PLCCS 2022 Judgments

2022 P L C (C.S.) 975

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

NAVEED NAZIR

Versus

DEPARTMENT OF AGRICULTURE, LIVESTOCK, IRRIGATION AND ESMA, through Secretary Agriculture, Livestock, Irrigation and ESMA, Azad Government and 5 others

Writ Petition No.2259 of 2021, decided on 10th March, 2022.

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

----Art.44---Writ petition---Maintainability---Appointment to advertised post---Estoppel and acquiescence---Conduct of petitioner---Scope---Petitioner assailed appointment of respondents and sought direction to the department for his appointment---Validity---Petitioner had applied against the posts in question and his name was included in the short listed candidates, thereafter he had participated in the selection process actively but had failed to secure appointment---Petitioner, as per department, had also tendered fake certificate of his experience---While exercising extra-ordinary jurisdiction, the conduct of the petitioner was also to be filtered through the lens of bona fide, which was to be judged by the court in the light of his conduct and overall circumstances of the case---Doctrine of acquiescence and estoppel were fully attracted in the matter---Court could not substitute the findings of the selection authority (based upon wisdom) without indication of any arbitrariness and illegality---Petitioner had failed to make out any point for interference by High Court in its extra-ordinary jurisdiction---Writ petition was dismissed, in circumstances.

Abdul Qadir v. Abdul Karim 1999 PLC (C.S.) 947; Najma Parveen v. Samar Ayub 2016 SCR 15; Salman Ahmed v. Tanveer Ahmed 2002 PLC (C.S.) 714; Dr. Akhtar Hussain Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Saeed Ahmed Khan's case PLD 1974 SC 151 ref.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151 rel.

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

----Art.44---Writ petition---Maintainability---Appointment to advertised post---Scope---When a person actively participates in the selection process subsequently he cannot come up with volte-face (a reversal in policy) and challenge the selection process at random by criticizing the mode of selection or questioning the bona fides of the selection authority.

Muhammad Iqbal v. Executive District Officer 2007 SCMR 682 ref.

Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 rel.

Syed Zulqarnain Raza Naqvi for Petitioner.

Muhammad Saghir Javed for Respondent No.5.

Waheed Bashir Awan for Respondent No.6.

2022 P L C (C.S.) 1146

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, CJ

MOHAMMAD JUNAID KHAN

Versus

AZAD JAMMU AND KASHMIR UNIVERSITY through Vice Chancellor and 6 others

Writ Petition No.2781 of 2021, decided on 23rd December, 2021.

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

----Arts.44, 15 & 17---Writ petition---Equality of citizens---Safeguard against discrimination in service---Maintainability---Violation of fundamental rights---Scope---Petitioner sought issuance of promotion order against the vacant post of Junior Clerk in the light of fitness/typing test---Validity---Merit list of fitness/typing test issued by the University revealed that the petitioner was placed at Serial No. 1 whose gross speed of typing was 42 wpm (words per minute) and net speed was 39 wpm, however, was declared to have failed in securing appointment as Junior Clerk---Some employees were promoted as Senior Clerks with gross typing speed of 17 wpm and even less---Claim of petitioner having been discriminated was proved from the record---Contention of the University that the petitioner had an alternate remedy to file appeal before Syndicate, therefore, he could not file a writ petition was repelled by the High Court for the reasons that the petitioner had filed an application before the competent authority for redressal of his grievance but the University had not considered the same and that constitutional jurisdiction of High Court could be invoked where fundamental right of petitioner was violated---Constitutional petition was accepted.

Dr. Shahnaz Wajid v. Federation of Pakistan through Secretary Establishment Division Government of Pakistan, Islamabad 2012 PLC (C.S) 1052; Fauji Foundation and another v. Shamimur ur Rehman PLD 1983 SC 457; Javed Jabbar and 14 others v. Federation of Pakistan and others PLD 2003 SC 955 and PLD 2002 Lah. 521 ref.

Tariq Rashid and 9 others v. University of Azad Jammu and Kashmir and 07 others 2020 PLC (C.S.) Note 41 p.35 and Muhammad Azram v. National Institute of Health and others 2015 PLC (C.S.) 537 rel.

Sajid Hussain Abbasi for Petitioner.

2022 P L C (C.S.) 1246

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, CJ

ANWAR MEHMOOD

Versus

SHAKEEL QADIR, CHIEF SECRETARY AZAD JAMMU AND KASHMIR and 2 others

Application No.150 of 2021, decided on 19th June, 2021.

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

----Art.44---Writ petition---Writ of prohibition---Removal of civil servant by Election Commission---Scope---Petitioner sought issuance of a writ of prohibition directing the respondents not to cancel his appointment notification but he was removed from service during pendency of the petition---Validity---Election Commission was bound to conduct free, fair and transparent elections---Executive was bound to assist the Election Commission in that regard---Election Commission was an independent authority but its powers did not allow it to encroach the jurisdiction of other organs---Notification whereby petitioner was removed from his office clearly amounted to encroachment in the jurisdiction of the High Court and was also ultra vires the Constitution---High Court observed that since the authorities had already withdrawn the impugned notification, therefore, no further deliberation was required---Writ petition was disposed of accordingly.

Haroon Riaz Mughal for Petitioner-Applicant.

A.A.G. for Official Respondents.

2022 P L C (C.S.) 1270

[High Court (AJ&K)]

Before Sardar Liaqat Hussain, J

MUHAMMAD QASIM, MECHANIC and another

Versus

SUPERINTENDENT ENGINEER PUBLIC HEALTH ENGINEERING/BUILDING (NORTH) POONCH DIVISION RAWALKOT AZAD KASHMIR and 5 others

Writ Petition No.1523 of 2019, decided on 14th February, 2022.

Azad Jammu and Kashmir Civil Servants Rules, 1977---

----R.17---Petitioners contended that they were serving as temporary employees of Public Health Department since long; that petitioners had contested the test and interview and attained merit positions but they could not be appointed under the passion of favouritism and pick and choose; and that merit lists prepared by the department had been prepared with mala fide in order to deprive the petitioners from their livelihood by listing them below in the merits lists---Respondent/department stated that petitioners were appointed purely on temporary basis and after test/interview the suitable candidates had been appointed; that appointment orders presented by the petitioners were fake and had not been issued from competent authority---Respondents contended that the petitioners had applied for advertised posts, participated in the selection process and after failing in attaining merit positions, they had challenged the whole process, which was not admissible under law/principle of acquiescence---Held, that no law entitle an employee, appointed on temporary/work-charge basis, to be adjusted/appointed permanently against a vacant post---For permanent appointment of an employee/civil servant, post had to be advertised and then equal opportunity was to be provided to all the eligible candidates and after the requisite test and interview the appointment was to be made on merit basis---Merit list, annexed with the file, showed that the petitioners were listed far below than the candidates who had been appointed---High Court had not found any reason/ground to abrogate the appointment orders of the respondents---Petitioners were not competent to file the writ petition after having participated in the selection process and failing to obtain desired results---High Court observed that petitioners had served for a pretty long period and deserved to be adjusted and department should consider their request on humanitarian grounds, however, no relief could be granted to them in the present petition---Writ petition was dismissed accordingly.

2015 SCR 1362; 1994 SCR 341; 2011 SCR 528 and Azad Government and 3 others v. Mrs. Jamshed Naqvi and 2 others 2014 SCR 13 rel.

Ghazanfar Ali Rathore for Petitioners.

Ch. Ghulam Nabi for Respondent No.5.

2022 P L C (C.S.) 1294

[High Court (AJ&K)]

Before Mian Arif Hussain, J

AQIB ALI, CLEANER

Versus

CHIEF ENGINEER (POWER) STATION MANGLA MIRPUR and 4 others

Writ Petition No.46 of 2022, decided on 11th May, 2022.

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

----Art.44---Writ petition---Alternate remedy, availability of---Estoppel---Scope---Petitioner claimed that he was a State Subject of Azad Jammu and Kashmir; that he was serving as contingent paid Cleaner BPS-2 in WAPDA (Water and Power Development Authority); that he was entitled to seek employment in the light of 20% quota reserved for the children of employees of WAPDA and that the WAPDA while issuing the advertisement regarding appointment against the vacancies of Cleaners had violated the office memorandum dealing with the provisions of quota, as such, the respondents be ordered to determine the quota of Azad Jammu and Kashmir and local citizens be given preference---Validity---Office memorandum dealt with two propositions, one is that appointment against the posts in BPS 1 to 5, would be made on local basis and secondly, province and region wise quota for the children of employees against the posts of BPS 6 to 14 had been allocated---Petitioner could not rely upon the office memorandum, however, he could claim his appointment on local basis for BPS 1 to 5---Since the petitioner was a contingent paid employee, therefore, if he felt persuaded that his grievance might be redressed then forum in terms of Industrial Relations Act, 2012 or in the shape of writ under Art. 199 of the Constitution of Pakistan might be available to him---Petitioner had also applied for the post under challenge, hence, by his conduct he was estopped from filing the petition in hand---Writ petition was dismissed, in circumstances.

2019 PLC (C.S.) 16; 2014 SCR 553 and 2011 SCMR 118 ref.

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

----Art.44---Writ petition---Jurisdiction---Scope---Where the respondents were performing their functions in respect of affairs of Government of Pakistan and not in respect of affairs of the State of Azad Jammu and Kashmir, High Court observed that Art.44 of the Azad Jammu and Kashmir Interim Constitution, 1974, could not be invoked for issuance of writ.

2014 SCR 564 rel.

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

----Art.44---Writ petition---Jurisdiction---Scope---Writ cannot be issued under Art. 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, against the authorities, institutions, organizations or departments which are established under the authority of Government of Pakistan and are not performing their functions in connection with the affairs of State of Jammu and Kashmir nor under the control of Azad Jammu and Kashmir Council.

2014 SCR 564 rel.

Sh. Masood Iqbal for Petitioner.

2022 P L C (C.S.) 1417

[High Court (AJ&K)]

Before Sardar Liaqat Hussain, J

Khawaja NAZIR AHMED

Versus

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

Writ Petition No.515 of 2020, decided on 18th April, 2022.

(a) Civil service---

----Time scale promotion---Scope---Petitioner sought direction to the department to grant time scale incentive from the date of his entitlement---Government had framed and promulgated a time scale incentive policy whereby civil servants having ten years' service in the same scale were granted next higher scale---Said notification was issued only to provide monetary benefits to the employees having no promotion prospects---Petitioner was entitled to time scale incentive from the date of completion of ten years service in BPS-16, as the other officers of government were benefitted through the notification---Delay on the part of the Authority could not burden the petitioner to deprive him from his accrued right---Writ petition was accepted.

2003 PLC (C.S.) 1537 rel.

(b) Civil service---

----Time scale promotion---Scope---Time scale incentive is meant to extend monetary benefit to the employees of the State having ten years service in the same scale with no promotion prospects and no vacant post or vacancy is required for grant of time scale incentive.

Muhammad Rafique Khan Minhas for Petitioner.

Ch. Aqif-ud-Din, Legal Advisor Forest Department.

2022 P L C (C.S.) 1476

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

MUJTABA AHMED KHAN and 8 others

Versus

INSPECTOR GENERAL OF POLICE, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 3 others

Writ Petition No.1150 of 2019, decided on 28th April, 2022.

(a) Civil service---

----Regularization of service---Retrospective effect---Scope---Petitioners were initially appointed on contract basis and later on the competent authority issued a notification in the year 2015 whereby the project, in which the petitioners were employed, was brought on normal budget meaning thereby that the services of petitioners were converted to regular employees---Department, however, did not implement the notification which prompted the petitioners to approach the High Court through a writ petition wherein a specific direction was given to the department to implement the notification---Petitioners were ultimately adjusted in regular service but with effect from 2018---Petitioners, through the present petition, sought calculation of their salary and other emoluments with effect from the year 2015---Validity---Referred notification for its all practical purpose was beneficial to the extent of rights of the petitioners, hence, the petitioners were entitled to receive benefits of notification from the date of issuance of the same---Writ petition was accepted.

2019 CLC Note 26, p.25; 2007 SCR 208; 2009 SCR 425 and 2019 PLC (C.S.) 1339 ref.

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

----Art.44---Writ petition---Violation of fundamental rights---Scope---High Court in its extraordinary jurisdiction provided under Art.44 of the Azad Jammu and Kashmir Interim Constitution, 1974, cannot sit as a silent spectator, particularly where enforcement of constitutionally guaranteed fundamental rights is involved.

(c) Administration of justice---

----Majesty of law demands that justice is not only to be done by courts of law but by everyone who is at the helm of affairs and burdened with duty to adjudicate any matter at the administrative end in order to administer justice (which is called administrative justice).

(d) Notification---

----Retrospective effect---Scope---Notification cannot be given retrospective effect to the extent of rights already stood created but when the same is beneficial it can be given retrospective effect.

Sardar M.R. Khan for Petitioners.

2022 P L C (C.S.) 1511

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

RASHIDA BEGUM

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Elementary and Secondary Education and 6 others

Writ Petition No.1762 of 2021, decided on 21st March, 2022.

(a) Civil service---

----Appointment---Temporary appointment---Stop gap arrangement---Scope---Petitioner assailed appointment of private respondent as incharge Divisional Director (Female)---Validity---Scheme of the relevant rules reflected that concept of incharge appointment received no recognition from the law---Modus operandi regarding temporary appointment or for that matter incharge posting otherwise could be a stop gap arrangement---Seniority list had already been chalked out by the competent authority---Although seniority list was not sufficient for consideration in the case of promotion in higher rank but coupled with other factors, consideration of a person who qualified to be considered as such was necessary---Procedure for appointment provided in the rules was also liable to be followed---Departure from rules particularly where certain legal rights were involved militated against due process of law and mocked the concept of better government---Impugned notification was set aside and the department was directed to fill in the post of Divisional Director (Female) in accordance with relevant rules---Writ petition was disposed of accordingly.

2016 SCR 1352 and 2016 SCR 134 ref.

Muhammad Khursheed and another v. Secretary Education Schools and 4 others 2011 SCR 175 and Dr. Kh. Mushtaq Ahmed v. Azad Government and others 1995 PLC (C.S.) 410 rel.

(b) Administration of justice---

----Thing which is required to be performed in a particular manner cannot be done otherwise and if so performed the same is nullity and bears no legal consequence which can safely be termed as void ab initio.

(c) Administration of justice---

----Two wrongs cannot make one right.

(d) Administration of justice---

----Majesty of law demands that the Courts of law should fashion/beautify the path of justice in accordance with law and justice should be done though the heavens fall i.e. fiat justitia ruat caelum.

(e) Administration of justice---

----Justice is not only be done by the Courts of law but simultaneously it is a sacred duty which is to be performed by all functionaries and office holders who are at the helm of affairs in their capacity to pass any order or to decide any matter pending before them or for that matter where any sort of discretionary power is to be exercised by any authority in view of concept of better government and keeping in view the doctrine of administrative justice.

(f) Administration of justice---

----Where authority is to perform pure administrative function, it is required to act fairly and honestly---Duty to act fairly as the concept may be called is an expansion of the principle of natural justice, it denotes an implied procedural obligation.

Raja Tariq Bashir for Petitioner.

Ch. Muhammad Manzoor, Additional Advocate General for Official Respondents.

2022 P L C (C.S.) 1554

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

ZAID ASIF AWAN

Versus

AZAD GOVERNMENT through Chief Secretary, Azad Government of the State of Jammu and Kashmir and 6 others

Writ Petition No.44 of 2022, decided on 7th June, 2022.

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

----Art.44---Writ petition---Maintainability---Vires of subordinate legislation---Scope---Service rules---Grievance voiced by the petitioner pertained to an amendment brought in the rules which as per his estimation was detrimental to his service rights---Validity---Making of rules was purely within the domain of rules making authority and wisdom of the authority could not be challenged by any individual in a way to ask for framing of rules merely for his benefit and according to his sweet will---Wisdom of rules making authority could not be challenged and questioned at random without alleging any illegality or for that matter any clash between the rules with the parent Act vis a vis infringement of any constitutionally guaranteed fundamental rights having direct nexus with the alleged grievance of the petitioner---Competent authority was empowered to fix, alter or enhance qualification of any post according to exigencies of the department---No infringement of law was pointed out by the petitioner in the impugned rules---Writ petition, being not maintainable, was dismissed.

PLD 2013 FSC 18 ref.

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

----Art.44---Writ petition---Extraordinary jurisdiction---Scope---Remedy of writ is an extraordinary constitutional remedy which can be available by the aggrieved person keeping in view the parameters of Art.44 of the Azad Jammu and Kashmir Interim Constitution, 1974.

(c) Interpretation of statutes---

----All the presumptions of legality are to be drawn in favour of the legislative instrument even though the same is subordinate legislation.

(d) Interpretation of statutes---

----Subordinate legislation---Scope---Rules or progency of a statute which are made by the competent authority in exercise of its delegated legislation are confined and limited to the law under which they are framed.

(e) Rules---

----Framing altering or amending the rules is the prerogative of the government or concerned authority.

