16 had been given to the BOD. He also relied on Notification bearing No. S.O (FATA) EDU/1-0/Misc/1514-24 of the FATA Secretary Administration and Coordination Department and submitted that the Board of Governors (hereinafter referred to as 'BOG') had been established for Model Schools in the erstwhile Federally Administered Tribal Areas (hereinafter referred to as 'FATA') and the authority for appointment and promotion of the staff in BPS-17 and above falls in the domain of the BOG. Learned counsel further relied upon the case of Tariq Mehmood v. District Police Officer, Toba Tek Singh and another reported as PLD 2008 Supreme Court 451, case of District Coordination Officer, District Dir Lower and others v. Rozi Khan and others reported as 2009 SCMR 663, case of Samina Kanwal v. Director Punjab Forestry Research Institute, Faisalabad reported as 2011 PLC (C.S.) 1553 and the case of Amjad Khan v. Wafaqi Mohtasib (Ombudsman)' Secretariat through Secretary, Islamabad and another reported as 2014 PLC (C.S.) 476 and contended that the order of termination had not only been passed by an incompetent authority but was passed in a fanciful and arbitrary manner without notice and conducting any proceedings, therefore same is liable to termination.

4. Learned counsel for the petitioners Sultan Muhammad and others also relied on the above-referred two Notifications and contended that the Deputy Commissioner concerned had nothing to do with the appointment of Principal in the School, therefore the process of recruitment initiated by him was totally without lawful authority.

5. The learned Additional Advocate General as well as the learned Deputy Commissioner, Bajaur who was present in person addressed the Court in rebuttal to the arguments of learned counsel for the petitioners. Both of them stated that earlier the appointments and matters of the School used to be dealt with by the Political Agent, Bajaur and the Deputy Commissioner, Bajaur being his successor had stepped into his shoes and he was fully competent to regulate the matter. The Worthy Deputy Commissioner, Bajaur further added that Political Agent had been Chairman of the BOD constituted vide Notification bearing No. S.O (FATA)EDU/1-0/Misc/2011/ 1504-11 dated 26.03.2011 and in the said capacity, he was fully authorized to remove a Principal or make appointment of another Principal. He also described in detail the alleged irregularities and embezzlements particularly conducted by the erstwhile Principals of the School and added that since the School was being run with mismanagement and dishonesty, therefore somebody had to step-in and take the decision which task was assumed by him as per the consistent past practice and there is no illegality in his impugned actions.

6. We have heard arguments of learned counsel for the petitioners, learned Additional Advocate General along with the Worthy Deputy Commissioner, Bajaur and perused the record.

7. Bajaur Public School was one of the Model Schools established in FATA under the executive authority of the Federation which was being exercised by the Governor under Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as 'Constitution'). The School along with other Schools and Colleges were regulated under instructions issued by the Governor from time to time. Vide Notification bearing No. S.O(FATA) EDU/1-0/Misc/2011/ 1504-11 dated 26.03.2011, a BOD was constituted for the said School which comprised of the following members:-

8. Political Agent/Addl: Political Agent…………………………… ………………………………………….…………………..….Chairman

9. Principal of the School concerned …………………………………… ……………………………………………….…… Member/Secretary

10. Agency Education Officer…………………………………. Member

11. Agency Accounts Officer …………………………………..Member

12. Once Social Activist/Retired Govt. Servant ……………. Member

13. One representative of Parents of student studying in the model School ………………………………………………………… Member

Through another Notification bearing No. S.O (FATA) EDU/1-0/Misc/1514-24, a BOG was constituted for the Model Schools managed by the Political Agent which comprised of the following members:--

1. Governor Khyber Pakhtunkhwa …………………….. Chairman

2. Secretary Admn. and Coord FATA ………………… Member

3. Secretary Finance FATA ……….……………………. Member

4. Political Agents Khyber and Kurram Agencies ……. Member

5. One public representative from FATA ………………. Member

6. One representative of Parents of students studying in the Model School …………………………………………………..…… Member

7. Director Education FATA …………………………………..Member

8. Managing Director FATA Education Foundation …… Member

9. Principals of three Model School …………………….. Member

The Notifications also contained certain TORs for the respective BOD and BOG. Later on, Governor's Model Schools Management Board was constituted vide Notification bearing No. SO(C-III)FS/GMS/1844-73 / 2014 dated 10.06.2014, which consisted of the following members:-

i. Secretary Admin. Infra. and Coord (FATA) ………………… ………………….…………………………………….………. Chairman

ii. Secretary Planning and Development (FATA) ……... Member

iii. Secretary Finance FATA ………………………………... Member

iv. Political Agents Khyber, Bajaur and Kurram Agencies ……………………………………………………………….….. Member

v. Director Education (FATA) ....…………………………. Member

vi. Managing Director FATA Education Foundation …………………………………………………………………… Member

vii. Two Representative from Parents of Students studying in the Model School …………………………………………..…… Members

viii. One Educationist to be nominated for 02 years ……….. Member

ix. Principals of 1 x Male and lx Female Model School ………………………………………………………………….. Members

The controversies involved in the present writ petitions mainly related to the authority of Deputy Commissioner, Bajaur to dismiss and appoint a Principal for the School. In this respect, the Worthy Deputy Commissioner, Bajuar submitted that the School was being run under the authority of Political Agent and that he being the successor of Political Agent was fully empowered to remove or appoint a Principal of the School and that as Chairman of the BOD, he was very much within his power to remove the Principal or call applications for appointment of the new Principal.

1. The Deputy Commissioner, Bajaur was particularly asked in the Court as to whether he had ever called a meeting of BOD and whether he had been authorized by BOD to remove the Principal or appoint a new Principal. He replied that he had not done so nor had BOD ever authorized him but added that same was not necessary. The impugned act of the respondent/ Deputy Commissioner, Bajaur has not been authorized even by the erstwhile dispensation in the form of BOD or the BOG. The BOD did not have the authority to remove or appoint a new Principal as it could only make appointment of junior teaching staff, ministerial staff and other employees in BPS-1 to 16. In this respect, Clause-ii of the TORs given in Notification dated 26.03.2011 is important which is reproduced hereunder for ready reference:-

ii. The appointment and promotion of junior teaching staff, ministerial staff and other employees (BPS-1 to 16) shall be decided by the Principal concerned in consultation with the Board of Directors.

The authority for removal or appointment of the Principal lay with BOG in the erstwhile dispensation which has been so provided in Notification bearing No. S.O(FATA) EDU/1-0/Misc/1514-24. Clause-viii of the TORs contained in the said Notification is relevant which is reproduced hereunder for ready reference:-

viii. BOG may decide and approve all appointment and promotion cases of staff working in BPS-17 and above in Model Schools on the recommendation of FaEf.

It is thus clear that even in the erstwhile dispensation, the Political Agent, Bajaur did not have the authority to remove a Principal of the School or appoint another Principal.

1. Beside the fact that the Political Agent lacked the authority to remove or appoint a Principal, it is very difficult for us to agree with the contention of the Worthy Deputy Commissioner, Bajaur that he had been the successor of former Political Agent, has stepped into his shoes automatically and has become the Chairman of the BOD and that his name should be read inserted in place of Political Agent in the Notification dated 26.03 .2011 and Notification bearing No. S.O (FATA) EDU/1-0/Misc/1514-24. Succession of Public Offices can only be acquired by dent of some law or rules having the force of law. Without an affirmative law, inheritance of a public office cannot be claimed. In the case in hand, not only an affirmative law is missing to devolve the authority of Political Agent on the office of Deputy Commissioner; but the source of power and nature of authority of the two offices are also of different origin and character. The office of Political Agent was one of the Principal Office of the civil service in the region of FATA. Sub-Article (1) of Article 247 (omitted) of the Constitution provided that the executive authority of the federation shall extend to FATA and that the executive authority of a Province shall extend to PATA. Sub-Article (2) of the said omitted Article provided that the Governor of a Province shall exercise the executive authority under the instructions of the President. The office of Political Agent was one of the subordinate offices exercising the executive authority of the federation in FATA under various Regulations like FCR etc and other executive instructions issued by the Federal Government. The office of Deputy Commissioner on the other hand is an office exercising powers under the Land Revenue Act, 1967 and similar Provincial statutes but cannot be said to have been exercising the executive authority as an officer of the federation. The source of authority as well as nature and character of duties of the two offices were entirely different from each other.

2. Besides the office of Political Agent mainly derived its existence and authority from the Frontier Crimes Regulation, 1901. With repeal of Article 247 from the Constitution, the said Regulation shall be deemed to have been repealed thereby. With the unqualified repeal, the office of Political Agent has seized to exist. No other office or officer can claim any legacy of the said office as no such law provides for the same. In other words, the office of Political Agent has been mummified and laid to rest in the cemetery of history along with all his belongings leaving no legacy for anyone else to utilize. The Deputy Commissioner, Bajaur is therefore not found to be the successor of Political Agent and he has never been a Chairman of the BOD nor had been substituted as member of the BOG or the School Management Board. Beside the Political Agent, other members of the BOD and BOG have also lost its existence with the promulgation of Act No. XXXVII of 2018 i.e. 25th Constitutional amendment (hereinafter referred to as the 'amending Act').

3. The erstwhile regime of instructions mentioned above has also lost its significance by operation of the amending Act which was assented by the President of Pakistan on 31st May, 2018. Section 8 of the amending Act had the effect of merging the areas falling in FATA into the Province of Khyber Pakhtunkhwa, while Section 9 of the amending Act provided for omitting Article 247 from the Constitution. With the repeal of the said Article, without providing for any saving clause, all the Regulations promulgated by the President of Pakistan under sub-Article (5) of Article 247 of the Constitution or by the Governor under sub-Article (4) of Article 247 of the Constitution or before the enactment of the Constitution, seized to exist. As a corollary of the said development, the executive authority also shifted its abode from the Governor to the Provincial Government which included the Chief Minister and the Provincial Cabinet, according to Article 129 of the Constitution and ratio of Messrs Mustafa Impex's case reported as PLD 2016 Supreme Court 808.

4. It is by now the responsibility of the Provincial Government to regulate the affairs of the School and similar other educational institutions existing in FATA. The Government shall be duty bound to take interim measures in respect of the Schools and Colleges as well as to take permanent steps for smooth running of the said institutions. The Government should provide a proper legal framework for these Schools which shall include the establishment of regulatory body and their powers and functions. The said exercise should be initiated as soon as possible and concluded with reasonable speed by putting in place the requisite legal framework for the Schools within three (03) months. The direction with respect to timeline is given by keeping in view the predicament of the students which can well be imagined in the present state of chaos due to lack of any regulatory framework. It is for the Government to take the decision in its policy making domain as to what sort of regulation are they bringing for the Schools, what qualification they prescribe for the teaching staff and administrative officers including the Principal, how they adjust the already regularized staff or the staff members which are yet to be regularized according to the judgment of this Court passed in Writ Petition bearing No. 4699-P of 2019 and what tenure is fixed for the post of Principal etc. Taking of such steps are not only required for the betterment of the students studying in the Schools but is also a Constitutional obligation of the Provincial Government arising out of Article 25-A of the Constitution. The above directions are being issued by way of this judgment for carrying forward the mandate of Article 25-A of the Constitution. Reliance in this respect is also placed on the case of Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and thers reported as PLD 2012 Supreme Court 224 and case of Petition Regarding Miserable Condition of the Schools reported as 2013 SCMR 764.

5. The impugned order of termination of Mst. Syeda Humaira Sultana, petitioner in W.P No. 723-M/2019 and W.P 3331-P/2019 issued by the Deputy Commissioner, Bajaur is therefore declared to have been made without any lawful authority and therefore of no legal effect. The initiation of recruitment process by the Deputy Commissioner, Bajaur for the post of Principal Boys section impugned in W.P No. 706-M of 2019 is also declared to be without lawful authority and of no legal effect.

6. We make it clear however that by declaring the order of termination illegal, we have not been condoning any alleged acts of misconduct of the petitioner Mst. Syeda Humaira Sultana and the Deputy Commissioner, Bajaur or any citizen may place the allegation against her before appropriate forum when a regulatory mechanism is provided for the Schools by the Provincial Government.

7. In light of what has been discussed above, all the three Writ Petitions are allowed in terms that we hold and declare as follows:-

a) The termination of petitioner Syeda Humaira Sultana is declared to have been made without lawful authority and therefore, she should be re-instated in service on the post of Principal of the School (Girls Section) till the promulgation of new legal regime for the School.

b) The initiation of process of recruitment for the appointment of Principal of the School (Boys Section) by the Deputy Commissioner, Bajaur is also declared to be without lawful authority, of no legal effect and resultantly null and void.

2021 P L C (C.S.) 1114

[Peshawar High Court]

Before Qaiser Rashid Khan and Muhammad Ayub Khan, JJ

WAHEED KHAN and others

Versus

CHIEF SECRETARY KHYBER PAKHTUNKHWA and others

Writ Petition No.5270-P of 2017 with COC No.134 of 2018, C.M. Nos.1935 and 2223 of 2018, decided on 4th December, 2018.

(a) Constitution of Pakistan---

----Art.199---Qanun-e-Shahadat (10 of 1984), Art. 114---Civil service appointment process---Policy decision by Government---Participation of candidate in appointment process---Estoppel---Scope---Petitioners impugned advertisement whereby the condition of professional qualifications qua appointment against teaching cadre posts was done away with and instead an in-service training in the relevant subject was held to be mandatory for the incumbents---Validity---Petitioners could not pinpoint any element of mala fide or legal incompetence of the respondents in amending the recruitment rules on the basis of which impugned advertisement was floated---Executive authorities had the prerogative to frame policy or amend rules in accordance with the exigencies of service to cope up with the ever changing requirements and the court could not substitute its views in the decision of the Government with regard to the policy matters unless it ran counter to the mandate of the Constitution---Earlier, there were instances when the candidates claiming professional qualifications were duly appointed on the basis of educational certificates but then in several cases such certificates turned out to be fake and bogus being not issued by proper institutes and the incumbents were then terminated from service even after putting up service for a couple of years and even more---Present system of giving in-service training to the fresh appointees through a properly organized and duly recognized training institutes of the Government had in fact allayed the possibility of appointment of candidates on the basis of bogus and fake certificates---Petitioners had participated in the test but had failed to qualify the same, such action on their part amounted to estoppel---No case for issuance of the writ asked for was made out---Constitutional petition was dismissed.

Dossani Travels (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd. and others 2013 SCMR 1749; Zafar Iqbal and another v. Director Secondary Education Multan Division and 3 others 2006 SCMR 1427 and Dr. Alyas Oadeer Tahir v. Secretary Messrs Education (Now M/O Cadd) Islamabad and others 2014 SCMR 997 rel.

(b) Civil service---

----Advertisement for recruitment---Participation of candidate in appointment process---Estoppel---Scope---Petitioners impugned advertisement whereby the condition of professional qualifications qua appointment against teaching cadre posts was done away with and instead an in-service training in the relevant subject was held to be mandatory for the incumbents---Participation of petitioners in the impugned process of selection amounted to acquiescence on their part debarring them to approach the High Court through constitutional petition---No case for the issuance of the writ asked for was made out---Constitutional petition was dismissed.

Muhammad Asif Yousfzai for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. along with Dr. Iqbal Khan, Dy. Director (Litigation), E&SE, Peshawar for Respondents.

Muhammad Asif Khan for Applicant (in C.M. No.2223 of 2018).

2021 P L C (C.S.) 1237

[Peshawar High Court]

Before Ikramullah Khan and Ahmad Ali, JJ

IMTIAZ KHAN

Versus

MINISTRY OF DEFENCE GOVERNMENT OF PAKISTAN through Defence Secretary of Pakistan PASB Secretariat, Rawalpindi and 4 others

Writ Petition No.607-P of 2019, decided on 16th October, 2019.

(a) Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----S.3---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Civil Aviation Authority was a statutory body having statutory rules, therefore, Constitutional petition against it was maintainable.

Muhammad Zaman and 14 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; Bahadar Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066; Pakistan Defence Officer, Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707 and Saghir Ahmad through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others PLD 2004 SC 261 rel.

(b) Civil Aviation Authority Service Regulations---

----Reg. 3.38---Civil Service Regulations (C.S.R.), Arts.358 & 371-A---Regularization of service---Pension benefits---Length of service---Grievance of petitioner was that duration of his service as daily wager was not considered for the purposes of pension benefits---Validity---Petitioner was first appointed in year, 2000 on daily wages basis and he continuously serviced as such for nine years and then his daily wages employment was converted into regular service with effect from 1-6-2009---Previous service of petitioner was countable according to Arts. 358 & 371-A of Civil Service Regulations (C.S.R.), to his regular service for the purpose of pensionary and other fringe benefits---High Court directed the authorities to include daily wages employment of petitioner as his substantive service in regular PG-1 for the purpose of pension and other allied pensionary benefits---Constitutional petition was allowed, in circumstances.

Salah ud Din v. Frontier Sugar Mill Ltd. PLD 1975 SC 244; Aitcheson College v. Muhammad Zubair PLD 2002 SC 326; Pakistan International Airlines v. Tanweer-ur-Rehman PLD 2010 SC 676; Shafique Ahmad Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377; Azad Government of the State of Jammu and Kashmir through its Chief Secretary and 4 others v. Muhammad Hussain 2018 PLC (C.S.) Note 202; Secretary, Government of the Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2014 SCMR 1336; 2015 PLC (C.S.) 296 and Pakistan Telecommunication Employees Trust (PTET) through M.D., Islamabad and others v. Muhammad Arif and others 2015 SCMR 1472 ref.

Civil Aviation Authority through Director General CAA and 3 others v. Mst. Gul Yasim 2019 PLC (C.S.) 130 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Civil service---If State functionaries fail to exercise their authority in the benefit of employees of their department, then their action and negligence are not immune from judicial scrutiny---High Court is under legal obligation to exercise its Constitutional jurisdiction to redress grievance of poor and helpless employees.

Kamran Sarwar for Petitioner.

Umar Azam Khan for Respondents.

2021 P L C (C.S.) 1295

[Peshawar High Court (D.I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

MUHAMMAD ABID

Versus

GOMAL UNIVERSITY, D.I. KHAN through Chancellor and others

Writ Petition No.639-D of 2020 with C.M. No.708-D of 2020 (and others connected petitions), decided on 25th March, 2021.

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

----S.41---Contractual employees---Regularization, right of---Scope---Extension of employment contract from time to time---Held, that the petitioners were serving in the employer/University for a considerable period, however, Khyber Pakhtunkhwa Universities Act, 2012, governing the University and its employees did not provide any provision under which the petitioners could claim regularization as their vested right---Petitioners had wilfully surrendered to the terms and conditions of the respondents being made for a specific period---Grant of extension in service was evidently a stopgap arrangement---Petitioners had failed to point out any right to seek regularization on the basis of any constitutional guarantee, statutory law or instrument.

Pakistan Telecommunication Co. Ltd through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 and Zakat Department as well as appointment of Chairman of Central Zakat Council 2013 SCMR 304 ref.

(b) Constitution of Pakistan---

----Art.199---Civil service---Constitutional petition---Maintainability---Contractual employment, fixed pay and fixed salary employees had no right whatsoever to claim regularization or continuation of service by filing constitutional petition---Constitutional petition was not maintainable.

2013 SCMR 13 ref.

Muhammad Ghazanfar Ali for Petitioner.

Akbar Ali Khan Barakzai and Aamir Farid Saddozai for Respondents.

2021 P L C (C.S.) 1546

[Peshawar High Court]

Before Rooh ul Amin Khan and Syed Muhammad Attique Shah, JJ

JUNAID AHMAD

Versus

SECRETARY LOCAL COUNCIL BOARD, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and 10 others

Writ Petition No.3894-P of 2018, decided on 16th June, 2021.

(a) Civil Service---

----"Nomenclature"---Connotation---Word "nomenclature" comes from Latin word 'nomenclatera' which uses for 'the assigning of names'---In service matters, it is name or designation of post held by an employee during service---Nomenclature is always used in departments for pulling apart one post from another.

Merriam Webster Dictionary rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Civil service---Nomenclature, change of---Scope---Petitioner, employee of Tehsil Administration, was aggrieved of refusal by authorities to change nomenclature of the post held by him---Plea raised by petitioner was that nomenclature of posts held by other officials were changed---Validity---Under no provision, Tehsil Municipal Officer was vested with power to change nomenclature of any post or was authorized to create or abolish or upgrade a post in Tehsil Municipal Administration without sanction and prior approval of Secretary Local Council Board--- Change of nomenclature of some post without any law and procedure was not only nullity but also discriminatory on the part of Tehsil Municipal Authority---High Court declared orders in terms of change of nomenclature of different employees void ab-initio, and issued without lawful authority---High Court directed the authorities to rectify the wrong and remove inequities amongst employees and treat them in accordance with policy of 2019--- Constitutional petition was disposed of accordingly.

Muhammad Ijaz Sabi for Petitioner.

Sardar Ali Raza, A.A.G. and Badshah Rehman for Respondents.

2021 P L C (C.S.) 1589

[Peshawar High Court]

Before Qaiser Rashid Khan, CJ and Muhammad Naeem Anwar, J

Syed SHAHIN SHAH

Versus

The CHIEF SECRETARY, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and 5 others

Writ Petition No.7394-P of 2019, decided on 23rd February, 2021.

(a) Civil service---

----Constitution of Pakistan, Arts.4 & 25---Audit and Accounts allowance granted to employees of Provincial Treasury Service vide a notification---Discrimination---Equal protection of law---Scope---Petitioner [Deputy Director (Finance and Accounts) of Local Government, Election and Rural Development] sought extension of benefit of notification contending that he was working at the same post with the same functions as that of employees of Treasury Service---Validity---Neither the petitioner was employee of Federal/Provincial Treasury Service nor of Controller General of Accounts and Auditor General of Pakistan, whereas allowance-in-question was exclusively meant for employees of Provincial Treasury Service---Equal protection of laws by Art. 25 of the Constitution did not mean that all laws must be general in character nor that the same law should apply to all persons---Varying need of different classes of persons often required separate treatment---From the very nature of society there should be different laws in different places---Identical treatment in unequal circumstances, in fact, would amount to inequality---Reasonable classification thus was not only permitted but was necessary if society was to progress---Petitioner had failed to establish that any act of the respondents was mala fide and in colourable exercise of power, as there was no discrimination within a class/group of services of petitioner and those employees of Treasury Service--- Impugned notification was specific for the persons of a specific group/class, particular for the employees of Treasury Service leaving the persons of other groups/departments and the same could not be treated as discrimination with the petitioner---Constitutional petition was dismissed, in circumstances.

Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Charanjit Lai v. Union of India AIR (38) 1951 SC 41 and Dr. Mobashir Hassan's case PLD 2010 SC 265 ref.

1999 SCMR 2475 and PLD 1993 SC 375 distinguished.

(b) Constitution of Pakistan---

----Arts. 4 & 25---"Intelligible differentia"---Conditions---Scope---"Intelligible differentia" was a factor that distinguished or in different state or class from another which was capable of being understood---Persons might be classified into groups and such groups might be treated differently, if there was a reasonable basis for such difference---Article 25 of the Constitution forbad legislation, classification or differentiation which rested upon reasonable grounds of distinction---Principle of equity did not mean that every law must have universal application to all the persons who were not by nature, attainment or circumstances in the same position---Varying needs of different classes of persons required different treatment---In order to pass the test for permissible classification, two conditions must be fulfilled: firstly, the classification must be founded on an intelligible differentia which distinguished persons/things that were grouped together from others left out of the group; secondly, the differentia must have a rational nexus with the object sought to be achieved by the statute in question.

Bilal-ud-Din Khattak for Petitioner.

Syed Sikandar Hayat Shah, A.A.G for Respondents.

2021 P L C (C.S.) 1611

[Peshawar High Court]

Before Qaiser Rashid Khan, CJ and Syed Arshad Ali, J

TAHSIN ULLAH

Versus

CHAIRMAN KHYBER PAKHTUNKHWA, PUBLIC SERVICE COMMISSION and 6 others

Writ Petition No.5938-P of 2019, decided on 14th January, 2021.

Civil service---

----Refusal of Public Service Commission to recommend the candidate---Scope---Petitioner challenged the impugned refusal/order of the Public Service Commission for not recommending his name for appointment against the post despite being on top of the waiting list on the eve of non-joining of the one of the recommended candidates---Validity---Prior to the present process of appointment, the Commission had earlier initiated another process of appointment against the same post and in the said process of appointment the recommended candidate was appointed, therefore, there existed no reason that petitioner would also join the present post---High Court allowed the petition, declared that the case of petitioner did not fall within the mischief of non-joining policy of the Provincial Government and accordingly, held the refusal of the Commission for further recommendation of petitioner to the appointing department against the post concerned as illegal.

Musa Wazir and 2 others v. N.W.F.P Public Service Commission through its Chairman and others 1993 SCMR 1124 and Naimatullah and another v. N.W.F.P., Public Service Commission, Peshawar and others (Civil Petition No.1697/2010) rel.

Akhunzada Ahmad Saeed for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. along with S.O. (Lit) E&SE Deptt. and Mehtab Gul, Law Officer KPPSC.

2021 P L C (C.S.) 272

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

ABDULLAH and 7 others

Versus

PROVINCE OF BALOCHISTAN through Secretary Education Civil Secretariat and another

C.P. No.960 of 2019, decided on 29th November, 2019.

(a) Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984---

----Revised Teaching Staff (BPS-9 to 15) Recruitment Policy (2019)---Notification No. S.O (S-III)2-22/2019-Edu/5270-5364 dated 03-05-2019---Appointment against the post of Physical Education Teacher (BPS-14)---Petitioners having Diploma in Physical Education---Stipulation of diploma in Physical Education contained in Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984 was removed through Revised Teaching Staff (BPS-9 to 15) Recruitment Policy (2019)---Department invited applications for the post of Physical Education Teacher wherein condition of holding diploma in Physical Education was not stipulated---Petitioners being qualified candidates having Master Degree and Diploma in Physical Education requested the authorities to include the requirement of diploma in Physical Education for the post of Physical Education Teachers in Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984 but their request was declined---Validity---Authorities had removed condition of diploma in Physical Education for the post of Physical Education Teacher in Revised Teaching Staff (BPS-9 to 15) Recruitment Policy (2019) without any reason---Revised Teaching Staff (BPS-9 to 15) Recruitment Policy (2019) in presence of Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984 did not have overriding effect over the said Rules of 1984---Authorities, while devising Revised Teaching Staff (BPS-9 to 15) Recruitment Policy (2019) neither amended Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay Scale 1 to 15) Service Rules, 1984 nor brought the said Policy of 2019 in consonance with the Rules of 1984---Even Revised Teaching Staff (BPS-9 to 15) Recruitment Policy (2019) was silent with regard to removing the condition of holding a diploma in Physical Education---Rights of persons who were Physical Education Diploma holders and were eligible for the post of Physical Education Teacher had been infringed due to act of the authorities who had issued Revised Teaching Staff (BPS-9 to 15) Recruitment Policy (2019)---Authorities were directed by the High Court to insert the condition of diploma in Physical Education with second division in Revised Teaching Staff (BPS-9 to 15) Recruitment Policy (2019) and appoint the eligible candidates against the post of Physical Education Teacher in accordance with law---Constitutional petition was allowed in circumstances.

(b) Interpretation of statutes---

----Rules and regulations were subordinate and delegated legislation deriving authority and legal cover from the provisions of the parent statute---Rules framed under a statute could not override the provisions of the statute under which they were framed and on which their existence was dependent---Any policy framed could not override the rules which was otherwise a subordinate legislation.

Suo Motu case No.13 of 2019 PLD 2011 SC 619 rel.

Shams-ud-Din Achakzai and Humera Munir for Petitioners.

Shahid Baloch, Additional Advocate-General for the State.

2021 P L C (C.S). 47

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Amin-ud-Din Khan, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary

Versus

MUHAMMAD ARSHAD and 2 others

Civil Petitions Nos. 813, 814 and 815-L of 2020, decided on 7th September, 2020.

(Against the judgment dated 4.11.2019 passed by the Punjab Service Tribunal, Lahore in Appeal No. 5830 of 2015)

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

----S. 4--- Service Tribunal---Jurisdiction---Retribution, concept of---Applicability--- Punishment, quantum of--- Civil servant, after departmental proceedings was awarded punishment of reduction to four stages in pay scale and recovery of loss caused to government---Service Tribunal allowed appeal filed by civil servant and penalty imposed by authorities was set aside---Validity---Penalty was proportionate and commensurate with gravity of offence considering amount of loss caused to public funds on account of extreme negligence and inefficiency on the part of civil servants and the same was substantial which ran into millions---Service Tribunal wrongly relied upon the philosophy of basing punishment on the concept of retribution which according to the Tribunal could either to be through method of deterrence or reformation but such concept was neither relevant nor apt in the matter---Power of Tribunal to interfere in quantum of punishment was to be carefully exercised with utmost caution, care and circumspection---If such power was exercised, elaborate, cogent and legally sustained reasons were to be recorded---Judgment passed by Service Tribunal was devoid of any such reasoning let alone cogent or logical or legally sustainable---Service Tribunal exercised its jurisdiction carelessly and casually---Principles of law laid down by Supreme Court in its various pronouncements escaped notice of Service Tribunal---Supreme Court set aside judgment passed by Service Tribunal and punishment imposed by departmental authorities was restored---Appeal was allowed in circumstances.

Raja Muhammad Arif, Additional A.-G. with M. Abbas, Superintendent Agriculture Department for Petitioner.

Muhammad Yasin Bhatti, Advocate Supreme Court for Respondents.

2021 P L C (C.S.) 65

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Malik UBAIDULLAH

Versus

GOVERNMENT OF PUNJAB and others

Civil Petition No. 140-L of 2015, decided on 14th July, 2020.

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

----Preamble---UN Convention on the Rights of Persons with Disabilities (UNCRPD), 2006, Art. 27---Concept of Disability and the importance of role of employment in the lives of persons with disabilities as compared to persons without disabilities, stated.