Qazi Ghulam Sarwar and 3 others v. Azad Government and 6 others 2016 SCR 1737; Rizwan Muzaffar v. Azad Government and 8 others 2010 SCR 156; Sardar Muhammad Khalil and 101 others v. Azad Government and 65 others 2020 PLC (C.S.) Note 7 p.6 and Zaffar Iqbal Khan and 52 others v. Azad Government and 5 others 2019 PLC (C.S.) 995 rel.

Shahid Ali Awan for Petitioner.

Muhammad Yaqoob Khan Mughal, Legal Advisor on behalf of DAM and PP&H Departments.

2022 P L C (C.S.) 32

[Islamabad High Court]

Before Babar Sattar, J

ZAHID ALI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Overseas Pakistani and Human Resource Development and others

Writ Petition No.4229 of 2018, decided on 2nd April, 2021.

(a) Workers' Welfare Fund (Employees Service) Rules, 1997---

----R. 57---Constitution of Pakistan, Art. 199---General Clauses Act (X of 1897), S. 24---Constitutional petition---Procedure for disciplinary action---Reasons for decision---Scope---Petitioner impugned the order of his dismissal from service---Validity---Authority did not have the power to disregard the opinion of the authorized officer who had not recommended a major penalty to the Authority---Authority was also vested with no power to issue a fresh show cause notice to the accused officer while an authorized officer was adjudicating the matter or had reached a conclusion that a major penalty was not to be recommended---Dismissal order was completely devoid of reasoning---It had failed to state for example what the opinion of the authorized officer was, why the authority disagreed with the opinion of the authorized officer even if it inadvertently believed that it had the authority to do so, what reasons prevailed with the Authority to impose the most severe penalty of dismissal from service on the petitioner---As such the dismissal order also suffered from a failure to give reasons in breach of S.24(2) of General Clauses Act, 1897---Constitutional petitions were allowed, show-cause notice as well as dismissal order were set aside and the petitioner was directed to be reinstated in service.

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

(b) Constitution of Pakistan---

----Art.4---Right of individuals to be dealt in accordance with law---Scope---Constitution of Pakistan enforces a concept of rule of law that is rooted in the doctrine of limited and specified powers of public officials---As all power in a democracy flows from the people to the public officials elected by them or appointed in exercise of power delegated by the people, officials have no inherent power and can only exercise such power as vested in them by law---Such lies at the heart of the scope of authority vested in public officials as enumerated by Art. 4 of the Constitution, which allows citizens the freedom to do whatever they are not prohibited from doing and authorizes public officials to do in exercise of public authority of the State what they are authorized by law to do.

(c) Workers' Welfare Fund (Employees Service) Rules, 1997---

----Rr.50, 51, 52 & 57---Grounds of penalty---Procedure for disciplinary action---Scope---Under Workers' Welfare Fund (Employees Service) Rules, 1997, R. 50 provides for appointment of an authorized officer and also states that where no officer is so authorized, the authority acts as the authorized officer---Rule 51 then provides as to which officers are designated as the authority---Rules 52 & 57 streamline the powers and functions of the authorized officer and the authority---Under R. 52 the formation of an opinion on whether or not an accused officer has misconducted himself is to be proved by "the authority, or as the case may be, the authorized officer"---Rule 57 prescribes the procedure for disciplinary action vests discretionary authority in the authorized officer to determine (i) whether or not an inquiry is to be conducted, (ii) whether an inquiry officer is to be appointed or an inquiry committee constituted, and (iii) who is to serve as the inquiry officer or on the inquiry committee---Rule 57 also requires the authorized officer to perform certain mandatory functions such as framing the charge, giving personal hearing to the accused, issuing a show-cause notice, considering the representation of the accused and forming an opinion on whether or not the charge has been proved---If the authorized officer concludes that the charge has been proved, he has the power to impose a minor penalty himself---If he concludes that the misconduct attracts a major penalty, he must refer the matter to the Authority, along with his recommendations, and it is only the Authority that can impose a major penalty.

(d) Workers' Welfare Fund (Employees Service) Rules, 1997---

----Rr.50, 51, 52 & 57---Powers of the authority---Grounds of penalty---Procedure for disciplinary action---Scope---Within the scheme of the Workers' Welfare Fund (Employees Service) Rules, 1997, the adjudication of the question of misconduct is to be undertaken by the authorized officer, and where no authorized officer is appointed, by the authority which acts as the authorized officer under R. 50---It is at the stage of enforcing a penalty that the powers of the authorized officer have been circumscribed: he can impose a minor penalty but not a major penalty---If he imposes a minor penalty, the matter rests there---Likewise, if he forms an opinion that misconduct has not been proved, the matter rests there---Workers' Welfare Fund (Employees Service) Rules, 1997, vests no suo motu or review or revisional powers in the authority to step into the shoes of authorized officer during such period when the adjudication of the charge is underway or to override the opinion of the authorized officer in exercise of revisional powers in the event that the authorized officer concludes that the charge has not been proven---In order to find such suo motu or revisional power, one would need to read into the text of Workers' Welfare Fund (Employees Service) Rules, 1997 such language that does not exist---If the decision to drop disciplinary proceedings or exonerate an accused officer in exercise of authority vested in an authorized officer under the Workers' Welfare Fund (Employees Service) Rules, 1997, could be overridden by the authority, as it were not to be bound by opinion of the authorized officer, the Workers' Welfare Fund (Employees Service) Rules, 1997 could have easily said so.

Muhammad Ashraf Qureshi v. Government of Punjab 1992 SCMR 974 and M. Hanif Niazi v. The Director of Food and others 1986 SCMR 1066 rel.

(e) Workers' Welfare Fund (Employees Service) Rules, 1997---

---Rr.50, 51, 52 & 57---Powers of the authority---Grounds of penalty---Procedure for disciplinary action---Scope---Workers' Welfare Fund (Employees Service) Rules, 1997, do not require the authorized officer to have his opinion approved by the authority regarding lack of misconduct of an accused officer or where the authorized officer believes that a minor penalty is sufficient sanction---It is only where the authorized officer believes that misconduct has been established and it attracts a major penalty that he must furnish his recommendation to the Authority, who may agree or disagree and pass appropriate orders on the basis of material produced before it---To treat the authorized officer's opinion as a disregard-able opinion or recommendation in all cases, the Workers' Welfare Fund (Employees Service) Rules, 1997, needed to say so and they do not.

(f) Administration of justice---

----Interim order---Order of court merely because it is an interim order cannot be disregarded.

(g) Constitution of Pakistan---

----Art.204---Contempt of Court Ordinance (V of 2003), S.3---Contempt of Court---Scope---Under the Constitution, the judicature is the machinery put in place to enforce the fundamental rights of citizens and adjudicate grievances of citizens against the state and public authorities---Article 204 of the Constitution explicitly provides for the punishment of someone who disobeys the order of the court or tends to prejudice the determination of a matter pending before the court---Illegality that attaches to an action taken or order passed by a public authority or official in disobedience of an order of the court or to prejudice the determination of a matter sub judice is sufficient ground for setting aside such action or order for being illegal---Penalty under Art. 204 of the Constitution read together with the Contempt of Court Ordinance, 2003, attaches to the person who indulges in contempt of court and is independent of the illegality that mars the action taken or order passed in breach of a court order---Allowing the illegal action or order of a contemnor to stand while the contemnor is himself liable to punishment for taking such action or passing such order, would undermine the entire scheme of enforcement of fundamental rights and adjudication of grievances of citizens prescribed by the Constitution and cannot be countenanced.

(h) Public functionaries---

----Public functionaries are fiduciaries required to act in a just, fair and reasonable manner.

Rai Azhar Iqbal Kharal for Petitioner (in W.P. No.4229 of 2018).

Syed Muddasir Abbas Kazmi for Petitioner (in W.P. No.1702 of 2020).

Hafiz Arfat Ahmed Chaudhry, Tariq Zaman Chaudhry and Ms. Kashifa Niaz Awan for Respondents.

Faisal Tariq, Deputy Director Legal, WWF for Respondent.

2022 P L C (C.S.) 73

[Islamabad High Court]

Before Mohsin Akhtar Kayani J

HAMID NASRULLAH RANJHA

Versus

CHIEF COMMISSIONER, ISLAMABAD, ICT and 3 others

Writ Petition No.4351 of 2019, decided on 17th December, 2019.

(a) Civil service---

----Deputation---Scope---Petitioner assailed notification issued by authorities whereby he, being a deputationist, was repatriated to his parent department---Validity---Normal period of deputation was three years and the concerned official had to report back after completion of his three years period, unless it was extended to further two years and the maximum period was five years, which the petitioner had already completed---No officer could be sent on deputation unless he had completed his three years of service, whereas no detail was provided by the petitioner as to when he was appointed in the National Database and Registration Authority (NADRA), parent department of petitioner---No record was available to even establish that the petitioner was a permanent employee of NADRA---Transfer and posting of non-cadre to a cadre post was not permissible---No concept of sending a NADRA employee on deputation to any other department existed in the National Database and Registration Authority Ordinance, 2000, except if one was a civil servant---Petitioner's deputation from NADRA to Commissioner Islamabad Capital Territory (ICT) Administration was declared to be illegal, in violation of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and against the concept of exigency of service---Petitioner had no right to claim absorption in ICT Administration as he was an employee of NADRA---Constitutional petition was dismissed and the petitioner was directed to report his parent department.

Contempt Proceedings Against Chief Secretary, Government of Sindh 2013 SCMR 1752 ref.

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

(b) Words and phrases---

----"Deputation"---Meaning.

An officer is said to be on deputation when he is detached on special temporary duty for the performance of which there is no permanently or temporarily sanctioned appointment.

(c) Civil service---

----Deputation---Scope---Government servant begins to be regarded as a deputationist when he is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs---Employee continues to be placed in this category as long as he holds the new post in an officiating or temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post.

Islamic Republic of Pakistan v. Israrul Haq PLD 1981 SC 531 ref.

(d) Civil service---

----Deputation---Scope---Period of deputation has to be defined specifically and after expiry of the said period, the official should automatically be relieved from his office duties, unless his period has been extended.

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

----S.11-A---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 20-A---Absorption of civil servants rendered surplus---Appointment on deputation---Scope---Only a civil servant can be sent on deputation and absorbed thereafter, but in order to justify the absorption the borrowing department has to prove that there is no other suitable candidate with such matching qualifications and the appointment of person so desired has been required on the term "exigency of services" and if such nominated person has not been absorbed, the normal day-to-day working of the department of the Government will be affected and the appointment is indispensable and even the Government and the relevant department will be benefited from the services of such transferee/deputationist.

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

----Ss.8, 9 & 10---Seniority---Promotion---Posting and transfer---Deputation---Scope---Civil Servants Act, 1973, provides different categories, service cadres or posts as prescribed by the recruitment rules of the department and the very concept of cadre provides a safeguard within the service hierarchy so that one kind of officer cannot cross the cadre, disturb the seniority, other rights of the officers in different cadres.

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

(g) Civil service---

----Absorption---Scope---Concept of absorption of non-civil servant to cadre, service or post to any government department is not permissible in the entire scheme of civil service laws.

(h) Civil service---

----Deputation---Absorption of deputationist---Scope---Absorption is not vested right of an employee and the employer has right as well as authority to terminate the deputation period or repatriate the employee back to his/her parent department.

Contempt Proceedings Against Chief Secretary, Government of Sindh 2013 SCMR 1752; Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Ch. Muhammad Akram v. Registrar Islamabad High Court, Islamabad and others PLD 2016 SC 961 ref.

Gansham Das v. FOP through Secretary Establishment 2017 PLC (C.S.) 191 rel.

2022 P L C (C.S.) 135

[Islamabad High Court]

Before Aameer Farooq and Babar Sattar, JJ

Ms. SAJIDA ISLAM

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Education and Professional Training,Pak-Secretariat, Islamabad and 3 others

Intra Court Appeal No.401 of 2020 in Writ Petition No.3962 of 2020, decided on 4th January, 2021.

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

----Art.114---Constitution of Pakistan Art. 199---Civil service---Promissory estoppel---Factual controversy---Deputation---Absorption---Doctrine of legitimate expectation---Scope---Appellant assailed an office order issued by the authorities directing her repatriation to the parent department and the dismissal of her constitutional petition---Petitioner claimed the repatriation order to be back dated and pressed into service the doctrine of legitimate expectation to be absorbed as a deputationist---Validity---Single Judge of High Court had noted that the office order was a public document and the assertion that it was back dated was tantamount to raising a factual controversy which could not be resolved by the Court in its constitutional jurisdiction---Deputation order itself had clearly stated that the petitioner would not be eligible for absorption in view of her academic credentials---Question of authorities' conduct generating a legitimate expectation of absorption in favour of appellant did not arise---Authorities had made no representation or promise that attracted the principle of promissory estoppel or legitimate expectancy---Deputationist had no vested right to seek absorption in a borrowing department---Intra Court Appeal was dismissed.

Mrs. Nusrat Rasheed and another v. Federation of Pakistan and others W.P. No. 194/2020 ref.

Pakistan v. Salah ud Din PLD 1991 SC 546 and Pakistan v. Fazal Rehman Kundkar PLD 1959 SC 82 rel.

2022 P L C (C.S.) 175

[Islamabad High Court]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

NATIONAL HIGHWAY AUTHORITY through Chairman

Versus

SAQLAIN MEHDI and another

Intra Court Appeal No.507 of 2014 in Writ Petition No.1999 of 2009, decided on 29th August, 2017.

(a) Civil service---

----Reinstatement and promotion---Scope---Respondents through writ petition had sought implementation of the directions of the President of National Highway Council (NHC) whereby he had directed the department to reinstate the respondents in the regular mainstream in one pay grade higher with all back benefits from the dates of their initial appointment---Said direction, during pendency of petition, was revisited and the department was allowed to decide the respondents' case in accordance with the relevant rules---Department declined to regularize the services of the respondents---Services of respondents, however, were regularized pursuant to recommendations of the Cabinet Sub-Committee on the regularization of contractual employees---Constitutional petition was allowed and the department was directed to implement the directions of the President of NHC---Contention of department was that the respondents could not seek their regularization with effect from the date of their initial appointment on contract basis---Validity---One of the respondents had concealed the fact about the dismissal of his appeal by the Federal Service Tribunal and his petition by the Supreme Court in his applications to the President of NHC as well as the Constitutional petition filed before the High Court---Such conduct and attitude had disentitled him from invoking the extra ordinary jurisdiction of the High Court---Respondents had no vested right to seek appointment on regular basis in higher pay scale with effect from the date when they were initially appointed on contract basis---President of NHC had no authority to grant the sort of relief as was given to the respondents---Said order was recalled by the President of NHC---Department had rejected the application for regularization of their services---Such order was not challenged by the respondents---Intra Court Appeal was allowed and the Constitutional petition was dismissed.

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

----S.3---Intra Court Appeal---Civil service---Non-statutory rules---Scope---If a right of appeal is provided under rules or regulations which are not statutory in nature, they could not be termed as "law" so as to prevent an appellant from filing an intra court appeal.

(c) Constitution of Pakistan---

----Art.199---National Highway Authority Act (XI of 1991), S. 32---National Highway Authority Administrative Regulations, 2002, Preamble---Constitutional jurisdiction---Non-statutory rules---Scope---National Highway Authority Administrative Regulations, 2002, dealing with procedure for appeals filed by the employees of NHA (National Highway Authority) are for the internal control and management of NHA.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Discretionary---Scope---Grant of Constitutional petition is in the discretion of the Court and the Court will decline to exercise the discretion where the conduct of the petitioner is such that it would be inequitable and unjust to grant him relief.

Rizwan Faiz Muhammad and Abid Hussain Ranjha for Appellant.

Abdur Rehman Siddiqui and Ch. Asghar Ali for Respondents.

2022 P L C (C.S.) 223

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. AMNA MAHMOOD

Versus

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

Writ Petition No.1828 of 2021, decided on 6th July, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Opportunity of hearing, non-provision of---Scope---Petitioner sought direction to the authorities to post her against the position of the Pakistan Chair at a foreign university---Validity---Search and Selection Committee had recommended the petitioner as the principal candidate for posting against the Pakistan Chair at a foreign university and the recommendation was also approved by the Prime Minister---No order for the petitioner's posting was issued pursuant to the approval---Only reason forwarded for re-initiating the selection process was that "it dawned that some of the candidates do not possess the relevant qualification"---If it was found that the petitioner did not have the relevant qualifications, the very least that she was entitled to was a right of hearing so that she could have had an opportunity to satisfy the respondents as to her qualifications and experience---Reason put forward by the relevant ministry was generalized and ambiguous---Issuance of posting order, after approval of the Prime Minister, was only a ministerial act---Decisive step in the case was the approval of Prime Minister to the recommendations made by the Search and Selection Committee---Prime Minister could recede or recall the approval but only for reasons sustainable in law---Relevant ministry was directed not to re-advertise the said position until an opportunity of a hearing was afforded to the petitioner and a reasoned order was passed on whether or not she had the required qualifications set out in the advertisement---Petition was disposed of, accordingly.

Abdul Saleem v. Government of N.-W.F.P. through Secretary, Department of Secondary Education 2007 PLC (C.S.) 179 and Muhammad Majid v. Secretary, Ministry of Manpower and Overseas Employment PLD 2017 Isl. 19 rel.

Barrister Khalique Zaman for Petitioner.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General, Jawad Akram, Joint Secretary, Zulfiqar Samin, Deputy Secretary and Sohail Ijaz, Deputy Director (Legal), Ministry of F.E.&P.T. for Respondents.

2022 P L C (C.S.) 270

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Tariq Mehmood Jahangiri, JJ

MUHAMMAD RIZWAN ARSHAD and others

Versus

Hafiz ABDUL SATTAR and another

Intra Court Appeal No.156 of 2019 in Writ Petition No.1180 of 2018, decided on 2nd August, 2021.

Civil service---

----Advertisement for appointment---Relaxation of age---Scope---Department invited applications for appointment against different posts including Assistant Scientific Officer (Hakeem) BPS 16---Applicant was required to have a domicile of Punjab and be 28 years of age on the closing date for submission of applications---Appellant was 39 years of age when he applied for the post---Appellant was appointed against the post by giving him general age relaxation of 5 years under the Establishment Division Office Memorandum dated 24-06-2010 in addition to age relaxation of 10 years under the Establishment Division's Notification dated 04-11-1993---Respondent challenged appellant's appointment by filing writ petition which was allowed---Validity---Age relaxation of 10 years under the later notification could only be extended to government servants who had completed 2 years of continuous government service on the closing date for receipt of applications---Benefit under the said notification only applied to the Federal Government servants who had completed 2 years of continuous service in the Federal Government---Appellant was not employee of Federal Government rather he had completed his two years of service in Provincial Government, therefore, benefit of age relaxation of 15 years granted by department to the appellant was unlawful---Appeal was dismissed.

Punjab Government v. Saleem-ur-Rehman 1985 PLC (C.S.) 112; Saleem-ur-Rehman v. Government of Punjab 1986 SCMR 747 and Amanat Ali Zahid v. Ghazanfar Ali 2005 PLC (C.S.) 406 rel.

Chaudhary Imtiaz Ahmed for Appellant.

Jameel Hussain Qureshi and Muhammad Umer Haider for Respondent No.1.

2022 P L C (C.S.) 349

[Islamabad High Court]

Before Tariq Mehmood Jahangiri, J

ASIMA SARWAT and another

Versus

PAKISTAN ATOMIC ENERGY COMMISSION (PAEC), through Chairman Headquarters, Islamabad and 3 others

Writ Petition No.3020 of 2021, decided on 27th August, 2021.

Master and Servant---

----Transfer of employees---Vested right, question of---Petitioners were husband and wife who had been transferred by the authorities to another station---Validity---Constitutional petition was maintainable where the authority had violated any provision of law or statutory rules---Employees who were governed by statutory rules could avail remedy of filing a Constitutional petition before High Court---Principle of 'master and servant' was applicable to employees whose services were not governed by any statutory rules---Employee of a company / organization owned by government, in absence of violation of law or any statutory rule, could not press into service Constitutional jurisdiction of High Court in order to seek relief with respect to his employment---Transfer order was passed by respondent authority which was a strategic organization---Petitioner failed to establish on record any element of mala fide on the part of respondent authority while passing posting order in question---Transfer of order was not illegal as one petitioner was found violating discipline of strategic organization---High Court declined to interfere in transfer order as the same was made in public interest---Constitutional petition was dismissed, in circumstances.

Syed Mahmood Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; 1995 SCMR 650; 2010 SCMR 1301; 1998 T.D. (Service) 253; 1997 PLC (C.S.) 663; PLD 1995 SC 530; "Waqas Rafi Awan v. National Engineering and Scientific Commission (NESCOM), Islamabad through its Chairman, Islamabad and 02 others (Writ Petition No. 1502/2019); Samiullah Narago v. Federation of Pakistan 2012 PLC (C.S.) 1205; Pakistan Telecommunication Company Limited v. Iqbal Nasir PLD 2013 SC 132; Pakistan International Airline Corporation v. Tanveer-ur-Rehman and others PLD 2010 SC 676; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Muhammad Naveed v. Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and 3 others 2016 PLC (C.S.) 24; Fida Hussain Shah and others v. Government of Sindh and others 2017 SCMR 798 and Muhammad Sajjad v. Federation of Pakistan and others 2021 SCMR 1064 ref.

2022 P L C (C.S.) 412

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Tariq Mehmood Jahangiri, JJ

MUHAMMAD HALEEM SHAH and 35 others

Versus

FEDERAL GOVERNMENT EMPLOYEES HOUSING AUTHORITY, through Director General, Islamabad and another

Intra Court Appeal No.290 of 2021 in Writ Petition No.1496 of 2020 decided on 12th July, 2021.

Civil service---

----Contractual employment---Claim of contract employees for regularization of service---Constitutional jurisdiction, invoking of---Contract, expiry of---Vested right---Scope---Terms and conditions agreed upon-Appellants were contractual employees of Federal Government Employees Housing Authority and claimed their right to regularization on ground of eligibility and completing the contract continuously and without break as per extension of the contract year by year---Maintainability---Contract employee, whose period of such employment expired by afflux of time, carried no vested right to remain in employment and Courts could not force the employer to regularize, reinstate or extend the contract of the employee---For invoking Constitutional jurisdiction, applicant had to point out a statutory or Constitutional right vested in him and that such right had been denied in violation of law---Intra Court Appeal was dismissed in limine.

Messrs Sui Southern Gas Company and others v. Zeeshan Usmani and others 2021 SCMR 609; 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 rel.

2022 P L C (C.S.) 439

[Islamabad High Court]

Before Babar Sattar, J

MUHAMMAD TAHIR MASOOD and 5 others

Versus

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 2 others

Writ Petition No.677 of 2011, heard on 19th February, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Territorial jurisdiction of High Court---Scope---Petitioners challenged the affixation of their salary on lower side after their promotion and sought treatment equal to similarly placed employees---Authorities contended that the petition was not maintainable as neither the petitioners nor the authorities fell within the territorial jurisdiction of the High Court---Validity---Authorities (State Life Insurance Corporation of Pakistan) was owned and controlled by the Federal Government and was performing functions in connection with the affairs of the Federation and thus had ubiquitous presence across Pakistan---To the extent that it passed an order from its Headquarters in district 'K' that affected an individual within the territorial jurisdiction of High Court, (Islamabad) who otherwise qualified for as an "aggrieved person" for purposes of Art. 199 and had no adequate remedy under the law, High Court (Islamabad) had jurisdiction to adjudicate the legality of such order---Petitioners were working in district 'R' and fell outside the territorial jurisdiction of the High Court---Merely because they fell within the hierarchical control of the Regional Chief North, which was based in Islamabad Capital Territory ('ICT') and fell within the territorial jurisdiction of High Court, did not result in the petitioners' falling within the territorial jurisdiction of High Court (Islamabad) insofar as they were not aggrieved by an act or order of the Regional Chief North---Effect of the order that aggrieved the petitioners was not within the territorial jurisdiction of High Court Islamabad---Constitutional petition was dismissed.

Muhammad Iqbal Gaba v. Chairman, State Life Insurance Corporation of Pakistan and 20 others (W.P No. 4116 of 2016); I.C.As. Nos.530 and 531 of 2016 and Irshad Ali and others v. State Life Insurance Corporation of Pakistan and others (W.P No. 1253 of 2013) ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---High Court, under Art. 199 of the Constitution, possesses the requisite jurisdiction to enter into the controversy and adjudicate the same.

(c) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.20---Constitutional jurisdiction---Territorial jurisdiction---Scope---Determination of territorial jurisdiction of High Court under Art.199 of the Constitution is neither contingent upon nor affected by S.20 of the Civil Procedure Code, as provisions of C.P.C. cannot be employed to interpret the Constitution and the scope of its provisions.

Sheikh Abdul Sattar Lasi v. Federation of Pakistan through Secretary Ministry of Law and others 2006 CLD 18; LPG Association of Pakistan through Chairman v. Federation of Pakistan and others 2009 CLD 1498 and Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance 2012 PTD 1869 ref.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Territorial jurisdiction---Principles to be adhered to while determining territorial jurisdiction, explained.

Following principles are to be adhered to while determining territorial jurisdiction.

(i) The first step in an analysis regarding the territorial jurisdiction of this Court is a determination of the dominant purpose of the petition. It is the dominant purpose and not any ancillary purpose that will govern which act, order or proceeding forms the predominant grievance that needs to be adjudicated, which will then identify the person whose act, order or proceeding is under challenge to further ascertain whether such person falls within the territorial jurisdiction of this Court.

(ii) When a person exercising jurisdiction in connection with the affairs of the Federation whether the government itself, or an attached department or corporation performing functions in connection with affairs of the state, whose act, order or proceeding can have legal effect across Pakistan or beyond the physical jurisdiction of the province or territory in which its primary office or headquarters is based, any High Court within whose jurisdiction such order creates a legal effect would have the jurisdiction to determine its legality.

(iii) The question of jurisdiction in relation to a person performing functions in connection with the affairs of the Federation across Pakistan is two-pronged: the Court needs to first ascertain that the act or order or proceeding in question is that of a person whose acts or orders or proceedings have jurisdiction and thus legal force across Pakistan, including within the territorial jurisdiction of such Court in view of the law that vests jurisdiction in such person; and it further needs to verify that the act or order or proceeding in question causes a grievance to a person within the territorial jurisdiction of such Court.

(iv) If the test of territorial jurisdiction is satisfied, the principle of choice takes hold and the doctrine of forum convenience is not applied by the High Court while regulating its own jurisdiction i.e. if two or more High Courts are vested with jurisdiction in relation to a certain matter it is then for the petitioner to determine which forum is most convenient for him to have his grievance adjudicated and where such choice is reasonable and not aimed at gaining an undue advantage against the respondent, the Court defers to the petitioner's decision. Such choice affords limited but legitimate discretion to the petitioner and the choice thus made is not regarded as forum shopping from a public policy perspective.

Sethi and Sethi's case 2012 PTD 1869; Sandalbar Enterprises's case PLD 1997 SC 334; Federal Government v. Ms. Ayyan Ali 2017 SCMR 1179 and Al-Iblagh Ltd., Lahore v. Copy Right Board, Karachi 1985 SCMR 785 rel.

Muhammad Umair Baloch for Petitioners.

Mirza Anwar-ul-Haq, Saad Maqbool, Office Assistant, State Life Insurance Corporation for Respondents.

2022 P L C (C.S.) 541

[Islamabad High Court]

Before Tariq Mehmood Jahangiri, J

RIAZ AKBAR and another

Versus

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

Writ Petition No.4558 of 2016, decided on 24th February, 2021.

(a) Civil service---

----Contractual employment---Regularization of service---Expiry of contract period---Scope---Petitioners sought reinstatement as well as regularization of their services---Validity---Petitioners had accepted services on contract basis with the respondents vide contract appointment letters wherein it was categorically mentioned that the petitioners were appointed on contract basis for a period of two years---One of the petitioners had attained the age of superannuation whereas the other was out of service for last more than six years---Contract employee, whose period of contract employment had expired by afflux of time, carried no vested right to remain in employment of the employer and the Court could not force the employer to regularize, reinstate or extend the contract of the employee---Petitioners had failed to point out any right to seek regularization on the basis of any constitutional guarantee or statutory law or instrument, which was denied to them---Writ petition was dismissed, in circumstances.

Rehmat Ullah v. Federation of Pakistan and others (Writ Petition No.1799/2019); Imran Ahmed and others v. Federation of Pakistan and others 2019 PLC (C.S.) N 19; C.P. No.2792/2018; Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 PLC (C.S.) 1502; Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068; Chairman NADRA, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979 and Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Where a citizen seeks relief in constitutional jurisdiction, he must point out a right, statutory or constitutional, which vests in him and has been denied in violation of law.

Muhammad Umair Baloch, Saif-ur-Rehman Shah Bukhari and Ms. Fariha Jaffar for Petitioners.

2022 P L C (C.S.) 607

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD JAVED IQBAL KASI

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary Law, Justice and Human Right Division, Islamabad and 4 others

Writ Petition No.3809 of 2017, decided on 8th November, 2017.

Service Tribunals Act (LXX of 1973)---

----Ss.3(3)(b) & 3(4)---Member of Federal Service Tribunal (FST)---Judicial allowance, entitlement to---Although members of the Federal Service Tribunal (FST) performed judicial functions; and the orders passed by the said Tribunal were appealable before the Supreme Court; however, the petitioner was appointed for a fixed period of three years as a Member, FST---Petitioner had not been a judge of the subordinate or the superior judiciary ---Grant or withdrawal of an allowance was the prerogative of the Authority which determined the terms and conditions of the appointment of an incumbent---Any employee did not have a vested right for the payment of allowance---Even if an allowance was granted, the same could be withdrawn by the competent authority---Constitutional petition was dismissed.

Mohammad Shabbir Ahmad Nasir v. Secretary, Finance Division 1997 SCMR 1026 and Employees Welfare Association, B.I.S.E., Daira Ghazi Khan v. Government of the Punjab 2002 PLC (C.S.) 163 ref.

2022 P L C (C.S.) 646

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

NAEEM ANWAR

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce and Textile and others

Writ Petition No.4334 of 2019, decided on 24th June, 2021.

(a) National Tariff Commission Act (XII of 2015)---

----Ss.4 & 7---National Tariff Commission (Terms and Conditions of Service of Members) Rules, 2018---Constitution of Pakistan, Art.93---Prime Minister approved the proposal of the relevant Ministry for placing a summary to the Cabinet for the appointment of fifth Member of the National Tariff Commission (NTC) from among a list of three shortlisted candidates placed "in order of merit"---On the recommendation of Advisor to the Prime Minister who interviewed the candidates, the Cabinet approved the appointment of respondent (being 2nd in the merit list)---Petitioner (being 1st in the merit list) challenged the appointment in the constitutional petition---Validity---Appointments against posts created by statute had to be made strictly in accordance with the procedure prescribed in the statute or Rules made thereunder---National Tariff Commission (Terms and Conditions of Service of Members) Rules, 2018 (2018 Rules) do not envisage for an Advisor to the Prime Minister to conduct interviews of the candidates recommended by the Selection Committee for appointment against vacant posts of Member, NTC---Rule 7(8)(d) provided that after the interviews the Selection Committee should recommend a panel of candidates "in order of merit" for appointment as Members NTC neither did the NTC Act nor the 2018 Rules gave any role to the Advisor to the Prime Minister in the selection/appointment of Member, NTC---Such intervention of the Advisor in the appointment process could not be considered as a valid ground for overturning merit, therefore, the interviews of the three candidates conducted by the Advisor and the recommendations made by the Advisor on the basis of said interviews were without lawful authority and of no legal effect and were declared as such---Such would not just render the scrutiny and interview process carried out by the Selection Committee under the 2018 Rules as an exercise in futility but would amount to compromising merit, fairness and transparency which were recognized in a civilized society as the ethos of a competitive process for a public office---High Court recommended the Federal Government (i.e., the Prime Minister and Cabinet Collectively) to consider the names of candidates recommended by the Selection Committee---Appointment of the respondent was found to be the product of injudicious selection, hence, the constitutional petition was allowed.

(b) Constitution of Pakistan---

----Arts.93 & 67(1)---Rules of Business, 1973---Powers of Advisor to the Prime Minister---Appointments against statutory posts---Scope---Held, that the Advisor to the Prime Minister (Advisor) was a rank outside to the selection/appointment process of a Member, National Tariff Commission (NTC)---Role of Advisor was not contemplated by the Rules of Business, 1973 in the conduct of the business of executive authority, and that Advisor could not interfere or in any manner influence the executive authority, working or functioning of a Division or Ministry or its policy matters---Advisor could neither be given nor could he exercise powers or perform functions in derogation of the mandatory scheme of the Rules of Business, 1973 read with the Arts.63 & 67(1) of the Constitution, and that an act of Advisor in breach of the Constitution and the Rules of Business, 1973 would be void, without lawful authority and jurisdiction.

Syed Pervaiz Zahoor v. The Prime Minister of Pakistan PLD 2020 Isl. 449 rel.

(c) Constitution of Pakistan---

----Arts.91, 92, 93 & 67(1)---Power of Advisor to the Prime Minister---Recommendation to the Cabinet---Appointment against statutory post---Scope---Held, that the Advisor could give recommendations to the Prime Minister but the Constitution and the Rules of Business, 1973 did not provide for an Advisor to give the recommendations to the Cabinet in the process of making appointments against statutory post.

(d) Constitution of Pakistan---

----Arts.9, 25 & 27---Civil service---Appointment---Discrimination---Merit list; ignorance of---Reasons to be recoded---Held, that the Helddhh

appointing authority (i.e. the Federal Government in the present case) was not bound to select the candidate whose name was at the top of the merit list or for that matter appoint any of the candidates recommended by the Selection Committee---Where a panel of candidates was submitted in order of merit, there had to be reasons recorded justifying why the candidate at the top of the merit list was ignored and a candidate lower on the merit list selected---These reasons were to be contemporaneously reflected in the decision-making process and could not be put forth as an afterthought in the form of written comments---Appointing a candidate lower on the merit list without such reasons amounted to hostile discrimination and not permissible under any canon of law, justice and equity.

Ali Murad Baloch for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney-General for Respondent.

Asim Shafi for Respondent No.3.