Silvers, Anita. 2010. 'An Essay on Modeling: The Social Model of Disability.' In Philosophical Reflections on Disability, Philosophy and Medicine, 104, edited by Christopher D. Ralston, and Justin Ho. Berlin: Springer; Oliver, Mike. 1983. Social Work with Disabled People. Basingstoke: Macmillan and 1990. The Politics of Disablement: A Sociological Approach. London: Macmillan; Finkelstein, Victor. 1980. Attitudes and Disabled People. New York: World Rehabilitation Fund; Oliver, M., and C. Barnes, 1998. Disabled people and socially. From exclusion to inclusion - London LPC Group; Kamal Lamichhane. Disability, Education and Employment in Developing Countries- From charity to investment. Cambridge University Press. 2005; Moving from the margin - Mainstreaming persons with disabilities in Pakistan. British Council and The Economist Intelligence Unit- 2014; O'Day, B., and M. Killeen. 2002. 'Does U.S. Federal Policy Support Employment and Recovery for People with Psychiatric Disabilities?' Behavioral Sciences and the Law 20: 559-83; Linn, M. W., R. Sandifer, and S. Stein. 1985. 'Effects of Unemployment on Mental and Physical Health.' American Journal of Public Health 75 (5): 502-06; Ewa Giermanowska, Mariola Raclaw, Dorota Szawarska - Employing People with Disabilities, Palgrave, Macmillan, 2020; Kamal Lamichhane. Disability, Education and Employment in Developing Countries- From charity to investment. Cambridge University Press. 2005; Tushti Chopra, 'Expanding the Horizons of Disability Law in India: A Study from a Human Rights Perspective' (2013) 41 J.L. Med. and Ethics 807 and Cotter, Anne M. 2007. This Ability: An International Legal Analysis of Disability Discrimination. Aldershot, Hampshire: Ashgate ref.

(b) Constitution of Pakistan---

----Arts. 9, 14(1) & 25(1)---Persons with disabilities---Fundamental rights under the Constitution---Scope---Constitution, as a whole, did not distinguish between a person with or without disabilities; it recognized inherent dignity of a human being; equal and inalienable rights of all the people as the foundation of freedom, justice and peace---Every person was entitled to all the rights and freedoms set forth therein, without distinction of any kind, therefore, it applied equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination---Triangular construct of the right to life, dignity and equality under the Constitution provided a robust platform for mainstreaming persons with disabilities.

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

(c) Constitution of Pakistan---

----Art. 14(1)---Right to human dignity---Scope and purpose---Purpose of the constitutional right to human dignity was to realize the constitutional value of human dignity; to realize a person's humanity; his free will; the freedom to shape his life and fulfill himself; a person's freedom to write his life story---Such vibrancy and vitality was the hallmark of a living constitution in a democracy.

Aharon Barack- Human Dignity- The Constitutional Value and the Constitutional Right, Cambridge 2015 p.144; Pakistan Tobacco Co. Ltd. and others v. Government of N. W.F.P. through Secretary Law and others PLD 2002 SC 460 and Reference No.01/2012 (Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 PLD 2013 SC 279 ref.

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

----S. 10---Constitution of Pakistan, Arts. 9, 14(1) & 18---Employment of persons with disabilities---Disability quota---Allocation of 2% disability quota against sanctioned posts---Scope and meaning---Disability Quota was to be calculated on the basis of the total sanctioned posts of the establishment---In every tier of the establishment, the total Disability Quota was to be further apportioned and allocated amongst different categories of posts in the establishment---Determination of different categories was on the basis of their distinct qualifications, selection criteria and separate merit list---In case the sanctioned strength of a post was less than 50, it would be for the establishment to allocate seat(s) from the overall Disability Quota against such a post---If a particular post was not fit for a person with disabilities, the establishment may shift the Disability Quota and adjust it against another post in the establishment so that the overall Disability Quota was maintained at all times.

Section 10 of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 provided that not less than 2% of the total number of persons employed by an establishment at any time shall be persons with disabilities (PWDs). The total number of persons employed meant the total sanctioned posts of the establishment, i.e., an Organization, Authority, Department or Ministry. Two percent (2%) of the total sanctioned posts or workforce of the establishment became the Disability Quota for the establishment. Every establishment had a variety of posts with different qualifications; job descriptions and skill sets. Appointments to these posts were based on different selection criteria and separate merit lists. The mechanism for appointment against 2% Disability Quota was also to work side by side with the general recruitment process for every category of posts. Therefore, the total Disability Quota for the establishment was further apportioned and allocated against the sanctioned strength of various category of posts which had a separate selection criteria.

Phrase "disabled persons" is not approved should be persons with disabilities. Barrister Asfandyar Khan Tareen and others v. Government of the Punjab and others PLD 2018 Lah. 300 and Sajjad Ali v. Vice-Chancellor through Registrar University of Malakand at Chakdara, Dir Lower and others 2020 PLC (C.S.) 235 ref.

There may arise a situation where the posts in a particular category were less than 50, in that case it would be upto the establishment to allocate Disability Quota to respective categories of posts even though they were less than 50 posts in a particular category in order to maintain the overall Disability Quota of the establishment. It may also be the case that a particular category of posts in an establishment may not be fit for a person with disability, in that case the establishment may shift the Disability Quota to posts which are fit for PWDs. The prime objective was to maintain a 2% Disability Quota within the establishment and it was for the establishment to allocate the posts against respective categories in case they were less than 50 in a particular category or not suited to PWDs.

Allocation of 2% Disability Quota on the basis of the advertised posts as compared to the sanctioned posts was adverse to the interest of the PWDs for the reasons that 2% Disability Quota could only be actualized if there was a minimum of 50 posts advertised to secure one post for the PWDs. If the advertisement was for less than 50 posts (due to the vacancies arising at that particular time), Disability Quota on the basis of the advertised posts could not be worked out, depriving the PWDs of their prospect of employment. This could go on for a longtime as posts were advertised as per vacancies which varied from time to time, therefore, if Disability Quota were to be based on the advertised posts, the fate of the PWDs would continue to hang in the balance and remain uncertain unless the posts advertised happened to be above 50. It was, therefore, in the interest of the PWDs that the Disability Quota for the establishment was first worked out on the basis of the total sanctioned posts and then apportioned against the total sanctioned strength of different categories of posts. Thereafter, the posts could be successively filled as and when the vacancies arose through advertisement, keeping the total Disability Quota in mind rather than the number of posts advertised.

Filling the Disability Quota on the basis of advertised posts was, therefore, detrimental to the interest and welfare of the persons with disabilities; was against the letter of the law and offended their fundamental right to life and livelihood and their right to dignity. [p. 77] L

The advertisement for any category of post must clearly provide the total Disability Quota for that category of posts and the number of seats vacant under the said Disability Quota at the time of the advertisement.

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

----Preamble---Constitution of Pakistan, Art. 14(1)---Words "disabled," "physically handicapped" and "mentally retarded"---Such words deeply bruised and offended human dignity of persons with different abilities---Supreme Court directed that the Federal Government and the Provincial Governments were to discontinue the use of such words in official correspondence, directives, notifications and circulars and shift to "persons with disabilities" or "persons with different abilities"; that the view taken by the (Lahore) High Court in the judgment Barrister Asfandyar Khan Tareen and others v. Govt. of the Punjab and others (PLD 2018 Lahore 300) was approved and must be given effect to.

PLD 2018 Lah. 300 approved.

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

----S. 10---Constitution of Pakistan, Arts. 9, 14(1), 18 & 25(1)---UN Convention on the Rights of Persons with Disabilities (UNCRPD), 2006, Art. 2---Employment of persons with disabilities---Disability quota of 2% against sanctioned posts---Persons with disabilities must be provided with the infrastructure, access, support, and facilities at their workplaces---Appropriate modification and adjustments, including assistive technology, where needed, were to be provided to ensure that persons with disabilities could enjoy on an equal basis with others all human rights and fundamental freedoms.

Appointing persons with disabilities under Disability Quota of 2% was half the story. The other half and perhaps the more important half was to provide the infrastructure, access, support, and facilities, so that persons with disabilities, once appointed to a post, could perform their job without feeling physically or emotionally incapacitated in any manner. The biggest barriers to the employment of persons with disabilities was the accessibility and their social acceptability at the workplace. The Government and the concerned establishment was bound to make provisions for it, for otherwise, the Disability Quota and the purpose of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, would stand frustrated and serve no useful purpose. This support and facilitation for persons with disabilities had been recognized as 'Reasonable Accommodation' under the Convention on the Rights of Persons with Disabilities (CRPD) that Pakistan had ratified in 2011. It means necessary and appropriate modification and adjustments where needed in a particular case to ensure persons with disabilities the enjoyment on an equal basis with others of all human rights and fundamental freedoms.

Reasonable accommodation could be through assistive technology, which was an umbrella term that included assistive, adaptive, and rehabilitative devices for people with disabilities. Assistive technology promoted greater independence by enabling persons with disabilities to perform tasks that they were formerly unable to accomplish, or had great difficulty accomplishing, by providing enhancements to, or changing methods of interacting with, the technology needed to accomplish such tasks

Dr. K. Thiyagu, Assistive Technology and Inclusive Education, Laxmi Book Publications, 2014 ref.

Ishtiaq A. Ch., Advocate High Court appeared with permission of the Court along with petitioner for Petitioner.

S.N. Khawar, Addl. A.G. and Asif Mahmood Cheema, Addl. A.G. along with Tariq Habib, DEO/D.R. for Respondents.

2021 P L C (C.S.) 107

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Mazhar Alam Khan Miankhel, JJ

GHOUS BUKHSH

Versus

COMMANDER (A&Q) CHOLISTAN RANGERS, RAHIM YAR KHAN and others

Civil Petition No. 2222 of 2018, decided on 19th March, 2020.

(On appeal from the judgment dated 25.4.2018 passed by the Federal Service Tribunal, Lahore in Appeal No. 191(L) of 2017)

Pakistan Rangers Ordinance (XIV of 1959)---

----S. 15(1)---Member of Pakistan Rangers---Absence from duty for 12 days without a valid reason and authorization---Misconduct---Dismissal from service converted into removal from service---Plea of petitioner that he had a genuine reason for his absence, namely, the involvement of his mother in an accident and therefore, he had to leave his post in an emergency---Held, that admittedly leave was not obtained by the petitioner nor was any written application submitted by him for seeking such leave---During the period of his absence his mobile phone remained switched off---When the petitioner's Sector Commander received a SMS message from the petitioner, he wanted to contact him but the petitioner was not available---Petitioner's mother was admittedly advised rest for a few days after her thigh injury had been attended to---In the circumstances, the petitioner could have returned immediately thereafter, which he did not---Petitioner did not have a valid reason to remain absent from duty for 12 days---Petitioner belonged to a disciplined force/service and his absence from duty without authorization was a serious misconduct---Service record of petitioner showed that it was the third time during his service span that he remained absent without authorization---Action taken against the petitioner was justified, however the severity of the punishment of dismissal was the consequence that the petitioner could not seek government employment in any other department or office---Petitioner was an able bodied young man and may qualify for government employment where strict discipline was not enforced---Consequently, petition for leave to appeal was converted into appeal and partly allowed converting the petitioner's penalty of dismissal into removal from service.

Malik Mateeullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sajid Ilyas Bhatti, Additional A.-G. and Afzal Mehmood, Dy. Supdt. Rangers for Respondents.

2021 P L C (C.S.) 125

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA, WORKERS WELFARE BOARD through Chairman

Versus

RAHEEL ALI GOHAR and others

Civil Appeal No. 73 of 2020, decided on 16th July, 2020.

(Against judgment dated 29.03.2018 of Peshawar High Court, Peshawar in Writ Petition No. 4765-P of 2017)

(a) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S.11-B(3)---Contractual employees of Workers' Welfare Board, Khyber Pakhtunkhwa ('the Board') employed in technical institutes---Regularization in service---Legality---Employment of all the respondents (employees) was contractual in nature and none of their contracts contained any provisions for regularization---Besides all the appointments in the present case were illegal and not made through the mechanism provided for in the Workers' Welfare Fund Ordinance, 1971 ('the Ordinance')---All such appointments were made by a person who was not authorized to make the same by virtue of S.11-B(3) of the Ordinance---Appointments made by the Secretary of the Board had come under question based on the various allegations and charges of corruption, nepotism, and illegal acts brought against him and several other officers of the department before the accountability courts---Impugned judgment of the High Court whereby respondent-employees were regularized in service was set aside---Supreme Court highlighted some of the irregularities and violation of laws in the process of making appointments to different posts by the Board and passed appropriate directions.

All the contractual appointments made, in the present case, were illegal and were not made through the mechanism provided for in the Workers' Welfare Fund Ordinance, 1971 ('the Ordinance').

The Board was neither performing nor was it capable of performing its functions under the law, rules and regulations. This has led to indiscriminate loss and wastage of funds, a deluge of litigation and gross abuse and misuse of authority for personal or political motives.

Following were some of the flaws, irregularities and violation of laws, rules and regulations, etc in the process of making appointments to different posts by the Workers' Welfare Board, Khyber Pakhtunkhwa ('the Board'):

(i) Large number of appointments were made by persons, who did not have the power nor were competent to make such appointments. In a number of cases, there was no independent, impartial and duly approved Selection Board authorized by the competent authorities on the basis of rules or regulations to evaluate the academic credentials, competence, merit and suitability of applicants/candidates and make recommendations for appointments based upon merit;

(ii) Large number of vacancies were made available or created, whether the same were required or not, for which no justification was ever given or was available on record. There were no job descriptions, organograms, minimum academic qualifications, required experience (if any) or a selection criterion laid down for various posts;

(iii) Stopgap and ad hoc arrangements and criteria were utilized to tailor to the needs and objectives of the persons who were interested in making appointments for extraneous considerations which had no correlation or nexus with the needs or requirements of the Board and there was no internal and external accountability of any nature;

(iv) There was a constant rift between the Chairman of the Board and its Secretary which led to collapse of whatever system (if any) was there resulting in total disarray and chaos in the organization as well as amongst employees who worked and operated according to their own whims and caprices;

(v) The Board invariably acted as a helpless, hapless and disinterested onlooker with no sense of responsibility and no inclination to interfere or assert its powers to stop this blatant abuse of power; and

(vi) No effort was made to put in place an employment policy and a well thought and well designed service structure for employees of the Board and the hundreds of teachers and other staff hired much in excess of the actual requirement for schools set up and run by the Board.

In public interest Supreme Court passed the following directions in relation to the Board and persons employed by it for its various projects:

(i) The Provincial Government of Khyber Pakhtunkhwa shall constitute a committee headed by its Chief Secretary and consisting of highly respected and independent professionals possessing high degree of integrity from the fields of education, administration, finance, human resource and employment laws, etc. Such committee shall in the first instance examine the laws, rules and regulations governing the setting up, operation and functioning of the schools systems set up by the Board;

(ii) The Board shall provide the Committee all data, information financial documents, employment documentations, etc relating to terms and conditions of employment of the entire staff working in these Schools and such other information as the Committee may require. The Committee may with the approval of Chief Secretary/Chairman of the Committee co-opt any other member from any Government or private entity who may in the majority opinion of the Committee facilitate and add value to its deliberations;

(iii) The Committee shall also have the power to constitute sub-committees consisting of two or more members who will examine and streamline the entire process of employing persons in the projects of the Board especially its school projects. It will also examine and suggest changes in the system of appointments which would be made by Selection Boards constituted on the basis of recommendations to be made by this Committee. It shall also make recommendations for promulgating afresh or amending rules dealing with all existing staff in the schools/institutions and all matters related to their appointments. The Committee shall also get conducted an independent audit of the Board with special reference to school projects for the past seven years in order to fix responsibility for cronyism, favoritism, unnecessary litigation and leakage and wastage of funds with relation to illegal appointments made at various stages;

(iv) The Committee shall also prepare a comprehensive report regarding other aspects of the workings of the Board and its school projects within a period of three months and submit such report not only to the Provincial Government of Khyber Pakhtunkhwa but also to the Supreme Court for perusal in Chambers. It shall also review the powers, working and procedures of the Board and make recommendations to streamline its working and making all major decisions including sanction of projects and allocation of funds subject to approval of the Board. Recommendations shall also include measures to create a workable balance between the powers of the Board, the Chairman and Secretary and suggest inbuilt counterchecks on exercise of power at every stage;

(v) The Committee shall also coordinate with the National Accountability Bureau and Anti-Corruption Establishments and such other entities as may be charged with the responsibility to oversee and undertake accountability initiatives where public funds were utilized. It shall also point out the individuals who had been found by it to be involved in financial mismanagement, corruption, favoritism and misuse/ abuse of authority for initiation of proceedings against them in accordance with law;

(vi) The Committee shall also look into the working of the Board, its Management Committee, Chairmen as well as Secretaries of the Board for the past seven years and recommend appropriate action where any violation of the rules, regulations and laws, etc had been found;

(vii) It shall also examine the decisions taken by the Board and notifications issued from time to time to determine the objective behind the same; ensure that the same had been issued in the best interest of the Board and were in accordance with laws and rules failing which appropriate actions against those responsible for the same shall be recommended;

(viii) The Committee shall make such other and further recommendations as it may consider appropriate for better functioning of the Board so that it ran as an efficient, well structured, well planned and responsible entity; and

(ix) An exercise to scrutinize and screen teachers hired from February, 2011 to June, 2016 and to propose a rationalization programme to streamline the strength of teaching and non-teaching staff was undertaken by a rationalization Committee by the Khyber Pakhtunkhwa Workers Welfare Board in the year 2016. The said Committee after an elaborate and painstaking exercise submitted a comprehensive report on June 20, 2016 along with its recommendations. However said report was put in cold storage and never saw the light of the day. The reasons for such inaction were not hard to fathom. The Committee constituted herein shall consider the said report, replicate the exercise for the period between 2016 to 2020 and then ensure implementation of recommendations in letter and spirit.

Appeal was allowed and impugned judgment of High Court, whereby the respondent-employees of the Board were regularized, was set aside.

(b) Master and servant---

----Contract employees--- Regularization in service--- Scope---Contractual employees had no automatic right to be regularized unless the same had specifically been provided for in law.

Civil Petitions Nos. 4504 to 4576, 4588 and 4589 of 2017 dated 08.01.2013 ref.

(c) Constitution of Pakistan---

----Art. 199---Master and servant, relationship---Contract employees---Constitutional petition filed by contractual employees seeking regularization in service---Maintainability---Contractual employees, who were governed by the principle of master and servant, did not have the right to approach the High Court (in its constitutional jurisdiction) to seek redressal of their grievances relating to regularization.

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

(d) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----Ss. 4(1), 6 & 11---Funds provided to the Workers' Welfare Board ('the Board')---Scope---Such funds were in the nature of a trust and it was the responsibility first of the Provincial Government and thereafter of the Board to ensure that such funds were utilized in a most responsible, conscientious and honest manner with the object of advancing the welfare of the workers, contributions on whose account, constituted the substratum of the funds---Further, its affairs must be subjected to regular audit by an independent government agency.

Khawaja Azhar Rasheed, Advocate Supreme Court, Ahmed Nawaz Chaudhary, Advocate-on-Record, M. Azhar Hussain Shah, Dir. (Edu), Taj Wali Said, Dir. (Fin.), Qudrat Ullah, AD (L) and Said Umer (LA) for Appellant.

M. Shoaib Shaheen, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents.

2021 P L C 157

[Supreme Court of Pakistan]

Present: Mushir Alam, Maqbool Baqar and Munib Akhtar, JJ

Messrs SHAHBAZ GARMENTS (PVT.) LTD. and others

Versus

GOVERNMENT OF SINDH through Secretary Labour and Human Resource Department, Karachi and others

Civil Appeals Nos. 65-K to 117-K of 2019, decided on 11th March, 2021.

(On appeal from the judgment dated 23.8.2018 passed by the High Court of Sindh, Karachi in C.Ps. Nos. D-7077, 3082, 3083, 3940, 4068, 4429, 4918, 5140, 6009, 6063, 6899, 6900, 6971, 7117, 7118, 7119 of 2016, 460, 461, 464, 598, 783, 855, 886, 887, 946, 1282, 1309, 1339, 1340, 1764, 2281, 2755, 2825, 2913, 3569, 4527, 4533, 1637, 4810, 4947, 5736 to 5779, 6016, 6092, 9194, 7813, 8357, 8535 of 2017, 334, 335, 336, 479, 480, 481, 482, 539, 624, 897 to 903, 1037, 1272, 1273, 1274, 1276, 1277, 1740, 1766, 2040, 2236, 2263, 2265, 2700, 2872, 2873, 3016, 3017, 3127, 3158 and 3316 of 2018)

Sindh Employees' Social Security Act (VI of 2016) [as amended by the Sindh Employees' Social Security (Amendment) Act (XVIII of 2018)---

----Ss. 2(9)(e), 5, 20(1) & 75---Provincial Employees' Social Security Ordinance (X of 1965) [since repealed], Ss. 2(8)(f), 20 & 71---Provincial Employees' Social Security (Contributions) Rules, 1966 [as applicable in Sindh], Rr. 3, 4(3) & Sched.---Sindh Minimum Wages Act (VIII of 2016), S. 6---Minimum Wages Ordinance (XXXIX of 1961) [since repealed], S. 6---Social security---Rate of contribution---Rate of contribution for the period between the enactment of the Sindh Employees' Social Security Act, 2016 (from 12-04-2016) up to its amendment by the Sindh Employees Social Security (Amendment) Act, 2018 (from 17-05-2018)---Rate of contribution became unalterably fixed at six percent in the Sindh Employees' Social Security Act, 2016 ('the 2016 Act'); this consolidated in the parent statute (i.e. the 2016 Act') the position that had already emerged in Sindh since 1976, i.e., of the rate being fixed---Only difference was that previously this was the combined result of the Provincial Employees' Social Security Ordinance, 1965 ('the 1965 Ordinance') and the Provincial Employees' Social Security (Contributions) Rules, 1966 ('the 1966 Rules')---Fixed rate was seven percent from 1976 to 2008, and thereafter was six percent---Under the previous regime the situation could have been altered by suitable amendments to the 1966 Rules, though of course the "cap" imposed by the parent statute (i.e. the 2016 Act) of six percent could not be changed in such way---However, even the 1966 Rules were not changed, and entire position was consolidated and incorporated in the parent statute in 2016---When the 2016 Act came into force and up to the changes made by the Sindh Employees' Social Security (Amendment) Act, 2018 ('the 2018 Act'), a combined reading of S. 20(1) of the parent statute (i.e. the 2016 Act') and R. 4(3) of the 1966 Rules ensured that, as before, the rate of contribution was six percent, to be computed on the basis of the minimum wage---Amendments of the 2018 Act consolidated this position in the parent statute (i.e. the 2016 Act) by the introduction of the second proviso to S. 20(1), which, in effect, expressly incorporated in statute what had earlier been set out in the 1966 Rules.

Zahoor ul Hassan Minhas, Advocate Supreme Court and Jameel Ahmed Virk, Advocate-on-Record for Appellants (in C.As. Nos. 65-K to 92-K, 96-K, 98-K to 117-K/2019).

Shahid Bajwa, Advocate Supreme Court for Appellants (in C.A. No.65-K/2019).

Nemo for Appellants (in C.As. Nos.93-K to 95-K, 97-K/2019).

Jawad Akbar Sarwana, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 2 (in all cases.)

2021 P L C (C.S.) 163

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

FAYYAZ HUSSAIN and another

Versus

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

Civil Petitions Nos. 4041 and 4077 of 2019, decided on 17th August, 2020.

(Against judgment dated 10.10.2019 of Peshawar High Court, Peshawar passed to Writ Petition No. 1311-P of 2018 and Writ Petition No. 3577-P of 2017)

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

----S. 4(2)---Absorption of deputationist---Constable in Provincial Traffic Police ('the petitioner') sent to Federal Investigation Agency ('FIA') on deputation and ultimately absorbed as employee of FIA---Legality---Internal inquiry into absorption of petitioner into FIA recorded findings against the petitioner to the effect that he had been absorbed in violation of Standing Order No.21/84 as well as in violation of FIA Personnel Policy framed in exercise of powers under S. 4(2) of Federal Investigation Agency Act, 1974---Service history of petitioner showed that he was initially employed as a Constable/Computer Operator in the Provincial Traffic Police; he manipulated his successive promotions in a short span of time; he managed his promotions firstly as Head Constable, thereafter as ASI on officiating basis and subsequently as Sub-Inspector/Computer Operator---All such promotions happened within a span of few months which was not only unprecedented but quite surprising considering the mode and manner in which promotions were required to be given in terms of the rules and regulations of the department---Further, on transfer to FIA on deputation basis, the petitioner managed his permanent absorption within a period of one year and 28 days, which was a classical example of clever manipulation of the system through devious means and influence mongering---Considering the conduct and the manner in which the petitioner had quite cleverly manipulated the system for his personal benefits in violation of all applicable regulations, rules and laws, no discretionary and equitable relief could be granted to him---Petitioner's case was also squarely covered by the ratio of the judgment of the Supreme Court in Contempt Proceedings against Chief Secretary, Sindh and others (2013 SCMR 1752)---Petition for leave to appeal was dismissed and leave was refused.

Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 ref.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioners (in C.P. No. 4041 of 2019).

M. Shoaib Shaheen, Advocate Supreme Court for Petitioners (in C.P. No. 4077 of 2019).

Nemo for Respondents.

2021 P L C 191

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ALLIED BANK LIMITED

Versus

ZULFIQAR ALI SHAR and others

Civil Appeal No. 82 of 2016, decided on 26th April, 2021.

(Against order dated 30.09.2015 of High Court of Sindh at Karachi, passed in C.P. No. D-95 of 2011)

(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Employee convicted and sentenced for a criminal offence subsequently acquitted by the Appellate Court---Employer terminating services of employee---Whether the termination of services of such employee required the process of issuing a show-cause notice, holding a regular inquiry and the passing of a proper order by the competent authority after granting him a personal hearing or, was his termination simpliciter not requiring the said process---Held, that respondent-employee was accused of an offence, an FIR was lodged against him and he was arrested and later convicted by a Court of competent jurisdiction; he remained incarcerated for more than 6 years during which time he was not available to perform services as a cashier for the appellant-Bank (employer) for which he had originally been employed--- urthermore, the respondent-employee was holding the said post at the time when he got involved in the criminal offence---Courts below misinterpreted the respondent's letter of termination as one of dismissal from service for misconduct which was not the case as was evident from the record as well as the contents of the letter of termination---Scope of inquiry of Labour Court, Labour Appellate Tribunal as well as the High Court was limited to the extent of determining whether or not the reasons given by the appellant-Bank justifying its action for termination in simpliciter were explicit, clear, enough and valid---Lower fora could not have gone on the premise that the respondent-employee had been dismissed from service for misconduct and the process for dismissal from service for misconduct namely a show cause notice, regular inquiry and order of dismissal had not been followed---Order of termination of services of the respondent-employee was in essence and for all intents and purposes, an order under S.O. 12(3) of the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, hence, it was a case of termination in simpliciter---Termination of the respondent-employee was not on account of misconduct and there was neither any requirement to issue a show cause notice, a charge sheet, regular inquiry and complete the process for dismissal on the ground of misconduct---Reason of termination of respondent's services was explicitly, clearly and unambiguously communicated to him and requirements of S.O. 12(3) of the Ordinance had properly and adequately been met---Order of termination in simpliciter passed by the appellant-Bank was affirmed, restored and upheld---Appeal was allowed.

Fazal Dad v. Attock Electric Supply Company Limited 1977 PLC 364; Muhammad Ramzan v. Messrs National Motors Limited 1980 PLC 780; Sikandar Hayat v. Sindh Labour Appellate Tribunal 1991 PLC 508; Ahmad Barch v. Chairman, Pakistan Steel, Karachi 2006 PLC (C.S.) 993 and Messrs Indian Iron and Steel Company v. Their Workmen AIR 1958 SC 130 ref.

(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Reinstatement in service---Scope---In exercise of powers under S.O. 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ('the 1968 Ordinance'), where power of termination was "in simpliciter", and such order met and fulfilled the criteria given in S.O. 12(3), a workman could not be reinstated into service on the ground that charges of misconduct had not been established and that no regular inquiry was held against him---Requirement of law was limited to the extent of communication of the order in writing explicitly stating the reasons for such action---Such action could not be set aside or declared illegal simply on the ground that termination of service could only be made on proof of misconduct after issuance of a show cause notice, conducting a regular inquiry and by orders of the employer after granting him a personal hearing---Such interpretation would negate the very object and purpose of S.O. 12(3) of the 1968 Ordinance which envisaged that under certain circumstances, the employer could terminate the services of a workman "in simpliciter" by giving explicit reasons justifying such termination.

(c) Interpretation of statutes---

----"Ordinary meaning and usage of words"---Scope---In constructing and interpreting statutes, the Court first had to look at the language of the law and interpret the same in accordance with the ordinary meaning and usage of the words---Context in which the said words had been used by the legislature as evident from the language of the provision itself could also be considered without adding to or subtracting anything from the same---Incase of lack of clarity, as a second step, the Court may look for the intent and purpose of the lawmaker in using a particular language and words as evident from the language of the statute.

(d) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Employee convicted and sentenced for a criminal offence subsequently acquitted by the Appellate Court---Employer terminating services of employee---Question as to whether an employer was required to wait indefinitely and keep a post vacant till such time that all appellate remedies were exhausted and the employee became available to perform services against the post for which he was employed---Held, that it was unfair and unjust to expect an employer to wait indefinitely and keep a post vacant till such time that the employee had exhausted all legal remedies and in the meantime was either incarcerated or for any other reason unable or unwilling to join his duty and perform services for extended periods of time---Employer was only required to wait for a reasonable time which could vary on a case to case basis depending upon the nature of the job that the delinquent employee was performing and how long it could realistically be kept open and vacant without materially affecting the working of the employer---In the absence of mala fide on the part of the employer a reasonable period should not ordinarily exceed a period of two months during which if an employee was unable to return to work his services could be terminated simpliciter in exercise of powers under S.O. 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Shahid Anwar Bajwa, Senior Advocate Supreme Court for Appellant.

Syed Rafaqat H. Shah, Advocate-on-Record for Respondent No.1.

2021 P L C (C.S.) 207

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Munib Akhtar, JJ

SENIOR GENERAL MANAGER/CEO, PAKISTAN RAILWAYS HEADQUARTERS, LAHORE and others

Versus

ASIF ALI and others

Civil Appeals Nos. 675 to 988 of 2019, decided on 15th May, 2019.