Mehmood Khan Lakho, Section Officer, Establishment Division.

Amjad Raja, Section Officer, Ministry of Communications.

2022 P L C (C.S.) 712

[Islamabad High Court]

Before Babar Sattar, J

TAJ MUHAMMAD, CHIEF INTERNAL AUDITOR OGDCL and others

Versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED through Manager Director and others

Writ Petition No.1777 of 2020, decided on 19th February, 2021.

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

----Preamble---Constitution of Pakistan, Art.199---Constitutional petition --- Promotion --- Antedated promotion --- Eligibility for promotion---Scope---Petitioners claimed antedated promotions in view of the judgments of Supreme Court---Validity--- No general principles had been laid down by High Court or Supreme Court that employees of the Oil and Gas Development Company Limited (OGDCL) were entitled to antedated promotion on the sole basis that they had completed service of five years in their respective grades---Petitioners were seeking the exercise of High Court's extraordinary constitutional jurisdiction to undertake judicial review of promotion/lack of promotion decisions of OGDCL---Promotion criteria specified in the Oil and Gas Development Corporation Employees (Service) Regulations, 1994, reflected that a key component of the promotion decision was objective evaluation of the employee's performance and competence---High Court was not to step into the shoes of the Human Resources department and management of the company and second-guess their decision regarding competence and performance of employees made on the basis of subjective appraisal, merely because the organization was publicly owned company performing duties in relation to the affairs of the State---High Court had no expertise to take employment decisions---Petitioners had failed to make out a case for any procedural impropriety or breach of applicable rules or discrimination or malice---Constitutional petitions were dismissed with costs.

Zulfiqar-ul-Husnain and 19 others v. Oil and Gas Development Corporation 2003 SCMR 1115 and Abid Kamal v. OGDCL through its Managing Director and others (C.P.L.A No.1538/2008 decided on 13.10.2009) distinguished.

Syed Tahir Abbas Shah v. OGDL through M.D. Head Office, Islamabad 2011 SCMR 1912; Arshad Mehmood Khan v. OGDCL (Writ Petition No.3965 of 2013); Muhammad Wasal Butt v. OGDC (Writ Petition No.2061 of 2010); Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Asaf Fasihuddin Khan Vardag v. Government of Pakistan 2014 SCMR 676 and Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Judicial review---Scope---Constitutional Courts can undertake judicial review of decisions of executive authorities on grounds of illegality, irrationality or procedural impropriety---High Court cannot step into the shoes of the decision maker to second-guess policy-decisions and related choices made by the competent authorities neither does the High Court seek to adjudicate factual controversy in constitutional jurisdiction where matters are decided on the basis of affidavits and without recording of any evidence nor does it seek to adjudicate contractual disputes, subject to certain exceptions.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Employer and employee---Eligibility for promotion---Scope---Every functional organization has a human resource policy pursuant to which promotion decisions for employees are made---One component of such promotion is the subjective evaluation of the competence of an employee---Such evaluation can only be undertaken in view of all attendant facts and circumstances by the primary decisionmaker---High Court while exercising its judicial review powers cannot indulge in such exercise and doing so could require the court to engage with a factual dispute involving the conflict of opinion regarding potential and competence of the employee as determined by the Human Resources department of an organization and the employee's self-assessment of his own potential and competence---Such would drag the Court into the domain of policy as the question of how best to manage the Human Resource department of an organization, how to motivate employees, which employees are to be placed on the fast track of career progression, how to train and prepare them for leadership, and how best to incentivize them, etc., are quintessential policy matters.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1 and Asaf Fasihuddin Khan Vardag v. Government of Pakistan 2014 SCMR 676 rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---Employer and employee---Promotion---At least four discernable components exist for promotion decisions for purposes of a Court exercising judicial review of the decision: (i) mandatory legal requirements, the failure to observe which can lead to procedural impropriety; (ii) objective criteria, i.e. eligibility requirements that can be verified by the Court on the basis of available record; (iii) the subjective evaluation of the competence, fitness or potential of an employee that falls within the domain of primary decisionmaker; and (iv) the reasoning of the decisionmaker which if perverse or reflecting bias or malice or based on extraneous consideration can result in an illegal or irrational decision that can be reviewed by a Constitutional Court---Given these components of a promotion decision High Court would intervene and exercise judicial review of such decision where (i) there is a breach of principles of procedural fairness or natural justice, (ii) where employment rules and criteria for promotion prescribed therein have been breached, or irrelevant and extraneous consideration have informed the decision leading to illegality, (iii) when the objective criteria regarding eligibility for promotion have been misapplied and such misapplication is evident from the record (i.e. miscalculation of years of service, etc.), and (iv) where discrimination or malice is floating on the surface of the record, or the reasoning of the decisionmaker is perverse leading to the conclusion, without the Court indulging in any factual controversy, that the decision undermines the fundamental right of employee to be treated in accordance with law and without discrimination.

Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021 rel.

Malik Saqib Mehmood, Muhammad Zubair Sherwani and Qaiser Hussain for Petitioners.

Khurram M. Hashmi, Advocate Supreme Court for Respondent (in Writ Petitions Nos.1777, 3135 and 226 of 2020).

Umair Majeed Malik, Sardar Haseeb Ahmed and Nauman A. Farooqi for Respondent (in W.P No. 2368/2020).

2022 P L C (C.S.) 762

[Islamabad High Court]

Before Aamer Farooq and Sardar Ejaz Ishaq Khan, JJ

Syed HUSSAIN RAZA and another

Versus

PAK DATACOM LIMITED through Chief Executive Officer and others

I.C.As. Nos.23 and 24 of 2022, decided on 25th January, 2022.

Civil service---

----Contractual appointment---Regularization---Non-statutory rules---Appellants sought continuation of their service with respondent company but Single Judge of High Court declined to interfere in the matter as the rules were non-statutory---Validity---Ownership and control of respondent company by Federal Government did not ipso facto entail conclusion that the Service Manual was approved or was required to be approved by Federal Government---Approval of Service Manual would not bring it as a sub-delegated legislation under a statute---Division Bench of High Court declined to interfere in the order passed by Single Judge of High Court---Intra Court Appeal was dismissed in circumstances.

Shafiq Ahmed Khan v. NESCOM through Chairman, Islamabad PLD 2016 SC 377; Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulations Wing), Islamabad 2017 SCMR 571 and Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 836 rel.

2022 P L C (C.S.) 805

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Prof. Dr. QAZI TAHIR UDDIN

Versus

The SECRETARY, PAKISTAN MEDICAL COMMISSION, ISLAMABAD and 3 others

Writ Petition No.3636 of 2021, decided on 17th January, 2022.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Contractual appointments---Principles---Statutory post fixed by tenure---Effect---Such is master's prerogative to terminate servant's contractual appointment if the former does not find the latter's performance to be satisfactory---Such termination can take place in accordance with terms and conditions of employment contract---Contractual employee cannot insist for a regular inquiry to be held regarding employer's satisfaction with employee's performance---Contractual nature of person's employment makes his relationship with his employer that of master and servant---High Court in exercise of jurisdiction under Art.199 of the Constitution, can neither declare termination of an employee's contractual employment to be unlawful nor can hold that employment contract continues to subsist--- Such principles do not apply where a statute, in explicit terms, requires an appointment to be made for a fixed tenure and also prescribes ground for removal of the appointee--- Appointment by contract containing termination clause which enables employer to terminate employment without assigning any reason and on payment of salary in lieu of notice amounts to circumventing statutory mandate of appointment being made for a fixed tenure.

(b) Pakistan Medical Commission Act (XXXIII of 2020)---

----S.15(2)---Appointment of Members of National Medical Authority---Tenure post---Condition in appointment letter---Scope---By making appointment of a Member of National Medical Authority, for a fixed term of four years, under S.15(2) of Pakistan Medical Commission Act, 2020, affords protection and security of tenure to such Member---Statutory protection cannot be whisked away by a condition in letter of appointment---Such condition in appointment letter cannot override or circumvent statutory protection afforded to petitioner by S.15(2) of Pakistan Medical Commission Ac, 2020---Parties cannot contract out of beneficial provisions in a statute.

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 rel.

(c) Pakistan Medical Commission Act (XXXIII of 2020)---

----S.15(2) & (7)---Constitution of Pakistan, Art.199---Constitutional petition---Termination of contract of service---Tenure post---Condition in appointment letter---Condemned unheard---Petitioner was appointed Member (Examinations) of National Medical Authority on contract basis---Appointment of petitioner was terminated on the basis of 'termination clause' in contract of appointment---Validity---Without having given an opportunity to petitioner to rebut or give an explanation with respect to allegations against him in performance assessment, such allegations could not be treated as substantiated and could not form basis for a decision to terminate his appointment---It could only be in an inquiry under S.15(7) of Pakistan Medical Commission Act, 2020, that it would be determined whether allegations made against petitioner in performance assessment, if substantiated, would amount to misconduct or result in a finding that he was unable to perform his functions so as to furnish a just cause to remove him from office of Member (Examinations), National Medical Authority---Any other mode or manner of removal of a Member of National Medical Authority from his office was not contemplated by provisions of Pakistan Medical Commission Act, 2020--- Requirement to hold inquiry under S.15(7) of Pakistan Medical Commission Act, 2020, could not have been lightly dispensed with on the ipse dixit of those in Pakistan Medical Commission who decided to terminate petitioner's appointment on the basis of his performance assessment---High Court directed the petitioner to resume his duties and set aside letter terminating his appointment, as he was appointed for a fixed term of four years under S.15(2) of Pakistan Medical Commission Act, 2020---Constitutional petition was allowed, in circumstances.

Syed Muhammad Hassan Raza Rizvi v. Federation of Pakistan (Writ Petition No.1380/2021); Allauddin Akhtar v. Government of Punjab 1982 CLC 515; Homeopathic Dr. Jamil Akhtar Ghauri v. Federation of Pakistan and others 2017 CLC 575; Babar Sattar v. Federation of Pakistan 2015 CLD 134; Mrs. Jamshed Naqvi v. Azad Jammu and Kashmir Government 2013 PLC (C.S.) 1037; Dr. Aftab Ahmad Malik v. University of Engineering and Technology 2005 PLC (C.S.) 80; Moazzam Husain Khan v. Government of Pakistan and others PLD 1958 (W.P.) Kar. 35; P. Venugopal v. Union of India 2008 (5) SCC 1; L.P. Agarwal v. Union of India AIR 1992 SC 1892; P.L. Dhingra v. Union of India AIR 1958 SC 36 and Vadiyya S. Khalil v. Federation of Pakistan 2020 PLC (C.S.) 460 ref.

Issac Ali Qazi, Shazia Malik and Rabia Habib for Petitioners.

Taimoor Aslam Khan and Mudassar Abbas for Respondents.

2022 P L C (C.S.) 866

[Islamabad High Court]

Before Sardar Ejaz Ishaq Khan, J

HOMOEOPATHIC DOCTOR PERVEIZ AKHTER QURESHI

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Health and 6 others

Writ Petition No.2152 of 2011, decided on 16th February, 2022.

(a) Civil service---

----Removal from service---Petitioner assailed his disqualification on the allegations of corruption and misuse of public funds and removal from presidency of the National Council for Homeopathy---Validity---Impugned notification was premised on conclusions of fact, including that the building was purchased at higher than its market price---In the absence of proper inquiry, it could not be said that the finding was based on any objectively verifiable evidence---No answer was available to one of the key defences taken by petitioner in his various responses, namely, under the scheme of the relevant law, the decision making by the Council was a collegiate exercise that could not be hijacked by petitioner alone---High Court observed that impugned notification was not backed with due process violating the petitioner's Fundamental Right to fair trial and that the countervailing factors on a balance of probability established that it was not issued bona fidely---Constitutional petition was allowed and the impugned notification was set aside.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---No abetment by party's death, if right to reputation survives---Scope---Petitioner after filing the constitutional petition in 2011 had died in 2019, his legal heirs were impleaded---Counsel for the petitioner submitted that the right to dignity and fair trial had survived to the benefit of the legal heirs---Validity---Right to dignity or reputation was not to be inferred as a matter in each case of dismissal from a post or service as an ancillary right---For reparation of an injury to reputation, the relief must be specifically pleaded---Counsel for petitioner had accepted that the prayer in Constitutional petition was confined to the setting aside of the impugned notification---Memo of the Constitutional petition had not made any prayer for a declaration of the innocence of petitioner---Request for moulding the relief could not be acceded as it would cause the Court to stray into the suo motu territory---Accede to his request would also cause the court to act as a Court of appeal against the findings in the impugned notification, which High Court in its constitutional jurisdiction does not do---Writ of certiorari was, however, issued on preponderance of record.

2001 SCMR 1822 and PLD 2018 Isl. 258 ref.

Regional Operation Chief, National Bank of Pakistan, Human Resource Department, Regional Office, Sargodha and others v. Mst. Nusrat Perveen and others 2021 SCMR 702 rel.

(c) Pleadings---

----Parties are bound by their pleadings and cannot urge to the contrary at the hearing.

2019 SCMR 74 ref.

(d) Civil service---

----Removal from office---Scope---To accuse and then dismiss the holder of an office created by statute without proper inquiry into disputed questions of fact is not sustainable in law.

2010 SCMR 1546; 2010 PLC (C.S.) 306 and 2009 SCMR 339 ref.

Anis Yaqub Rathore for Petitioner.

Ch. Imtiaz Ahmed and Ch. Muhammad Tahir Mehmood, A.A.G. for Respondents.

2022 M L D 831

[Islamabad]

Before Babar Sattar, J

MUHAMMAD KHALID MUNIR---Petitioner

Versus

NAZAR SADIQ and another---Respondents

Writ Petition No.822 of 2021, decided on 22nd September, 2021.

(a) Administration of justice---

----Legal system---Courts, duty of---Scope---Courts in our legal system are Courts of law as well as Courts of equity---Exercise of discretion while adjudicating a claim even within equitable jurisdiction, cannot be arbitrary---High Court observed that in our adversarial system of justice, if Court fails to consider competing interests of litigating parties by absolving the party who is delinquent from its obligation to show sufficient cause from non-appearance before the Court, the Court could inadvertently end up facilitating abuse of process of Court by enabling a party to delay adjudication of claims before it.

(b) Constitution of Pakistan---

----Arts. 4 &10-A---Right to fair trial---Discretion of Courts, exercise of---Principle---Such right under Art.10-A of the Constitution does not mean unqualified entitlement to have claims adjudicated at the whims of one party to the dispute---Claims have to be adjudicated according to law with a focus on rights of both claimant and defendant---Court is vested with no unguided discretion to ignore statutory intent and while administering and regulating a trial its failure to exercise authority to adjudicate a claim in the manner and within time frames conceived by C.P.C. would prejudice interest of party contesting the claim---Right of such contesting party to fair trial under Art. 10-A of the Constitution and to be treated in accordance with law under Art. 4 of the Constitution must also borne in mind by Court--- Exercise of discretion by a Court arbitrarily in manner that excuses delinquent party thereby enabling it to delay adjudicatory process puts at stake public faith in justice system to dispense justice in timely manner, clutters Court dockets, consumes public resource by adding to cost of litigation and puts into question the ability of justice system to act as neutral arbiter of law.

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

----S.3---Limitation---Object, purpose and scope---Statutes prescribe limitation periods that determine outer limit of time period within which a claim under law can be enforced---Limitation provisions are of a mandatory nature and are not to be treated as technicalities.

(d) Laches, doctrine of----

----Object, purpose and scope---Doctrine of laches is rooted in the wisdom that equity does not help the indolent---Same principle is applicable where plaintiff fails to pursue his claim assiduously by not appearing before Court on date fixed for proceedings in the matter.

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

----S.12---Civil Procedure Code (V of 1908), O. IX, R.9---Constitution of Pakistan, Art.199---Constitutional petition---Suit dismissed for non-prosecution---Restoration---Time frame---Sufficient cause for non-appearance---Determination---Suit for specific performance of agreement to sell filed by respondent / plaintiff was dismissed for non-prosecution--- Two applications for restoration were dismissed by Trial Court but on third application, the suit was restored---Validity---Within Civil Procedure Code, 1908, time frames are provided to regulate cycle of a dispute that enters adjudicatory process---If such time frames are not abided by, the cost inflicted on public interest is debilitating--- Civil Procedure Code, 1908, confers penal powers on Court to enforce prescribed time lines to move along adjudication of suit in order to conclude proceedings within a reasonable period of time--- Entire scheme is meant to ensure that justice is delivered according to law within time lines prescribed by law--- Order of restoration of suit absolved respondent / plaintiff of his obligation to establish sufficient cause as required under O.IX, R.9, C.P.C.---Trial Court did not bring into consideration the question of whether or not respondent / plaintiff had sufficient cause for his non-appearance while allowing his application---Trial Court acted in excess of its jurisdiction under law---Trial Court was under obligation to apply test of sufficient cause and had documented its reasons as to why its conscience was satisfied that non-appearance of respondent / plaintiff before Trial Court on date fixed was excusable in accordance with law---High Court set aside order restoring the suit and remanded the matter to Trial Court for decision afresh on application--- Constitutional petition was allowed accordingly.

Muhammad Yaqub v. Kala Khan and 7 others 1995 MLD 1161; Mst. Hussain Jan and 8 others v. Muhammad Suleman through Legal Heirs and 16 others PLD 1994 Pesh. 95; Abdul Rashid v. Director-General, Post Offices, Islamabad and others 2009 SCMR 1435; Sindh High Court in Northern Polythene Limited (NPL) through Director v. National Bank of Pakistan and 3 others 2013 CLD 1053; Rai Muhammad Riaz (decd) through L.Rs. and others v. Ejaz Ahmed and others PLD 2021 SC 761 and Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources v. Durrani Ceramics and others 2014 SCMR 637 ref.

Abid Hussain Ranjha for Petitioner.

Muhammad Sadiq Khan for Respondent No.1.

2022 M L D 905

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

NOUMAN MUSHTAQ---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.759-B of 2020, decided on 22nd June, 2020.

(a) Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Boarderline case---Non-availability of report of Forensic Laboratory---Further inquiry---Scope---Accused was alleged to have been found in possession of 1350 grams of charas---Quantity of 1350 grams charas, which was a borderline case and was marginally in excess of the quantity---Samples separated for analysis were sent to the Forensic Laboratory, report whereof was still awaited---Case of accused required further probe and fell within the ambit of subsection (2) of S. 497, Cr.P.C., which entitled him to the concession of bail---Petition for grant of bail was allowed.

Aya Khan and another v. The State 2020 SCMR 350; Saeed Ahmed v. The State and others PLJ 2018 SC 812; Naimatullah and another v. The State 2017 MLD 1097 and Shahzad Khizar Hayat v. The State 2014 YLR 849 rel.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S.9---Criminal Procedure Code (V of 1898), S. 497---Possession of narcotics---Bail---Non-availability of report of Forensic Laboratory---Scope---Non-availability of report of Forensic Laboratory in respect of narcotic substances allegedly recovered makes the case of the accused arguable for the purposes of bail.

(c) Constitution of Pakistan---

----Arts.4 & 9---Right of individuals to be dealt in accordance with law---Security of person---Scope---Accused person cannot be left at the mercy of the prosecution to remain in jail for an indefinite period---Liberty of an individual has been guaranteed by the Constitution and to have a speedy trial is an inalienable right of every accused person.

Imtiaz Ahmed v. The State through Special Prosecutor, ANF 2017 SCMR 1194 rel.

Ms. Huma Jamil Babur for Petitioner.

2022 M L D 920

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Mst. NAILA HAMEED---Petitioner

Versus

EJAZ MAHMOOD and 2 others---Respondents

Writ Petition No.2958 of 2021, decided on 23rd August, 2021.

(a) Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan, Art.199---Constitutional petition---Guardianship of minor daughters---Concurrent findings of facts by two Courts below---Un-explained delay in filing appeal---Respondent / father was appointed guardian of minor daughters by Trial Court and appeal filed by petitioner / mother was dismissed by Lower Appellate Court as the same was barred by limitation---Validity---Concurrent findings of both the Courts were against petitioner / mother---High Court was Court of equity and petitioner / mother for equitable relief was supposed to put-forth some convincing materials which would have justified filing of her appeal after considerable delay---Only vigilant not the indolent was to get relief from Court of equity or law respecting her right which was violated or infringed---Petitioner / mother remained in deep slumber for such a long period for realization of her legal rights before High Court which she alleged to have been violated by respondent / father---In order to get discretionary and equitable relief, parties should approach to Courts with clean hands---In case of concurrent findings of Courts below, scope of Constitutional petition was very limited---High Court declined to interfere in judgments and decrees passed by two Courts below as the same were in accordance with law and facts---Constitutional petition was dismissed, in circumstances.

Water and Power Development Authority's 1988 SCMR 1354; Khushi Muhammad and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Shafqatullah and others v. District and Sessions Judge, Nowshera, N.W.F.P and 4 others 2001 SCMR 274; Manzoor Hussain and 3 others Vs. Muhammad Siddique 2000 CLC 623; Shahnaz Parveen and another v. Javed Yaqoob and others 2020 MLD 638 and University of the Punjab and another v. Malik Jehangir Khan 1994 PLC (C.S.) 314 and Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others 2008 YLR 2309 rel.

(b) Constitution of Pakistan---

----Art.199(1)(a)(i)---Writ of certiorari---Issuance---Principle---Certiorari is only available to quash a decision for an error of law---Such writ is also issued for correcting errors of jurisdiction when inferior Court or tribunal acts without jurisdiction or in excess of its jurisdiction or fails to exercise its jurisdiction or where Court or tribunal acts illegally in exercise of its undoubted jurisdiction and decides a matter in violation of principles of natural justice---High Court while issuing writ of certiorari acts in exercise of supervisory and not appellate jurisdiction---In such jurisdiction, High Court does not review findings of facts reached by inferior Court or tribunal.

Amjad Khan v. Muhammad Irshad (Deceased) through LRs 2020 SCMR 2155; President All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

2022 M L D 958

[Islamabad]

Before Aamer Farooq, J

NAUMAN HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.845-B of 2021, decided on 20th September, 2021.

(a) Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.377 & 377-B---Un-natural offence---Sexual abuse---Bail, refusal of---Scope---Allegation against accused was that he along with co-accused got the nude videos of complainant's son, then blackmailed him and also sexually abused him---Maximum punishment for the offence under S.377-B, P.P.C., was 07 years imprisonment and fine---Offence did not fall within the prohibitory clause of S. 497, Cr.P.C. and where such was the case, grant of bail was a rule and refusal was an exception---One of such exceptions was repetition of the offence and the other was tampering with evidence---Accused along with other accused used to share video/clips of victim on social media---Likelihood existed if the accused was enlarged on bail, he might commit the offence again---Report by the Director, FIA, was categoric that offence under S.377, P.P.C., was committed---Petition for grant of bail was dismissed, in circumstances.

Tariq Bashir and others v. The State PLD 1995 SC 34 rel.

(b) Penal Code (XLV of 1860)---

----Ss.377-A & 377-B---Sexual abuse---Scope---In order to constitute offence of S.377-B, P.P.C., no actual penetration is required and the offence is committed even where there is stroking, caressing, exhibitionism, etc.

Sajid Mehmood Chaudhry for Petitioner.

Syeda Kashmala and Ms. Ateeqa Ishtiyaq for the Complainant.

Aimal Amjad, State Counsel.

2022 M L D 1041

[Islamabad]

Before Tariq Mehmood Jahangiri, J

YASIR HAFEEZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1381-B of 2021, decided on 18th February, 2022.

(a) Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S. 363---Kidnapping---Pre-arrest bail, refusal of---Scope---Accused persons (uncle and cousin of minor) were alleged to have forcibly abducted the minor aged about 08 years from his school on gun point---Accused persons were specifically nominated in the FIR on the complaint of grandfather of the minor---Police had also recorded statement of an eye-witness of the occurrence---Security guard of the school had stated in his statement under S.161, Cr.P.C., that on the date of occurrence, the minor was kidnapped by the accused in a black car forcibly from outside the school---Minor was in the custody of his father and the petition filed by mother of minor under S. 491, Cr.P.C., had been dismissed---Minor was in the custody of his mother but the practice of kidnapping and snatching the minor by relatives could not be allowed---Petition for grant of pre-arrest bail was dismissed, in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S.498---Pre-arrest bail---Scope---While deciding the bail application, before recording of evidence in the Trial Court, only tentative assessment is to be made by the Court and it is not permissible to go into details of evidence in one way or the other that may prejudice the case of either party.

PLD 1994 SC 65; PLD 1994 SC 88; 2021 SCMR 111 and 2020 SCMR 937 ref.

(c) Criminal Procedure Code (V of 1898)---

----S.498---Pre-arrest bail---Scope---Bail before arrest cannot be claimed as a matter of legal right in each case and also it cannot be expected that it would be granted in each case unless legal requirements laid down are met---Bail granted before arrest causes setback in investigation and can stand as stumbling block in the way of recovery of incriminating articles.

Waleed Arfaqat v. The State and another 2021 MLD 1226 ref.

(d) Criminal Procedure Code (V of 1898)---

----S.498---Pre-arrest bail---Scope---Relief of pre-arrest bail is granted only in those matters where it would appear that registration of such cases was passed on enmity/mala fide or where no offence was shown to have been committed on the very face of record.

Sarwar Sultan v. The State PLD 1994 SC 133 and Kamran Attaullah and another v. The State 2021 SCMR 449 rel.

PLD 1983 SC 82; 1996 SCMR 74; 1996 SCMR 71 and 2019 SCMR 1129 ref.

Syed Iqbal Hussain Shah Gillani, Muhammad Younis Kiani for Petitioners.

Naveed Malik for Respondent No.2.

Fahad Ali, State Counsel.

2022 M L D 1070

[Islamabad]

Before Arbab Muhammad Tahir, J

YASIR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.03-B of 2022, decided on 14th January, 2022.

(a) Criminal Procedure Code (V of 1898)---

----S.498---Pre-arrest bail---Successive bail petitions---Scope---Accused can approach the same court with a fresh pre-arrest bail petition if the earlier one has been withdrawn without advancing arguments on merits, the court must be watchful that the successive petition is not readily entertained or the concession of ad interim bail granted to the accused, unless he furnishes satisfactory explanation for withdrawal of the first petition and filing of the second one.

Inam Ullah v. The State PLD 2021 SC 892 rel.

(b) Criminal Procedure Code (V of 1898)---

----S.498---Pre-arrest bail---Successive bail petitions---Scope---Obligatory for the accused to furnish satisfactory explanation for withdrawing the first pre-arrest bail petition at the time of entertaining the second pre-arrest bail petition---Unless there is satisfactory explanation, the second bail petition should not be entertained, because otherwise the accused would have an unchecked licence to abuse the concession of ad interim pre-arrest bail by misusing the court process, and hoodwink the police to prolong the investigation---While the accused has access to courts to seek pre-arrest bail, even successively for justifiable reasons, he cannot be permitted to abuse the concession of ad interim bail to stall the investigation and play hide and seek with the criminal justice system---If the accused fails to give satisfactory explanation for his withdrawal of the earlier pre-arrest bail petition and the need for filing the fresh one, his second or successive pre-arrest bail petition shall not be entertained.

Inam Ullah v. The State PLD 2021 SC 892 rel.

(c) Constitution of Pakistan---

----Art.189---Decisions of Supreme Court binding on other Courts---Scope---Decisions of the Supreme Court to the extent it decides a question of law or enunciates a principle of law is binding on all other courts of the country including the High Courts, under the mandate of Art.189 of the Constitution of Pakistan, 1973.

Hasnain Raza and Nazia Ali v. Lahore High Court, Lahore and others PLD 2022 SC 7 ref.

Petitioner in person along with Zeeshan Riaz Cheema for Petitioner.

Shahid Muhammad Mughal for the Complainant.

Zeeshan Babr, State counsel with Asif Ali S.I.

2022 M L D 1232

[Islamabad]

Before Arbab Muhammad Tahir, J

MUHAMMAD RAFIQUE and another---Petitioners

Versus

TASADAQ HUSSAIN and another---Respondents

Criminal Revision No.47 of 2020, decided on 22nd February, 2022.

(a) Criminal Procedure Code (V of 1898)---

----S.540---Power to summon material witness or examine person present---Delayed application---Scope---Court cannot summarily dismiss application for additional evidence by merely holding it a belated move rather the Court has to examine whether the examination of the witness or production of document is essential for just decision of the case---Object of the provision is that there should be no failure of justice on account of mistake of either party in bringing the valuable evidence on record---Said provision is a general provision which applies to all proceedings, during inquiry and trial under the Cr.P.C.---Said provision empowers the Court to summon any witness, take additional document at any stage during the inquiry or trial---Discretion is to be exercised judicially, as the wider the power, the greater is the necessity of application of judicial mind---Court has to keep in mind that while during the trial of the case, it has to find out truth to render judgment in accordance with law---Court this very purpose is competent enough to proceed under the said provision on its own.

Ansar Mahmood v. Abdul Khaliq 2011 SCMR 713; Muhammad Murad Abro v. The State through AG Balochistan 2004 SCMR 966; Dildar v. State through Pakistan Narcotics Board, Quetta PLD 2001 SC 384 Iddar and others v. Aabida and another AIR 2007 SC 3029 ref.

(b) Criminal Procedure Code (V of 1898)---

----S.540---Constitution of Pakistan, Art.10-A---Power to summon material witness or examine person present---Right to fair trial---Scope---Court cannot allow one of the parties to fill omissions in their evidence or extend a second chance to a party to improve their case or the quality of the evidence tendered by them---Any such step would smear the objectivity and neutrality of the Court which is its hallmark---Such favoured intervention, no matter how well meaning, strikes at the very foundations of a fair trial, which is recognized as a Fundamental Right under Art. 10-A of the Constitution.

Muhammad Naeem v. The State PLD 2019 SC 669 ref.

(c) Illegal Dispossession Act (XI of 2005)---

----S.5---Investigation and procedure---Report of local commission---Objections---Scope---Where petitioners had raised objections upon the report of local commission, High Court observed that the proceedings were conducted in presence of all the concerned, including the petitioners and it did not find mention any objection at the relevant time, which the petitioners had raised during the spot inspection---Objections were turned down.

(d) Illegal Dispossession Act (XI of 2005)---

----S.3---Prevention of illegal possession of property, etc.---Scope---Issues which fall for decision under Illegal Dispossession Act, 2005, would be whether the offence against lawful owner or occupier, as described in the complaint, has taken place and whether it is the accused who has committed it without any lawful authority, while no past record of the accused needs to be gone into by the Court---Essentials to constitute an act as an offence under the Illegal Dispossession Act, 2005, it is obligatory for the complainant to enjoy lawful ownership or possession at the time of alleged dispossession, at the hands of the accused through an unlawful course---Determination of the ownership or otherwise of the subject matter in a complaint is not the exclusive job to be conducted, rather the complaint also covers illegal dispossession having lawful occupation of the disputed property---Underline principle of deciding a complaint under the Illegal Dispossession Act, 2005, the complainant has to prove that the land was in his possession and that he was illegally and without due course of law was dispossessed from the said land with specific reference to time and date.

Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 ref.

(e) Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 5---Prevention of illegal possession of property---Investigation and procedure---Scope---Illegal Dispossession Act, 2005, is a special law intended to curb illegal dispossession and is not parallel to proceedings in a civil suit---No bar exists in simultaneous proceedings under the civil suit, criminal motion and the complaint under the Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 specifically envisages time line for decision of the case---Under S.5(2) of the Illegal Dispossession Act, 2005, or upon taking cognizance of a case, the Court shall proceed with the trial on day to day basis and shall decide the same within sixty days and for any delay, sufficient reasons shall be recorded---Section 5(3) stipulates that the Court shall not adjourn the trial for any purpose unless such adjournments is, in its opinion necessary in the interest of justice and no adjournment shall be granted for more than seven days---Proceedings under Illegal Dispossession Act, 2005, are summary in nature to be concluded within sixty days and in case there is any delay, it is obligatory for the Court to record reasons in writing for such a delay while frequent adjournments are to be avoided.

Sayyed Murtaza Ali Pirzada for Petitioners.

Asif Irfan for Respondents.

2022 P L C (C.S.) 69

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Zulfiqar Ahmad Khan, JJ

SHABANA HAIDER

Versus

FEDERATION OF PAKISTAN through Secretary,Ministry of Finance, Islamabad and another

Constitution Petition No.D-3893 of 2016, decided on 21st November, 2019.

Human Resource Manual---

----Cl. 7.2.3---Employee of Securities and Exchange Commission of Pakistan---Resignation, withdrawal of---Petitioner-employee requested for withdrawal of her resignation but her request was turned down---Contention of employee was that resignation was to be accepted on completion of 30 days---Validity---Employer could accept resignation any time after it was tendered---Right of withdrawal of resignation was available as long as it was not accepted---Resignation, in the present case, accepted had been whereas the request for withdrawal of resignation was made after 18 days---Notice period had nothing to do with the acceptance of resignation---Employee on acceptance of resignation was required to complete the notice period i.e. to serve the Commission in case the employee had opted to give one month's notice---Constitutional petition was dismissed, in circumstances.

Sanker Dutt Shukla v. President, Municipal Board, Auraiya AIR 1956 Allahabad 70; Jai Ram v. Union of India AIR 1954 SC 584; Registrar Lahore High Court v. Syed Javed Akbar 2007 SCMR 792; Muhammad Khan v. Pakistan through Ministry of Interior Karachi PLD 1958 West Pakistan Karachi 75 and Syed Faisal Raza Gillani v. Lahore High Court, Lahore 2015 PLC (C.S.) 337 distinguished.

Malik Naeem Iqbal for Petitioner.

Aminullah Siddiqui, Deputy Attorney General for Respondent No.1.

Raja Qasit Nawaz Khan for Respondent No.2.

2022 P L C (C.S.) 150

[Sindh High Court (Hyderabad Bench)]

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

MAZHAR ALI

Versus

FEDERATION OF PAKISTAN through Secretary, Water and Power Pakistan Secretariat,Islamabad and 3 others

Constitution Petition No.D-1679 of 2017, decided on 20th August, 2020.