(On appeal from the judgment/order dated 30.08.2018 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 336 to 386, 404 to 405, 1084 to 1198(R)CS/2018, 4428 to 4500(R)CS/2017, 23 to 67(P)CS/2018, 259 to 263(R)CS/2018, 1523 to 1545(R)CS/2018)

Pakistan Railways Personnel Manual---

----Cl. 214(G)---Apprentice employees---Annual increments, entitlement to---Apprentice loco cleaners in Pakistan Railways sent for T-4 training course for a period of two years at the Walton Training Academy ('the Academy')---Question as to whether the respondents (apprentice loco cleaners) were entitled to the grant of annual increments for the period of two years training undergone by them at the Academy---Held, that Cl. 214 of the Pakistan Railways Personnel Manual ('the Manual') provided that during their period of apprenticeship the apprentices were not eligible to be in regular employment of the Pakistan Railways---During the training period for the T-4 course, the Apprentices/ Stipendiary students did not qualify as regular employees of the Pakistan Railways and were therefore not entitled to service benefits which included annual increments that were undoubtedly an incident of regular employment---Service benefits corresponding to regular employment, namely, inter alia, annual increment was not available to apprentices as clarified in sub-clause (G) of Cl. 214 of the Manual.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Rizwan Saeed Khan, Dy. Chief for Appellants.

Ms. Shireen Imran, Advocate Supreme Court for Respondents.

2021 P L C (C.S.) 268

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz-ul-Ahsan, JJ

DIRECTOR GENERAL OF INTELLIGENCE AND INVESTIGATION, F.B.R., ISLAMABAD and others

Versus

MUHAMMAD ASLAM KHAN

Civil Appeal No. 551 of 2020, decided on 21st September, 2020.

(Against the judgment dated 18.12.2018, passed by the Peshawar High Court, Peshawar in W.P. No.5030-P of 2017).

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

----R. 8-B---Constitution of Pakistan, Art. 27---Lower division clerk (LDC) in Federal Board of Revenue (FBR), post of---Direct recruitment post---Respondent-employee promoted to LDC post on acting charge basis in violation of the direct recruitment method---Respondent seeking confirmation to post of LDC after probationary period---Held, that FBR itself violated the mandate of Art. 27 of the Constitution when it promoted the respondent from the post of Sepoy to the post of LDC, on acting charge basis, against the post specifically reserved for direct recruitment---Granting of such promotion to the respondent was a voluntary act of the FBR---Respondent for almost 10 years served on the post of LDC and when he asked for confirmation, it was refused to him---In such circumstances FBR could not be allowed to take refuge under R. 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and approbate and reprobate at the same time, and in law, FBR would be estopped from taking such position---Federal Board of Revenue (FBR) could not be allowed to make its ministerial staff hostage to its own arbitrary, whimsical and capricious conduct and play with the employment of its ministerial staff---High Court had rightly held that respondent shall be deemed to be confirmed as LDC (BPS-7), immediately, after completion of probationary period with all service benefits --- Appeal was dismissed with a direction to Chairman, FBR to take appropriate action against the delinquent officials.

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

----R. 8-B---Appointment/promotion on acting charge basis---Scope---Rule 8-B of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provided for promotion on acting charge basis, but said Rule was to be used in bona fide situations and for bona fide purposes, and not to exploit employees.

M.D. Shahzad Feroz, Advocate Supreme Court with Muhammad Israr ul Haq, Intelligence Officer for Appellants.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2021 P L C (C.S.) 277

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

The DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, RAWALPINDI and others

Versus

Syed IRSHAD ALI ABID

Civil Appeal No. 1470 of 2015, decided on 29th November, 2018.

(On appeal from the judgment/order dated 24.08.2015 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1912(R)CS/ 2012).

Constitution of Pakistan---

----Art. 25---Employee of Pakistan Railways---Scheme for encouraging higher education---Employees with higher education entitled for advance increments---Withdrawal of scheme---Plea of discrimination---No vested right--- Promissory estoppal--- Applicability--- Scope---Respondent-employee secured his LL.B degree in the year 2002 on the basis of the scheme in question introduced by the Railway Authorities in the year 1996---Respondent claimed four advance increments on account of having secured the said degree---Employer/Pakistan Railways contested the claim on the ground that the incentive scheme was discontinued by the Railway authorities vide notification dated 13.9.2001---Service Tribunal found that the employee was entitled to the advance increments for two reasons; firstly, in similar cases the relief was granted in the year 2011 after the closure of the scheme and secondly, the Railway authorities had conceded and granted the right to such relief in the case of several similarly placed persons---Consequently, denial of the relief to the employee would constitute discrimination---Held, that perusal of the record showed that the persons who were granted relief by the Service Tribunal had obtained their higher qualification prior to the year 2001, consequently, they enjoyed same entitlement which was given judicial recognition---In the second category of cases the judgments given by the Service Tribunal were given ex-parte against Pakistan Railways---Furthermore, neither of the said orders dealt with the withdrawal of the scheme vide notification dated 13.9.2001---Respondent was making his claim in the year 2012 before the Service Tribunal although the benefit scheme had been withdrawn in the year 2001---Although Railways had given an assurance that an alternative scheme would be introduced again in due course, but till date that had not happened---No promissory estoppel had arisen in the present case because the scheme was withdrawn before the employee secured his higher qualification in the year 2002---Consequently, there was no vested right in the employee to be granted the benefit of abolished scheme---Appeal was allowed and impugned judgment of Service Tribunal was set aside.

M.D. Shahzad Feroz, Advocate Supreme Court for Appellants.

Kh. Muhammad Arif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2021 P L C (C.S.) 292

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar andSayyed Mazahar Ali Akbar Naqvi, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Energy (Power Division), Islamabad and others

Versus

SHAFIQ UL HASSAN and others

Civil Petition No. 2482 of 2020, decided on 2nd October, 2020.

(On appeal against order dated 09.09.2020 passed by the Lahore High Court, Lahore in Writ Petition No. 39841 of 2020)

Constitution of Pakistan---

----Art. 199---Civil service---Interim order passed by High Court in its constitutional jurisdiction---Scope and principles---Grant of interim relief which had the effect of permanence was violative of the rule laid down by the Supreme Court in the case of Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1508)---Constitutional jurisdiction by Superior Courts must be exercised according to the settled principles of law---Granting longevity to a suspensory order without hearing the other side was, if at all, done exceptionally, as this was necessary for ensuring the majesty of the law and preserving public trust in the courts of law---Policy of Supreme Court was that it interfed with interim orders passed by the High Court only exceptionally; this would be in cases of serious violation of the law or wrongful exercise of jurisdiction.

Islamic Republic of Pakistan v. Muhammad Zaman Khan 1997 SCMR 1508 ref.

Aamir Rehman, Additional A.G. Pakistan for Petitioners.

Shohaib Shaheen, Advocate Supreme Court, Syed Khawar Ameer Bokhari, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondents.

2021 P L C (C.S.) 319

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

SECRETARY ESTABLISHMENT DIVISION, ISLAMABAD

Versus

TAHAWWAR AHMAD

Civil Appeal No. 559 of 2020, decided on 16th September, 2020.

(Against Order dated 05.06.2018 of Federal Service Tribunal, Islamabad passed in R.P. No. 75 of 2018 in M.P. No. 3155 of 2017 in Appeal No. 1781(R)CS of 2011)

Fundamental Rules---

----F.R. 17---Civil servant granted pro forma promotion to BS-22 on orders of the Federal Service Tribunal---Allotment of additional plot, entitlement to---Civil servant who was granted proforma promotion was entitled only to arrears of pay and allowances of such higher post and nothing more---Question of allotment of an additional plot in terms of the Government's policy did not relate to or grant any benefit to the civil servants who had been granted proforma promotion as the same was limited to civil servants who were eligible and had been promoted/inducted as Federal Secretaries---Service Tribunal in its original judgment had granted respondent-civil servant ante-dated promotion only---Tribunal while exercising jurisdiction for implementation of its judgment lacked powers as well as jurisdiction to modify or amend its original judgment which was limited to grant of ante-dated promotion only---On a miscellaneous petition filed by the respondent the Tribunal acted illegally and without jurisdiction by expanding the scope of its original judgment in directing the competent authority to process the case for allotment of an additional plot in favour of the respondent---In passing such order, the Tribunal neither considered the meaning and scope of FR-17 nor the policy of the Government---Order passed by the Tribunal to process the case for allotment of an additional plot in favour of the respondent was set aside.

Service Tribunal while allowing the appeal of the respondent-civil servant granted ante-dated promotion only and did not grant the other reliefs that he had prayed for in his appeal which was evident from the perusal of the judgment. Only the prayer to the extent of grant of ante-dated promotion was allowed and the other prayers made in the service appeal were declined. The respondent thereafter filed a miscellaneous petition seeking implementation of the said judgment of the Tribunal. The said petition was allowed. However, in allowing the said petition the Tribunal effectively modified its original judgment by directing that the respondent may be granted proforma promotion with all consequential, financial and other benefits and all privileges attached with the grades/posts within two months. The Tribunal was exercising jurisdiction for implementation of the judgment and it lacked powers as well as jurisdiction to modify or amend its original judgment which was limited to grant of ante-dated promotion only. In compliance of order passed by the Tribunal, the matter was placed before a high level Committee under FR-17(I) for approval of the competent authority and the respondent was granted ante-dated promotion to BS-20 with effect from 31.05.2001 to 25.08.2006, BS-21 with effect from 18.12.2007 to 16.03.2009 and BS-22 with effect from 03.08.2011 for the purpose of payment of arrears of pay and allowances only. The meaning, tenor and scope of the notification in question was quite clear. The respondent never challenged the said notification before any competent forum.

Subsequently the respondent approached the Establishment Division vide applications requesting that his case be recommended to Ministry of Housing and Works for allotment of an additional Category-I plot. Such requests were declined by the Establishment Division vide a letter, which the respondent never challenged before any forum and instead filed yet another miscellaneous petition in his main appeal before the Service Tribunal. The Tribunal took cognizance of the matter and expanded the scope of its original judgment yet further by directing the competent authority to process the case for allotment of an additional plot in favour of the respondent within a period of one month. Such modification of the original judgment by the Tribunal while exercising powers in miscellaneous petition was wholly illegal and without jurisdiction. In passing such order, the Tribunal neither considered the meaning and scope of FR-17 nor the policy of the Government for allotment of an additional plot to the retired civil servants who were granted proforma promotion to BS-22.

Civil servant who was granted proforma promotion was entitled only to arrears of pay and allowances of such higher post and nothing more. The question of allotment of an additional plot in terms of the Government's policy did not relate to or grant any benefit to the civil servants who had been granted proforma promotion as the same was limited to civil servants who were eligible and had been promoted/inducted as Federal Secretaries. Order passed by the Tribunal to process the case for allotment of an additional plot in favour of the respondent was set aside.

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan and Syed Rifaqat H. Shah, Advocate-on-Record for Appellant.

Respondent in person.

2021 P L C (C.S.) 341

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health, Peshawar and others

Versus

JAWAD ALI and others

Civil Appeals Nos. 248, 252, 253, 254, 265, 269, 270, 271, 277, 280, 284 and 302 of 2020, decided on 21st October, 2020.

(Against the judgment dated 26.09.2017, 23.11.2017, 14.03.2018, 10.04.2018, 04.09.2018, 11.10.2018, 05.12.2018, 14.03.2019 of the Peshawar High Court, Peshawar, passed in Writ Petitions Nos. 3958-P/2014, 37-P/2017, 38-P/2017, 4733-P/2016, 1008-P/2017, 786-A/2016, 787-A/2016, 678-P/2017, 866-A/2018, 2361-P/2014, 1015-A/2018 and 4272-P of 2017)

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

----Ss. 2(b) & 3---Project employees---Regularization in service---Scope---Contractual employees of a private company (Sarhad Rural Support Programme) working on temporary project posts in an outsourced project of the Provincial Government---Provincial Government did not have any concern with the terms and conditions of the services of such employees as they were employed by the private company who paid and supervised them and was responsible for all matters regarding their contractual employment---Such employees could not claim regularization in service under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009.

Perusal of the Memorandum of Understanding signed between the Provincial Government and private company (Sarhad Rural Support Programme) showed that the company retained sole discretion over the employment, posting, removal, remuneration and customary managerial prerogative over the staff it recruited for the Provincial Government projects. It was clear all along to all concerned parties including the employees of the company that they shall have no claim against the Provincial Health Department upon conclusion of the agreement. Moreover, the company policy made it clear from the outset that the employees were hired against project posts for a definite period of time and that upon the termination of the project they were to be relieved from their services. The employees were never appointed on contract basis by the Provincial health department. The agreement also envisaged that the Provincial Government did not have any concern with the terms and conditions of the services of the employees as they were employed by the private company who paid and supervised them and was responsible for all matters regarding their contractual employment.

Present case was a clear case of bona fide outsourcing, an arm's length transaction where a private company entered into an agreement with the Provincial government to provide certain services, for a certain period of time. Such services were to be provided by the private company by employing its own staff which was neither supervised nor paid by the Provincial Government. More importantly, the Provincial Government could neither hire nor fire them and they were to be supervised and were answerable to their own employer i.e. the private company.

In such arm's length transactions, any staff member recruited by the company and appointed to the project did not under any circumstances either directly or by implication become an employee of the government. Therefore, the employees being project-based employees, recruited and supervised at the sole discretion of the private company, could not be deemed to be employees of the Provincial Government and therefore did not fall within the purview of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009. For the said Act to apply, it was the Government that must employ the individual as a contractual employee.

State Oil Company Limited v. Bakht Siddique 2018 SCMR 1181 distinguished.

Furthermore the definition of employee provided under section 2(b) of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 clearly indicated that the term 'employee' explicitly excluded any persons appointed for project posts. Appeal were allowed.

(b) Employer-employee---

----Project employees---Meaning---Word 'project' indicated any endeavor which was for a definite period of time and upon the completion of the said project, employees who were hired for that definite period had to be relieved from their duties.

Pakistan Railways through Chairman, Islamabad and another v. Sajid Hussain and others 2020 SCMR 1664 ref.

Barrister Qasim Wadood, Additional A.G. Khyber Pakhtunkhwa and Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa for Appellants (in all cases).

Muhammad Shoaib Shaheen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1-3, 5, 6, 8-25 (in C.A. No. 248 of 2020).

Nemo. for Respondents Nos. 4, 7, 26 (in C.A. No. 248 of 2020).

Mukhtar Ahmed Muneri, Advocate Supreme Court for Respondents Nos. 1, 3, 7, 8, 11, 13, 14, 16, 19-21 (in C.A. No. 252 of 2020).

Mukhtar Ahmed Muneri, Advocate Supreme Court for Respondents Nos. 3, 6, 7, 18 and 19 (in C.A. No. 2265 of 2020).

Mukhtar Ahmed Muneri, Advocate Supreme Court for Respondent No. 2 (in C.A. No. 284 of 2020).

Rehman Ullah, Advocate Supreme Court for Respondents Nos. 4, 5, 15 and 18 (in C.A. No. 252 of 2020).

Rehman Ullah, Advocate Supreme Court for Respondent No. 2 (in C.A. No. 253 of 2020).

Rehman Ullah, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 254 of 2020).

Nemo for Respondent No. 1 in C.As. Nos. 253 and 284 of 2020, for Respondents in C.As. Nos. 277, 302 of 2020 and for remaining Respondents in C.As. Nos. 252, 265, 269, 271 and 270 of 2020.

Altaf Ahmed, Advocate Supreme Court for Respondents Nos.5, 8, 25, 27 and 31 (in C.A. No. 265 of 2020).

Muhammad Siddique, Advocate Supreme Court for Respondents Nos.1, 2, 8-13 (in C.A. No. 269 of 2020).

Muhammad Siddique, Advocate Supreme Court for Respondents Nos.1, 3-7 and 9 (in C.A. No. 271 of 2020).

Nasir Mehmood, Advocate Supreme Court for Respondents Nos.1 to 12 (in C.A. No. 280 of 2020).

2021 P L C (C.S.) 362

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

Dr. ZOHARA JABEEN and others

Versus

MUHAMMAD ASLAM PERVAIZ and others

C.As. 762-L to 766-L of 2012, decided on 2nd December, 2020.

(On appeals from the judgments of Punjab Service Tribunal, Lahore dated 26.03.2012, passed in Appeals Nos.3776 to 3780/2010)

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

----S. 7(2), proviso---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 8(2), Explanation---Batch of 'promotees'---Seniority---Scope---Where civil servants were selected for promotion in a "batch'" or as a "group of persons" then the date of promotion of all the persons in the batch or the group shall be the date when anyone of them was first promoted to the post and they shall retain their inter se seniority---Word "batch" used in S. 7 of Punjab Civil Servants Act, 1974 ('the Act') had been interchangeably used as "group of persons" in R. 8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Promotees in the same grade, when considered and recommended for promotion for the next grade in the same Departmental Promotion Committee (DPC) passed for a "batch" or "group of persons" and therefore as would be considered to have been promoted from the date when the first amongst the batch was promoted and would also retain their inter se seniority of the lower post.

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

----S. 7---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 8---District Population Welfare Officers---'Promotees' and 'direct appointees'---Seniority---Scope---Direct appointees/respondents were appointed through initial appointment on 3-12-2003, a day after the promotion of the first promotees out of the batch of promotees; hence the direct appointees would fall under the promotees in the seniority list---Appeals were allowed. [

Malik Muhammad Awais Khalid, Advocate Supreme Court for Appellants (in all cases).

Amir Sana Ullah, Advocate Supreme Court for Respondent No. 1.

Ch. Zafar Hussain Ahmed, Additional A.G., Ali Bahadur, Secretary, Population Welfare Department, Khalid Pervaiz, Additional Secretary along with Tania Malik, D.S. and Arooj Naseem, S.O. for Respondents Nos. 2 to 4.

2021 P L C (C.S.) 385

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

NATIONAL BANK OF PAKISTAN and another

Versus

ZAHOOR AHMED MENGAL

Civil Appeal No. 681 of 2020, decided on 26th November, 2020.

(Against the judgment dated 30.12.2019, passed by the High Court of Balochistan, Quetta in C.P. No. 869 of 2016)

(a) Civil service---

----Employee of National Bank of Pakistan ('the bank')---Absence from duty---Termination of employment---Employee had remained absent from 31-10-2014 to 7-4-2016 except for one day i.e. 2-2-2016, when he stated to have reported for duty---Employee was issued three absence notices by the Bank at various times to join duty but he failed to do so, rather took a plea that on account of a tribal feud and threats to his life he was unable to work in the Bank---Employee did not provide any material or evidence showing that in fact there was any tribal feud or there was a threat to his life and even no instance in such regard whatsoever was pointed out by him---Not even an FIR of any incident showing threat to the life of the employee was provided to the Bank---In the face of admitted absence from duty, there was no need to hold a regular enquiry in the present case---Service of employee had rightfully been terminated---Appeal was allowed.

Federation of Pakistan through Secretary Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmed Malik 2020 SCMR 1154 ref.

(b) Civil service---

----Employee admittedly absent from duty---Disciplinary proceedings---Regular inquiry---Scope---Where the fact of absence from duty was admitted, there was no need for holding of a regular enquiry for that there was no disputed fact involved to be enquired into.

Federation of Pakistan through Secretary Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmed Malik 2020 SCMR 1154 ref.

(c) Revised Leave Rules, 1980---

----R.9(3)---Extraordinary leave without pay ('EOL')---Scope---Unauthorised absence from duty---While imposing penalty on the employee in the case of unauthorized absence, the absence period treated as an EOL was not a punishment, rather it was a treatment given to the absence period, which the employer was entitled to do.

National Accountability Bureau through 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.

Kaleemullah Qureshi, Advocate Supreme Court for Appellant (via video link from Quetta).

Kamran Murtaza, Senior Advocate Supreme Court for Respondent (via video link from Quetta).

2021 P L C (C.S.) 405

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Sardar Tariq Masood and Ijaz ul Ahsan, JJ

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad

Versus

SHAFQAT-UR-REHMAN RANJHA and others

Civil Appeal No. 497 of 2020, decided on 28th October, 2020.

(Against the order dated 02.10.2018 passed by the Islamabad High Court, Islamabad in I.C.A. No. 66 of 2018)

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

----Rr. 2(2), 5(iv) & 6A(2)---Disciplinary proceedings---Inquiry officer recommending exoneration of civil servant---Prime Minister ('the Authority') ordering a de novo inquiry against the civil servant---Legality---As per R. 5(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 ['the E&D Rules'], the Authorized Officer upon receipt of the report of the inquiry Officer or Inquiry Committee was required to determine whether the charge against the accused was proved---If it was proposed that a major penalty be imposed, the Authorized Officer was required to forward the case of the accused to the Authority ( i.e. the Prime Minister) along with all the requisite material forming basis for the proposed penalty---Once the same was done it was then upon the Authority to decide and pass the final order---Authority was fully empowered to examine the record and recommendation which it had received from the Authorized Officer and pass an appropriate order---Authority had the power to agree with the recommendation, disagree with the recommendation and either pass a final order on the basis of the record before it after providing an opportunity of hearing, or if dissatisfied with the inquiry, order a de novo inquiry for valid and recorded reasons---Appeal was allowed.

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

----R.5(iv)---Civil Servants(Appeal) Rules, 1977, R. 2(a)(iii)---Constitution of Pakistan, Arts. 199 & 212---Civil service---Disciplinary proceedings---After completion of inquiry proceedings the Inquiry officer recommended exoneration of civil servant---Prime Minister ('the Authority') not agreeing with the recommendation of the Inquiry officer ordered a de novo inquiry against the civil servant---Civil servant filed a Constitutional petition before the High Court challenging the order of de novo inquiry---Maintainability---Rule 2(a)(iii) of the Civil Servants (Appeal) Rules, 1977 provided that an order by the Prime Minister was appealable to the President---In the present petition, no such appeal was filed---Instead the civil servant choose to file a Constitutional petition before the High Court---Right of appeal being available under the rules, which was admittedly not availed, the High Court should have refrained from exercising its extraordinary constitutional jurisdiction which was equitable and discretionary in nature---Furthermore the issue raised clearly fell within the ambit of Federal Service Tribunal in terms of Art. 212 of the Constitution---Appeal was allowed with the consequence that Constitutional petition filed before the High Court was dismissed.

Sohail Mahmood, Additional Attorney General of Pakistan with Sajid-ul-Hassan, S.O. for Appellant.

Raja Saif-ur-Rehman Advocate Supreme Court for Respondent No. 1.

2021 P L C (C.S.) 420

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

AJMIR SHAH, EX-SEPOY

Versus

The INSPECTOR-GENERAL, FRONTIER CORPS KHYBER PAKHTUNKHWA and another

Civil Petition No. 4862 of 2018, heard on 19th August, 2020.

(Against the judgment dated 23.11.2018 of the Federal Service Tribunal, Islamabad passed in Appeal No. 508(P)CS/2013).

(a) Frontier Corps Rules, 1961---

----R. 14---Frontier Corps Ordinance (XXVI of 1959), S.10---Sepoy in Frontier Corps---Appeal against dismissal from service---Time barred appeal---Reading of R. 14 of the Frontier Corps Rules, 1961 and S. 10 of the Frontier Corps Ordinance, 1959, made it clear that petitioner-Sepoy was entitled to file departmental appeal against the order imposing upon him penalty of dismissal from service and such departmental appeal had to be filed by the petitioner within one month from the date on which he was informed of the order appealed against---Admittedly the petitioner filed the departmental appeal against the order of dismissal dated 23-10-2008 on 28-03-2013, i.e. after more than 4 years and 5 months---In terms of R. 14 of the Frontier Corps Rules, 1961 the petitioner was required to apply to the authority against whose order he wished to file an appeal for extension of time citing unavoidable causes of delay and only after the authority had so certified, the delay in filing of the departmental appeal could be condoned---However the record showed that the petitioner had not applied to the authority seeking extension of time for filing of a departmental appeal--- Furthermore the principle of implied extension could not be pressed in the present case, for that, in terms of the R. 14 the appellate authority was not vested with the power of granting extension in filing of a departmental appeal---Service Tribunal had rightly found the service appeal of the petitioner to be time barred---Petition for leave to appeal was dismissed and leave was refused.

Usman Ali Chhachhar v. Moula Bukhsh Chhachhar 2019 SCMR 2043) = 2020 PLC (C.S.) 34 distinguished.

(b) Frontier Corps Rules, 1961---

----R. 14---Frontier Corps Ordinance (XXVI of 1959). S. 10---Sepoy in Frontier Corps---Appeal against dismissal from service---Time barred appeal---Departmental appeal against dismissal order had to be filed by the petitioner-Sepoy within one month from the date on which he was informed of the order appealed against, however he filed the same after more than 4 years and 5 months---Plea of petitioner that he did not file the departmental appeal within time, for the reason that service appeal of one of his colleagues was pending before the Tribunal and petitioner waited for the decision of the said service appeal, and only after such service appeal of his colleague was decided by the Tribunal, converting his penalty of dismissal to compulsory retirement, upheld by the Supreme Court and implemented by the department, the petitioner filed the departmental appeal---Validity---Such plea was not a sufficient cause or reason for the petitioner to file his departmental appeal after more than 4 years and 5 months---Petitioner himself did not seem to be aggrieved of the order by which he was .dismissed from service and his assertion that he waited for the result of the service appeal of his colleague showed that the petitioner relied upon the grievance of his colleague and not of his own---Law did not leave choice to an employee to raise his grievance after his colleague succeeded in his case---Employee had to raise his grievance immediately when cause to him had arisen and more so within the limitation period for it provided by law---Service Tribunal had rightly found the service appeal of the petitioner to be time barred---Petition for leave to appeal was dismissed and leave was refused.

(c) Administration of justice---

----Where a law required doing of something in a particular manner it had to be done in the same manner and not otherwise. [p. 425] E

Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Shahida Bibi v. Habib Bank Limited PLD 2016 SC 995 and Human Rights Cases Nos.4668 of 2006 etc. PLD 2010 SC 759 ref.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nasir Mehmood, Advocate Supreme Court for Respondents Nos.1 and 2.

2021 P L C (C.S.) 440

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Munib Akhtar, JJ

Syed MUDDASAR SHAH TERMIZI and others

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar, Peshawar and others

Civil Appeals Nos. 731 to 733 of 2016 and C.M.As. Nos.723 and 3199 of 2018, decided on 4th November, 2020.

(Against the order dated 19.12.2015 passed by K.P.K. Sub­ordinate Judiciary Service Tribunal, Peshawar, in S.As. Nos.10, 12 and 16 of 2014)

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

----Ss. 8 & 19(4), proviso [as substituted through the Khyber Pakhtunkhwa Civil Servants (Amendment) Act (III of 2013)]---Khyber Pakhtunkhwa Judicial Service Rules, 2001, R. 5(e)---West Pakistan Civil Services Pension Rules, 1963, Rr. 1.5 & 2.2---Seniority---Civil Judges-cum-Magistrates appointed on contract basis regularized in service after appearing in competitive examination---Inter-se seniority of such judges was to be reckoned from the date of their regularization in service and not from their initial appointment on contract basis---Regularization of service through deeming provision of S. 19(4) of the Khyber Pakhtunkhwa Civil Servants Act, 1973 was confined to pensionary benefits alone and could not be stretched to affect the seniority inter-se of persons who were already members of the judicial service.

In the present case, all the appellants/judicial officers were initially appointed on contract basis, which, on expiry, was renewed. However, the appellants, after qualifying their exams, and on the recommendation of the Provincial Public Service Commission, were appointed on a regular basis. The substituted proviso to sub­section (4) to section 19 of Khyber Pakhtunkhwa Civil Servants Act, 1973, by the Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2013 merely construed and treated the appellants' appointment from the date of initial appointment on contract as regularized and removed the disparity between two sets of employees, namely who were initially appointed through the Provincial Public Service Commission and those who, though appointed initially on contract, were later regularized through the conduit of Commission for the purposes of calculating pension and gratuity.

Section 19 of Khyber Pakhtunkhwa Civil Servants Act, 1973 dealt exclusively with the matter of Pension and Gratuity and did not affect seniority. Under the proviso to subsection (4) of section 19, 'those who are appointed in the prescribed manner to a service or post on or after the 1st of July, 2001 till 23rd July, 2005 on contract basis shall be deemed to have been appointed on a regular basis". The legislature clearly intended for the deeming provision to be applicable in the eventuality of calculating the pension and gratuity for civil servants. The intention was clear to remove the disparity in calculating such pension between employees who were initially appointed on a contractual basis, and later regularized, in comparison to the civil servants who had been employed directly through the Provincial Public Service Commission. Deeming clause provided under sub­section (4) to section 19 of Khyber Pakhtunkhwa Civil Servants Act, 1973 could not be allowed to spill over to other provisions of the said Act to reckon seniority in length of service and or for any other collateral purpose. The legislature intended for seniority to be governed under section 8 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, and other enabling provisions, for which a separate mechanism was clearly provided.

(b) Interpretation of statutes---

----Deeming provision in a section of the statute---Interpretation and effect.

While interpreting a deeming provision in a statute, the court was bound to ascertain for what purpose, object, and between what persons the statutory fiction was to be resorted to.

Begum B.H. Syed v. Mst. Afzal Jehan PLD 1970 SC 29 and Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 ref.

Deeming provision was restricted to the section it was attached to and it could not be interpreted to spill over to other provisions of the statute. Such provision was to be strictly construed within the framework of the provisions of the statute it was attached to, unless otherwise provided.

Commissioner of Income Tax and Wealth Tax Sialkot Zone v. Messrs Thapur (Pvt.) Sialkot 2002 PTD 2112; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 and All Pakistan Newspaper Society and others v. Federation of Pakistan and others PLD 2012 SC 1 ref.

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

----S. 8---Contract employees subsequently regularized in service---Seniority---Scope---Seniority could not be calculated for contract employees form the date of their initial contractual appointment---Seniority could only be determined when civil servants were commissioned into regular service.

Muhammad Afzal Sohail and 11 others v. Government of Punjab and others 1983 SCMR 859 and M.N. Rizvi P.C.S. v. Province of West Pakistan 1977 SCMR 365 ref.

Amjad Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants

Aftab Alam Yasir, Advocate Supreme Court along with Syed Mudassar Shah Termzi for Appellants (in C.M.As. 723 and 3199 of 2018).

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Khalid Rehman L.A PHC and Samil Jan, AR for Respondents.

2021 P L C (C.S.) 456

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

DIRECTOR GENERAL, NATIONAL SAVINGS CENTRAL DIRECTORATE OF NATIONAL SAVING 32-N SECTOR G-6, ISLAMABAD and others

Versus

MUHAMMAD SULTAN and others

Civil Appeals Nos. 323-325 of 2018, decided on 17th April, 2019.

(On appeal from the order dated 16.12.2016 passed by the PST, Ibd. in Appeals Nos.2299(R) CS/2013 to 2301(R)/CS/2013)

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

----S. 9--- Civil Servants (Seniority) Rules, 1993---Persons/respondents serving in a Ministry devolved after the 18th Constitutional Amendment transferred and subsequently absorbed into Central Directorate of National Savings (CDNS)---Promotion criteria---Scope---Three conditions for the absorption/induction of the respondents into service of CDNS were; firstly, that they shall be absorbed/inducted as 'Marketing Officer' (BS-17); secondly, that they shall not have a right of change of their cadre or for the conversion of their post to the post of National Savings Officer (BS-17); and finally, that their inter-se-seniority against the post of Marketing Officer shall be determined in the light of Civil Servants (Seniority) Rules, 1993---Federal Service Tribunal through the impugned judgment did not modify or invalidate any of the said terms but directed the CDNS to initiate the process of re-designation of the respondents' posts so that they were encadred properly or in the alternative to frame recruitment rules for providing a channel of promotion to them---Question as to whether the respondents were entitled to a channel of promotion in their service of the CDNS as was assured to other officers who were regularly inducted in such service---Held, that conditions/terms of the offer agreed to by the respondents secured for them only the post of Marketing Officers BS-17 until the date of their superannuation; they did not guarantee them a career leading to higher posts in service of the CDNS---Respondents were conferred the status of civil servants, and it was their legal right to be considered for promotion, provided they satisfied the requisites therefor---Such requisites included eligibility by way of educational qualifications and experience, and other prescribed criteria for the higher post---Impugned judgment of the Federal Service Tribunal rightly envisaged that rules be framed by CDNS thereby opening, inter alia, the vista of promotion for the respondents---Said rules may, inter alia, specify the criteria of qualifications, experience, seniority and fitness for the higher post and possibly the number of seats in the cadre for which the respondents may compete---In order to avail career progression through promotion under S. 9 of the Civil Servants Act, 1973, the respondents were obligated to qualify for such a benefit and privilege---For such purpose, CDNS must install an appropriate framework that catered for officers in the respondents' position to be considered for promotion in service by laying down criteria consistent with the law---Appeals were partly allowed accordingly.

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

----S. 11A--- Absorption of civil servants rendered surplus---Absorption/induction into service of a person who had not complied with the legal process for recruitment into government service could not confer on him all the rights and fruits guaranteed under the Civil Servants Act, 1973.

Sohail Mahmood, D.A.G., Ch. Akhtar Ali, Advocate-on-Record and Ch. M. Tariq Ali, Dir. National Savings for Appellants (in all cases).

Muhammad Ramzan Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in all cases).

2021 P L C (C.S.) 480

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD

Versus

IMTIAZ AHMAD MALIK, DIRECTOR ANTI-CORRUPTION ESTABLISHMENT, SAHIWAL and others

Civil Appeal No. 485 of 2020, decided on 27th November, 2020.

(Against the judgment dated 08.10.2018, passed by the Federal Service Tribunal, Lahore Bench, Lahore in Appeal No. 464(L)/2017)

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

----Rr. 7 & 11(2)(c)---Encadred police officer from a Province, appointment of---Inter se seniority amongst encadred officers---Scope---Appointment of an encadred police officer from the Province was to be made with prospective effect---Only after encadrement as PSP Officer had been made of a police official from a Province, his inter se seniority among the encadred officers shall be determined under R. 11(2)(c) of the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, but the very encadrement had to be from the date when the encadrement as PSP Officer had actually been effected and counted as such.

Muhammad Zafar Ali and others v. Asim Gulzar and others 2015 SCMR 365 ref.

Ayaz Shaukat, Deputy Attorney General for Pakistan and Sajid-ul-Hassan, Section Officer Establishment Division for Appellant.

Muhammad Yasin Bhatti, Advocate Supreme Court and Mian Liaqat Ali, Advocate-on-Record (Absent) for Respondents.

2021 P L C (C.S.) 502

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CHAIRMAN PAKISTAN ORDNANACE FACTORIES BOARD, WAH CANTT.

Versus

Dr. NAVEEDA RAUF and others

Civil Appeals Nos. 357 and 358 of 2020, decided on 9th December, 2020.

(Against the order dated 05.12.2018 passed by the Federal Service Tribunal Islamabad in Review Petition No. 126 of 2018 and order dated 28.08.2018 passed by the Federal Service Tribunal, Islamabad in Service Appeal No. 1778(R)CS of 2016)

Fundamental Rules---

----F.R. 84, Appendix No. 9 ['the Study Leave Rules']---Study Leave---Pay and allowances, entitlement to---Medical officer (respondent) working in Pakistan Ordnance Factories Hospital went on Study leave---Competent authority treated period of study leave as Extraordinary Leave without pay and allowances---Whether the respondent was entitled to full pay whilst on Study leave---Held, that Rules governing Study Leave were contained in Appendix No. 9 to Fundamental Rule 84 ('the Study Leave Rules')---Rule 20 of the Study Leave Rules clearly mentioned that Study Leave would be on half pay---Rule 19 also provided that the Government servant would draw half average pay during Study Leave---Appeals were allowed.

Haseeb Shakoor Paracha, Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate-on-Record, Abid Masood, GM(L) POF and Asad Durrani, AM(HRM) POF for Appellant.

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

Rizwan Ahmed, AAO, CMA POF for Respondent No. 4.

2021 P L C (C.S.) 519

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Services and General Administration Department and others

Versus

ABDUL RAUF and 6 others

Civil Appeals Nos.433 to 438 and 596 of 2020, decided on 14th October, 2020.

(Against the judgment dated 03.01.2020 passed by the High Court of Balochistan, Quetta in C.Ps. Nos. 48, 363, 401, 656, 678 and 1173 of 2019).

Constitution of Pakistan---

----Art. 224 (1A)---Caretaker Government/Cabinet, powers of---Scope---Caretaker Government/Cabinet could not take policy decisions and permanent measures including recruitments, making appointments, transfers and postings of Government servants during the limited period that it held office.

In the present case, the process of recruitment may have been initiated by way of publication of advertisement before the Caretaker Government was put in place. However, all material steps including processing of applications, tests (if any) interviews (if any) and recommendations by the Recruitment Committee were taken during the Caretaker Government and the elected Government was practically presented with a fait accompli. The mandate of a Caretaker Government was to hold the mantle in the interregnum when the term of the sitting Government had expired and the new Government was yet to take charge. A caretaker Government was empowered only to carry out day to day affairs of the State with the help of available machinery/ resources/manpower. It could not take policy decisions and permanent measures including recruitments, making appointments, transfers and postings of Government Servants. It must leave such matters to the elected Government which took charge as a result of elections.

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

Decisions having far reaching consequences should only be taken by the elected government having the mandate to perform such functions as were required of it in exercise of powers conferred by the Constitution. [p. 524] B

Nemat Ullah and others v. Chairman Governing Body, Worker Welfare Board/Secretary to Government of KPK, Labour Department and others 2016 SCMR 1299 ref.

Even otherwise, in the present case, there was no record whatsoever of any process of recruitment having been transparently conducted with a view to make merit-based appointments. The recommendations made by the Committee had ex facie been made arbitrarily and were neither based upon any test results nor interviews. There was not an iota of evidence available on the record that any test or interview was conducted or transparent and proper merit list was prepared showing marks obtained by each candidate in the NTS test or interview. [p. 525] D & E

In the interest of being just and fair the Supreme Court directed that it would be appropriate if all those candidates who filed applications pursuant to the advertised posts were allowed to appear in fresh tests to be conducted by NTS. Appeals were allowed with further relevant directions. [p. 526] F

Arbab M. Tahir, A.G. Balochistan, Ayaz Khan Swati, Addl. A.G., Balochistan for Appellants (in all cases).

Sardar Ahmed Haleem, Advocate Supreme Court for Respondent (in C.A. No. 433 of 2020).

Amanullah Kanrani, Advocate Supreme Court for Respondents (in C.As. Nos. 435-438 of 2020).

Kamran Murtaza, Senior Advocate Supreme Court for Respondents (in C.A. No. 596 of 2020) (via video-links from Quetta).

Syed Rifaqat H. Shah, Advocate-on-Record for Respondents (in C.As. Nos. 433, 435-438 and 596 of 2020).

Nemo for Respondents (in C.A. No.434 of 2020).

2021 P L C (C.S.) 531

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

DEPUTY POSTMASTER GENERAL, CENTRAL PUNJAB, LAHORE and another

Versus

HABIB AHMED

Civil Appeal No. 498 of 2020, decided on 27th January, 2021.

(Against judgment dated 30.08.2018 of Federal Service Tribunal, Lahore, passed in Appeal No. 77(L) of 2016).

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

----R. 4(1)(b)(iv)---Service Tribunals Act (LXX of 1973), S. 5 (1)---Misappropriation of public money, breach of trust, inefficiency and misconduct--- Dismissal from service--- Leniency in award of punishment by the Service Tribunal when charge stood proved/ admitted---Propriety---Respondent-employee had confessed/ admitted the commission of offence of misappropriation, misconduct and breach of trust which attracted the major penalty of dismissal from service which was rightly awarded by the department considering that the respondent being in a position of trust had blatantly, repeatedly and intentionally committed breach of trust and misappropriated public funds that had been entrusted to him---However, having not found any error or defect in the proceedings conducted by the department including the inquiry as well as the admission/confession of the respondent and having concluded that the charge of misappropriation stood established, the Service Tribunal opted to interfere with the penalty by taking a lenient view and converting the same into compulsory retirement---In doing so, the Tribunal lost sight of principles laid down by the Supreme Court in various judgments spelling out the parameters for exercise of jurisdiction under S.5 of the Service Tribunals Act, 1973---Tribunal had not only exceeded its jurisdiction but exercised the same in a manner which was in violation of the settled principles of law on the subject---Further, in converting the major penalty of dismissal from service into compulsory retirement, the Tribunal had failed to assign any cogent, legally sustainable and valid reasons to support its finding---Appeal was allowed, impugned judgment of Tribunal was set-aside and penalty of dismissal from service imposed by the departmental authorities was restored.

Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656; Chief Postmaster Faisalabad v. Muhammad Afzal 2020 SCMR 1029; Government of the Punjab v. Muhammad Arshad 2020 SCMR 1962 and District Police Officer v. Muhammad Hanif 2020 SCMR 1610 ref.

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

----S. 5(1)---Federal Service Tribunal, powers of---Structured exercise of jurisdiction---Scope---Although the Tribunal had the discretion to interfere in questions of quantum of punishment, such discretion could neither be arbitrarily exercised nor were powers of the Tribunal unqualified or unlimited---Where the Tribunal exercised its discretion to interfere in the penalty awarded by the competent authorities, such discretion had to be exercised in a circumscribed, restricted and structured manner duly supported by legally sustainable reasoning.

Sajid Ilyas Bhatti, Additional AGP and Shehzad Saleem, ASPO for Appellants.

M. Ramzan Khan, Advocate Supreme Court for Respondent.

2021 P L C (C.S.) 544

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MANZOOR ELAHI

Versus

PRESIDENT, UBL and others

Civil Appeal No. 176-L of 2011, decided on 18th January, 2021.

(Against judgment dated 08.06.2010 of Federal Service Tribunal, Lahore passed in M.P. No. 43 of 2008).

Service Tribunals Act (LXX of 1973)---

----S. 5(1)---Service Tribunal, judgment of---Non-implementation of judgment by the employer---Abatement of judgments of the Tribunal in view of the case reported as Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602)---Scope---Service Tribunal vide its judgment dated 07-09-1998 ordered reinstatement in service of appellant-employee---Said judgment was not complied with by the respondent-bank---Subsequently appellant was again dismissed from service after de novo inquiry proceedings without reinstating him into service---Such dismissal order was again challenged by the appellant before the Tribunal---Dismissal order was (again) set aside by the Tribunal vide judgment dated 01-06-2006 and the respondent-Bank was again directed to reinstate the appellant in service in pursuance of earlier judgment of the Tribunal dated 07-09-1998 and proceed further in accordance with the directions issued in the said judgment---Second judgment of the Tribunal was also not implemented by the respondent-Bank on the ground that the judgment of the Tribunal dated 01.06.2006 stood abated in view of the case reported as Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) [Mubeen-us-Salam's case]---Held, that perusal of 'Mubeen-us-Salam's case' as clarified in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681) led to the conclusion that the Service Appeal filed by the appellant did not abate because the judgment of the Tribunal was never challenged by the respondent-bank and attained finality and was executable---In allowing the Service Appeal of the appellant, the Tribunal had directed the respondent-Bank to reinstate him in service pursuant to the judgment of the Tribunal dated 07-09-1998 and proceed in accordance with the directions given in the judgment---Conduct of the respondent-Bank had all along been obstructive and showed lack of respect for the judicial system and verdicts of Courts---However, at present much water had flown under the bridge since the year 1998 and the appellant had also crossed the age of superannuation since long, therefore, it would be impracticable to seek implementation of the judgment of the Tribunal owing to efflux of time without any fault on the part of the appellant---Delay in delivery of justice to the appellant had occurred on account of changes in law for reasons not attributable to him and on account of no fault on his part---Appellant stated before the Court that he would be satisfied if he was given his dues in accordance with Golden Handshake Scheme/Voluntary Separation Scheme ("GHS/VSS") given by the respondent-Bank to its other employees considering that on the date of his dismissal i.e. 15-07-1997 the appellant had more than 20 years of service to his credit---Supreme Court observed that such stance of the appellant was fair and reasonable and would advance the ends of justice, and consequently directed that the respondent-Bank shall calculate and release the dues of the appellant in accordance with the formula of GHS/VSS offered by it to its employees keeping in view the length of service of the appellant from the date of his employment till the date of his first dismissal on 15-07-1997, and that his case will be considered as if he was never dismissed, and was in service of the Bank and had opted for the GHS/VSS---Appeal was allowed.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 ref.

Mian Mehmood Hussain, Advocate Supreme Court for Appellant.

Mian M. Zulqarnain, Advocate Supreme Court for Respondents.

2021 P L C (C.S.) 560

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

SHAKEEL AHMAD ZAIDI and others

Versus

SECRETARY, HIGHER EDUCATION, GOVERNMENT OF PUNJAB, LAHORE

and others

Civil Appeals Nos. 754 and 755 of 2020, decided on 13th January, 2021.

(Against the order dated 27.11.2018 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 206815 and 180175 of 2018).

(a) Civil service---

----Locus poenitentiae, principle of---Applicability and exception---Special Allowance paid to employees through an unlawful order, when they were not entitled for the same---Whether such allowance could be recovered from the salaries of the employees---Held, that that by its very terms, the notification on the basis of which Special Allowance was paid to 'Lecturers' was not applicable to the appellants, who were 'Instructors'---Language of the notification in question was clear and unambiguous, therefore the argument of the appellants that they were unaware that they were being paid an allowance to which they were not lawfully entitled was not convincing---Claim of the appellants that they had bona fidely received the Special Allowance did not ring true---Apparently the appellants started receiving the amount, knowing that it was not payable to them but they kept silent---Any man of ordinary prudence who was aware of the notification should have known that the amount being paid to him was in excess of what was lawfully due to him---Furthermore the order to pay Special Allowance to the appellants was not a lawful order nor was it passed by a competent authority---Therefore, whether or not the appellants had received the same bona fidely was not of much consequence in view of the fact that the order in question had not lawfully been passed by a competent authority, which was necessary to seek the benefit of the exception to the rule of locus poenitentiae---High Court had valid reasons and lawful justification to direct that further payment of the allowance to the appellants had to stop, and also to recover the same in easy instalments from them so as not to overly burden them financially---Appeals were dismissed.

Engineer in Chief Branch through Ministry of Defence, Rawalpindi and others v. Jallal ud Din PLD 1992 SC 207 distinguished.

Muhammad Feroz v. Deputy Director Officer (Education) and others 2005 SCMR 1490 and Pensionary Benefits of the Judges of Superior Courts PLD 2013 SC 829 ref.

(b) Locus poenitentiae, principle of---

----Applicability and exception---Benefit/allowance paid under a mistake, recovery of---Only where lawful orders had been passed by an authority having the power to do so under the relevant law and a person bona fide received a benefit under the said law without any positive action on his part, such beneficiary could claim a right under the exception to the principle of locus poenitentiae and claim that the benefit bona fide received by him by virtue of a lawful order passed by the competent authority (which at the relevant time and for its duration till its withdrawal was lawfully passed by an authority competent to pass such order) could not subsequently be recovered by virtue of the protection available under the exception to the said rule.

Malik Saleem Iqbal Awan, Advocate Supreme Court (via video link from Lahore) and Syed Rifaqat H. Shah, Advocate-on-Record for Appellants (in both cases).

Syed Wajid Ali Shah Gillani, Additional A.G. Punjab, M. Sajid Bashir, Deputy Secretary, Finance Department, Punjab, Nasir Mehmood Bhatti, Law Officer, Finance Department, Punjab and Qamar Javaid, Assistant Professor (on behalf of Respondent No. 4) for Respondents (in both cases).

2021 P L C (C.S.) 570

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD KHALIQ MANDOKHAIL

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat Quetta and another

Civil Petition No. 4428 of 2019, decided on 16th February, 2021.

(Against the judgment dated 31.10.2019 of the Balochistan Service Tribunal, Quetta passed in Appeal No.490/2018)

(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Alteration of date of birth in service record---Disallowed---Mala fide of Education Board in changing date of birth---Academic credentials of the petitioner-civil servant clearly reflected that the date of birth was recorded as 1-3-1959 on every document including NADRA record---Petitioner moved for correction of his date of birth after a lapse of 22 years of continuous service in the year 2014, and approached the Board of Intermediate and Secondary Education ('the Board'), to get his date of birth changed from 01-03-1959 to 20.12.1963---Board without any hesitation proceeded according to the whims of the petitioner and made the alteration, when it had no authority to entertain such a request---In the absence of any declaration from a Civil Court of competent jurisdiction, the Board was not empowered to change the date of birth---Whole proceedings carried out by the Board smacked of mala fide---Consequently the proceedings carried out regarding the change of date of birth were prima facie based upon an act of Board which was mala fide, based upon extraneous consideration, therefore, any superstructure raised over it would fall to the ground---Since the whole proceedings for alteration of date of birth were carried out by the petitioner after a lapse of 22 years of active service, therefore, it could safely be held that such proceedings were based upon an afterthought just to prolong the service tenure on the basis of frivolous and tainted documents---Petition for leave to appeal was dismissed and leave was refused with the observation that the Supreme Court in a number of cases had discouraged change in the date of birth of a civil servant, which could be for the purpose of unduly enhancing the tenure of service in employment.

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

(b) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Alteration/correction of date of birth in service record---Pre-requisites---While seeking such an alteration/correction, a declaration was sine qua non which could only be issued by the Civil Court of competent jurisdiction on the basis of evidence produced during the proceedings regarding the authenticity of the subject matter. [p. 574] B

(c) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Alteration/correction of date of birth in service record---Scope---Civil servant could not seek alteration in his date of birth at the verge of his retirement.

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

(d) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Alteration/correction of date of birth in service record---Rule 11 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, interpretation of---Date of birth of the petitioner mentioned in his Secondary School Certificate was 01-03-1959, while in his service book, it was registered as 20-12-1963---Plea of petitioner that according to R. 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, (the 2009 Rules) the date of birth of a civil servant once recorded at the time of joining the government service shall be final and no alteration therein shall be permissible---Held, that service book was only a piecemeal and for all intents and purposes it would not be considered as a complete service record---Other documents relating to his service record including the academic record, the CNIC, the seniority lists prepared on different occasions, the ACRs and the retirement notification, all conjointly reflect that the date of birth of the petitioner was incorporated as 01.03.1959---Petitioner agitated his grievance in the year 2014 after a lapse of 22 years of joining service---Proceedings initiated by the petitioner seeking alteration in the date of birth while pressing in R. 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 were intended on the basis of extraneous considerations just to prolong his service period---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2021 P L C (C.S.) 587

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

The DISTRICT POLICE OFFICER, MIANWALI and 2 others

Versus

AMIR ABDUL MAJID

Civil Petition No. 1567-L of 2019, decided on 19th November, 2020.

(Against the judgment dated 26.02.2019 of the Punjab Service Tribunal, Lahore passed in Service Appeal No.3866/2016).

(a) Civil service---

----Concurrent disciplinary and criminal proceedings against a civil servant---Acquittal in criminal proceedings---Whether such acquittal could be a ground for reinstatement in service---Civil servant facing expulsive proceedings on departmental side on account of his indictment on criminal charge may not save his job in the event of acquittal as the department still may have reasons/material, to conscionably consider his stay in the service as inexpedient---Additional reasons may exist to disregard such acquittal inasmuch as criminal dispensation of justice involving corporeal consequences, comparatively, required a higher standard of proof so as to drive home the charge beyond doubt---Procedural loopholes or absence of evidence at times resulted in failure to sustain the charge essentially to maintain safe administration of criminal justice out of abundant caution---Departmental jurisdiction, on the other hand, could assess the suitability of a civil servant, confronted with a charge through a fact finding method, somewhat inquisitorial in nature without heavier procedural riders, otherwise required in criminal jurisdiction to eliminate any potential risk of error.

Dr. Sohail Hassan Khan and others v. Director General (Research), Livestock and Dairy Development Department, Punjab, Lahore and others 2020 SCMR 1708; Liaqat Ali v. Government of N.W.F.P. through Secretary Health, Peshawar and others 2011 PLC (C.S.) 990; Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan PLD 2010 SC 695; Government of Pakistan through Secretary Ministry of Finance and others v. Asif Ali and others 2007 PLC (C.S.) 271; Superintendent of Police, D.I. Khan and others v. Ihsanullah 2007 SCMR 562; Sami Ullah v. Inspector-General of Police and others 2006 SCMR 554; Ractor Comsats v. Ghulam Umar Kazi 2006 SCMR 1894; Executive Engineer and others v. Zahid Sharif 2005 SCMR 824; Khaliq Dad v. Inspector-General of Police and 2 others 2004 SCMR 192; Arif Ghafoor v. Managing Director, H.M.C., Texila and others PLD 2002 SC 13; Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177; Mud Izharul Ahsan Qureshi v. Messrs P.I.A.C. 1994 SCMR 1608; Muhammad Nazir v. The Superintendent of Police, Toba Tek Singh and others 1990 SCMR 1556; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316; Muhammad Saleem v. Superintendent of Police, Sialkot and another PLD 1992 SC 369; Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar and another PLD 1987 SC 195; The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 and Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413 ref.

(b) Civil service---

----Police Constable--- Concurrent disciplinary and criminal proceedings---Reinstatement in service after acquittal in criminal proceedings---Legality---Service Tribunal had undoubtedly misdirected itself in reinstating the respondent, considering his acquittal in the criminal case as the sole criterion---However, the respondent could not be non-suited merely on the account of flawed handling of his case by the Tribunal---Perusal of the record of the criminal case showed that the respondent's name was conspicuously missing in the array of the persons nominated in the crime report and he was subsequently nominated through a supplementary statement purportedly recorded the same day, a position that was belied by the site plans including one drafted as late as four days after the occurrence, irresistibly suggesting that the accused was taken on board much late in the day---Even otherwise the prosecution witnesses had contradicted each other on dubious nomination of accused---Trial Court took stock of inherent discrepancies qua the accused and held the charge against him as preposterous---In such backdrop, acquittal of accused from the charge, not only vindicated his claim of being subsequently hounded on a trump up charge but also left nothing in the field to conscionably view his presence as detrimental or non-conducive to good order in the police department wherein he otherwise boosted an unblemished career---Notwithstanding the error of approach by the Tribunal, Supreme Court declined to interfere with the impugned judgment---Petition for leave to appeal was dismissed and leave was refused.

Zaman Khan Vardag, Additional Advocate General, Punjab for Petitioners.

Kashif Ali Chaudhry, Advocate Supreme Court for Respondent along with Respondent.

2021 P L C (C.S.) 602

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

DIRECTOR GENERAL FEDERAL DIRECTORATE and another

Versus

TANVEER MUHAMMAD and another

Civil Petition No. 692 of 2020, decided on 18th December, 2020.

(Against the Order dated 16.12.2019 passed by the Federal Service Tribunal, Islamabad in Appeal No. 52(R)CS of 2018)

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

----R. 4(1)(b)(iv)---Allegation of physical assault, using verbal abuse and threatening a colleague---Penalty of 'Dismissal from service' converted into 'withholding of increment for a period of five years' by the Federal Service Tribunal---Legality---Respondent had physically assaulted and tortured a female worker, which fact was substantiated not only by the eye-witness account but also corroborated by the Medico Legal Report of the victim---Such violence was perpetrated within the school premises which violated the sanctity of an educational institution, and constituted an act of gross misconduct---Internal inquiry Committee, consisting of three independent senior officers, found the respondent guilty of all charges---No bias, partiality or mala fides was alleged against the Inquiry Committee---Respondent was given fair opportunity to defend himself which he failed to do---Tribunal had itself recorded findings to the effect that the respondent had committed misconduct but that the penalty imposed upon him was too harsh and did not commensurate with the charge---In the face of proof of charges against the respondent, it was not understandable how the penalty of dismissal from service imposed by the department was too harsh or did not commensurate with the offence alleged---Further, the judgment of the Tribunal was devoid of any reason let alone cogent---Petition for leave to appeal was converted into appeal and allowed, judgment of Service Tribunal was set-aside and the penalty of dismissal from service imposed by the department was restored and affirmed.

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

----S. 5(1)---Service Tribunal, powers of---Structured exercise of jurisdiction---Scope---Where the Tribunal exercised jurisdiction under S. 5 of the Service Tribunals Act, 1973, legally sustainable reasons must be recorded---Merely and casually making an observation that the penalty imposed (by the department/forum below) was not commensurate with the gravity of the offence was not enough and constituted arbitrary capricious and unstructured exercise of jurisdiction---Order must show that the Tribunal had applied its mind to the facts and circumstances of the case and exercised its discretion in a structured, lawful and regulated manner keeping in view the dicta of the superior Courts in the matter.

Moulvi Ejaz ul Haq, DAG, M. Ahmed, A.D. (L) FDE and Syyeda B.H. Shah, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

2021 P L C (C.S.) 611

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, FAISALABAD and others

Versus

MUHAMMAD ZAFARULLAH

Civil Appeal No. 420 of 2020, decided on 10th November, 2020.

(Against the judgment dated 23.10.2018 passed by the Federal Service Tribunal, Lahore in Appeal No. 679(L) of 2016)

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

----S. 5--- Federal Service Tribunal ('the Tribunal'), powers of---Scope---Penalty of dismissal from service imposed upon civil servant (respondent) by the departmental authorities converted into compulsory retirement with all due benefits by the Tribunal---Legality---After having recorded findings against the respondent and holding that all legal, procedural and codal formalities had been followed, and the respondent had been given ample opportunity to defend himself and the charges against him had been proved, the Tribunal arrogated to itself the jurisdiction to modify the penalty of dismissal from service to compulsory retirement---In exercising such jurisdiction for reasons best known to it the Tribunal did not record any reason whatsoever---Tribunal enjoyed powers to modify any order passed by the departmental authorities, however, such power was required to be exercised carefully, judiciously and after recording cogent reasons for the same in appropriate cases keeping in view and considering the specific facts and circumstances of each case---In the present case, the penalty in question had been imposed upon by the respondent by the departmental authorities on the basis of established charges, in accordance with law and the relevant rules---In such 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 an arbitrary, unstructured and whimsical manner without recording any reasons---Appeal was allowed, impugned judgment of Tribunal was set-aside and penalty of dismissal from service imposed by departmental authorities was restored.

Chief Postmaster, Faisalabad v. Muhammad Afzal 2020 SCMR 1029 ref.

(b) Administration of justice---

----Relief by courts/tribunals, grant of---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 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.

Moulvi Ejaz-ul-Haq, DAG and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Ch. Munir Sadiq, Advocate Supreme Court and Syed Rifaqat H. Shah, Advocate-on-Record for Respondent.

2021 P L C (C.S.) 643

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Versus

Syed SADIQ SHAH and others

Civil Appeal No. 827 of 2020, decided on 4th March, 2021.

(On appeal against the judgment dated 04.03.2020 passed by the Peshawar High Court, Peshawar in Writ Petition No. 5281-P/2019)

(a) Constitution of Pakistan---

----Art. 25---Equality of citizens---Scope---'Reasonable/permissible classification' and intelligible differentia---Scope and meaning.

Article 25 of the Constitution, guarantees to every person the right to equality before the law and the equal protection of the laws. The expression "equal before law" is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status and language etc, implying thereby the absence of any privilege in favour of any individual. The guiding principle of Article 25 is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before law means that amongst equals should be equal and equally administered and that like should be treated alike. Hence what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. However, Article 25 does not forbid different treatment of un-equals. The rule is rather that alike should be treated equally and that unlike should be treated differently. As a matter of fact all persons are not alike or equal in all respects. Application of the same laws or yardstick uniformly to all of them will, therefore, be inconsistent with the principal of equality. To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the authority.

Persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference. Article 25 forbids class legislation but it does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation.

Principle of equality does not mean that every law, policy matter, notification, administrative or executive order etc must have universal application to all the persons who by nature, attainment or circumstances are not in the same position.

The varying needs of different classes of persons require different treatment. In order to pass the test for permissible classification two conditions must be fulfilled i.e. (i) the classification must be founded on an intelligible differentia which distinguishes persons or things those are grouped together from others left out of the group, (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved. However it must disclose that there must be a substantial basis for making the classification and there should be a nexus between the basis of classification and the object of action under consideration based upon justiciable reasonings.

Intelligible differentia was an exception to the basic principle of equality based upon the principle of natural justice in more refined manner to provide equality amongst the subjects of the society and while introducing certain legal expressions with an intent to bring the society close to equality eliminating the chances of facing the hardships of economical pressure which had squarely affected the society at large around the globe.