(a) WAPDA Employees (Efficiency and Discipline) Rules, 1978---

----R.5---Misconduct---Award of major penalty---Regular inquiry, dispensation of---Effect---Petitioner assailed imposition of major penalty whereby he was compulsorily retired from service---Validity---Petitioner was awarded major penalty on the premise that he had failed to achieve the targets from the last three months i.e. recovery had fallen (-4.5%) as compared to the last year as well as on poor performance---Punishment awarded to the petitioner was prima facie harsh, since he had attained the age of superannuation during the pendency of the petition and no justifiable reason was put forward by the department to award major penalty without holding proper/regular inquiry, therefore, impugned order was declared to be against the principles of natural justice---Impugned order was set aside and the petition was disposed with direction to the Competent Authority to re-calculate the pensionary benefits of the petitioner and other benefits as admissible under the law and make payment of the same to the petitioner within a period of 30 days.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Civil service---Judicial review---Functional test of employer company/institution---Scope---Respondent, an Electric Supply Company, was a State Enterprise---Government owned the majority of shares---Chief Executive of the Company was nominee of Government of Pakistan and was delegated with such powers by the Board of Directors as were necessary to effectively conduct the business of the Company---Respondent could ordinarily be regarded as a 'person' performing functions in connection with the affairs of Federation under Art.199(1)(a)(ii) read with Art.199(5) of the Constitution, thus, the High Court had an entry point to exercise judicial powers in the subject affairs of the respondent under the Constitution.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Civil service---Judicial review---Functional test of employer company and institution---Scope---Government is regulator and dispenser of special services and it has power to create jobs, issue licences, fix quotas, grant leases, enter into contracts and provide variety of utility services and basic amenities to the people---Such entrepreneurial activities are at times carried out through companies created under the statutes or under the Companies Ordinance, 1984---Test to determine whether such company is a person amenable to judicial review has been generally classified by the Courts as the functional test---If the functions of these companies/institutions have an element of public authority or if they are performing public or statutory duties and carrying out transactions for the benefit of public at large and not for private gain or benefit, then their action will be amenable to judicial review---Two factors are the most relevant i.e. the extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof.

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

Pervez Tarique Tagar for Petitioner along with Petitioner.

Muhammad Arshad S. Pathan for Respondents Nos.3 and 4.

Humayoon Khan, Deputy Attorney General for Pakistan for Respondent No.1.

2022 P L C (C.S.) 197

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Adnan Iqbal Chaudhry, JJ

NATIONAL REFINERY LIMITED and another

Versus

Syed NIAZ AHMED

High Court Appeal No.163 of 2016, decided on 7th November, 2019.

(a) Civil service---

----Pensionary benefits, calculation of---Scope---Appellants impugned judgment passed by Single Judge of High Court passed in a suit whereby pension claim of respondent was decreed---Contention of appellants was that the service of respondent with the parent employer was not pensionable and hence the transfer of respondent with the appellants was in fact a date of fresh appointment to calculate his pensionary benefits---Validity---Record disclosed that an application of the respondent was forwarded by parent employer of respondent to the appellants and the respondent was issued a letter whereby his services were confirmed---Several facilities were ensured to respondent at the time of his transfer---Pension relating to past service was declined only on account of a decision taken in the meeting of Board of Directors of Petroleum Refining and Petrochemical Corporation (PERAC) and it was at a belated stage that the Board had realized and decided not to make any payment on that account---Decisions taken after the transfer of the respondent could not have retrospective effect---Terms of the service were ensured at the time of respondent's transfer, which could not be lifted unilaterally depriving an employee of his post-retirement benefits or any of the terms of transfer to which he was entitled at the time when he was transferred---No interference in the impugned judgment was required, as such, the appeal was dismissed.

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

----S.22---Right of appeal or representation---Limitation---Scope---Appellants impugned judgment passed by Single Judge of High Court passed in a suit whereby pension claim of respondent was decreed---Contention of appellants was that the departmental representation itself was barred by time hence the appeal before Service Tribunal ought to have been dismissed on that count---Validity---In terms of S.4 of Service Tribunals Act, 1973, party aggrieved of a final order of departmental authority could prefer an appeal to the Service Tribunal within 30 days of the communication of such order---Appeal of respondent to the Service Tribunal was within time---Said appeal was abated on announcement of the judgment of Supreme Court in Muhammad Mubeen-us-Salam v. Federation of Pakistan [PLD 2006 SC 602] and then the respondent had filed a suit---Suit was filed soon after the appeal had abated---Appellants were unable to point out any provision or rule which prescribed the limitation for the respondent's departmental representation---It was not the case of the appellants that there was an 'order' of the department within the meaning of S.22 of the Civil Servants Act, 1973, against which the respondent could have filed a departmental appeal within 30 days---Once it was declared in Muhammad Mubeen-us-Salam v. Federation of Pakistan [PLD 2006 SC 602] that persons such as the respondent were not civil servants and their remedy was not before the Service Tribunal, then any period of limitation prescribed in the Civil Servants Act, 1973, or in the Service Tribunals Act, 1973, was not attracted---No interference in the impugned judgment was required, as such, the appeal was dismissed.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

Javed Asghar Awan for Appellants.

Aga Zafar Ahmed and Hummul S. Zubedi for Respondent.

2022 P L C (C.S.) 235

[Sindh High Court]

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

BILQEES

Versus

The SECRETARY, WAFAQI MOHTASIB OMBUDSMAN'S SECRETARIAT and 2 others

Constitutional Petition No.D-3271 of 2020, decided on 4th March, 2021.

Establishment of the Office of Wafaqi Mohtasib Secretariat Officers Service Rules, 2009---

----R.14---Terms 'appointment' and 'transfer'---Appointment, in violation of rules---Petitioner assailed appointment of respondent on the grounds that she joined office of Wafaqi Mohtasib on deputation and thereafter her services were absorbed---Validity---Neither any procedure nor mechanism provided under Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, or Establishment of the Office of Wafaqi Mohtasib Secretariat Officers Service Rules, 2009, to treat appointment by transfer as absorption in transferee department--- Provision of R.14 of Establishment of the Office of Wafaqi Mohtasib Secretariat Officers Service Rules, 2009, could be used as a tool to allow horizontal movement of a civil servant from his / her original cadre to another cadre against scheme of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 and Establishment of the Office of Wafaqi Mohtasib Secretariat Officers Service Rules, 2009, nor the Orders and Rules could condone eligibility of civil servant, while appointing by transfer---Term 'transfer' was to be interpreted in its common phraseology / parlance and was subject to the limitations contained in Establishment of the Office of the Wafaqi Mohtasib Secretariat Officers Service Rules, 2009---Any appointment by transfer under R.14 of Establishment of the Office of Wafaqi Mohtasib Secretariat Officers Service Rules, 2009, had to be for a fixed term and on completion of such term, a civil servant had to join back his parent department---Word 'appointment' used in Establishment of the Office of Wafaqi Mohtasib Secretariat Officers Service Rules, 2009, could not be equated with the word 'initial appointment' used under Establishment of the Office of Wafaqi Mohtasib Secretariat Officers Service Rules, 2009, which had excluded appointment by transfer and promotion---Restricted meaning was to be given to expression 'appointment by transfer' and initial appointment was to be made through competitive process and not otherwise---High Court directed the authorities to repatriate respondent to her parent department as if she was never sent on deputation and or absorbed---Constitutional petition was allowed, in circumstances.

Ali Azhar Khan v. Province of Sindh and others 2015 SCMR 456; Contempt proceedings against the Chief Secretary, Sindh 2013 SCMR 1752; Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad through Chairman and others 2010 SCMR 378; Muhammad Ali v. Province of Khyber Pakhtunkhwa 2012 SCMR 673; Dr. Shamim Tariq v. International Islamic University, Islamabad 2020 PLC (C.S.) 499; Muhammad Sharif Tareen v. Government of Balochistan 2018 SCMR 54; Sudhir Ahmed v. The Speaker, Balochistan Provincial Assembly 2017 SCMR 2051 and S. Masood Abbas Rizvi v. Federation of Pakistan and others 2014 SCMR 799 rel.

Abdul Sami Memon and 8 others v. Federation of Pakistan through Secretary Establishment Government of Pakistan and 5 others 2020 PLC 125; Dr. Azeem ur Rehman v. Government of Sindh 2004 SCMR 1299; Ali Hassan Brohi v. Province of Sindh and others 2015 SCMR 353; Abdul Rehman v. Chairman, Pakistan National Shipping Corporation and another 2020 PLC (C.S.) Note 3; Dr. Ghulam Shabbir Saqib, DHO v. Government of Punjab, through Secretary L.G. and Respondent No. R.D. Department and others 2005 PLC (C.S.) 993; Miss Naheed Khan v. Government of Pakistan and others PLD 1997 Kar. 513; Dr. Muhammad Hussain v. Principal, Ayub Medical College, PLD 2003 SC 143; Abid Hussain Sherazi v. Secretary Ministry of Industries and Production, Government of Pakistan, Islamabad 2005 SCMR 1742; R.B. Avari & Co. (Pvt.) Ltd. through Director v. Federation of Pakistan through Director-General Ministry of Food, Agriculture and Livestock and another 2007 CLC 157; Mirza Bashir Ahmed and another v. Habib and 6 others 2006 MLD 148; Nazar Hussain and others v. Deputy District Education Officer and others 2003 SCMR 1269; Syed Mubashir Raza Jaffri v. Employees Old-Age Benefits Institutions (EOBI) 2014 SCMR 949; Suo Motu Case No. 13 of 2016 (Action against illegalities, contraventions and violations in appointments within NAB), 2017 SCMR 838; Muhammad Saleem v. Federal Public Service Commission and others 2020 SCMR 221 and Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others PLD 2004 SC 261 distinguished.

Muhammad Daud Narejo for Petitioner.

Ameer Bakhsh Metlo for Respondent No.3.

Muhammad Nishat Warsi, D.A.G.

2022 P L C (C.S.) 307

[Sindh High Court]

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

ANIS HAROON and 8 others

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and 2 others

Constitutional Petition No.D-6948 of 2019, decided on 12th January, 2021.

Civil Servants Act (LXXI of 1973)---

----S.14(1)---Constitution of Pakistan, Art.90---Representative in United Nations, appointment of---Retired civil servant---Petitioner assailed appointment of respondent as permanent representative of Pakistan in United Nations---Validity---Executive power under Art.90 of the Constitution vests with the Executive to not only recognize the position etc. based on the security of the country under Acts / Ordinances and Rules framed thereunder but also the Cabinet / Competent Authority is well within its right to prescribe criteria under Art.90 of the Constitution---Responsibility of fixing criteria of recognizing appointment of Permanent Representative of Pakistan to any foreign government primarily is the responsibility of the Executive Branch of the State subject to law---Courts ordinarily refrain from interfering in foreign policy making domain of the Executive---Services of respondent were hired on contract bases on his experience and expertise in foreign services by utilizing available quota of non-career Head of Missions---Such was not re-employment of a just-retired officer of Government of Pakistan and was merely a contractual assignment / appointment, therefore, S.14(1) of Civil Servants Act, 1973, was not attracted in the matter---Appointment of respondent did not suffer from any inherent defect under the law--- High Court declined to interfere in the matter as petitioners failed to point out any legal flaw in the process relating to appointment of respondent---Constitutional petition was dismissed, in circumstances.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan and others PLD 2016 SC 808; Suo Motu Case No.24 of 2010, 2014 SCMR 484 and Jurists Foundation v. Federal Government PLD 2020 SC 52 distinguished.

Syeda Abida Hussain v. Tribunal for N.A.69, Jhang-IV and 2 others PLD 1994 SC 60; Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203; Ahmed Faraz v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others 1991 PLC (C.S.) 407; Gul Muhammad Hajano v. Federation of Pakistan and others 2000 PLC (C.S.) 46; Suo Motu Case No.24 of 2010 2015 PLC (C.S.) 73; Dr. Ali Bat Khan v. Federation of Pakistan through Secretary, Establishment Division and others 2019 PLC (C.S.) 1391; Zaheer Ahmed Sheikh v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 5 others 2014 PLC (C.S.) 56; Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 505; Azra Jamali and others v. Federation of Pakistan through Secretary Ministry of Commerce and another 2017 PLC (C.S.) 533; Tariq Aziz-ud-Din's case 2010 SCMR 1301; Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; Messrs Motilal Padampat Sugar Mills Co. Ltd. v. The State of Utar Pradesh and others AIR 1979 SC 621; Dr. Shahzad Niazi v. Election Appellate Tribunal and 3 others PLD 2018 Lah. 748, Mirpurkhas Suqar Mills Limited and 16 others v. Province of Sindh through Chief Secretary and 7 others 2020 CLC 232; Muhammad Bachal Memon and others v. Syed Tanveer Hussain Shah and others 2015 PLC (C.S.) 767; Wukla Mahaz Barai Tahfaz-e-Dastoor v. Federation of Pakistan and another 2014 SCMR 111 and Ghulam Rasool v. Government of Pakistan and others PLD 2015 SC 6 ref.

Abdul Sattar Pirzada assisted by Mamon N. Chaudhry for Petitioners.

Kashif Paracha, Additional Attorney General along with Muhammad Nishat Warsi, D.A.G., Respondents Nos.1 and 2.

Arshad M. Tayebaly, assisted by Ms. Heer Memon for Respondent No.3.

2022 P L C (C.S.) 322

[Sindh High Court (Sukkur Bench)]

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

BASHEER AHMED PHULPOTO and 9 others

Versus

PROVINCE OF SINDH, through Secretary Local Government Department Government of Sindh and 3 others

Constitutional Petitions Nos.D-4540 of 2016, D-787 of 2017, D-1865, D-1874 of 2019 and D-32 of 2020, decided on 23rd July, 2020.

Civil service---

----Termination from service---Non-issuance of show cause notice---Audi alteram partem---Scope---Petitioners assailed their termination orders---Validity---Even if it was accepted that a notice was sent to the employees, ex facie the same was deficient and did not properly satisfy the test of what constituted a valid show-cause notice---Employees were, at the very least, to be properly confronted with the allegations as to the invalidity of their appointments so as to be able to properly respond thereto, under the given circumstances of the case they did not appear to have been extended such an opportunity, which militated against the well settled principles of natural justice, enshrined in the maxim audi alteram partem---Termination orders were set aside with direction to the respondents to process the cases of the petitioners afresh---Constitutional petitions were disposed of accordingly.

Caretex v. Collector Sales Tax and Federal Excise PLD 2013 Lah. 634 rel.

Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 and Pakistan International Airlines Corporation, through MD, Karachi v. Nadeem Murtaza Khan 2007 PLC (C.S.) 334 ref.

Sikandar Ali Junejo for Petitioners (in C.P. No.D-4540 of 2016 and D-1874 of 2019).

Shabbir Ali Bozdar for Petitioner (in C.P. No.D-787 of 2017).

Jamshed Ahmed Faiz for Petitioner (in C.P. No.D-1865 of 2019).

Qurban Ali Malano for Petitioner (in C.P. No.D-32 of 2020).

Achar Khan Gabole and Shah Nawaz Waseer for Respondents/Chief Municipal Officer, Municipal Committee Ghtoki (in C.Ps. Nos.D-4540 of 2016, D-787 of 2017, D-1865 of 2019 and D-32 of 2020).

Ahmed Ali Shahani, Assistant Advocate General Sindh.

Mehboob Ali Wassan, Assistant Advocate General Sindh.

2022 P L C (C.S.) 427

[Sindh High Court]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD ARIF KHALIL

Versus

FEDERATION OF PAKISTAN through Secretary, Aviation Division and 4 others

Suit No.1468 and C.M.As. Nos.10244, 12096 of 2020, decided on 1st April, 2021.

Civil Procedure Code (V of 1908)---

----O.VIII, R.5 & O. XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Failure to deny facts of plaint---Correct date of birth---Proof---After about 23 years of service with defendant Airline, plaintiff was issued show cause notice for tampering his date of birth in matriculation certificate---Validity---Defendant-Airline failed to rebut, deny or challenge averments of memo of plaint as well as affidavits in support of injunction application by filing any counter affidavit / written statement---If averments / contents / facts were not denied, controverted or challenged, the same were deemed to have been admitted---Plaintiff established prima facie case and balance of convenience was also in his favour---If injunction was not allowed, plaintiff might suffer irreparable loss---Interim injunction was allowed, in circumstances.

2020 PLC (C.S.) 483; 2016 PLC 335; Muhammad Yousaf Khan v. Habib Bank Limited and others 2004 SCMR 149; Khalid Mahmood Ch. and others v. Government of the Punjab 2002 SCMR 805; Saeed Ahmad and others v. Chairman O.G.D.C.L. and others 2019 PLC 277; Saadullah v. Albaraka Bank 2019 PLC (C.S.) 940; Messrs Serwat Aziz v. Sindh Bank Limited 2019 PLC (C.S.) 975; Premier Financial Services (Pvt.) Ltd. v. SECP 2015 CLD 1852; Naweed Akhtar Cheema v. Chairperson, TEVETA and others 2011 PLC (C.S.) 803; Naveed Alam Zubairi v. Federation of Pakistan 2019 PLC (C.S.) Note 34(b); Saed Liaquat Naqvi v. Azad Government of Jammu and Kashmir 2018 PLC (C.S.) Note 152; Amir Shahbaz v. Government of N.W.F.P. and others 2004 SCMR 492; Deputy District Officer (Revenue), Kasur and another v. Muhammad Munir Sajid 2013 SCMR 279; Kaloo Khan and others v. O.G.D.C.L. and others 2019 PLC (C.S.) 519 and Habib Bank Limited v. Manzoor Hussain 1994 PLC 373 ref.