(b) Constitution of Pakistan---

----Arts. 25 & 38(e)---Dis-proportionality in salary of various classes of employees--- Discrimination--- Scope--- Employees of High Court (BPS 17 to BPS 19) drawing Special Judicial Allowance---Ad-hoc relief allowance of 5%, entitlement to---Provincial Government vide the impugned notification provided 5% ad-hoc relief allowance to employees of BPS 17 to BPS 19 but the same was not made available to those employees of the Provincial Government who were already drawing special allowances including Special Judicial Allowance, subject matter of issue in dispute---Respondents being employees of BPS 17 to BPS 19 of the High Court were already drawing Special Judicial Allowance, therefore, they were denied the said 5% ad-hoc relief allowance--- Constitutionality--- Through the impugned notification, the relief of 5% was denied to those employees of BPS-17 to BPS-19, who were already drawing special allowances in the name of Health Professional Allowance, Special Judicial Allowance, Scheduled Post Allowance, Technical Allowance, Prisons Allowance and Prosecution Allowance---Reason for such classification as furnished by the Provincial Government/appellant was due to financial impediment the employees from BPS-17 and above, being officers were in receipt of more salary than those employees from BPS 1 to BPS 16, which in common parlance was called dis-proportionality in the salary of the employees---Article 38(e) of the Constitution made it mandatory for the Government that it shall "reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan"---In a way, it was the duty of the Government to remove the dis-proportionality in the salaries of various classes of employees who were in service of Pakistan---In the present case, intelligible differentia existed between the two sets of employees and such differentia was logical and lucid and could not be termed as artificial or arbitrary---Impugned notification was impliedly in consonance with the spirit of the Constitution, therefore, the High Court ought to have refrained from interfering in it---Impugned notification was declared to be legal and rightly issued in accordance with law---Appeal was allowed.

House Building Finance Company Ltd. v. Muhammad Irfan Khan 2020 SCMR 98 and Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division 1997 SCMR 1026 ref.

(c) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Policy matters of Provincial Government---Policy notification of Provincial Government to compensate employees getting disproportionate salary as compared to other employees---Whether High Court ought to interfere in policy matters of the Provincial Government under the garb of judicial review---Held, that Constitutional courts being guardians of the Constitution had the power to judicially review the executive actions and the conduct of the public authorities but the same should be on the touchstone of fairness, reasonableness and proportionality---Courts while exercising power of judicial review must not violate the right of any other organ of the state and (should) remain within the prescribed limits as disclosed in the Constitution---Each Province had its limited quota under the National Finance Commission Award and the Provinces were supposed to run their affairs within the prescribed financial limits, hence, the impugned notification could be safely termed as a subject of policy to compensate the employees getting disproportionate salary as compared to other employees---Impugned notification was declared to be legal and rightly issued in accordance with law---Appeal was allowed.

Atif Ali Khan, Additional A.G., Khyber Pakhtunkhwa and Amanatullah Qureshi, Deputy Secretary Finance, Khyber Pakhtunkhwa for Appellants.

Qazi Jawad Ehsanullah, Advocate Supreme Court for Respondents Nos. 1 - 10.

Aftab Javed, Sr. Research Officer, PHC for Respondent No. 11.

2021 P L C (C.S.) 679

[Supreme Court of Pakistan]

Present: Gulzar Ahmad, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

DIRECTOR GENERAL, DIRECTORATE GENERAL OF TRAINING AND RESEARCH (INLAND REVENUE), LAHORE and another

Versus

IJAZ YOUNAS

Civil Appeal No. 1122 of 2020, decided on 2nd March, 2021.

(Against judgment dated 11.04.2016 passed by Federal Service Tribunal at Lahore in Appeal No. 151(L)CS of 2014)

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

----S.5---Federal Service Tribunal ('the Tribunal'), powers of---Scope---Unauthorized continuous absence from duty---Penalty of dismissal from service imposed upon civil servant (respondent) by the departmental authorities converted into compulsory retirement by the Tribunal---Legality---Case record showed that the appellant-department sent repeated notices calling upon the respondent to join duty but he consistently failed to do so---Respondent also failed to participate in the departmental proceedings initiated against him---Charge sheet and statement of allegations were sent to the respondent which were received by his spouse, but even then he did not participate in the proceedings---Respondent was all along aware of the proceedings being taken against him by the department, but he consciously and deliberately stayed away from the same---On proof of the charges against him, the respondent was called upon to explain why major penalty should not be imposed upon him to which he failed to give any satisfactory response---No material was available on record to support the conclusion of the Tribunal that despite proof of all charges against the respondent, there were mitigating circumstances and the harsh penalty of dismissal from service was not commensurate with the enormity of allegations levelled and proved against the respondent---Such finding of the Tribunal was wholly unsupported by the record---Appeal was allowed, impugned judgment of Tribunal was set-aside, and penalty of dismissal from service imposed upon the respondent by the department was restored.

Ibrar Ahmed, Advocate Supreme Court for Appellants.

Mrs. Bushra Qamar, Advocate Supreme Court for Respondent.

2021 P L C (C.S.) 697

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

REGIONAL OPERATION CHIEF, NATIONAL BANK OF PAKISTAN, HUMAN RESOURCE DEPARTMENT, REGIONAL OFFICE, SARGODHA and others

Versus

Mst. NUSRAT PERVEEN and others

C.P. No. 2717-L of 2015, decided on 23rd December, 2020.

(Against the order of Federal Service Tribunal dated 14.09.2015, passed in MP No. 23/2015 in Appeal No. 99(L)CE/2004)

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

----S. 4---Constitution of Pakistan, Arts. 4, 10, 14, 23 & 24---Appeal filed by a civil servant in the Federal Service Tribunal ("Tribunal")---Question as to whether such an appeal would abate on death of civil servant or his legal heirs could pursue the same---Held, that abatement of proceedings on the death of a civil servant, in a case, where the cause of action carried a survivable interest would unduly deprive the deceased civil servant, as well as, his legal heirs of their constitutional rights to livelihood, property, dignity and fair trial---Other than pecuniary and pensionary benefits that inured to the benefit of the legal heirs (of a civil servant), the right to restore one's reputation was also a survivable right and flowed down to the legal heirs to pursue and take to its logical conclusion.

Service disputes were not always attached merely with the person of a civil servant as an individual but more often than not with some benefits which could potentially be enjoyed by the successors of the civil servant in accordance with law which were contingent on the adjudication of the controversy.

The question whether after the death of the civil servant proceedings would abate would primarily depend on the nature of cause of action and the relief claimed in the peculiar facts of each case. Service benefits may be enjoyed by the successors of the deceased civil servant. Some of those were inheritable which formed part of the estate of the deceased while others were grants to be distributed among his family members according to law. Such a claim did not extinguish with the death of civil servant. Letting the claim lapse on the basis of an ultra textualist interpretation of the Service Tribunals Act, 1973 would be denying the heirs the right to seek adjudication on merits.

Itrat Zahida v. President ABL 2006 SCMR 1287; Acebal v. United States 60 Fed. Cl. 551; Rendek v Sheriff of Bristol County 440 Mass. 1017; Harris (suing as personal representative of Andrews (deceased) v. Lewisham and Guy's Mental Health NHS Trust [2000] 3 All ER 769; McFeeley v. Jackson Street Entm't, LLC 2014 U.S. Dist. LEXIS 114767, 2014 WL 4182231; Gasior v. Mass. Gen. Hosp. 446 Mass. 645; Rameshwar Manjhi v. Management of Sangramgarh Colliery AIR 1994 SC 1176; Sudha Shrivastava v. Comptroller and Auditor General of India AIR 1996 SC 571; The Government of Pakistan v. General Public PLD 1991 SC 731; Zaheer Abbas v. Pir Asif 2011 CLC 1528; Dawa Khan v. The Government of Pakistan 2015 PLC (C.S.) 1255; Amtul Habib v. Musarrat Parveen PLD 1974 SC 185; Fred O. Smith, Jr., 'The Constitution After Death' (2020) 120 Colum. L. Rev. 1471, 1531; Kirsten Rabe Smolensky, 'Rights of the Dead' (2009) 37 Hofstra L. Rev. 763, 764; Bilanow v. United States 159 Ct. Cl. 93 and Law v. Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 ref.

Under the constitutional scheme, abatement of proceedings on the death of a civil servant, in a case, where the cause of action carried a survivable interest would unduly deprive the decedent civil servant, as well as, his legal heirs of their constitutional rights to livelihood, property, dignity and fair trial. Fundamental right to life including right to livelihood ensured the security of the terms and conditions of service; fundamental right to property ensured security of the pecuniary and pensionary benefits attached to the service; fundamental right to dignity ensured that the reputation of the civil servant was not sullied or discredited through wrongful dismissal, termination or reversion etc; and fundamental right to fair trial and due process, inter alia, safeguarded and protected the survivable interest and ensured continuity of the legal proceedings even after the death of the civil servant, equipping the legal heirs to purse the claim.

Other than pecuniary and pensionary benefits that inured to the benefit of the legal heirs, the right to restore one's reputation was also a survivable right and flowed down to the legal heirs to pursue and take to its logical conclusion. Any slur on the reputation of a civil servant impinged on his human dignity and weighed equally on the dignity and honour of his family.

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

----S. 5---Civil Procedure Code (V of 1908), Preamble---Proceedings before the Service Tribunal---Civil Procedure Code, 1908, applicability of---Scope---Notwithstanding that C.P.C. was not as a whole strictly applicable to the proceedings before the Tribunal, the Tribunal was bound to follow the basic norms of justice---Provisions of C.P.C. may not stricto sensu apply in proceedings under a special law yet its equitable principles would always be applicable in order to do complete justice between the parties and meet the ends of justice.

Ali Khan Subanpoto v. Federation of Pakistan 1997 SCMR 1590 and Sheikh Saleem v. Shamim Atta Ullah Khan 2104 SCMR 1694 ref.

(c) Constitution of Pakistan---

----Pt. II, Chapt. 1---Fundamental Rights under the Constitution---Scope---Such rights did not only protect and safeguard a citizen but extended beyond his life and protected and safeguarded his survivable interests by being equally available to his legal heirs.

M. Qamar-uz-Zaman, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Hasan Riaz, Civil Judge cum Research Officer at SCRC1 for Research Assistance.

2021 P L C (C.S.) 721

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Administration

Department and others

Versus

LIAQUAT ALI

Civil Appeal No. 268 of 2020, decided on 18th January, 2021.

(Against the order dated 04.04.2018 passed by the Peshawar High Court, Peshawar in Constitutional Petition No. 3139-P of 2017).

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

----Ss.2(b) & 3---Contract employee---Regularization in service---Respondent was employed on contract basis as an Electrician in the Benevolent Fund Cell of Provincial Administration Department, and his contract was extended from time to time---Other contract employees, except the respondent, were regularized in service under S. 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act')---Respondent assailed the issue through a constitutional petition in the High Court, which was allowed and directions were given to regularize the services of the respondent---Held, that perusal of the appointment order of respondent showed that it was signed by the Secretary to the Provincial Government, Administration Department, Benevolent Fund Cell---Said Secretary was a member of the Board of Management constituted by the Provincial Chief Secretary---Respondent was appointed by the Provincial Government on contract and was an employee for the purposes of S. 2(b) of the 2009 Act---Respondent also fulfilled all the pre-conditions for regularization provided under S. 3 of the 2009 Act---Direction of the High Court to regularize the respondent was based on the correct legal and factual position---Appeal was dismissed.

(b) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(b) & 3---Contract employee---Regularization in service---Appointment contract containing the term that contract employee could not seek regularization in service---Held, that language of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') overrode such contractual disclaimers and if it was shown that a person fell within the purview of the 2009 Act and fulfilled the pre-conditions (for regularization provided under S. 3 of the 2009 Act), he could seek regularization.

(c) Administration of justice---

----Nobody should be allowed to benefit from their own default.

Shumail Ahmad Butt, Advocate General, Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G., KPK, Barrister Qasim Wadood, Additional A.G., KPK with Irum Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, AD, Fisheries, Gulzar Mahmood, AD Fisheries KPK, Engr. Falak Niaz, AD (Dost), Rajbar Khan, SDO, PHE, KPK, Saadullah, Asstt. Secretary, BOR, KPK, Faheem Ullah Khan, Senior Law Officer, KPPSC, Assad Ullah Khan, SO, P&D Department and Amanatullah Qureshi, Dy. Secy., Finance Deptt. KPK for Appellants.

Khaled Rahman, Advocate Supreme Court for Respondent.

2021 P L C (C.S.) 738

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

QAISAR KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affairs and others

Civil Appeal No. 59-P of 2011, decided on 5th October, 2020.

(On appeal against the judgment dated 12.01.2010 passed by Peshawar High Court, Peshawar in Writ Petition No. 3372 of 2009)

Khyber Pakhtunkhwa Public Service Commission Regulations, 2003---

----Reglns. 20(c) & 20(g)---Domicile certificate---Renunciation of domicile by implication---Scope---Respondent got employment as Lecturer on the domicile of "Tribal area" but subsequently, he applied for the post of Sub-Inspector Legal in the settled area claiming himself to be the holder of domicile of "Mardan"---Held, that respondent had obtained employment as Sub-Inspector Legal by producing domicile of Mardan and apparently, when such domicile was produced it stood final---Clause (g) of Regln. No. 20 of Khyber Pakhtunkhwa Public Service Commission Regulations, 2003 made provision for renouncement of domicile of settled District for obtaining of category 'B' domicile of Tribal area---No such requirement apparently was mentioned in the Regulations for obtaining of domicile of settled area like 'Mardan'---In any case, once respondent had produced the

domicile of Mardan, its implication was that he had renounced the domicile of Tribal area and no more remained the resident of the said Agency---Appellant had never argued that respondent had obtained domicile certificate from 'Mardan' through malpractice or some mis-declaration, nor any material to such effect was available on the record---Appeal was dismissed.

Amjad Ali, Advocate Supreme Court and Muhammad Ajmal Khan, Advocate-on-Record for Appellant.

Shumail Ahmed Butt, A.G. Khyber Pakhtunkhwa for Respondents Nos. 1 - 4.

Khalid Rehman, Advocate Supreme Court for Respondent No. 5.

Qazi Babar Irshad, Additional Attorney General on Court's Notice.

2021 P L C (C.S.) 747

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Industries, Commerce and Technical Education, Manpower Training Department, Peshawar and others

Versus

SHAHZAD IQBAL and others

Civil Appeals Nos. 240 and 272 of 2020, decided on 25th November, 2020.

(Against the judgments dated 06.09.2016 and 15.05.2018 passed in Writ Petition No. 382-A/2014 and Writ. Petition No. 1109-A/2016 of the Peshawar High Court)

Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(b) & 3---Project employees seeking regularization in service---Respondents were appointed on contractual basis in Provincial Skill Development Centers by the Technology Up Gradation and Skill Development Company (TUSDEC), a fully owned subsidiary company of the Pakistan Industrial Development Cooperation (PIDC)---Subsequently, the project was handed over to the Provincial Government, which upon taking charge of the said project advertised various posts for making ad hoc appointments---Respondents did not apply for the said advertised appointments and instead filed constitutional petitions before the High Court seeking regularization in service---Held, that where a project employee was recruited by a Company for a definite period of time, such an employee did not under any circumstances either directly or by implication become an employee of the provincial government---Cases of the respondents clearly fell outside the ambit of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') as they were all hired against project posts by TUSDEC and the project itself was to be executed by the Company under the control of the Federal Government for a requisite period of time before it was handed over to the Provincial Government---For the 2009 Act to apply, it was the Provincial Government that must employ the individual---Qualitative and conceptual difference existed between contract employees covered by the provisions of the 2009 Act and the temporary employees hired by TUSDEC during the time they operated the project before handing it over to the provincial government---Such employees could not by any stretch of the language be termed or treated as employees hired by the Provincial Government---In such circumstances, the benefit of the 2009 Act was not available to the respondents---Even otherwise, being project employees, the respondents were excluded from the benefits of the 2009 Act by virtue of S. 2(b)---High Court erred in law by concluding that the benefit of regularization was available to the respondents---Appeals were allowed and impugned judgment of High Court was set-aside.

Shumail Ahmad Butt, A.G. Khyber Pakhtunkhwa, Atif Ali Khan, Ad AG, Khyber Pakhtunkhwa, Barrister Qasim Wadood, Ad A.G., Khyber Pakhtunkhwa, Irum Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, AD, Fisheries, Gulzar Mahmood, AD Fisheries Khyber Pakhtunkhwa, Engr. Falak Niaz, AD (Dost), Rajbar Khan, SDO, PHE, Khyber Pakhtunkhwa, Saadullah, Assistant Secretary, BOR, Khyber Pakhtunkhwa, Faheem Ullah Khan, Senior LO, KPPSC, Assad Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secy, Finance Deptt. Khyber Pakhtunkhwa for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Respondents (in C.A. No. 240 of 2020).

Respondents in person (in C.A. No. 272 of 2020).

2021 P L C (C.S.) 762

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

MUHAMMAD SHARIF and others

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and others

C.Ps. Nos. 517-L, 1019-L, 1062-L, 1232-L of 2016 and 1929-L of 2017, decided on 28th April, 2021.

(Against the judgment(s)/order(s) of Punjab Service Tribunal, Lahore dated 21.12.2015 passed in Appeal No. 494/2015 and 09.02.2016 passed in Appeal No. 3223/2015 and 01.03.2016 passed in Appeal No. 1025 of 2015)

(a) Civil service---

----Back benefits/back pay---Meaning.

10th Edition, Thomson Reuters, 2014, 166; Aguinaga v. United Food and Commercial Workers Int'l Union 993 F.2d 1463, 1473; Robinson v. Lorillard Corp. 444 F.2d 791, 804 and Smith v West 1999 U.S. App. Vet. Claims LEXIS 475, 6 ref.

(b) Civil service---

----Reinstate in service---Meaning and scope.

Black's Law Dictionary (10th Edition, Thomson Reuters, 2014) 1477; Black's Law Dictionary, (6th Edition, St. Paul, MINN., West Publishing Co., 1990) 1287 and Aiyar's Judicial Dictionary (10th Edition, 1988) 871 ref.

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

----S. 16, second proviso---Constitution of Pakistan, Arts. 4, 10A, 14 & 25---Fundamental Rules, R. 54--- Civil Service Rules (Punjab), R. 7.3---Civil servant---Reinstatement in service after order for removal or dismissal from service set-aside---Back benefits, entitlement to---Scope and principles---Civil servant on unconditional reinstatement in service was to be given all back benefits and the only exception justifying part withholding of back benefits could be that he accepted gainful employment/engaged in profitable business during the intervening period---In case, the dismissal/removal of a civil servant was declared illegal for a defect in disciplinary proceedings without attending to the merits of the case, the entitlement to back benefits may be put off till the inquiry was conducted in the matter finally determining the fault of the civil servant---In case, where there was some fault of the civil servant, including a situation where concession of reinstatement was extended to the civil servant while applying leniency or compassion or proportionality as standard and where penalty was modified but not wiped off in a way that the civil servant was restored to his position, he may be denied a portion of back benefits/back pay, while maintaining a proportion between the gravity of the fault of the civil servant and special/extenuating circumstances of the case.

A civil servant once exonerated from the charges would stand restored in service as if he were never out of it and would be entitled to back benefits.

Chairman State Life v. Siddiq Akbar 2013 SCMR 752; Umer Said v. District Education Officer (Female) 2007 SCMR 296 and 2015 SCMR 77 = 2015 PLC (C.S.) 366 ref.

Civil servant, whose wrongful dismissal or removal had been set-aide goes back to his service as if he were never dismissed or removed from service. The restitution of employee, in this context, meant that there had been no discontinuance in his service and for all purposes he had never left his post. He was therefore entitled to arrears of pay for the period he was kept out of service for no fault of his own. No different was the position where an employee had been served with a penalty like reduction in rank or withholding of increment(s) or forfeiture of service, etc. and the penalty had been set-aside. The employee stood restored to his post with all his perks and benefits intact and would be entitled to arrears of pay as would have accrued to him had the penalty not been imposed on him. This general principle of restitution fully met the constitutional requirements of fair trial and due process (Articles 4 & 10A of the Constitution) besides the right to life (Article 9) which included the right to livelihood ensuring all lawful economic benefits that came with the post. Reinstating an employee but not allowing him to enjoy the same terms and conditions of service as his colleagues was also discriminatory (Article 25). All this snowballed into offending the right to dignity (Article 14) of an employee for being treated as a lesser employee inspite of being reinstated or restored into service.

The "concept of reinstatement into service with original seniority and back benefits" was based on the established principle of jurisprudence that if an illegal action/wrong was struck down by the Court, as a consequence, it was also to be ensured that no undue harm was caused to any individual due to such illegality/wrong or as a result of delay in the redress of his grievance. If by virtue of a declaration given by the Court a civil servant is to be treated as being still in service, he should also be given the consequential relief of the back benefits (including salary) for the period he was kept out of service as if he were actually performing duties.

Federation of Pakistan v. Sindh High Court Bar Association PLD 2012 SC 1067; Pakistan v. Mrs. A. V. Issacs PLD 1970 SC 415; Muhammad Bashir v. Government of the Punjab 1994 SCMR 1801 and Inspector-General of Police, Punjab v. Tariq Mahmood 2015 SCMR 77 = 2015 PLC (C.S.) 366 ref.

Where the order of dismissal, removal or reduction in rank was set aside unconditionally, back benefits were to be paid necessarily. The grant of back benefits to an employee who had been illegally kept away from his employment was a rule and denial of service benefits to such reinstated employee was an exception. When a civil servant was reinstated in service and his dismissal from service was held to be illegal and for no fault of his, then his reinstatement in service would mean that he had always been in service and as a consequence be paid salary from the day he was illegally removed or dismissed from service. One of the exceptions of not granting full back benefits was that if the reinstated employee had accepted another employment or engaged in any profitable business during the intervening period; in such a case, the said amount would be set off against the salary. This concept was now available as an instruction under Sl. No. 155, Vol-II, Esta Code, 2007 edition.

Qadeer Ahmad v. Punjab Labour Appellate Tribunal PLD 1990 SC 787; General Manager v. Mehmood Ahmed Butt 2002 SCMR 1064; Muhammad Hussain v. E.D.O. (Education) 2007 SCMR 855; Umer Said v. District Education Officer (Female) 2007 SCMR 296; Sohail Ahmed Usmani v. DG CAA 2014 SCMR 1843; Chairman State Life v. Siddiq Akbar 2013 SCMR 752; Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415; Muhammad Bashir v. Government of the Punjab 1994 SCMR 1801 and Inspector General of Police, Punjab v. Tariq Mahmood 2015 SCMR 77 = 2015 PLC (C.S.) 366 ref.

The reinstatement or restoration of an employee to the post may be due to the following different reasons: (a) purely on merits; (b) on technical grounds without touching the actual merits of the case and (c) on the ground of leniency where the actual order was either converted into a lesser penalty or totally set-aside. [p. 773] G

An employee on reinstatement on merits could not be deprived of back benefits. Any such deprivation would be against his constitutional rights guaranteed to an employee. Besides, Rule 7.3(a) of Civil Service Rule (Punjab) also pointed in this direction. In case of reinstatement or restoration to a post on merits, the employee was entitled to full back benefits and there was no discontinuity of service, thus the question of intervening period did not arise in such a case. The discretion (as to awarding arrears/back benefits) under the second proviso to section 16 of the Punjab Civil Servants Act, 1974 ('the 1974 Act') was to be exercised in favour of the employee by granting him all the back benefits. However, the said principle of grant of back benefits was qualified by a situation where the order of reinstatement was conditional; either civil servant's dismissal from service was declared illegal for a defect in disciplinary proceedings or the penalty was modified to be on the lower side with the result that the civil servant was reinstated. In the former situation, the merits of the case and the determination of the fault of the employee went untouched, even though he stood reinstated. Here, an inquiry could still be made into the employee's conduct or his conduct may be considered such as to call for a departmental inquiry. The de novo proceedings could be initiated from the stage where the defect had crept in. In such a situation, the entitlement with regard to back benefits was put off till the final determination with regard to the civil servant's conduct. If he was found at fault, the competent authority could justifiably deny him part of the back benefits. And, in the latter situation, the civil servant was not declared blameless; rather, his penalty was reduced and, therefore, part of back benefits, as necessitated by the implications of reduced penalty, may justifiably be denied to him.

Muhammad Arif Khan v. Dy. Enc. E'in'C's Branch, GHQ 1991 SCMR 1904 and Qadeer Ahmad v. Punjab Labour Appellate Tribunal PLD 1990 SC 787 ref.

Appellate authorities, often, without saying a word about the charge, reinstated a civil servant taking a lenient view or on compassionate ground or on the ground of proportionality. In such a case the charge stood established yet the authority or the court, applying leniency or compassion or proportionality as standard, felt inclined to extend concession of reinstatement to the civil servant. Notably the civil servant in such a case was not reinstated unconditionally a nd, therefore, he may be denied a portion of pay - while maintaining a proportion between the gravity of the fault of the civil servant and special/ extenuating circumstances of the case - he would otherwise get on reinstatement. Such treatment would be in step with the second proviso to section 16 of the 1974 Act and would also be consistent with the spirit of Fundamental Rule 54 ("FR") and Civil Service Rules (Punjab) 7.3(b) ("CSR"). If an employee was reinstated in such an eventuality, the authority or the court needed to clearly state that though the charge ascribed to the employee stood proved, concession was being shown to him to avoid the rigors of major penalty, which would otherwise be unwarranted in view of peculiar circumstances of the case.

(d) Civil service---

----Period spent by a civil servant away from duty due to dismissal from service or absence from duty, etc.---"Leave without pay" or "leave of the kind due" granted to a civil servant---Purpose and meaning.

In case back benefits as of right were not awarded to the civil servant and he was served with any other penalty after reinstatement in service, the intervening period had to be counted for, otherwise the interruption in the service of a civil servant may entail forfeiture of his service, therefore, the intervening period had to be regularized by treating it as an extraordinary leave without pay or leave of the kind due or leave without pay, as the case may be. The regularization of the intervening period was a totally separate matter and had no bearing on the penalty imposed upon the civil servant. The competent authority may condone interruptions in service provided that the gaps were not due to any fault or willful act of the employee. The service gaps were usually regularized as extraordinary leave without pay or leave of the kind due. Terming absence period as extraordinary leave without pay was not a punishment, rather, a treatment given to regularize the period spent away from duty. Nor could a concession given to a civil servant that his absence from duty be treated as extraordinary leave without pay mean that major penalty imposed in the same order was wiped off. Nevertheless, the powers given to treat the period of absence as extraordinary leave without pay or leave of the kind due were to be exercised after due application of mind and considering the facts and circumstances of a case.

National Bank of Pakistan v. Zahoor Ahmed Mengal 2021 SCMR 144; NAB v. Muhammad Shafique 2020 SCMR 425; Federation of Pakistan v. Mamoon Ahmed Malik 2020 SCMR 1154 and DIG, NH & MP, Karachi v. Ghulam Mustafa Mahar 2019 SCMR 95 ref.

Khan Muhammad Vehniwal, Advocate Supreme Court for Petitioners (in C.P. No. 517-L of 2016).

Rana Shamshad Khan, Additional A.G., Ch. Zafar Hussain Ahmad, Additional A.G. along with Shaukat Ali, DSP, Munir Hussain, DSP, Naeem Cheema, Law Officer, Imran Ashraf, S.P., Muhammad Ijaz Khan, Lit. Officer and Muhammad Anwar Yasir, Lit. Officer for Petitioners (in C.Ps. Nos. 1019-L, 1062-L, 1232-L of 2016 and C.P. No. 1929-L of 2017).

Mahmood Ahmad Qazi, Advocate Supreme Court for Respondents (in C.P. No. 1929-L of 2017).

Hasan Riaz, Research Officer-Civil Judge, SCRC, Islamabad for Research Assistance.

2021 P L C (C.S.) 828

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ

MUHAMMAD NAEEM KHAN

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN and others

Civil Appeal No. 1474 of 2015, decided on 10th December, 2020.

(Against the judgment dated 16.12.2014 passed by the Peshawar High Court, Peshawar in Writ Petition No. 162 of 2014)

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

----Rr. 3(d), 38 & 39 & Appendix-I, Sr. No. 12---Branch manager of a bank---Negligence and dereliction of duty --- Charge sheet, issuance of---Authorized officer---Perusal of the Appendix-I to the National Bank of Pakistan (Staff) Services Rules, 1973 ('Rules, 1973') revealed that delegation of powers in respect of issuance of show cause notices had been mentioned at Sr. No. 12 thereof---In terms of the said item, the power to issue show cause notice to all categories except (i)(a),(b) and (c) mentioned therein were delegated to Deputy Managing Director, Head of Administration Department, Head Office, Principal Offices and Senior Regional Managers---In the present case, the show cause notice was issued by Executive Vice President/Divisional Head, Head Office, therefore it would appear that the show cause notice to the appellant had prima facie been issued by a competent authority---Power conferred through Rules, 1973 was rightly exercised by the Executive Vice President and the objection of the appellant in such regard was misconceived---Appeal was dismissed.

(b) Civil service---

----Branch manager of (National) Bank---Negligence and dereliction of duty---Penalty of demotion to one lower grade for a period of three years---Appellant being Branch Manager was responsible to keep an eye on the activities in his Branch relating to its business---In view of his senior and supervisory position, it was his responsibility and duty to supervise, exercise, control and keeping a vigilant eye on each and every aspect of business and services provided by different sections of the Branch; he was not only required to be vigilant but to have direct and first-hand knowledge and maintain supervision of all activities and the manner in which such activities were being conducted---Admittedly, fraud was committed in the Branch and in the opinion of the inquiry officer, lack of vigilance for long periods of time and failure of the appellant to put systems in place and maintaining the relevant registers perpetrated and perpetuated continuous fraud for almost four years---Appellant consciously and deliberately covered up the fraud and thereby facilitated commission of such fraud which resulted in misappropriation of substantial sums of money at the cost of the exchequer---No explanation was available on the record as to why despite being intimated by a whistleblower and others including surprise audits the appellant remained complacent, failed to take any action and steps to ensure that the delinquents were brought to book by way of appropriate action in accordance with law and that continuation of the fraud and misappropriation of public money was stopped---Instead, the appellant pressurized the whistleblower to remain silent and ultimately removed him from the pension payment section and failed to take any action despite identification of fraud and misappropriation of funds from the pension account during surprise audits---Further the appellant failed to inform the Regional Management, his immediate superior authority about the delinquency of his subordinate staff---On the contrary, he made active efforts to cover up and hide their activities and let embezzlement continue unabated for about four years---Such failure by the appellant emboldened those who were misappropriating funds to continue their activities for years on end---Appellant was provided all relevant documents required by him in order to build his defence and he was also given, an opportunity to cross-examine the witnesses who appeared against him---Appellant also signed the inquiry proceedings confirming the fact that he was provided all due process rights for his defence---Penalty imposed on the appellant was proportionate to the gravity of his offence---Besides Bank had made a statement before the High Court to the effect that the penalty imposed on the appellant was for a limited period of three years and that he shall be considered for promotion in accordance with the rules by the competent authorities on expiry of the said period---Appeal was dismissed.

(c) Civil service---

----Promotion---Expiry of penalty period---After the period of penalty of an official had expired, the same did not operate as an impediment in his future prospects of promotion if otherwise due.