Haji Abdul Sattar and others v. Mst. Mehnaz and others 2020 MLD 896; Usman Khan v. Mst. Shehla Gul and others 2020 CLC 910 and Wajid Ali and another v. The State and another 2020 YLR Note 113 rel.

Malik Naeem Iqbal and Khurram Memon for Plaintiff.

Jawad A. Sarwana for Defendants Nos.2 to 5.

Masoor Ahmed Alvi for Defendant No.6.

Muhammad Ahmer, Assistant Attorney General.

2022 P L C (C.S.) 454

[Sindh High Court]

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

Rao MUHAMMAD GULZAR and 126 others

Versus

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

Constitution Petition No.D-5649 of 2018 and C.M.A. No.17857 of 2020, decided on 22nd October, 2020.

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

----Ss.3 & 4---Constitution of Pakistan, Art. 204---Contempt of Court---Non-compliance of order---Petitioners invoked contempt proceedings against authorities for non-compliance of the orders passed by High Court and Supreme Court with regard to regularizing their services---Validity---Compliance report was not incompliance with the orders passed by Supreme Court in letter and spirit---Prima facie authorities did not look into the basic spirit of the order and the same was rejected to the extent of petitioners---Malice was pointed out by petitioners on the part of alleged contemnors warranting interference of High Court to take action against alleged contemnors under Art. 204 of the Constitution who failed and neglected to issue regularization of their service order to petitioners---High Court could either initiate contempt proceedings for contempt against alleged contemnors under the provisions of Contempt of Courts Ordinance, 2003 or under Art.204 of the Constitution or to direct the authorities to implement judgment in letter and spirit, expeditiously without any delay and with reasonable dispatch---High Court in the interest of justice granted last opportunity to the authorities to comply with the direction of High Court as well as Supreme Court---Authorities were to file compliance report, in circumstances.

Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Fauji Fertilizer Company Limited v. National Industrial Relations Commission 2013 SCMR 1253 and Messrs Sui Southern Gas Company Limited v. Registrar Trade Unions and others 2020 SCMR 638 ref.

Malik Naeem Iqbal for Applicants.

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

Asim Iqbal for Respondents Nos.2 and 3 (in C.M.A. No.17857 of 2020).

2022 P L C (C.S.) 469

[Sindh High Court]

Before Zafar Ahmed Rajput, J

MUHAMMAD SAJJAD

Versus

FEDERATION OF PAKISTAN, through Secretary, Aviation Division and 2 others

Suit No.2034 of 2017, decided on 17th March, 2021.

(a) Master and servant---

----Suit for declaration by servant---Rejection of plaint---Scope---Contract appointment---Contract between master and servant---Extension---Scope---Civil suit---Maintainability---Plaintiff, having served for about five years, filed suit seeking declaration that failure of the Master (CAA) in giving him extension till the completion of project was against the law---Master (CAA) contended that the suit of the plaintiff (Servant) was not maintainable, not having a cause of action, as the applicable relationship between the parties was that of master and servant---Validity---Admittedly, plaintiff was initially appointed on contract basis for a period of one year (extendable) subject to a clause of the letter of appointment---Said letter of appointment provided that the appointment during the period of contract would be liable to termination on thirty day's notice on either side or immediate termination on payment of basic pay in lieu thereof, without assigning any reason whatsoever---Another term of said letter of appointment was that if the terms and conditions of the appointment were acceptable to plaintiff, he should send written confirmation by registered post to the Master, whereafter the plaintiff submitted his letter of acceptance of appointment by confirming the acceptance of offer of appointment; hence, it was an admitted position that the appointment of the plaintiff was on contract basis, the terms whereof were acknowledged and accepted by him---Appointment in question was for a period of one year or for extended period on the option of the appointing authority and the same did not contain any provision for continuation/extension of the plaintiff' appointment till the completion of the project for which he was appointed---Terms and conditions enunciated in the appointment letter, showed that the appointment/contract was revocable---Master was within its right to dispense with the service of the servant after the expiry of his contract or during the period of contract on thirty days' notice or immediate termination on payment of basic pay in lieu thereof, without assigning any reason whatsoever---After accepting the terms and conditions of his appointment, the servant was precluded under the law to claim extension of his contractual service till the completion of project and the law did not recognize any such right of plaintiff (contract employee)---Declaration sought by the servant for extension of service could not be granted as the suit was barred under S.42 of Specific Relief Act, 1877---Plaint was rejected under O.VII, R.11(d), C.P.C. and suit was dismissed, in circumstances.

Pakistan Airline Pilots Association and others v. Pakistan International Airline and others 2019 SCMR 278 ref.

(b) Civil service---

----Contract appointment---Contract employee has no fundamental/acquired vested right to remain in the contractual post or to seek an extension and/or regularization of the contractual service.

(c) Civil service---

----Contract appointment---Courts, jurisdiction of---Courts ordinarily refrained from interfering in the policy making domain of the executive unless it was proved that the same had infringed the fundamental rights of citizen.

Zamir Ahmed Ghumro for Plaintiff.

Irfan Ahmed Memon, D.A.G for Defendant No.1.

Shah Nawaz Memon for Defendants Nos.2 and 3.

2022 P L C (C.S.) 481

[Sindh High Court]

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

JAMEEL AHMED

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager and 3 others

Constitutional Petition D-4941 of 2020, decided on 13th October, 2020.

(a) Pakistan Telecommunication (Reorganization) Act (XVI of 1996)---

----Ss.35 & 36---Employee of the Pakistan Telecommunication Company Limited (Company) who opted for "Voluntary Separation Scheme" (VSS)---Contention of the employee-petitioner was that his training period ought to have been included while computing the length of his service for benefits under VSS---Validity---Petitioner claimed uninterrupted continuity of his service as payment of separation bonus adversely affected their terms of service---Employees had voluntarily severed their relationship with the Company by availing VSS, which included receipt of substantial amount on account of Separation Bonus---Said Bonus could be received only by an employee who had less than twenty years of qualifying length of service---Company thus did not take any action prejudicial to the employees---Employees had never submitted that they were not entitled for Separation Bonus, let alone offering to return the same---Issue in question had already been decided by the Supreme Court against the employees, therefore, no further deliberation was required---Constitutional petition was dismissed, in circumstance.

(b) Pakistan Telecommunication (Reorganization) Act (XVI of 1996)---

----Ss.35 & 36---Constitution of Pakistan, Art.199---Constitutional petition before High Court Laches, doctrine of---Applicability---Employee of the Pakistan Telecommunication Company Limited (Company) who opted for "Voluntary Separation Scheme" (VSS)---Petitioner-employee invoked constitutional jurisdiction of High Court to implement the order passed by the competent authority more than a decade ago---Held, that the petitioner had approached the Court after twelve (12) years of passing of impugned order , even after availing the benefits of VSS---Record revealed that matter-in-question had finally been decided by the Supreme Court---Petitioner had filed the constitutional petition with the delay of more than twelve (12) years, which was hit by the doctrine of laches---Petitioner had not been deprived of his fundamental rights---Constitution petition was dismissed, in circumstances.

(c) Pakistan Telecommunication (Reorganization) Act (XVI of 1996)---

----Ss.35 & 36---Constitution of Pakistan, Art.199---Constitutional petition before the High Court---Constructive res judicata---Applicability---Employee of the Pakistan Telecommunication Company Limited (Company) who opted for "Voluntary Separation Scheme" (VSS)---Petitioner-employee invoked constitutional jurisdiction of High Court contending that his training period ought to have been included while computing the length of his service for benefits under VSS---Held, that record revealed that the petitioner was party in previous proceedings and his grievance was dealt with and decided against him and on the same cause of action he had filed the present petition---Even review of the petitioner was dismissed, therefore, similar relief could not be claimed by filing subsequent legal proceedings as the same would fall within the mischief of constructive res judicata---Constitution petition was dismissed, in circumstances.

State Bank of Pakistan through Governor and others v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

Syed Ansar Hussain Zaidi for Petitioner.

2022 P L C (C.S.) 687

[Sindh High Court]

Before Irfan Saadat Khan and Agha Faisal, JJ

GHULAM MURTAZA

Versus

FEDERATION OF PAKISTAN through Secretary, Aviation Division, Islamabad and 3 others

C.P. No.D-5269 of 2019, decided on 13th December, 2021.

Civil service---

----Laches, principle of---Alternate and efficacious remedy---Petitioner was employee of Civil Aviation Authority and sought release of his withheld remunerations as salary and consequent implication on his post retirement dues---Respondent Authority sought dismissal of petitioner on the plea of laches---Validity---Claim of petitioner was in respect of unpaid salary and its implication on post retirement dues---Such claim was a cause of action of recurring nature---Law of limitation envisaged exclusion of time expended in bona fide proceedings before a Court devoid of primary jurisdiction---Civil Court of competent jurisdiction could consider the issue of limitation guided by principles of superior Courts and would not endeavor to non-suit a supplicant if the same would prima facie perpetuate injustice---High Court declined to interfere in the matter as claim of petitioner merited adjudication by Civil Court of competent jurisdiction---Constitutional petition was disposed of accordingly.

Abdul Jabbar v. Pakistan Railways 2018 PLC (C.S.) 375; Umar Baz Khan v. Jehanzeb PLD 2013 SC 268 and Abdul Hameed v. WAPDA 2021 SCMR 1230 rel.

Abdul Salam Memon for Petitioner.

Muhammad Nishat Warsi, Deputy Attorney General and Sanaullah Noor Ghouri for Respondents.

2022 P L C (C.S.) 833

[Sindh High Court]

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

MUHAMMAD YAQOOB SOOMRO

Versus

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

Constitution Petition No.D-2307 of 2018, decided on 9th February, 2021.

Constitution of Pakistan---

----Art.199---Civil service---Constitutional petition---Factual inquiry---Scope---Petitioner assailed issuance of impugned letter by authorities, whereby it deducted excessive withdrawal of pension amount---Contention of authorities was that excessive payment was made to the petitioner which was being deducted from his pensionary benefits---Validity---High Court, while keeping in view the contentions of parties, directed Nazir of the court to consult the provincial Accountant General, who was directed to depute an official to assist the official of the court to undertake the exercise of re-calculation of the pensionary benefits---Report submitted by the Nazir was objected to by the petitioner---High Court declined to make deliberation in numerical figures---Parties so aggrieved from the report could approach the court of plenary jurisdiction against calculation of the Nazir---Petition was disposed of in terms of the report of Nazir.

Ikhtiar Ali Channa and Deedar Ali for Petitioner.

Ahmed Ali Ghumro for Respondents Nos.4 and 5.

Muhammad Nishat Warsi, D.A.G.

2022 P L C (C.S.) 906

[Sindh High Court]

Before Irfan Saadat Khan and Agha Faisal, JJ

AKHTAR HUSSAIN ABRO

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

C.P. No.D-3429 of 2021, decided on 20th December, 2021.

Civil service---

----Promotion---Consideration for promotion, denial of---Scope---Petitioner sought consideration for promotion premised upon the assertion that he had remained duly entitled in such regard, however, the department was denying the said opportunity thereto in derogation of the law---Validity---Department had no cavil to the eligibility of the petitioner to be considered for promotion but the opportunity was being denied merely on account of some changes in the rules that might take place in the future---Where relevant promotion rules were in field, cases for promotion could not be kept pending on the premise that new rules were being finalized---Amendments in rules could ordinarily have prospective effect---Department's premise for denial of an opportunity to the petitioner to be considered for promotion could not be sanctioned---Department was directed to consider the petitioner's case for promotion in the upcoming meeting of departmental promotion committee to be convened expeditiously---Constitutional petition was allowed.

Secretary Establishment Division v. Aftab Ahmed Manika and others 2015 SCMR 1006; (Suo Motu Case No.16 of 2011) PLD 2013 SC 443; Muhammad Zahir Raja v. Federation of Pakistan and others 2012 SCMR 971 and Muhammad Iqbal and others v. Executive District Officer Revenue and another 2007 SCMR 682 ref.

Government of Khyber Pakhtunkhwa and others v. Hizbullah Khan and another reported as 2021 SCMR 1281 and Capital Development Authority and others v. Shabir Hussain and others Civil Petition No.3455 of 2020 rel.

Malik Naeem Iqbal and Barrister Faizan Hussain Memon for Petitioners.

Ali Safdar Depar, Assistant Advocate General Sindh for Respondents.

2022 P L C (C.S.) 1182

[Sindh High Court (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

KARIM BUX and others

Versus

PROVINCE OF SINDH through Secretary to Government of Sindh, Education and Literacy Department and others

Constitution Petitions Nos.D-755 of 2020, D-584, D-672 and D-749 of 2019, decided on 13th October, 2021.

Sindh Civil Servants Welfare Fund Ordinance (VIII of 1979)---

----S.8(1)(a)---Sindh Civil Servants Welfare Fund Rules, 1980, R.10---Constitution of Pakistan, Art.199---Constitutional petition---Group insurance---Refund of premium---Petitioners were civil servants who sought repay/refund of amount of insurance premium contributed by them towards Group Insurance, during their employment with Provincial Government---Validity---Group Life Insurance is a type of life insurance in which a single contract covers an entire group of people---Policy owner is employer and not the individual employee, whereas, policy issued in the name of employer covers employees or members of the group---Advantages of Group Insurance policy include customized plans with lower premiums---As compared to an individual life insurance policy, contribution in a Group Insurance is bare minimum, which is the sole advantage of entering into such arrangement---Group Insurance gives coverage and protection and at the same time costs much less---Employee has little, or no control over his individual coverage and in most cases coverage does not continue or follow the employee if he leaves his job---Such insurance is seldom transferred in the same manner to a new organization---Unlike individual polices, premiums of which are relatable to an individual's age and health issues as well, in Group Insurance, healthier individuals also pay the same premiums as those who are considered to be at a higher risk within the Group Policy---In case of death of an insured employee, his death claim is paid to the Employer for onward payment to the nominee of the insured---In such case a Master Policy is signed by the Employer with the Insurance Company and there is no direct connection between the employee and the Insurance Company---No Life Group Insurance, in the entire insurance business has any concept of its maturity; payment of any bonus; surrender value; payment of benefits at or after retirement---Group Insurance has only one beneficial condition and i.e. it matures upon death of employee, either before retirement; or during the agreed period after retirement, which is 65 years of age or 5 years after retirement---Employer selects and purchases the policy---Premium is (may be through contribution) paid by the employer to insurance company, such concept is a worldwide accepted concept, and has been arrived at by the Insurance Companies as an incentive for individuals who are not in a position to pay individual insurance premiums for such coverage---Group Insurance is relatively inexpensive as compared to individual life insurance and participation is always high---Group Insurance cannot be compared with fixed term insurance, which in addition to coverage of death, also matures after a fixed period, resulting in return of investment in many ways including bonus; encashment prior to maturity and so on---High Court declined to exercise any discretion in favour of petitioners as they failed to make a case for indulgence as law was very clear on the subject, whereas, such law by itself was not under challenge---Constitutional petition was dismissed, in circumstances.

Fida Muhammad Durrani and others v. The Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others (Writ Petition No. 1355-P/2013) distinguished.

Muhammad Rehan Khan v. Federal Government and 2 others (Writ Petition No. 4132 of 2016) rel.

Nisar Ahmed Bhanbhro and Sajjad Hussain Dayo for Petitioners (in Constitution Petition No.D-755 of 2020).

Ghulam Shabbir Shar for Petitioners (in Constitution Petition No.D-584 of 2019).

Jalal-ud-Din M. Akbar Chandio for Petitioners (in Constitution Petition No.D-749 of 2019).

Sajjad Muhammad Zangejo for Respondent-State Life Insurance Corporation.

Ali Raza Baloch, Assistant Advocate General Sindh.

2022 P L C (C.S.) 1216

[Sindh High Court]

Before Irfan Saadat Khan and Agha Faisal, JJ

MUHAMMAD RASHID SIDDIQUI

Versus

PROVINCE OF SINDH through Secretary Local Government Department and 2 others

Constitution Petition D-5058 of 2021, decided on 15th November, 2021.

Karachi Water and Sewerage Board Act (X of 1996)---

----Ss.3 & 7---Karachi Water and Sewerage Board, jurisdiction of---Petitioner was employee of Karachi Water and Sewerage Board and assailed Departmental Promotion and selection committees---Validity---Departmental Promotion Committee was not comprised of persons extraneous to the organization itself---Allegation that inclusion of members of the organization in relevant committees was not contrary to Constitutional scheme---No provision of the Constitution was identified by petitioner to corroborate existence of such a scheme and it had no nexus with a decision passed in an earlier case relating to leave dismissal order which was on a point of law regarding civil servants could also be applicable to other civil servants not party to the relevant litigation---No constituent of Karachi Water and Sewerage Board Act, 1996 and / or rules made there under, which could substantiate challenge to notification in question--- Petitioner was not aggrieved by notification in question when no relief was sought by him with respect to the Resolution that had been passed and confirmed by the Board of his employer---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Ummatullah v. Sindh PLD 2010 Kar. 236; Muhammad Afzal v. Pakistan and others PLD 2018 Sindh 529; Qazi Faez Isa v. President of Pakistan PLD 2021 SC 1; Saghir Ahmed v. Punjab PLD 2004 SC 261 and Bahadur Khan v. Pakistan 2017 SCMR 2066 ref.