Abdul Rehman Khan, Advocate Supreme Court for Appellant.

Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat H. Shah, Advocate-on-Record for Respondents.

2021 P L C (C.S.) 848

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar

and others

Versus

ZAHOOR AHMED KHALIL and another

Civil Appeals Nos. 712 and 713 of 2020, decided on 1st February, 2021.

(Against the judgment dated 22.02.2018 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 5304-P and 5305-P of 2017)

(a) Khyber Pakhtunkhwa Provincial Management Service Rules, 2007---

----Sched. I---Examination for Provincial Management Service (PMS) posts---Reserved quota for in-service candidates---Caretakers (BS-11) working in the Chief Minister's Secretariat---Whether such Caretakers were eligible to participate in the PMS examination on basis of 10% reserved quota for in-service candidates---Held, that Khyber Pakhtunkhwa Provincial Management Service Rules, 2007 ('the Rules, 2007') provided 10% quota for persons holding specific posts and such posts had been spelt out as "Superintendents, Private Secretaries, Personal Assistants, Assistants, Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operators, Senior and Junior Clerks"---Further condition was that such persons must possess Postgraduate qualification, from a recognized University and should have at least five years' service under the Government---Rules of 2007 specifically created a class of Government employees to whom, the benefit of 10% quota was provided to the exclusion of others and if the interpretations given by the High Court were to be accepted it would amount to not only reading in something which was not there but also extending and expanding the scope of the Rules, 2007 which was the domain of the Executive and could not lightly be interfered with without recording strong, cogent and compelling reasons---Such reasons had neither been recorded by the High Court nor were available on the record---High Court has misread the Rules, 2007 and taken them out of context in observing that the Rules did not prescribe as to what should be the nature of experience required to participate in the competitive examination for appointment against the 10% quota posts---Plain reading of the Rules, 2007 showed that five years' experience under the Government was relatable to the files/job descriptions mentioned in the earlier part of the Rules, therefore, holding that because there was no specific and elaborate description of the sort of experience that was required, a totally unrelated experience, (in the present case working as a Caretaker/Household staff) would also count as experience of Government service appeared to be without sound legal basis---Importantly respondents [Caretakers (BS-11)] had not altogether been excluded from participating in the competitive examination insofar as if they met the criteria for participation they were not precluded from doing so by competing in open merit --- Furthermore admittedly the respondents did not constitute ministerial staff and were also not borne on the cadre/strength of the Provincial Secretariat---Respondents/Caretakers (BS-11) were not allowed to participate in the PMS examination on basis of 10% reserved quota for in-service candidates---Appeals were allowed and impugned judgment of the High Court was set aside.

Government of Khyber Pakhtunkhwa v. Hayat Hussain 2016 SCMR 1021 and Central Board of Revenue Government of Pakistan v. Asad Ahmed Khan PLD 1960 SC 81 ref.

(b) Interpretation of statutes----

----Ejusdem generis, rule of---Scope---Provisions of a statute and Rules had to be read in their context and unless otherwise provided or there were compelling and lawful reasons to do otherwise the rule of ejusdem generis had to be followed.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Shahid Iqbal, Litigation Officer, KP, PSC and M. Tufail Khattak, Additional Secretary, Establishment, Khyber Pakhtunkhwa for Appellants (in C.As. Nos. 712 and 713 of 2020).

Respondents in person (in C.A. No. 712 of 2020).

Ishtiaq Haider, Advocate Supreme Court (appeared without filing enter appearing on behalf of Respondent but appeared with Court permission) (in C.A. No. 713 of 2020).

2021 P L C (C.S.) 898

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Yahya Afridi, JJ

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, RAWALPINDI and others

Versus

Syed USMAN ALI and others

Civil Appeals Nos. 864 to 872 of 2017 and Civil Appeals Nos. 1090 to 1116 and 1059 to 1075 of 2019 and Civil Petitions Nos. 324 to 334, 430 and 431 of 2019, 2853 of 2016 and C.M.A. No. 5767 of 2016 and Civil Petitions Nos. 2104 to 2109 and 2980 to 3006 of 2019 and C.M.As. Nos. 5918 to 5926 of 2016, decided on 8th October, 2019.

(On appeal against the judgment of Federal Service Tribunal, Islamabad, dated 10.05.2016, 18.10.2018, 06.08.2018, 28.11.2018, 23.05.2016, 27.03.2019 and 08.05.2019 passed in Appeals Nos. 68 to 76(R)CS of 2013 and 4322 to 4334, 4654 to 4658 and 4406 to 4414(R)CS of 2017 and 868 to 884(R)CS of 2016 and 1465 to 1467, 1469 to 1472, 1474 to 1477, 1468 and 1473(R)CS of 2016 and 1402(R)CS/2013 and 58 to 63(R)CS of 2017 and 4040 to 4060 and 4303 to 4308(R)CS of 2017)

Civil service---

----Temporary Labour Appointments/daily wagers in Pakistan Railways---Regularization in service---Whether date of regularization would operate from the date of initial appointment---Held, that respondents-employees were appointed as daily wagers/Temporary Labour Appointments (TLAs) in the year 2006/2007---Subsequently their services were regularized with immediate effect under the Regularization Policy, 2012---As the said Policy of 2012 was with immediate effect i.e. 20-02-2012, the respondents could not claim the regularization from the date of their initial appointment---Furthermore previous Regularization Policies of 1985 and 2000 were not applicable to the respondents---No illegality was found in the regularization of the respondents under Regularization Policy, 2012 from the date of regularization i.e., 20-02-2012---Appeals were allowed and impugned judgment of Service Tribunal was set aside.

Hafiz Hafiz ur Rehman, Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Appellants (in C.As. Nos.864-872 / 2017, 1059-1075/2019 and 2853/2016).

Jawad Mahmood Pasha, Advocate Supreme Court for Appellants (in C.As. Nos. 1090-1116, 324-334, 430-431, 2104-2109 and 2980-3006 of 2019).

Ijaz Buriro, CEO/GM, Sufian Dogar, CPO and Salman Kazmi, Legal Directorate for Pakistan Railways (on Court's Notice).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. Nos.864-872 of 2017).

Zulfiqar Khalid Malooka, Advocate Supreme Court for Respondents (in C.P. 2853 of 2016).

Nemo for Respondents (in C.As. Nos. 1091-1116, 1059 to 1075 of 2019 and C.Ps. Nos. 2104-2109, 325, 326, 329-331 of 2019).

2021 P L C (C.S.) 921

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

KHUSHAL KHAN KHATTAK UNIVERSITY through Vice-Chancellor and others

Versus

JABRAN ALI KHAN and others

Civil Appeals Nos. 617 to 626 of 2020, decided on 26th April, 2021.

(Against judgment dated 12.02.2020 of Peshawar High Court, Bannu Bench, passed in Writ Petitions Nos. 759-B, 296-B, 586-B, 609-B, 581-B, 192-B, 195-B, 193-B, 196-B of 2019 and 649-B of 2018)

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

----S. 23---Constitution of Pakistan, Art. 199---Syndicate of a University---Interference in internal working of a Syndicate by the High Court in its Constitutional jurisdiction---Scope---Where a matter related to the internal working and procedures of the Syndicate, then in the absence of bias, partiality or lack of transparency on the part of a Committee (acting on instructions and authorization of the Syndicate) the same could not be interfered with---Where the committee, under lawfully delegated authority passed an order which addressed the issues raised by the High Court, the same could not be rejected (by the High Court) without assigning cogent and legally sustainable reasons---High Court in its Constitutional jurisdiction cannot substitute the findings of the Syndicate without proof of mala fides, bias, illegality or lack of transparency.

(b) Constitution of Pakistan---

----Art.199---Civil service--- Contractual employees seeking regularization in service---Contract of employment expiring during pendency of Constitutional petitions before the High Court---Effect---Constitutional petitions filed by contractual employees before the High Court would become infructuous---High Court lacked jurisdiction to revive or renew expired contracts---Conferring a retrospective right upon the contractual employees when their contracts had already expired was ex facie erroneous, illegal and without jurisdiction---Department was at liberty to dispense with the services of the contractual employees in accordance with the terms and conditions of the contract which were accepted by the employees when they accepted contractual employment---High Court could not have amended or altered the terms and conditions of the contract of the employees in exercise of its constitutional jurisdiction under Art. 199 of the Constitution---Appeals were allowed.

(c) Civil service---

----Contractual employees--- Regularization in service---No vested right---Contractual employees had no vested right to seek regularization unless there was legal and statutory basis for the same---Contractual employees could not disown the terms and conditions of their own employment contracts and claim permanent employment when at the very inception of their employment they had accepted contractual employment on the condition that they would have no right to claim regularization.

Government of Khyber Pakhtunkhwa Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068 ref.

(d) Civil service---

----Allegation of mala fides made against appointing authority---Mala fides where alleged must be proved.

(e) Constitution of Pakistan---

----Art. 199---Civil service---Appointment---Constitutional powers of the High Court---Scope---In its Constitutional jurisdiction the High Court could not arrogate to itself the executive function of being an appointing authority---Such function was beyond the pale of jurisdiction of the High Court and militated against the fundamental concept of trichotomy of powers.

Ghulam Mohyuddin Malik, Advocate Supreme Court for Appellants (via video link from Peshawar).

M. Shoaib Shaheen, Advocate Supreme Court for Respondents Nos. 1-5 (in C.A No. 617 of 2020) and for Respondent No. 1 (in C.As. Nos.623-626 of 2020)).

M. Junaid Akhtar, Advocate Supreme Court for Respondents Nos.1-8 (in C.A. No. 618), for Respondent No. 1 (in C.As. Nos. 619, 620 of 2020) and for Respondents Nos. 1 - 2 (in C.A. No. 622 of 2020).

Imran Fazal, Advocate Supreme Court for Respondents Nos. 1-6 (in C.A. No. 621 of 2020).

2021 P L C (C.S.) 940

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CONTROLLER MILITARY ACCOUNTS (PENSION) LAHORE CANTONMENT and others

Versus

MUHAMMAD SABIR (DECEASED) through L.Rs.

Civil Appeal No. 527 of 2020, decided on 3rd December, 2020.

(Against the judgment dated 18.06.2019, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No. 785 of 2014)

Pakistan Army Reserve Rules, 1974---

----R. 11---Pakistan Army Act (XXXIX of 1952), S. 176-A---Army reservist---Minimum pension, entitlement to---Army reservists were fixed rated pensioners and they were not entitled to minimum pension as allowed through different Office Memorandums on the subject---Pension Regulations of the Armed Forces ('Pension Code') (issued under S. 176-A of the Pakistan Army Act, 1952) created a class of reservist pensioners and this class of reservist pensioners had been created on the basis that one-half of a reserve service would be counted as pensionable service in case of a person recalled to the colours or called up for active service and a person discharged from the reserve after a prescribed period of combined colour/active and reserve qualifying service of not less than 15 years would be eligible for a special pension at the rates mentioned therein---Classification of reservist pensioners was quite distinct from other classes of pensioners in the Army---Main reason for such classification was that the reservists were paid fixed rated pension as fixed by the Pension Code, whereas the remaining classifications were of those, who were Retiring Pensioners, Invalid Pensioners, Superannuation Pensioners and Compensatory Pensioners and their pensions were not provided for in the Pension Code to be fixed rated, rather their pensions were counted on their having qualifying period of service and last pay drawn etc.---In the present case, the Pension Book of the respondent-army reservist, showed his class of pension as "proportionate SPR" and having the rank of sepoy, he was paid proportionate pension of the rate fixed in the Pension Code---Respondent had admitted that he was discharged as a reservist and he never alleged that he was a retired employee paid from Defence Services Estimates---Being not a retired employee, the four subject Office Memorandums dealing with quantum of minimum pension had no application to the respondent---Respondent was not entitled to the grant of a minimum pension as prescribed by the said four Office Memorandums and subsequent Office Memorandums issued on the same subject---While announcing minimum pension by the Office Memorandums, the Federal Government did not change or alter the fixed rates of pensions of reservists as prescribed by the Pension Code---Appeal was allowed and impugned judgment of High Court was set aside.

Ayaz Shaukat, Deputy Attorney General for Pakistan and Imtiaz Ahmed, Assistant Accounts Officer for Appellants.

Malik Muhammad Asghar (son of Muhammad Sabir (deceased)) for Respondent (Legal Heirs).

2021 P L C (C.S.) 955

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, GUJRANWALA and another

Versus

MUHAMMAD ARIF BUTT

Civil Appeal No. 1385 of 2019, decided on 31st March, 2021.

(Against judgment dated 12.12.2018 of Federal Service Tribunal, Lahore passed in Appeal No. 2(L)CS of 2017)

(a) Civil service---

----Misappropriation of public money---Dismissal from service---Penalty of dismissal from service imposed upon respondent-postman by the departmental authorities was converted by the Service Tribunal into stoppage of two increments for a period of two years without future effect with reinstatement in service with all back benefits---Legality---Government servant who was found to have misappropriated public money, notwithstanding its amount, breached the trust and confidence reposed in a Government servant who was charged with the responsibility of handling public money---Misappropriation of the same, whether temporary or permanent and irrespective of the amount constituted dishonesty and misconduct---Such an/employee/individual had no place in Government service because he broke the trust and proved himself to be unworthy of the confidence that the State reposed in him---In the present case, despite recording a finding to the effect that the allegations of inefficiency and misconduct stood proved against the respondent, who in his defence had failed to contest or disprove the same, the Tribunal proceeded to take a lenient view in the matter---Such leniency by the Tribunal amounted to granting a premium to an employee who had admittedly and blatantly violated the laws and rules applicable to his service and had been proven guilty of misconduct and misappropriation---Further, the impugned judgment of the Tribunal was conspicuous by the absence of any reasoning for the impugned modification let alone cogent or legally sustainable one---Appeal was allowed, impugned judgment of the Tribunal was set-aside and penalty of dismissal from service imposed upon the respondent by the departmental authorities was affirmed and restored.

Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817 distinguished.

Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656; Chief Postmaster Faisalabad v. Muhammad Afzal 2020 SCMR 1029; Government of the Punjab through Chief Secretary v. Muhammad Arshad and 2 others 2020 SCMR 1962 and District Police Officer v. Muhammad Hanif 2020 SCMR 1610 ref.

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

----S. 5---Federal Service Tribunal ('the Tribunal')---Discretion to modify punishment awarded by departmental authorities---Scope---Although the Tribunal had the discretion to interfere in the questions of quantum of punishments, such discretion could neither be exercised arbitrarily nor were the powers of the Tribunal under S. 5 of the Service Tribunals Act, 1973 ('the 1973 Act') unqualified or unlimited---Where the penalties awarded by the competent departmental authorities after following due process of law were to be interfered with in exercise of the discretionary powers of the Tribunal under S. 5 of the 1973 Act, such discretion had to be exercised in a circumscribed, restricted and structured manner duly supported by the legally sustainable reasoning which justified the conclusions reached by it.

Sohail Mehmood, Additional AGP for Appellants.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent.

2021 P L C (C.S.) 979

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

PUNJAB PUBLIC SERVICE COMMISSION and others

Versus

HUSNAIN ABBAS and others

Civil Appeal No. 359 of 2020 and Civil Petition No. 14 of 2020, decided on 16th March, 2021.

(Against judgment dated 30.10.2019 of Lahore High Court, Lahore passed in Writ Petition No. 243917 of 2018)

(a) Constitution of Pakistan---

----Art. 27---Civil service---Reserved quota for underrepresented class or area---Constitutionality---Legislation put in place by the competent legislature for redressal of under representation of any class or area in the service of Pakistan was neither ultra vires nor violated Art. 27(1) of the Constitution.

Mushtaq Ahmed Mohal v. Honourable Lahore High Court 1997 SCMR 1043 ref.

(b) Civil service---

----Rules/conditions applicable for appointment against advertised posts---Scope---Rules applicable and the conditions required to be specified were those which were in force on the date of appointment and not those which were obtained earlier i.e. at the time of inviting applications, etc.

Habibur Rehman v. West Pakistan Public Service Commission PLD 1973 SC 144; Nusrat Baig Mirza v. Government of Pakistan PLD 1992 FSC 412; Abdul Jabbar Memon's case 1996 SCMR 1349 and Governor N.W.F.P. v. Gul Naras Khan 1987 SCMR 1709 ref.

(c) Civil service---

----Erroneously prepared merit list---No vested right of appointment---No vested right could accrue in favour of a candidate by virtue of an erroneous merit list which was prepared on the basis of an erroneous advertisement; which had been published in violation of the Government Policy, and the applicable rules and regulations.

(d) Civil service---

----Appointment--- Legitimate expectancy, doctrine of---Scope---Candidate's claim to appointment based on the doctrine of legitimate expectancy could not be allowed to override or overshadow another candidate's right which was based upon constitutional protections and statutory provisions put in place on the basis of a constitutional mandate.

(e) Punjab Public Service Commission Ordinance (II of 1978)---

----S. 7---Punjab Public Service Commission ('the Commission'), powers of---Scope---Neither the Commission nor its Chairman had the power or authority to appoint a candidate against any post in view of the fact that mandate of the Commission and its Chairman was limited only to making recommendations to the concerned Departments for appointment against available posts.

Barrister Qasim Ali Chouhan, Additional A.G., Punjab for Appellants.

Mudassar Khalid Abbasi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in Civil Petition No. 14 of 2020) and for Respondent No. 2 (in C.A. No. 359 of 2020).

Mian Shah Abbas, Advocate Supreme Court via video link from Lahore for Respondent No. 1 (in C.A. No. 359 of 2020).

Respondent No. 1 in person (in C.P. No. 14 of 2020).

2021 P L C (C.S.) 1003

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD

Versus

MUHAMMAD SAMIULLAH

Civil Appeal No. 616 of 2020, decided on 20th April, 2021.

(Against judgment dated 10.04.2019 of Peshawar High Court, D.I. Khan Bench, passed in Writ Petition No. 1141-D of 2018 with C.Ms. Nos. 1301-D of 2018 and 454-D of 2019)

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

----Ss. 35 & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9 [since repealed]---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Scope---"Master and servant" relationship---Ad hoc or temporary employees employed by the Pakistan Telecommunication Corporation (the Corporation) or the Pakistan Telecommunication Company Limited (the Company)---Non-statutory terms and conditions of service---Distinction had to be drawn between departmental employees of the Pakistan Telegraph and Telephone Department (T&T Department)whose terms and conditions of service on their transfer to the Pakistan Telecommunication Corporation (the Corporation) and then to the Pakistan Telecommunication Company Limited (the Company)were protected by law and those who were employed by the Company on contract or work-charge basis whose terms and conditions of service were governed by the rules of the Company that were clearly non-statutory---In the present case, the respondent-employee fell squarely in the latter category as he was employed as a workman on daily wages by the Corporation in 1992 whereafter his services were regularized in 1998 and subsequently terminated---At no point in time was the respondent working in the T&T department---Employees such as the respondent who were employed by the Corporation or the Company on ad hoc or temporary basis were not afforded statutory protection, and their employment was governed by the principle of 'master and servant'---Any alleged violation of non-statutory rules was not amenable to Constitutional jurisdiction of the High Court---Even otherwise, an adequate and efficacious remedy of filing a grievance petition before the Labour fora was available to the respondent, which alternate remedy he did not avail---Appeal was allowed and impugned judgment of High Court, whereby respondent was reinstated in service, was set aside.

Masood Ahmad Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152; PTCL and others v. Masood Ahmad Bhatti and others 2016 SCMR 1362 and Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

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

----S. 34---Constitution of Pakistan, Art. 199(5)---'Person' within the meaning of Art. 199(5) of the Constitution---Pakistan Telecommunication Company Limited (PTCL) was a person within the meaning of Art. 199(5) of Constitution.

Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

(c) Civil service---

----Ad hoc, temporary employee or contract employee---No vested right of regularization---Ad hoc, temporary or contractual appointment did not create any vested right of regularization in favour of the appointee.

Shahid Anwar Bajwa, Advocate Supreme Court for Appellant (via video link from Lahore).

Raheel Zafar, S.M. Legal for Appellant.

Ahmed Ali, Advocate Supreme Court for Respondent.

2021 P L C (C.S.) 1030

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

KHALILULLAH KAKAR

Versus

PROVINCIAL POLICE OFFICER, BALOCHISTAN and others

Civil Appeals Nos. 909 to 912 of 2020 and Criminal Original Petition No. 87 of 2020, decided on 21st May, 2021.

(On appeal against judgment dated 31.01.2020 passed by the High Court of Balochistan, Quetta, in C.Ps. Nos. 246/2008 and 334/2019)

(a) Constitution of Pakistan---

----Arts. 199 & 212(3)---Balochistan Service Tribunals Act (V of 1974), S. 3(2)---Issue of joint seniority list of Deputy Superintendents of Police ('DSPs')---Matter relating to the terms and conditions of service---Constitutional jurisdiction of High Court---Scope---Article 212(2) of the Constitution specifically placed an embargo on all other courts except Service Tribunal to grant an injunction, make any order or 'entertain' any proceedings in respect of any matter relating to the terms and conditions of service even if they were mala fide, ultra vires or coram non judice---Word 'entertain' used in Art. 212(2) of the Constitution was of significant importance; it meant that any petition or proceeding relating to the terms and conditions of service should not even be entertained by the High Court in its constitutional jurisdiction under Art. 199 of the Constitution---Respondents being employees of Provincial Police Force were civil servants and the matter pertaining to issuance of joint seniority lists specifically related to their terms and conditions of service, which particularly rested within the jurisdiction of Provincial Service Tribunal---Filing of the Constitutional petitions before the High Court, at a time when the Provincial Service Tribunal was functional, was against the Constitutional mandate---Constitutional petitions filed by the respondents were not maintainable before the High Court---Appeal was allowed.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456; Asadullah Rashid v. Muhammad Muneer 1998 SCMR 2129 and National Assembly Secretariat v. Manzoor Ahmed 2015 SCMR 253 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction (of the High Court) was extraordinary in its scope, it had to be exercised sparingly---Jurisdiction conferred on the High Courts under Art. 199 of the Constitution was an extraordinary relief and the same had to be exercised in aid of justice and not to interfere in jurisdictions of other statutory forums---When the law has provided an adequate remedy, constitutional jurisdiction under Art. 199 of the Constitution could not be exercised as the same had to be exercised in exceptional circumstances, which could justify invoking the said jurisdiction---Tendency to bypass remedy provided under relevant statute by resorting to constitutional jurisdiction (of the High Court) was to be discouraged so that legislative intent was not defeated---Such jurisdiction was meant to be exercised in extraordinary circumstances and not in run of the mill cases.

(c) Balochistan Deputy Superintendent of Police Service Rules, 1978---

----R.2(b)---Balochistan Police Act (X of 2011), S.3---Balochistan Police Force---Separate seniority lists prepared for Deputy Superintendents of Police ('DSPs') belonging to different branches---Legality---Respondents who were DSPs belonging to the legal/prosecution branch challenged the issuance of separate seniority lists---Held, that as matter of common practice, which was prevalent in all four Provinces and Islamabad Capital Territory, seniority lists of DSPs of legal/prosecution branch was being prepared separately as compared to DSPs of other branches---Rule 2(b) of the Balochistan Deputy Superintendents of Police Service Rules, 1978, mentioned about different branches of the Police---Said Rules of 1978, the Balochistan Police Act, 2011 and the Police Rules, 1934, were silent on the point as to whether there should be separate or joint seniority lists of DSPs but the language used therein about the different branches of the police force and the fact that the mode of recruitment, nature of job, duties and training of legal/prosecution branch of the Balochistan Police was different than the other branches of the police, left no room to believe that the act of issuing separate seniority lists was well reasoned, in line with the practice followed in other Provinces including Islamabad Capital Territory and Gilgit Baltistan and in accordance with the intent of the law---Appeal was allowed.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.As. 909 and 910 of 2020).

Appellants in person (in C.A. 911 of 2020 and Cr. O.P. 87 of 2020).

Sh. Riazul Haque, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A. 912 of 2020).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents (for Respondents Nos. 2, 3, 5 to 10, 20 in C.A. 909 of 2020, Respondents Nos. 2, 3, 5, 8, 12 in C.A. 910 of 2020 and Respondents Nos. 2, 3, 5 to 10, 12 in C.A. 911 of 2020).

Adnan Basharat, Advocate Supreme Court (for remaining Respondents in C.As. 909 to 912/2020)

Ayaz Khan Swati, Additional A.G for Government of Balochistan.

2021 P L C (C.S.) 1060

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

The PROVINCE OF PUNJAB through Secretary, Finance Department, Government of the Punjab, Lahore and others

Versus

KANWAL RASHID and others

C.Ps. Nos.883-L and 1791-L of 2020, decided on 9th February, 2021.

(Against the judgment of Lahore High Court, Lahore dated 27.01.2020, passed in I.C.A. No. 50253/2019 and order dated 07.09.2020 passed in W.P. No. 13125/2020)

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

----S.18(2)---Punjab Civil Services Pension Rules, 1963, R. 4.10---Family pension, entitlement to---Unmarried daughter of deceased civil servant parents---Entitled to draw the pension of 'both' her parents simultaneously---However, such daughter would be disentitled from drawing pension, when she was married or acquired a regular source of income on her own, regardless of the family pension received by her.

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

----S.18(2)---Punjab Civil Services Pension Rules, 1963, R. 4.10---Constitution of Pakistan, Art. 14(1)---Children of deceased civil servants---Family pension, entitlement to---Clarification notification issued by Provincial Finance department with regard to family pension---Legality---Provincial Finance Department had no authority under the law to clarify, interpret, abridge or extend the right of (family) pension provided under S. 18(2) of the Punjab Civil Servants Act, 1974 and further regulated by the Punjab Civil Services Pension Rules, 1963---Supreme Court observed that depriving the children of civil servants of their family pension on the basis of an unauthorized and unlawful clarification by the (Provincial) Finance Department, offended the right to dignity of the deceased civil servants who were assured under the law that they and their children would enjoy the security of pension upon retirement---Petitions for leave to appeal were dismissed and leave was refused.

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

----S. 18(2)---Punjab Civil Services Pension Rules, 1963, R. 4.10---Family pension, entitlement to---Unmarried daughter of deceased civil servant parents---Entitlement of unmarried daughter of deceased civil servants to pension till her marriage or till 'acquiring a regular source of income' [Rule 4.10 of the Punjab Civil Services Pension Rules, 1963]---'Acquiring a regular source of income'---Meaning---"Acquiring a regular source of income" under the Punjab Civil Services Pension Rules, 1963 meant that the unmarried daughter on her own, irrespective of the source of pension, had acquired a regular source of income---Acquire signified gain by one's own effort---Entitlement to family pension by virtue of the death of the parents did not constitute acquisition of a regular source of income; it was also not "regular" as the unmarried daughter was disentitled to receive family pension the minute she was married---Both said conditions must be met by her own self irrespective of the pension---Unmarried daughter must acquire a regular income of her own expertise and efforts---Disqualification (from receiving family pension) mentioned in Punjab Civil Services Pension Rules, 1963 must be independent of the family pension and pension itself could not constitute a ground for disqualification.

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

----S.18---Constitution of Pakistan, Art. 9---Pension, right of---Scope---Right to pension had a constitutional significance; it drew its strength from the right to life or the right to livelihood under Art. 9 of the Constitution.

M. Shan Gull, Additional A.G, Punjab, Rana Shamshad Khan, Additional A.G., Jawad Yaqoob, Additional A.G., Abdul Rauf, Deputy Secretary and Nasir Mahmood, Law Officer for Petitioners (in both cases).

Rana Asad Ullah Khan, Advocate Supreme Court for Respondents (in C.P. No.883-L/2020).

Nemo for Respondents (in C.P. No.1791-L/2020).

2021 P L C (C.S.) 1085

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CONTROLLER GENERAL OF ACCOUNTS

Versus

FAZIL AHMAD, DAO EC (C&W DIVISION HANGU) and others

Civil Appeal No. 597 of 2020, decided on 10th February, 2021.

(Against the judgment dated 06.11.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1806-P of 2017)

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

----R.3(2)---Controller General of Accounts (Appointment, Functions and Powers) Ordinance (XXIV of 2001), S. 12---Two part departmental examination for promotion to Divisional Accounts Officer (BS-17)---Change in method of examination after first part already conducted---Legality---In order to become entitled to promotion respondents participated and qualified the departmental examination Part-I in the year 2012 in accordance with the Rules and Regulations prevalent at that time---Respondents also completed their practical training for six months---Part-II of the examination which was scheduled to be conducted in the year 2013 did not take place---Through the impugned notification dated 09-03-2017 the method of examination was changed---Previously, the examinations were conducted by the department itself but through the impugned notification the Federal Public Service Commission ("FPSC") was assigned the job of conducting the promotion examination---Pursuant to the notification in question which was issued by the Office of Controller General of Accounts, the impugned Resolution No. 881 was circulated by the said Office intimating that promotion examination would henceforth be conducted by the FPSC---Held, that perusal of impugned notification revealed that it had not been issued by the Federal Government and only the concurrence of the Establishment and Finance Divisions had been solicited---While it was true that R.3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ('the Rules, 1973') empowered the concerned Ministry/ Division subject to consultation with the Establishment Division to lay down methods of appointment, the notification in question as well as the Resolution under challenge were neither issued by any Ministry or Division nor published in the official Gazette---Record did not indicate that the Federal Government had notified the impugned notification after following the legal and procedural requirements and in accordance with the provisions of R. 3(2) of the Rules, 1973---Furthermore respondents had already successfully completed Part-I of the departmental examination and received the prescribed training in accordance with the Rules and Regulations prevailing at the relevant time---Part-II of the examination was due to be held in 2013 and was not held for the next four years without any fault on the part of the respondents---Right had already accrued in favour of the respondents by reason of passing Part-1 of the departmental examination which could not have been taken away merely on the basis of a notification issued by the Office of Controller General of Accounts without following due process of law---Respondents were entitled to undergo Divisional Accounts Officers' Examination Part II to be conducted by the department itself as per .the previous Regulations---Appeal was dismissed.

(b) Constitution of Pakistan---

----Art. 90---Power conferred on the Federal Government in a provision of a statute/Rules---Connotation---Wherever such a power was conferred on the Federal Government, it was construed as a power given to the Prime Minister and the Federal Ministers/Cabinet to be exercised in the name of the Federal Government.

Mustafa Impex v. Government of Pakistan 2016 PTD 2269 ref.

(c) Notification---

----Prospective effect---Scope---Notification which was duly published in the official gazette took effect from the date on which it was published except otherwise provided in the notification itself.

Moulvi Ejaz ul Haq, DAG, M. Mushtaq Khan, Account Officer and Maqbool Ali, ACGA for Appellants.

Sabit Ullah Khan, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents Nos. 1-3, 8-11, 17, 18, 22, 25, 27, 28 and 30.

Abdul Lateef Afridi, Advocate Supreme Court for Respondents Nos.4-7, 12-16, 19, 21-24, 26, 29, 31-32.

2021 P L C (C.S.) 1099

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

CHAIRMAN PAKISTAN ORDNANCE FACTORIES BOARD, WAH CANTT.

Versus

SHAHZAD AMIN and others

Civil Appeal No. 31 of 2020, decided on 16th February, 2021.

(Against the order dated 13.03.2018 passed in the Federal Service Tribunal, Islamabad in M.P. No. 2271 of 2017 in Appeal No.1813(R)CS of 2012)

Civil Service Regulations (CSR)---

----Regln. 371-A---Pensionary benefits, entitlement to---Minimum years of service to qualify for pension---Respondent had rendered 13 years of service---Service Tribunal, which converted respondent's dismissal from service into compulsory retirement, directed the appellant-employer to proceed in the matter of respondent's pension in accordance with the provisions of Regln. 371-A of the Civil Service Regulations ("CSR")and finalize the issue of his pensionary benefits within a period of three months---Legality---Provisions of Regulation No.371-A of CSR made no mention of payment of pension to an employee who had rendered only 13 years of service---Qualifying service for receipt of pension was 25 years which qualifying service had not been rendered by the respondent---In such circumstances the Service Tribunal came to the incorrect conclusion that respondent's case fell within the parameters of Regulation No.371-A of CSR having more than 10 years of service and was therefore entitled to pension---Said conclusion was not only unsupported by the record but also by the Regulation---Impugned order of the Tribunal being unsustainable on facts as well as law was set aside with the direction that the respondent was only entitled to a gratuity payment in the sum of Rs.124,000---Appeal was allowed.

Haseeb Shakoor Paracha, Advocate Supreme Court for Appellant.

Zaheer-ud-Din Babar, Advocate Supreme Court for Respondent No.1.

2021 P L C (C.S.) 1120

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education, Peshawar and others

Versus

LATIF ULLAH KHAN

Civil Appeal No. 178 of 2020, decided on 3rd February, 2021.

(Against judgment dated 07.11.2019 of Peshawar High Court, Peshawar passed in Civil Revision No. 127-B of 2016)

(a) Civil service---

----Posts of Primary School Teachers---Eligibility criteria---Preference of one diploma over the other---Under the recruitment policy, a Regular Institute of Technical Education (R.I.T.E) diploma holder was to be given preference over other candidates---However, such preference was only to be given when the candidate had equal marks as the other competing candidate on merit---Therefore, a distinction must be drawn between a R.I.T.E diploma holder who had equal marks as other candidates on the merit list and was thereby given preference on the basis of his qualification, and a R.I.T.E diploma holder who scored significantly lower marks than competing candidates---Latter candidate was not to be given preference merely by virtue of the diploma--Accordingly, the respondent-candidate, who possessed a R.I.T.E diploma, could not be given preference over the candidates appointed against the respective posts when his overall marks were significantly lower than those who were appointed on merit---Appeal was allowed.

(b) Civil service---

----Posts of Primary School Teachers---Recruitment process---Proposed policy of five extra marks for field experience---Contention of respondent-candidate that he should be appointed against the advertised post based on the five additional marks for his field experience---Held, that the, marks obtained by the respondent were 51.89 and even if the additional five marks for experience were added, his overall marks would be 56.89---On the other hand, the candidates who had been appointed against the respective posts had obtained 58.826, 58.84 and 67.832 marks respectively---Therefore, even if the respondent was granted the additional five marks, he would still not have similar marks as those of the three candidates who had been appointed---Furthermore respondent's own witness admitted during his cross-examination that the said policy for granting additional marks for experience had not yet been implemented in practice and that only a mere proposal regarding it had been circulated---In the absence of any concrete policy in place, the respondent could not get any relief on account of his five years of experience in the field of education---Appeal was allowed.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Under S. 115 of the Code of Civil Procedure, 1908, the supervisory jurisdiction of the High Court in a civil revision petition was purely discretionary and rather limited---However, such discretion must be exercised in a lawful and valid manner on the basis of well entrenched principles of the exercise of such discretion---High Court should not arbitrarily refuse to exercise its discretionary powers, rather, it must satisfy itself as to whether jurisdiction had been exercised properly and whether the proceedings of the subordinate Court suffered from any illegality or irregularity.

Atif Ali Khan, Additional A.G., Khyber Pakhtunkhwa for Appellants.

Tariq Javed Qureshi, Advocate Supreme Court for Respondent along with Respondent in person.

2021 P L C (C.S.) 1140

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

FAYYAZ ULLAH KHAN

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar

Civil Petition No. 2902 of 2018, decided on 15th April, 2020.

(Against the judgment dated 09.06.2018 passed by the Khyber Pakhtunkhwa Subordinate Judicial Service Tribunal in Service Appeal No.52 of 2011)

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

----S.6---District and Sessions Judge---Charges of corruption and living beyond ostensible legal means---Compulsory retirement---Subordinate Judiciary Tribunal had rightly noted that reply of the petitioner-Judge to the show cause notices showed that he had accepted the allegation of leading a stylish life which was beyond his lawful means; that on admission, he was required to discharge the burden which he took upon his shoulders but he did not produce any iota of evidence to that effect; that had he not taken the plea, which he took, then of course burden would have been on the Establishment to substantiate its charge but once the petitioner admitted that he was a Grade-21 Officer with a handsome salary, and that his wife was a specialist doctor having served abroad for a long time and that he had sufficient means of livelihood from his ancestral property, then, upon taking such plea, he was bound to produce some material in support of his plea, which he did not do---No evidence of any nature whatsoever was placed on record to show the earnings of petitioner's wife as a doctor or the earnings of the petitioner from his alleged ancestral property---Neither during the course of hearing of present petition nor before the Tribunal, the petitioner filed any material to substantiate his plea that he possessed the means to live a lifestyle beyond his known means as alleged in the show cause notices---Petition for leave to appeal was dismissed and leave was refused.

Malik Ghulam Mohy-ud-Din, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2021 P L C (C.S.) 1168

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

UNIVERSITY OF MALAKAND through Registrar and others

Versus

Dr. ALAM ZEB and others

Civil Appeals Nos. 902 and 903 of 2020, decided on 3rd February, 2021.

(Against the judgment dated 10.3.2020 of the Peshawar High Court, Mingora Bench, (Dar-ul-Qaza), Swat passed in Writ Petitions Nos.71-M/2019 and 108-M/2019)

(a) University of Malakand Regulation (II of 2001)---

----Regln. 27---Service Rules of University of Malakand, R. 89---Contract basis lecturers subsequently regularized in service---Study leave abroad---Entitlement to payment of salary during the period abroad---In the impugned judgment the High Court had rightly observed that in R. 89 of the Service Rules of University of Malakand, the word 'employee' was mentioned who was eligible to study leave with pay with the additional qualification that he must have three years of service in the University, and no distinction had been drawn in the said rule, as to whether the said employee was a regular employee of the University or his employment was on contract basis; that there was no reason to infer from the plain reading of R. 89 that the word employee occurring in the said rule meant a regular employee and the period of his employment should be on regular side and not on contract basis---Although the respondents/lecturers were appointed on contract basis on different dates in the years 2001 to 2005 but their services were regularized in the year 2007---Regular appointment orders of respondents clearly mentioned that their previous service shall be considered for the purpose of seniority, therefore, it could be concluded that the total length of service rendered by the respondents at the time of availing the leave was more than three years, which entitled them to study leave with full pay---When the statute clearly provided that study leave on full pay may be granted to an employee who had put in at least three years' service, the concerned authority ought not to have refused the respondents their right guaranteed under the statute---Appeals were dismissed.

(b) Estoppel---

----Statutory obligation/right---Scope---No estoppel existed against a law---Inherent power and doctrine of estoppel could not be applied to defeat the provisions of statute---As a rule of evidence estoppel could be invoked by a party, however, the same could not be accepted against the statutory obligation of a person even though one party might not have expressly claimed his right which was available to him under the law---Doctrine of estoppel did not apply against a statute and it had no application when statutory rights and liabilities were involved---If a person had been bestowed some legal right by law/statute and he omitted to claim such legal right for a certain period of time, it did not mean that he had waived his legal right and subsequently he could not claim such right.

Zarai Taraqiati Bank Limited v. Said Rehman and others 2013 SCMR 642; Union Territory, Chandigarh Admn v. Managing Society, Goswami, GDSDC AIR 1996 SC 1759 and P.R. Deshpande v. Maruti Balaram Haibatti AIR 1998 SC 2979 ref.

Khaled Rehman, Advocate Supreme Court and Muhammad Hamayun, Asst. Registrar Legal for Appellants (in both cases).

Muhammad Asif Yousafzai, Advocate Supreme Court for Respondent No. 1 (in C.A. No.902/2020).

Muhammad Asif Yousafzai, Advocate Supreme Court for Respondents Nos. 1-7 (in C.A. No.903/2020).

Muhammad Sharif Janjua, Advocate-on-Record for Respondents.

2021 P L C (C.S.) 1194

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Versus

MUHAMMAD YOUNAS

Civil Appeal No. 258 of 2020, decided on 22nd February, 2021.

(Against the judgment dated 30.11.2017 passed in Writ Petition No. 4801-P of 2017 of the Peshawar High Court, Peshawar)

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

----Ss. 2(b) & 3---Project posts---Contractual employees---Question as to whether project employees appointed to a project which was converted to the regular budget after the cut-off date of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 i.e. 24.10.2009, were eligible to be regularized under the relevant provisions of the said Act---Held, that contractual or adhoc employees appointed before 24.10.2009 i.e. the date of the commencement of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act'), were eligible for regularization---However, in the present case, since the post against which the respondent was appointed, was converted to the regular budget in 2014, it was clear that the respondent fell outside the purview of the 2009 Act---Before the conversion of the post to the regular budget, the respondent was simply a project employee---Under S.2(b) of the 2009 Act, project employees were categorically excluded from the benefit of regularization under S.3 of the 2009 Act, therefore the said Act was clearly inapplicable to the respondent---Appeal was allowed and impugned judgment of High Court was set aside.

(b) Interpretation of statutes---

----Clear and consistent interpretation by Courts in accordance with law---Scope---Courts of law were required to interpret the law and could neither rewrite the law nor read into the law something which was not provided therein---No matter how sympathetic a Court may feel towards a litigant or a set of litigants, Courts were duty-bound and required by the Constitution to adhere to the letter of law and not decide cases based on subjective feelings of sympathy which could vary from person to person---Law and its interpretation must be clear and consistent which was precisely why the adherence to the law was insisted upon as it lent stability to the system and increased the confidence of citizens in the law and the legal system---Involvement of subjectivity had the potential to make dispensation of justice variable and uncertain which was an anathema to a system based upon laws.

(c) Civil service---

----Project posts---Contractual employees---No right of regularization in service---In the present case, the policy governing appointment against Project Posts made it abundantly clear that upon conversion of the project to the regular budget, the services of the respondent-employee shall stand terminated---Furthermore, the appointment orders also clearly provided that the services of the respondent shall be terminated upon expiry of project period and that he shall not have any right to regularization---Respondent was fully aware of these terms and conditions when he applied and subsequently got appointed onto his respective former post---Appeal was allowed and impugned judgment of High Court was set aside.

Shumail Ahmad Butt, AG KP, Atif Ali Khan, Ad. AG KP, Barrister Qasim Wadood, Ad. AG KP, Irum Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, AD, Fisheries, Gulzar Mahmood, AD Fisheries KP, Engineer Falak Niaz, AD (Dost), Rajbar Khan, SDO, PHE, KP, Sadullah, Asst. Secretary, BOR, KP, Faheem Ullah Khan, Senior LO, KPPSC, Assad Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secy. Fin. Div. KP for Appellants.

Nemo for Respondents.

2021 P L C (C.S.) 1212

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

SENIOR GENERAL MANAGER/CEO, PAKISTAN RAILWAYS HEADQUARTERS, LAHORE and others

Versus

ABDUL RAUF SHAMOON

Civil Appeal No. 10 of 2021, decided on 19th April, 2021.

(Against the judgment dated 11.06.2019, passed by the Federal Service Tribunal, Islamabad in Appeal No. 3343(R)CS/2017 with MPs).

Civil service---

----Railway engine driver---Violation of red signal causing an accident---Dismissal from service---Tribunal by way of impugned judgment converted the major penalty of dismissal from service into that of compulsory retirement with effect from the date of dismissal---Legality---Train which was being driven by the respondent met with a catastrophic accident causing substantial loss of Rs. One Hundred and Twenty million to Railways and also loss of four innocent lives---Respondent in his reply had merely taken an evasive stand, rather on its close reading appeared to have admitted that he has moved the train while signal was red---Two defences taken by the respondent of i.e. hand signal by a gate man and the signal turning to green had not been established---Respondent had violated the red danger signal---Further, the respondent has accelerated the train to the speed of 80 kilometres per hour and did not apply emergency brakes, which charges had not been denied by the respondent---Tribunal in its impugned judgment had not considered such important aspects of the matter---Appeal was allowed, impugned judgment of Tribunal was set-aside and penalty of dismissal from service imposed upon the respondent was restored.

Jawad Mehmood Pasha, Advocate Supreme Court and Naveed Mubashar Ch. D.S. Multan for Appellants.

Zubair Hussain Jarral, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

2021 P L C (C.S.) 1259

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

Dr. IQRAR AHMAD KHAN

Versus

Dr. MUHAMMAD ASHRAF and others

Civil Appeals Nos. 326-L and 327-L of 2020, decided on 13th July, 2021.

(Against judgment dated 05.03.2020 passed by the Lahore High Court, Lahore in Intra Court Appeal No. 11032 of 2020 and Intra Court Appeal No. 8516 of 2020)

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

----Ss.11(8), 14(3) & 14(6)---University of Agriculture Faisalabad Conduct of Business Rules of the Syndicate, 1976, R. 3---Post of Vice-Chancellor---Appointment---Appointing authority (Chief Minister), discretion of---Structured exercise of discretion---Scope---Search Committee constituted by the Provincial Government for the selection of the Vice-Chancellor made recommendations to the Chief Minister who then advised the Governor / Chancellor of the University to appoint the respondent as the Vice Chancellor for a period of four years---Appellant who was placed highest on merit list was not appointed to the post on the grounds that certain unsettled audit paras had remained unaddressed during the appellants' tenure as Vice Chancellor and that four syndicate meetings that were required to be called in a year were not convened, which constituted sufficient reason to deny appointment to the appellant even though he was on top of the merit list having scored the highest marks---Chief Minister had made no effort to examine the mentioned audit paras to ascertain whether they were actually related to the financial control and management of the appellant---Record reflected that he recorded a general finding without ascertaining the facts with any degree of accuracy or due application of mind---Nothing had been shown that may connect the outstanding audit paras with poor financial controls of the appellant---Principal Accounting Officer of the Provincial Government was a member of the Search Committee that placed the appellant at Serial No. 1 of the merit list, and said official gave the appellant 10 out 10 marks in the category of "Administrative and Financial Management"---Further the appellant was given 45 marks in the interview, and against this, the respondent was given only 31 marks---With respect to the second reason provided by the Chief Minister that appellant was unable to hold the required number of syndicate meetings, the relevant provision i.e. R. 3 of the University of Agriculture Faisalabad Conduct of Business Rules of the Syndicate, 1976 was discretionary and not mandatory in nature as no consequence was provided in the law or the rules for failure to comply with the same---Reasons provided by the Chief Minister for not appointing the appellant, who was placed highest on the merit list, were justiciable and courts could examine them on the touchstone of validity, fairness and compliance with the law, rules and departmental practice---Discretion of the Chief Minister in such regard was not unfettered, unbridled and unregulated---Reasons provided by the Chief Minster in the present case for not appointing the appellant to the post showed an exercise of pick and choose with a pre-determined mind and a conscious and deliberate effort appeared to have been made to contrive reasons to appoint a person lower on merit and deprive a person better qualified, higher on merit and obviously more suitable for the post in question---Such act of the Chief Minister amounted to an illegal, arbitrary, capricious and unbridled exercise of discretion---Appeals were allowed.

Appointments of Permanent Vice-Chancellor of Punjab University (Human Rights Case No. 13865-P of 2018) ref.

Professor Dr. Razia Sultana and others v. Professor Dr. Ghazala Yasmeen Nizam and others 2016 SCMR 992 distinguished.

(b) Educational institution---

----Public sector universities---Post of Vice-Chancellor---Appointment---In the order of the Supreme Court titled "Appointments of Permanent Vice Chancellor of Punjab University (Human Rights Case No. 13865-P of 2018)" a rule of general application relating to the appointment of Vice-Chancellors in public sector universities on the basis of recommendations of search committees had been laid down---Applicability of the said rule was not limited only to the universities before the Supreme Court but to all universities in the public sector under the control or authority of the government which was fully represented before the Supreme Court when the order was passed---Further, the said order was not only implemented with reference to the institutions before the Supreme Court but to all other public sector universities for all intents and purposes---Said order had also attained finality and continued to hold the field.

(c) Constitution of Pakistan---

----Art. 189---Obiter dicta of the Supreme Court---Binding on the High Court.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 and Muhammad Ali Abbasi and 2 others v. Pakistan Bar Council PLD 2009 Kar. 392 ref.

Bilal Hassan Minto, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A. No. 327-L of 2020).

Hamid Khan, Senior Advocate Supreme Court, assisted by Hafiz M. Tariq Naseem, Advocate Supreme Court and Muhammad Ahsan Bhoon, Advocate Supreme Court for Respondents No. 1 (in C.A. No.326-L and No. 8 in C.A. No. 327-L of 2020).

Akhter Javed, Additional A.G. Punjab for Respondents Nos. 2, 3, 6 and 7 (in C.A. No.326-L and Nos. 1, 2, 5 and 6 in C.A. No. 327-L of 2020).

Muhammad Shahzad Shaukat, Advocate Supreme Court along with Shafqat Nadeem, Law Officer for Respondents No. 8 (in C.A. No. 326-L and No. 7 in C.A. No. 327-L of 2020).

2021 P L C (C.S.) 1300

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

The CHAIRMAN BOARD OF GOVERNORS, MEDICAL TEACHING INSTITUTE (MTI) LADY READING HOSPITAL, (LRH), PESHAWAR and others

Versus

Syed ROIDAR SHAH, CLINICAL TECHNICIAN (PHARMACY), MEDICAL TEACHING INSTITUTE (MTI), LADY READING HOSPITAL (LRH), PESHAWAR and others

Civil Appeal No. 925 of 2020, decided on 3rd February, 2021.

(Against the judgment dated 29.07.2020, passed by the Peshawar High Court, Peshawar in Writ Petition No.2527-P of 2020)

(a) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Ss. 16(3A) & 16(3B)---Civil servants working in Medical Teaching Institutions ('the Institutions')---Deputationists---Joint reading of Ss. 16(3A) & 16(3B) of the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 showed that all civil servants employed in the Institutions were deemed to be on deputation and the Board of Governors was competent to terminate the deputation period and relieve the employees from the Institutions and it was not required to give any reason for doing so---Appeal was allowed.

(b) Civil service---

----Deputationist, rights of---Scope---Deputationist had no right to continue in an employment as a deputationist and the employer, where the deputationist was employed, was competent to terminate the deputation and relieve the deputationist from its employment for reporting to his parent department.

Dr. Shafi-ur-Rehman Afridi v. C. D.A., Islamabad through Chairman and others 2010 SCMR 378; S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 and Senate Secretariat through Chairman and another v. Miss Faiqa Abdul Hayee 2014 SCMR 522 ref.

Waseem-ud-Din Khattak, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Mian Shafaqat Jan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1 - 7.

Imran Hamid, Additional Secretary, Health Department, Khyber Pakhtunkhwa, Hafeez ur Rehman Shah, S.O. Health Department, Kyber Pakhtunkhwa and Shehbaz Khan, Superintendent, Health Department, Khyber Pakhtunkhwa for Respondent No. 9.

2021 P L C (C.S.) 1343

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

CIVIL APPEAL NO. 491 OF 2012 AND

(On appeal from the judgment/order dated 29.03.2012 passed by Islamabad High Court, Islamabad in W.P.1206/2011)

CIVIL APPEALS NOS. 536-546, 580/2012, 452, 453, 43/2013 AND

(On appeal from the judgment/order dated 29.03.2012 passed by Islamabad High Court, Islamabad in W.P. 1206, 1433, 1604,1981/2011 and judgment/dated 24.10.2012 passed by High Court of Sindh, Karachi in Const.P.214-D/2011 and dated 13.09.2012 passed by Peshawar High Court, Abbottabad Bench, Abbottabad in W.P.813/2011)

CIVIL PETITIONS NOS. 150-151/2013 AND

(On appeal from the judgment/order dated 31.10.2012 passed by Peshawar High Court, Abbottabad Bench, Abbottabad in W.Ps. 368, 770/2012)

CIVIL APPEALS NOS. 1081, 1084/2011, 432/2013 AND

(On appeal from the judgment/order dated 16.05.2011 passed by High Court of Sindh, Karachi in C.Ps. 1107-D, 605-D/2010 judgment/order dated 22.11.2012 passed by Peshawar High Court, Bannu Bench, Bannu in W.P.150-B/2010)

CRIMINAL PETITIONS NOS. 138-140/2014 AND

(On appeal from the judgment/order dated 19.03.2014 passed by Islamabad High Court, Islamabad in I.C.As. 143-145/2014)

CIVIL APPEALS NOS.1151/2012, 1026-1027/2013 AND

(On appeal from the judgment/order dated 01.04.2011 passed by High Court of Sindh, Karachi in Const.P.3515-D/2010 and judgment/order dated 14.05.2013 passed by Peshawar High Court, Peshawar in W.P.2685/2011, W.P.363-P/2012)

CIVIL PETITIONS NOS. 677-P/2014,1567/2015 AND

(On appeal from the judgment/order dated 21.10.2014 passed by Peshawar High Court, Peshawar in W.P.3504/2012 and judgment/order dated 05.05.2015 passed by Federal Service Tribunal, Islamabad in A.3099(R)CS/2012)

CIVIL APPEALS NOS. 637-651, 660/2015 AND

(On appeal from the judgment/order dated 02.03.2015 passed by High Court of Sindh, Karachi in C.Ps. 298, 304-308,310-318/2014 and 10.12.2014 passed by High Court of Sindh, Sukkar Bench in W.P.2756/2012)

CIVIL PETITIONS NOS. 842/2015, 3612/2015 AND

(On appeal from the judgment/order dated 02.03.2015 passed by High Court of Sindh, Karachi in C.P.309/2014 and dated 14.10.2015 passed in Peshawar High Court, D.I. Khan Bench, D.I. Khan in W.P.177/2015)

CIVIL APPEALS NOS.101/2016, 1106/2015 AND

(On appeal from the judgment/order dated 06.10.2015 passed Peshawar High Court, Peshawar in W.P.3848/2014 and dated 12.12.2014 passed by High Court of Sindh, Karachi in C.P.1905/2011)

CIVIL PETITION NO.3366/2015 AND

(On appeal from the judgment/order dated 12.12.2014 passed by High Court of Sindh, Karachi in C.P.1998/2011)

C.R.Ps. 231-236,256/2016 IN C.Ps. 405-411/2016 AND

(Review of the judgment/order of this Court dated 05.05.2016)

CIVIL APPEALS NOS. 4-K AND 5-K/2017 AND

(On appeal from the judgment/order dated 07.09.2016 passed by High Court of Sindh, Karachi in C.P.D-4078/2011 and C.P.D-2841/2012)

CIVIL PETITION NO.19-P/2016 AND

(On appeal from the judgment/order dated 29.10.2015 passed by Peshawar High Court, Peshawar in W.P.2758-P/2015)

CIVIL APPEAL NO.65-K/2013 AND

(On appeal from the judgment/order dated 24.10.2012 passed by High Court of Sindh, Karachi in C.P.214-D/2011)

CIVIL APPEALS NOS.518 AND 519/2018 AND

(On appeal from the judgment/order dated 27.10.2017 passed by High Court of Sindh, Karachi in C.P.6370-D/2016 and C.P.3411-D/2016)

CIVIL PETITIONS NOS.588-K, 589-K/2018 AND

(On appeal from the judgment/order dated 14.03.2018 passed by Federal Service Tribunal, Camp At Karachi in Appeals 4(K)CS and 5(K)CS /2017)

CIVIL APPEAL NO.1098/2018 AND

(On appeal from the judgment/order dated 25.05.2018 passed by Islamabad High Court, Islamabad in W.P.1479/2012)

CIVIL APPEALS NOS.1921-1923/2019

(On appeal from the judgment/order dated 30.01.2019 passed by Federal Service Tribunal, Islamabad in Appeals Nos. 156(R)CS to 158(R)CS /2017)

AND

C.M.A.4382/2016 in C.A.637/2015 AND C.M.A.7274/2017 in C.A.637/2015 AND (Impleadment applications)

C.M.A.6842/2018 in C.A.1098/2018

(Stay)

MUHAMMAD AFZAL and others

Versus

SECRETARY ESTABLISHMENT DIVISION ISLAMABAD and others

Civil Appeal No. 491 of 2012 and Civil Appeals Nos. 536-546, 580/2012, 452, 453, 43/2013 and Civil Petitions Nos. 150-151/2013 and Civil Appeals Nos. 1081, 1084/2011, 432/2013 and Criminal Petitions Nos. 138-140/2014 and Civil Appeals Nos.1151/2012, 1026-1027/2013 and Civil Petitions Nos. 677-P/2014,1567/2015 and Civil Appeals Nos. 637-651, 660/2015 and Civil Petitions Nos. 842/2015, 3612/2015 and Civil Appeals Nos.101/2016, 1106/2015 and Civil Petition No.3366/2015 and C.R.Ps. 231-236,256/2016 In C.Ps. 405-411/2016 and Civil Appeals Nos. 4-K and 5-K/2017 and Civil Petition No.19-P/ 2016 and Civil Appeal No.65-K/2013 and Civil Appeals Nos.518 and 519/2018 and Civil Petitions Nos.588-K, 589-K/2018 and Civil Appeal No.1098/2018 and Civil Appeals Nos.1921-1923/2019 and C.M.A. 4382/2016 in C.A. 637/2015 and C.M.A. 7274/2017 in C.A. 637/2015 and C.M.A. 6842/2018 In C.A. 1098/2018, decided on 17th August, 2021.

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

----S. 4---Constitution of Pakistan, Art. 240---Civil service---Non-obstante clause under S. 4 of the Sacked Employees (Reinstatement) Act, 2010, ('Act of 2010')---Constitutionality---Such clause could not over-ride the provisions of the Constitution---Given the fact that the legislature itself was subservient to the Constitution, a non-obstante clause could not be deemed to override the provisions of the Constitution itself---Section 4 of the Act of 2010 (non-obstante clause) also excludes the application of the judgments of the Supreme Court or any High Court---Effect of the non-obstante clause, was, in essence, to nullify a judgment of the Supreme Court, but a legislature could not destroy, annul, set aside, vacate, reverse, modify, or impair a final judgment of a Court of competent jurisdiction---Section 4 of the Act of 2010 (non-obstante clause) failed to provide unfettered protection to the said Act and was rendered ineffective through the very judicial pronouncement it sought to oust.

Contempt Proceedings Against Chief Secretary, Sindh and others 2013 SCMR 1752; Fazlul Quader Chowdhry v. Muhammad Abdul Haque PLD 1963 SC 486 and Contempt Proceedings Against Chief Secretary, Sindh and others 2013 SCMR 1257 ref.

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

----S. 4 & Preamble---Constitution of Pakistan, Arts. 4, 9 & 25---Sacked Employees (Reinstatement) Act, 2010, ('Act of 2010'), vires of---Legislature had, through the operation of the Act of 2010, attempted to extend undue benefit to a limited class of employees---In terms of the Act of 2010 upon the 'reinstatement' of the 'sacked employees', the 'status' of the employees currently in service was violated as the reinstated employees were granted seniority over them---Legislature had, through legal fiction, deemed that employees from a certain time period were reinstated and regularized without due consideration of how the fundamental rights of the people currently serving would be affected---Rights of the employees who had completed codal formalities through which civil servants were inducted into service and complied with the mandatory requirements laid down by the regulatory framework could not be allowed to be placed at a disadvantageous position through no fault of their own---Act of 2010 was also in violation of the right enshrined under Art. 4 of the Constitution, that provided citizens equal protection before law, as backdated seniority was granted to the 'sacked employees' who, out of their own volition, did not challenge their termination or removal under their respective regulatory frameworks---Given that none of the 'sacked employees' opted for the remedy available under law upon termination during the limitation period, the transaction had essentially become one that was past and closed; they had foregone their right to challenge their orders of termination or removal---Sacked Employees (Reinstatement) Act, 2010 had extended undue advantage to a certain class of citizens thereby violating the fundamental rights (Articles 4, 9, and 25 of the Constitution) of the employees in the Service of Pakistan and was thus void and ultra vires the Constitution.

Contempt Proceedings Against Chief Secretary, Sindh and others 2013 SCMR 1752 ref.

(c) Constitution of Pakistan---

----Arts. 184(3) & 185(1)---Supreme Court, powers of---Vires of an enactment---Supreme Court, as protector and defender of the Constitution, had an inherent duty to ensure that the provisions of the Constitution were enforced in any case coming before the Court and declare any enactments invalid that abrogated the Constitution.

Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; PLD 1963 SC 486; PLD 1967 Lah. 227; 1989 PTD 42; PLD 1983 SC 457; PLD 1999 SC 54; 1999 SCMR 1402; 2002 SCMR 312; 2004 SCMR 1903 and PLD 2006 SC 602 ref.

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

----Ss. 2(f), 4 & Preamble---Constitution of Pakistan, Arts. 240 & 242---Sacked Employees (Reinstatement) Act, 2010, ('Act of 2010'), vires of---Said Act circumvented the constitutional process envisioned under Art. 240 & Art. 242 of the Constitution---In terms of S. 2(f) of the Act of 2010 'sacked employees' fell into either the definition of a 'civil servant' or employees 'in the service of Pakistan'---Said two terms were not synonymous with each other---Legislature could not, by a deeming clause in the Act of 2010, confer the status of a 'civil servant' upon employees of a corporation, and overlook the relevant framework for employees in service of Pakistan in clear violation of Arts. 240 & 242 of the Constitution---Furthermore, Ss. 2(f)(i) & 2(f)(ii) of the Act of 2010 clearly envisioned that reinstatement and regularization should be extended to not only regular employees who were either dismissed, removed, or terminated, but also to ad-hoc and contract basis employees---When S. 2 of the Act of 2010 was read holistically, the overall effect of the enactment was that the overall recruitment process was overlooked and non-civil servants were 'reinstated' into civil service thereby deeming them to be members of civil service through a deeming clause---Legislature lacked the legislative competence to enact the Act of 2010 as it had attempted to circumvent the jurisprudence of the Supreme Court and Arts. 240 & 242 of the Constitution---Supreme Court declared that the Sacked Employees (Re-instatement) Act, 2010 was ultra vires of the Constitution; that no vested rights could be created or protected under the same; that any/all benefits accrued to the beneficiaries under the said Act were to be ceased with immediate effect; that cases of employees who had retired and/or passed away were past and closed transactions and it would not be appropriate to interfere in their cases; that beneficiaries of the Act of 2010, who were still in service, would go back to their previous positions, i.e. to the date when the operation of the Act of 2010 had taken effect, however, it would be inequitable to reverse any monetary benefits received by them under the Act of 2010 for the period they had served and those shall remain intact as they were granted against service, but the lump sum received by such 'sacked employees' upon reinstatement shall be reversed.

Registrar, Supreme Court of Pakistan v. Wali Muhammad 2013 SCMR 120; Mubeen-Us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Federation of Pakistan v. Muhammad Azam Chattha 2013 SCMR 120 ref.

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

----S. 2(b)---Constitution of Pakistan, Art. 260---Terms 'civil servant' and person 'in the service of Pakistan'---Said terms were not synonymous.

Mubeen-Us-Salam v. Federation of Pakistan PLD 2006 SC 602; 2004 SCMR 1903; PLD 2006 SC 602 and Syed Abida Hussain v. Tribunal for N.A 69 PLD 1994 SC 60 ref.

M. Shoaib Shaheen, Advocate Supreme Court, M. Akram Sheikh, Senior Advocate Supreme Court, M. Asif Vardag, Advocate Supreme Court, Rai M. Nawaz Kharral, Advocate Supreme Court, M. Tariq Tanoli, Advocate Supreme Court, M. Munir Paracha, Advocate Supreme Court, Hafiz S. A. Rehman, Senior Advocate Supreme Court, Hafiz Hifzur Rehman, Advocate Supreme Court, Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Haider Waheed, Advocate Supreme Court, Altaf Ahmed, Advocate Supreme Court, Sanaullah Noor Ghauri, Advocate Supreme Court, Raja Muqsat Nawaz Khan, Advocate Supreme Court, Mian Shafaqat Jan, Advocate Supreme Court, Zafar Iqbal Chaudhry, Advocate Supreme Court and Zahid Yousaf Qureshi, Additional A.G., Kkhyber Pakhtunkhwa for Appellants/Petitioners.

Sajid Ilyas Bhatti, Additional A.G.P., Ishrat Bhatti, Director IB and Amjad Iqbal, Asstt. Dir. (Lit.) for Federation.

Sohail Mehmood, DAG, for Respondents (in CAs Nos.1081, 1084/11, 432/13).

Tariq Asad, Advocate Supreme Court, S. A. Mehmood Khan Sadozai, Advocate Supreme Court, Qari Abdul Rashid, Advocate Supreme Court/Advocate-on-Record, Pervaiz Rauf, Advocate Supreme Court, Syed Wusat-ul-Hassan Taqvi, Advocate Supreme Court, Fawad Saleh, Advocate Supreme Court, Mian M. Hanif, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, M. Ilyas Siddiqui, Advocate Supreme Court, M. Yousaf Khan, Advocate Supreme Court, Kh. M. Arif, Advocate Supreme Court, Hazrat Said, Advocate Supreme Court, Asim Iqbal, Advocate Supreme Court, Fazal Shah Mohmand, Advocate Supreme Court, Wasim ud Din Khattak, Advocate Supreme Court and Khalid Rehman, Advocate Supreme Court for Respondents.

Kamran Murtaza, Senior Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record, Fawad Saleh, Advocate Supreme Court, Dr. Babar Awan, Senior Advocate Supreme Court and Syed Zulfiqat Abbas Naqvi, Advocate Supreme Court for Intervenor.

Khalil Javed, M. Nawaz Abbasi, Sari Had, Fazal Mehmood Methani, Arshad Khan, Waheed Ahmed and Ilyas in person.

2021 P L C (C.S.) 1383

[Supreme Court of Pakistan]

Present: Mushir Alam, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

KHUSHDIL KHAN MALIK

Versus

SECRETARY, ESTABLISHMENT DIVISION CABINET BLOCK, ISLAMABAD and others

Civil Petitions Nos. 1092 and 1093 of 2018, decided on 12th September, 2018.\

(Against the judgment dated 8.3.2018 passed by Islamabad High Court, Islamabad in I.C.A. No. 859 of 2013)

(a) Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990---

----R. 2, Cl. (viii) ---Induction in Secretariat Group---Pre-requisites---Petitioner was inducted into service against the post of Headmaster (BPS-18) on 24.12.1996 in the Federal Government Educational Institutions (Cantts/Garrison)--- In the year 2004 he was transferred to the Federal Government on deputation basis and he was repatriated to the parent department vide an Office Memorandum dated 20.10.2010; he had hardly served in his parent department as member of the teaching staff when he was again transferred in the year 2011 to the Federal Secretariat on deputation---Petitioner was neither an officer of Management Group nor of Secretariat Group as provided in Cl. 3 of the Office Memorandum No.2/2/75-ARC dated 12-04-1976 [Manual on Appointment, Promotion and Transfer (Edition-2013), Appendix A, Page No. 280]---Moreover he didn't belong to any of the 'Occupational Groups' in terms of Cl. (viii) of R. 2 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990; therefore he could not be considered for appointment through horizontal movement---Moreover there was nothing on record to show that the petitioner was ever recommended by the controlling Ministry of the parent department to be considered for such appointment---Therefore the petitioner had no vested right to be considered for induction/absorption in the Secretariat Group as per prescribed eligibility criteria and conditions laid down in the relevant laws and policies, despite his best service record---Petitions for leave to appeal were dismissed.

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

----Ss. 3 & 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. II--- Promotion on the basis of 'Time Scale Formula'---Scope--- Civil Servants Act, 1973 ('the 1973 Act') did not define the term 'Time Scale Promotion', therefore, it could not be considered as a term and condition of service---Promotion on the basis of Time Scale was not a regular promotion but a matter of policy granted to specific categories of professions by the relevant competent authority with the concurrence of the Finance Division---Such a policy was meant to grant benefits of higher pay scales to those cadres of civil servants who did not ordinarily get promotions to higher grades under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 on a regular basis---Monetary benefits under the Time Scale Formula could not be extended generally to all civil servants but only to those class of civil servants as mentioned in the approved policy.

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

----S. 9---Promotion from BPS-21 to BPS-22 on basis of meritorious service---Special Selection Committee, powers of---Scope---In terms of the relevant policy for Promotion from BPS-21 to BPS-22 on basis of meritorious service [Finance Division O.M. F. No. 2(3)-R-3/86 dated 7.4.1987 (revised and accordingly notified vide Finance Division's Office Memorandums dated 25.11.2008 and 04-10-2012)] it was exclusively the prerogative of the Special Selection Committee to consider the competence of the officer for the grant of promotion to BPS-21 and BPS-22 for technical and professional officers, and not a vested right of a civil servant; it was actually a reward for such technical and professional officer who had distinguished himself by rendering meritorious services as an acknowledgment for exceptional contributions in his specialized field---Role of Special Selection Committee could not be assumed by any other authority by any stretch of interpretation of the relevant policy, and not even by the courts.

Petitioner in person.

Nemo for Respondents.

2021 P L C (C.S.) 1427

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

FEDERATION OF PAKISTAN through General Manager/Operations Pakistan Railways, Headquarters Office, Lahore and others

Versus

SHAH MOHAMMAD

Civil Appeal No. 561 of 2020, decided on 1st June, 2021.

(Against the judgment dated 6.8.2019, passed by the Federal Service Tribunal, Islamabad (Karachi Bench), in Appeal No. 78(K)CS of 2013)

(a) Civil service---

----Pension, right of---Scope---Government servant, who retired from service qualifying for retirement benefits, including pension, did not get the same as a bounty of the State but as a right acquired after putting in satisfactory service---Grant of pension could not be refused arbitrarily and if refused, it had to be in accordance with the relevant rules.

(b) Civil service---

----Pension, stoppage of---Conviction in a criminal case---Right to hold or withdraw pension---Scope---Respondent was employed in Railways as Permanent Way Inspector (BPS-16) when an accident took place resulting in derailment of several Coaches, loss of eight lives and massive loss to Railways property---Criminal case (FIR) for the occurrence was lodged, and in the meanwhile the Railways department imposed penalty of reversion on the respondent and reverted him from BPS-16 to BPS-11 and also transferred him to another Division---After retirement respondent started getting pension from the department for about an year, when suddenly the payment of pension was stopped for the reason that he had been convicted by the criminal Court in the accident case---Legality--- Rule 2307 of General Conditions Governing Pension (C.S.R. 351) provided that in order to get the pension, the pensioner had to maintain future good conduct as an implied condition for grant of pension---Two instances had been given in the said rule, which gave power to the Government to withhold or withdraw a pension or any part of it i.e. where the pensioner was convicted of a serious crime or was guilty of a grave misconduct---For being entitled to pension, a civil servant had to have good conduct throughout his life, which meant that he had to maintain good conduct before entering service, during the period of service and even after retiring from service---Rule 2307 (C.S.R-351) did not apply only to good conduct of a pensioner after his retirement and to the crime committed by a pensioner after his retirement---Rule 2307 (C.S.R-351) was an exception to the general rule which entitled the civil servant to pension as of right after having rendered satisfactory qualifying service---Term "good conduct" was not defined in the Civil Service Rules, thus, it seems to have been left to the judgment of the authority, which was entitled to take a decision in the matter---In the present case, the respondent was convicted under various penal provisions and sentenced to 5 years rigorous imprisonment, which fell within the ambit of the term "serious crime" as provided R. 2307 (C.S.R-351)---Respondent's pension was rightly stopped by the Railways department---Appeal was allowed.

The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P., Communications and Works Department, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514 ref.

(c) Civil service---

----Civil servant charged for a criminal offence---Concurrent departmental and criminal proceedings---Permissibility---In respect of a charge, which also constituted a criminal offence under the law of the land, a civil servant could legally be proceeded departmentally and a criminal case could be lodged against him as well---Consequences of both departmental proceedings and criminal case were distinct---In the departmental proceedings, if a civil servant was found guilty, he suffered penalty as provided by the rules of service, while in the criminal case, if adjudged guilty he suffered conviction and sentence of imprisonment and fine as provided by law---Law allowed both types of proceedings to be conducted simultaneously.

Muhammad Ashraf Khan v. Director Food, Punjab Lahore 2004 SCMR 1472; Riasat Ali v. Principal, Government Technical Training Centre, Sahiwal 2004 PLC (C.S.) 413; Shahid Masood Malik v. Habib Bank Ltd. 2008 SCMR 1151 and Rab Nawaz Hingoro v. Government of Sindh 2008 PLC (C.S.) 229 ref.

(d) Words and phrases---

----"Serious crime"---Definition.

Black's Law Dictionary (Ninth Edition) and Advanced Law Lexicon (2005) ref.

M. D. Shahzad Feroz, Advocate Supreme Court for Appellants.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2021 P L C (C.S.) 1439

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

Civil Appeals Nos. 1134 to 1160 of 2020

(Against judgment dated 25.11.2019 of Federal Service Tribunal, Islamabad passed in Appeals Nos. 1200(R)CS of 2018 and others)

AND

Civil Petitions Nos. 139-L to 144-L of 2021

(Against judgment dated 19.10.2020 of Federal Service Tribunal, Lahore passed in Appeal No. 129(L)CS of 2019 and others)

AND

Civil Petitions Nos. 1039-L and 1040-L of 2020

(Against judgment dated 24.02.2020 of Federal Service Tribunal, Lahore passed in Appeals Nos. 219(L) and 220(L)CS of 2018)

ABDUL HAMEED and others

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, Lahore and others

Civil Appeals Nos. 1134 to 1160 of 2020, Civil Petitions Nos. 139-L to 144-L of 2021 and Civil Petitions Nos. 1039-L and 1040-L of 2020, decided on 12th April, 2021.

(a) Civil service---

----Special WAPDA allowance---Category of employees entitled to the allowance and date from which such allowance took effect---Policy matter---Non-interference by superior Courts---Scope---Water and Power Development Authority (WAPDA) allowed allowance in question for Graduate Engineers (BPS-17) and above with effect from 20.2.2009---Said allowance was subsequently also allowed for Scientific Cadre Officers (appellants and the petitioners), with immediate effect from 26.11.2013---Appellants and petitioner contended that they should also be given the allowance in question with effect from 20.2.2009---Held, that respondent-authority (WAPDA) had to evaluate its fiscal capacity and could not simply dole out allowances at any date and time, and, at the whims of anyone who may feel aggrieved of an order which was otherwise properly passed by an authority competent to do so---Respondent-authority had the prerogative to ascertain which class of employees should receive additional allowances and from which date---Such decision would obviously depend on various factors including available financial resources, nature of job of the employees and reasons to allow additional incentives to a certain class of employees --- In the present case, respondent-Authority (WAPDA) vide office order dated 20.2.2009, accorded approval for the allowance to be paid to Graduate Engineers in BPS-17 and above, with immediate effect---Said allowance was clearly and obviously only meant for graduate engineers, as specified in the office order---As such, the claim of the appellants and the petitioners that they should (also) have been granted the allowance from 20.2.2009 was untenable because none of them were graduate engineers---Internal working of the respondent-authority (WAPDA) was an administrative and executive function in the domain of policy and unless an illegality or violation of rules and regulations could be shown, non-interference by the Courts was the norm---Grant of allowance being a policy matter could not be interfered with---Appeals and petitions for leave to appeal were dismissed.

Government of Punjab through Secretary Education, Civil Secretariat Lahore v. Sameena Perveen 2009 SCMR 1 and Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan 1996 SCMR 1185 distinguished.

(b) Constitution of Pakistan---

----Arts. 199 & 185(3)---Policy decisions of a competent authority---Non-interference by superior Courts---Scope---Court's role was not to interfere in policy decisions, unless it was manifest that, such policy decisions were the outcome of arbitrary exercise of power, mala fides, were patently illegal or manifestly unreasonable.

Asaf Fasihuddin Khan v. Government of Pakistan 2014 SCMR 676 ref.

(c) Constitution of Pakistan---

----Arts. 184 & 185---Judgments/orders of the Supreme Court---Scope---When there was a categorical pronouncement of the Supreme Court, which was specific in nature, the same could not be expanded and extended to change its meaning, scope and applicability.

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

----S. 4---Limitation Act (IX of 1908), Ss. 3 & 5---Service appeal involving a financial claim from an employee---Limitation---Condonation of delay---Scope---Principle that where a claim involved a financial matter or payment of dues, it constituted a recurring cause of action and thus impediment of limitation in filing service appeal would not be applicable, and any delay in filing the same was to be condoned---Held, that said principle applied only where the claim was found to be valid and entitlement of the litigant had been established in judicial proceedings before a court of law of competent jurisdiction---Only in such circumstances, courts had in appropriate cases, condoned delay---Condonation of delay could not be granted merely on the ground that a financial claim had been raised, irrespective of its merit legality and validity.

Khalid Ismail, Advocate Supreme Court for Appellants (in C.As. Nos. 1134 - 1153 of 2020 and C.Ps. Nos. 139-L-144-L of 2021).

M. Ikram Sheikh, Advocate Supreme Court for Appellants (via video link from Lahore in C.As. Nos. 1154-1160 of 2020 and C.Ps. Nos. 1039-L-1040-L of 2020).

Sajeel Sheryar Swati, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents (in C.As. Nos.1134-1160 of 2020).

Aurangzeb Mirza, Advocate Supreme Court for Respondents (via video link from Lahore in C.Ps. Nos. 139-L and 140-L of 2021).

Salman Mansoor, Advocate Supreme Court for Respondents (via video link from Lahore in C.Ps. Nos. 1039-L to 1040-L of 2020).

2021 P L C (C.S.) 1487

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

The CHIEF POSTMASTER GENERAL, POST OFFICE, MULTAN and others

Versus

HAMEED-UD-DIN

Civil Appeal No. 1010 of 2020, decided on 25th June, 2021.

(Against the order dated 20.02.2019 passed by the Federal Service Tribunal, Lahore Bench, Lahore in Review Petition No. 03 of 2019)

Civil service---

----Dismissal from service---Misappropriation and embezzlement---Service Tribunal converting penalty for dismissal from service into stoppage of increment for one year without cumulative effect---Propriety---Respondent-accused (postal clerk) was granted personal hearing---Sufficient material was available on the record which established that the respondent was granted various opportunities to defend himself---If in the opinion of the respondent his personal hearing was "meaningless", it could not be held that a hearing was not granted and the rule of audi alteram partem was violated---If the hearing was not up to the satisfaction of the respondent or he did not get the relief that he was expecting, the appellant-department could not be held to have condemned him unheard---Respondent was proceeded against under the law---Nowhere had the respondent during the pendency of the proceedings against him stated that they were biased or were being conducted improperly; he participated in the proceedings and was able to give his defence, which was left to the appellant-department to accept or not accept---Not only a regular inquiry but a preliminary inquiry was also held against the respondent---Admittedly appellant-department suffered a financial loss of Rs. 11,09,500, which could have been prevented but for the alleged loss of or inability of the respondent to account for the Postal Payment Order (PPO) Paid Vouchers---Postal Payment Orders (PPOs) were documents that were of fundamental importance and needed to be proved, or if they had been lost, independent evidence should have been produced to show that the payments were made against surrendered PPOs which had been cancelled, retained and relevant particulars thereof had been entered in the relevant records---Respondent was also required to present the vouchers against which PPO payments were made to authenticate such payments---No such evidence/material/documents were placed on record---Appellant-department gave several opportunities to the respondent to prove his innocence, but he failed to do the same---Respondent in return deposited an amount of Rs. 40,000, which, amounted to an admission on his part of the misappropriation---When the Service Tribunal, on one hand, held that the respondent was indeed responsible for the loss caused to the appellant-department, it could not assume the role of the competent authority and hold that embezzlement or misappropriation was not proved---Appeal was allowed, impugned judgment of Service Tribunal was set-aside and as a consequence departmental penalty of dismissal from service was restored.

Ayyaz Shaukat, DAG and Mehmood A. Sheikh, Advocate-on-Record for Appellants.

Mian Mahmood Hussain, Advocate Supreme Court for Respondent.

2021 P L C (C.S.) 1531

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

PROVINCE OF PUNJAB through Special Secretary, Specialized Healthcare and Medical Education Department, Lahore and others

Versus

KHADIM HUSSAIN ABBASI

Civil Appeal No. 201 of 2020, decided on 13th April, 2021.

(Against judgment dated 18.09.2019 of Punjab Service Tribunal at Bahawalpur, passed in Appeal No. 2362 of 2018)

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

----Ss. 4(1)(b)(iv) & 4(1)(b)(iii)---Punjab Service Tribunals Act (IX of 1974), S. 5(1)---Misconduct, absence from duty without leave and tampering of record---Major penalty of compulsory retirement from service imposed by departmental authorities---Tribunal converting major penalty of compulsory retirement from service into minor penalty of forfeiture of past service for a period of two years---Legality---Inquiry was conducted against the respondent in which he was found guilty of all charges---Only defence taken by the respondent before the Tribunal was that the punishment may be reduced from major penalty to a minor penalty---No effort whatsoever was made to deny or contest the charges against the respondent, which constituted admission of charges of a very serious nature---Tribunal for reasons best known to it choose to ignore such a vital and material aspect of the case and found there was absence of "tangible material" against the respondent---Tribunal did not bother to elaborate how the process against the respondent was "unfair" or "lacked transparency"----Although the respondent had been acquitted of the criminal charges, it did not have any bearing on the independent inquiry conducted by the Department and clear and categorical findings of the departmental authorities holding the respondent guilty of the charges levelled against him---In converting the major penalty of compulsory retirement from service into a minor penalty of forfeiture of past service for a period of two years, the Tribunal had failed to assign any cogent, legally sustainable and valid reasons to support its finding---Appeal was allowed, impugned judgment of Tribunal was set-aside and the penalty of compulsory retirement from service imposed on the respondent by departmental authorities was restored.

Inspector General (Prisons) NWFP Peshawar and others v. Syed Jaffer Shah, Ex-Assistant Superintendent Jail and others 2009 PLC (C.S.) 47; Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656; Chief Postmaster Faisalabad v. Muhammad Afzal 2020 SCMR 1029; Government of the Punjab v. Muhammad Arshad 2020 SCMR 1962 and District Police Officer v. Muhammad Hanif 2020 SCMR 1610 ref.

(b) Civil service---

----Concurrent departmental proceedings and criminal prosecution---Scope---Acquittal in criminal case---Effect---Departmental proceedings and criminal prosecution were not mutually exclusive, and could proceed independently---Acquittal in criminal proceedings did not affect the outcome of the departmental proceedings---In contrast to criminal proceedings, the departmental proceedings were undertaken under a different set of laws, were subject to different procedural requirements and were based upon different evidentiary principles and a different threshold of proof was to be met---Therefore, acquittal in criminal proceedings could not and did not automatically knock off the outcome of the departmental proceedings if all legal and procedural formalities and due process had been followed independently.

Nazir Ahmed v. Capital City Police Officer 2011 SCMR 484; Muhammad Iqbal v. District Police Officer 2011 SCMR 534; Shahid Wazir v. Secretary, Kashmir Affairs and Northern Areas and States of Frontier Regions Division 2006 SCMR 1653 ref.

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

----S. 5(1)---Quantum of punishment---Provincial Service Tribunal, discretion of---Scope---Although the Service Tribunal had the discretion to interfere in questions of quantum of punishment, such discretion could neither be arbitrarily and capriciously exercised nor were powers of the Tribunal unqualified or unlimited---Where the Tribunal exercised its discretion to interfere in the penalty awarded by the competent authorities, such discretion had to be exercised in a circumscribed, restricted, carefully calibrated and structured manner duly supported by legally sustainable reasoning.

Syed Wajid Ali Gillani, Additional A.G. Punjab for Appellants.

M.A. Rehman Qureshi, Advocate Supreme Court for Respondent.

2021 P L C (C.S.) 1559

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

DIRECTOR POSTAL LIFE INSURANCE, LAHORE

Versus

SHAKEEL AHMAD

Civil Petition No. 874-L of 2020, decided on 5th March, 2021.

(Against the judgment dated 20.02.2020 passed by the Federal Service Tribunal, Lahore in Appeal No. 109(L) of 2018)

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

----R. 4(1)(a)---Negligence in maintaining official record---Penalty of reduction in pay scale by four steps for five years reduced to minor penalty of 'censure'---Inquiry Officer had not found any documentary evidence to prove the allegation against the respondent of making double payments---Further, it was found that the alleged misconduct and negligence was not fully established---Inquiry Officer observed that although the respondent was negligent and showed lack of interest, there was no element of intentional omission or deliberate mishandling of records or overpayment to two individuals---On said basis, the Inquiry Officer had recommended issuance of a severe warning to the respondent---However the competent authority disagreeing with the findings of the Inquiry Officer imposed major penalty of reduction in pay scale by one step for two years without recording any valid or cogent reasons---Further, the Appellate Authority also did not record any valid reasons or lawful justification for further enhancing the penalty imposed upon the respondent---Service Tribunal re-examined the entire record and came to the correct conclusion that there was insufficient evidence against the respondent to establish charges of fraudulent double payments and negligence in handling official records and in discharge of his duties---Tribunal rightly came to the conclusion that the penalty imposed by the competent authority and further enhancement of the same by the Appellate Authority was disproportionately harsh to the allegations levelled and not fully proved against the respondent, particularly so where no documentary evidence was available to substantiate the charges against him---Furthermore record did not show if any mandatory show cause notice was issued by the Appellate Authority to the respondent or he was given an opportunity to defend his position and to plead his case against further enhancement of the penalty imposed upon him---Such material error/ defect in the procedure adopted by the Appellate Authority had violated the due process rights of the respondent---Service Tribunal was justified in reducing the major penalty of reduction in pay scale by four steps for five years to minor penalty of 'censure'---Petition for leave to appeal was dismissed and leave was refused.

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

----R. 6(A)---Recommendations of the Inquiry Officer---Scope---Although the competent authority had the power to disagree with the recommendations of the Inquiry Officer, however, such power had to be exercised on the basis of the record and for cogent and valid reasons duly recorded.

Moulvi Ejaz ul Haq, D.A.G. and Ms. Anam Ayaz, A.D. PLI, Islamabad (Pak. Post) for Petitioner.

Nemo for Respondent.

2021 P L C (C.S.) 1583

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

FEDERATION OF PAKISTAN through Secretary Establishment, Islamabad

Versus

M. Y. LABIB-UR-REHMAN and others

Civil Appeal No. 30-L of 2018, decided on 9th July, 2021.

(On appeal against the judgment dated 03.11.2017 passed by the Lahore High Court, Lahore in Writ Petition 26075 of 2014)

(a) Constitution of Pakistan---

----Arts. 199 & 212---Matter relating to terms and conditions of service---Exclusive jurisdiction of administrative tribunals and ouster of jurisdiction of High Court---Scope---Any petition relating to terms and conditions of service was to be dealt with by administrative courts and tribunals specifically established for its adjudication in pursuance of Art. 212 of the Constitution---As a general principle, the framers of the Constitution while inserting the said provision had ousted the jurisdiction of other courts including the High Court under Art. 199 of the Constitution---However there were certain exceptions depending upon the facts and circumstances of each case---Constitutional jurisdiction was always considered as extraordinary, which was to be exercised in extraordinary circumstances, if so warranted, hence, the Constitutional jurisdiction could not be curtailed stricto sensu, leaving some room for its application where safe administration of justice and fair play was required---Superior courts while exercising Constitutional jurisdiction must satisfy themselves that they may not interfere or infringe the jurisdiction of any other statutory forum in any manner when an equally efficacious/adequate remedy was available under the statute for the redressal of the grievances of the litigants.

(b) Civil service---

----Superseded civil servant---Antedated promotion---Scope---Civil servant who was consciously superseded after considering his service record by the departmental promotion committee could not regain his original seniority or subsequent promotions so long as the order of the Promotion Committee superseding him stood in the field and supersession of the civil servant in such a case was neither advertent nor same fell in the category of deferment, so as to entitle the civil servant, on subsequent promotion, to regain his original seniority.

Abdul Ghani Chaudhry v. Secretary, Establishment, Islamabad 1998 SCMR 2544 ref.

Sajid Ilyas Bhatti, Additional Attorney General and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Respondent No. 1 in person (via Video Link from Lahore).

2021 P L C (C.S.) 1595

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and others

Versus

Ms. SHAMIM USMAN

Civil Petition No. 1097-L of 2020, decided on 1st July, 2021.

(Against the order of Lahore High Court, Lahore dated 19.02.2020, passed in W.P. No. 231042 of 2018)

Constitution of Pakistan---

----Arts. 212 & 199---Punjab Service Tribunals Act (IX of 1974), S. 4(1)(b)---Service matter---Terms and conditions of service of a civil servant---Bar of jurisdiction of the High Court---Scope---High Court had no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which could be adjudicated upon by the Service Tribunal under the Punjab Service Tribunals Act, 1974.

Non-obstante clauses of Articles 212(1) and (2) of the Constitution began with "notwithstanding anything hereinbefore contained," thus overriding, inter alia, the constitutional jurisdiction of the High Court under Article 199, which was already "subject to the Constitution".

The High Court had no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which could be adjudicated upon by the Service Tribunal under the Punjab Service Tribunals Act, 1974 ('the Act'). High Court as a constitutional court should always be mindful of the jurisdictional exclusion contained under Article 212 of the Constitution. Any transgression of such constitutional limitation would render the order of the High Court void and illegal.

National Assembly Secretariat through Secretary v. Mansoor Ahmed and others 2015 SCMR 253 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 ref.

It was only under section 4(1)(b) of the Act that no appeal could lie to a Tribunal against an order or decision determining the "fitness" of a person to be appointed or promoted and fell outside the purview of the jurisdiction of the Tribunal. In order to fall in the exception envisaged under section 4(1)(b) of the Act, the order must determine "fitness" of a civil servant to an appointment or promotion. Therefore, unless the jurisdiction of the Tribunal was ousted under section 4(1)(b) of the Act, assumption of jurisdiction by the High Court in respect of matters of terms and conditions of a civil servant was unconstitutional and impermissible

Muhammad Arif Raja, Additional A.G. Punjab for Petitioners.

Mian Muhammad Nawaz, Advocate Supreme Court and Ms. Tasnim Amin, Advocate-on-Record for Respondent.

2021 P L C (C.S.) 1380

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, ACJ and Ghulam Mustafa Mughal, J

RIFFAT SHAHEEN

Versus

AZAD GOVERNMENT through Secretary Elementary and Secondary School Education of the State of Jammu and Kashmir and 8 others

Civil Appeal No.270 of 2020, decided on 13th August, 2020.

(On appeal from the judgment of the Service Tribunal dated 12-10-2019 in Appeal No.72 of 2019).

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

----Art.42---Appeal to Supreme Court---Dismissal of appeal due to non-furnishing of process and security fee---Right of access to justice---Scope---Appeal of appellant before Service Tribunal was admitted for regular hearing and appellant was directed to deposit the requisite security and process fee within a week but she failed to deposit the same and filed an application for extension of time on the ground that due to earthquake, the needful could not be done---Validity---Service Tribunal, in the given circumstances, should have extended the time for depositing the requisite security and process fee---Harsh order which deprived the party from right of access to justice could not be passed until and unless the circumstances so compelled the court and left it with no other alternative due to conduct of the party---Supreme Court accepted the appeal, set aside the impugned order of Service Tribunal and remanded the case for deciding the same on merits after hearing the parties.

Haroon Riaz Mughal, Advocate for Appellant.

Raja Ayaz Ahmed, Asst. Advocate-General and Sardar M.R. Khan, Advocate for Respondents.