Punjab v. Sameena Parveen 2009 SCMR 1 distinguished.

Khawaja Shams-ul-Islam for Petitioner.

Ali Safdar Depar, Assistant Advocate General Sindh.

Barrister Waleed Khanzada and Ashfaq Rafiq Janjua for Respondents.

2022 P L C (C.S.) 1266

[Sindh High Court]

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

Mst. FARAH NAZ

Versus

FEDERATION OF PAKISTAN through Secretary and 3 others

Constitutional Petition No.D-3854 of 2011, decided on 11th February, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Laches---Voluntary Separation Scheme, legality of---Scope---Petitioner was a widow of erstwhile employee of respondent, who during his tenure had opted for Voluntary Separation Scheme, however, through present petition she sought direction to the respondent to pay bonus, farewell grant, burial charges, benevolent fund and group insurance amount---Validity---Voluntary Separation Scheme was a binding contract and nothing about its unconstitutionality was established nor was there any substance to render it as void under the Contract Act, 1872---In the entire scheme of Pensions Act, 1871 and rules there was nothing to prevent the employees from entering into a contract in bargain with their post retirement or pensionary benefits which they could have availed ---Present petition fell within the doctrine of laches as the cause of action had accrued approximately 04 years before filing of the petition---Petitioner was not deprived of her fundamental rights---Constitutional petition was dismissed.

Civil Appeal No.2506 of 2016 rel.

Syed Ansar Hussain Zaidi for Petitioner.

Muhammad Nishat Warsi, D.A.G.

Khurram Rasheed for Respondent No.4.

2022 P L C (C.S.) 1289

[Sindh High Court]

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

YAR MUHAMMAD BOZDAR

Versus

PROVINCE OF SINDH through Chief Secretary Sindh Secretariat, Karachi and another

Constitution Petition No.D-4077 of 2016, decided on 17th November, 2020.

Civil service---

----Repatriation to parent department---Scope---Petitioner questioned his repatriation from the appointment as Assistant Commissioner (BPS-17) in Ex-PCS Cadre by way of nomination to his parent department through a notification issued by Chief Secretary, which was in pursuance of the directions contained in a judgment passed by Supreme Court---Validity---Appointment of petitioner in Ex-PCS cadre had already been declared as illegal by the Supreme Court---Supreme Court had already held that no mechanism was provided for nomination of the officers; that it was the sole discretion of the Chief Minister to recruit/nominate an employee to the post of Assistant Commissioner in exercise of powers under Rule 5(4)(b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964; that the discretion to exercise the powers was required to be structured by framing policy, which should encourage merit; that the petitioner along with others was found in excess of the quota as per the list provided, therefore, they were not entitled to continue in their offices---Directions of the Supreme Court were still in field and the High Court was bound to follow it under the Constitution---Constitutional petition was dismissed.

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

Waheed Ali Ghumro holding brief for Ahmed Ali Ghumro for Petitioner.

Ali Safdar Depar, Assistant Advocate General.

2022 P L C (C.S.) 1304

[Sindh High Court]

Before Aftab Ahmed Gorar and Adnan-ul-Karim Memon, JJ

Dr. TARIQ AHMED SHAIKH

Versus

The PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 3 others

C.P. No.D-5143 of 2020, decided on 10th March, 2022.

(a) Civil service---

----Termination from service---Absence from duty---Scope---Petitioner assailed office order whereby he was awarded major penalty of termination from service---Contention of petitioner was that he was being victimized and harassed because he had disclosed the secrets of some of his superior officers of NICVD regarding their involvement in corruption and corrupt practices---Validity---Petitioner had continued to remain absent from duty without sanctioned leave despite the warning to join the duty---Petitioner was issued numerous warnings by the competent authority, which were available on record, to improve his attendance/punctuality and comply with the hospital duty hours but he failed to pay any heed to such warning/ communications---Order of dismissal from service clearly showed that same was based on non-attendance, punctuality and non-compliance of hospital duty hours---Petitioner had not placed any material on record to substantiate his plea---Constitutional petition was dismissed, in circumstance.

Tahir Jamil Butt v. Mian Jehangir Pervez and another 1999 SCMR 2779 ref.

(b) Constitution of Pakistan---

----Art.199---National Institute of Cardiovascular Diseases (Administration) Ordinance (I of 1979), S. 5---Constitutional petition---"Function test"---"Person"---Scope---National Institute of Cardiovascular Diseases (NICVD) is performing functions in line with the command of the federal/provincial government and exercising public power by creating public employments---NICVD is a "person" within the meaning of Art. 199(1)(a)(ii) read with Art. 199(5) of the Constitution---If the actions or orders passed by the competent authority of NICVD are violative of the Statute creating the Institute or of Rules/Regulations framed under the Statute, the same could be interfered with by High Court under Art. 199 of the Constitution.

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

(c) Civil service---

----Absence from duty---Scope---Where the fact of absence from duty is available on record, there is no need for holding a regular inquiry.

Federation of Pakistan through Secretary Ministry of Law and Justice Division Islamabad v. Mamoon Ahmed Malik 2020 SCMR 1154 ref.

(d) Civil service---

----Termination from service---Absence from duty---Scope---When the service of a permanent employee is required to be terminated, even on the ground of remaining absent from duty without prior permission of the concerned authority, the minimum requirement of principles of natural justice by issuing a show-cause notice is to be followed.

(e) Words and phrases---

----"Statutory"---"Statutory regulations"---"Non-statutory regulations" --Connotation.

Term 'statutory' refers to organizations and bodies that are defined by a formal law or a statute and these bodies derive their power from a 'Law' or 'Statute' made by Parliament, which is called a statutory body or statutory authority. Statutory regulation is a law passed by a legislature. A non-statutory regulation is not based on legislative action but instead is derived from the interpretation of the federal or provincial statute.

(f) Words and phrases---

----"Statute"---Connotation---Parliament is the law making authority, it passes the Acts and empowers the Government under the relevant Act to make Rules for carrying on the business---Statute is the formal "expression" in writing of the will of the legislative organ in a State---'Statute' is a declaration of the law, as it exists or as shall be from the time at which such statute is to take effect, it is usually called an Act of the Legislature and expresses the collective will of that body---Statute is the highest constitutional formulation of the law after the fullest deliberation expresses its final will.

(g) Words and phrases---

----"Statutory law"---"Statutory rules"---Connotation---"Statute law" is defined as the will of the nation, expression by the Legislature, expounded by the Courts of Justice---If the Parliament is not in session then the laws are enforced through the Ordinances issued by the President or the Governor of the province expressing the will of the nation as the case may be---Act passed by the Parliament and the Ordinance issued by the President or Governor would be called the "Statutory Law"---Rules framed under the powers conferred by an Act are an integral part of the Act and these Rules are called Statutory Rules and are held to be part of the parent Act, it can do anything if within its scope---Rules or the Bye-Laws made under the Statute or Act cannot override the provisions of other Statutes---Neither the Rules control the construction to be placed on the provisions of the Act nor can they enlarge the meaning of the section---The Rules are framed under the Act in aid to the construction of ambiguous Statutes---Rules under the Act shall be made by the Authority, empowered under the Act to frame the Rules or Bye-Laws---No other authority who is not empowered under the Act makes the Rules---Rule Making Body also cannot frame the Rules in conflict with or derogating from the substantive provisions of law or Statute under which the Rules are framed.

The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Syed Nazir Gillani v. Pakistan Red Crescent Society and another 2014 SCMR 982; Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377; Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571; Salahuddin and 2 others v. Frontier Sugar Mills PLD 1975 SC 244; Muhammad Yousuf Shah v. PIA PLD 1981 SC 224; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Raziuddin v. Chairman Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Zarai Taraqiati Bank Limited v. Said Rehman and others 2013 SCMR 642, Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159 and Warid Telecom (Pvt.) Limited and 4 others v. Pakistan Telecommunication Authority through Chairman 2015 SCMR 338 ref.

(h) Constitution of Pakistan---

----Art.199---Constitutional petition---Factual controversy---Scope---Allegations and counter-allegations cannot be thrashed out by the High Court under Art. 199 of the Constitution.

(i) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Scope---To maintain a constitutional petition it is the duty and obligation of the petitioner to point out that the action of the respondent(s) violated their rules and regulations.

(j) Constitution of Pakistan---

----Art.189---Decisions of Supreme Court binding on other Courts---Conflicting judgments---Scope---In case of conflict between the judgments of the Supreme Court, the judgment of the larger bench shall prevail.

Multi lines Associate's case PLD 1995 SC 423 ref.

Malik Naeem Iqbal for Petitioner.

Ali Safdar Depar, A.A.G for Respondent No.1.

Zeeshan Abdullah for Respondent No.2.

Ayan Mustafa Memon for Respondents Nos.3 and 4.

2022 P L C (C.S.) 1378

[Sindh High Court]

Before Aftab Ahmed Gorar and Adnan-ul-Karim Memon, JJ

MUHAMMAD AKBAR SIYAL and 4 others

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

C.P. No.(D)-3031 of 2020, decided on 3rd February, 2022.

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

----S.3---Constitution of Pakistan, Art. 199---Master and servant---Contractual service---Regularization, plea of---Petitioners contended that they were well qualified and having requisite experience after the initial appointment; that joining fresh process with other candidates was unfair; that employment was the source of livelihood and the right of livelihood was an undeniable right to a person; that they served the respondent/department for a long period and deserved to be given a fair chance of regularization in the given situation---Counsel of authorities contended that High Court lacked jurisdiction to revive/amend/alter contracts; that there was no vested right to seek regularization for employees hired on a contractual basis unless there was/is a legal and statutory basis for the same; that contractual employees had no automatic right to be regularized unless specifically provided for in law; and that the relationship of contractual employees was governed by principles of master and servant---Held, that petitioners had initially been appointed openly/transparently through the prescribed competitive process, hence, fulfilled the precondition for appointment as such---Petitioners' status as contract employees had ended once Finance Department of the Provincial Government had sanctioned the regular posts to run the affairs of respondent/department across the Province---Petitioners refereed to the summary floated by the respondents to the Competent Authority with the proposal that the services of the petitioners might be shifted from the Secretariat side to Field side so that the contractual staff of internal audit might be regularized---Excerpt of the minutes of the meetings of the Provincial Cabinet was perused which verified the said proposal---Constitutional petition was allowed and respondent/authority was directed to regularize the services of the petitioners accordingly.

Pir Imran Sajid and others v. Managing Director/Regional Manager (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181 rel.

Ali Asadullah Bullo for Petitioner.

Ali Safdar Depar, AAG for Respondents.

2022 P L C (C.S.) 1498

[Sindh High Court]

Before Irfan Saadat Khan and Agha Faisal, JJ

UMAR RASHEED MALIK and 32 others

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Secretariat, Establishment Division, Islamabad and others

Constitution Petitions Nos.D-3081 and D-4120 of 2019, decided on 3rd December, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Contract appointment---Rights---Petitioners were third party contractual employees, who sought their regularization in Port Trust along with appurtenant benefits and seniority---Validity---Contractual employees could not be considered to have a generic entitlement for regularization---Petitioners did not claim to be contractual employees of Port Trust but that of a third party---Petitioners failed to identify any right upon them to be considered for their regularization---Petitioners third party contracts were lapsed and any claim in pursuance thereof could lie, with respect to parties privy thereto and not with respect to others---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 SC 415; Khushal Khan Khattak University and others v. Jabran Ali Khan and others 2021 SCMR 977; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; Anjum Badar v. Province of Sindh and others PLD 2021 Sindh 328; Government of Khyber Pakhtunkhwa v. Jawad Ali and others 2021 SCMR 185; Province of Punjab v. Dr. Javed Iqbal 2021 SCMR 767; Owais Shams Durrani v. Vice Chancellor Bacha Khan University 2020 SCMR 2041; First Womens Bank v. Muhammad Tayyab 2020 PLC (C.S.) 86 and Government of Khyber Pakhtunkhwa Welfare Board v. Raheel Ali Gohar and others 2020 SCMR 2068 ref.

Syed Shoa-un-Nabi for Petitioners.

Muhammad Nishat Warsi, Deputy Attorney General, Khaleeq Ahmed and M. Salim Thepdawala for Respondents.

2022 P L C (C.S.) 6

[Lahore High Court (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar, Tariq Saleem Sheikh and Muzamil Akhtar Shabbir, JJ

GOVERNMENT OF PUNJAB through Secretary Health and 3 others

Versus

MUHAMMAD KAMRAN BASHIR and 6 others

I.C.A. No.168 of 2017 and W.P. No.16562 of 2016, heard on 17th November, 2020.

(a) Words and phrases---

----"Vested right", meaning and scope of----"Right" in its most general sense was either liberty (protected by law) of acting or abstaining from acting in a certain manner or power of compelling a specific person to do or abstain from doing a particular thing---Word "vested" meant vested interest as opposed to something to contingent, and a vested right was a right that was completely and definitely belonging to a person such that it could not be impaired or taken away without such person's consent---"Vested right" was a right which vested when all facts had accrued, which must by law occur, in order for person in question to have a right---Vested right, in technical sense, was one, the title of which, was complete and unconditional---Vested rights were claims enforceable under law and had accrued to possessor of such rights with no conditions and could not be taken away arbitrarily; whereas an interest was a merely expectancy until it matured into an enforceable legal right.

Jowith's Dictionary of English Law (2nd Edition); Black's Law Dictionary (11th Edition); Words and Phrases (Permanent Edition) Volume 44; Salmond's Jurisprudence (12th Edition); Brian W. Blacesser et al., Land Use and the Constitution: Principles for Planning Practice 8-9; Brian W. Blacesser and Alan C. Weinstein eds., 1889; D.V. Cower, "Vested and Contingent Rights," (1949) 66 S. African LJ 404; J.S. Yadav v. State of U.P. and another (2011) 6 SCC 570; Vishwas Bajirao Patil v. The State of Maharashtra AIR 2019 Bom 311; Messrs Mardan Industries Ltd., Sakhakot, Malakand Agency and another v. Government of Pakistan and another PLD 1965 (W.P.) Pesh. 47; Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599; Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 and Prem's Judicial Dictionary (Vol. IV, 1964) rel.

(b) Civil service---

----Recruitment/hiring process---Interview---Vested right, creation of---Scope---Department impugned order of High Court whereby Constitutional petition of respondent was allowed and he was held entitled for appointment to post, on ground that after appearing for an interview, a vested right accrued in favour of respondent, which could not be taken away by notification whereby recruitment process was changed and started afresh---Validity---Interview did not create any vested right in favour of a candidate as it was never the finale of the recruitment process and candidates may be required to fulfill additional requirement(s) before an appointment were notified---Respondent, therefore, could not claim any vested right for appointment and personal interest of respondent must give way to public interest in scrapping previous recruitment process for a new one, which was in accordance with Government's policy to promote justice and fair play---Discretion of Appointing Authority, therefore, could not be interfered with and respondent had no enforceable right for which writ of mandamus could be sought---Impugned order was set aside and intra-court appeal was allowed, accordingly.

Riaz Gul and 5 others v. Federation of Pakistan through Secretary, Ministry of Water and Power Government of Pakistan, Islamabad, and 36 others 2016 PLC (C.S.) 350; Dr. Muhammad Waseem and 4 others v. Province of Sindh through Secretary and others 2018 PLC (C.S.) Note 74; Saifullah v. Inspector General, Punjab Police, Lahore, and 21 others 2019 PLC (C.S.) 1345; Jai Singh Dalal and others v. State of Haryana and another 1993 Supp.(2) SCC 600; Vijay Kumar Mishra and another v. High Court of Judicature at Patna and others (2016) 9 SCC 313; Lt. CDR. M. Ramesh v. Union of India and others AIR 2018 SC 1965; State of Kerala and another v. Peoples Union for Civil Liberties, Kerala State Unit and others (2009) 8 SCC 46; Fazal Karim, Judicial Review of Public Actions (Second Edition), p.1860. and Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 rel.

Azhar Saleem Kamlana, Assistant Advocate-General for Appellants.

Jam Zahoor Ahmad for Respondent No.1.

Muhammad Riaz Kamlana for Respondents Nos.2 and 3.

Ahsan Raza Hashmi for Respondents Nos.4 to 7.

2022 P L C (C.S.) 43

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Sheikh ABDUL KHALIQ and 8 others

Versus

GOVERNMENT OF PAKISTAN, BOARD OF TRUSTEES, through Secretary Establishment, Islamabad and 4 others

Writ Petition No.5787 of 2016, decided on 14th October, 2020.

Federal Employees Benevolent Fund and Group Insurance Act (II of 1969)---

----Ss. 15 & 17(5)---Constitution of Pakistan, Art.199---Constitutional petition---Group insurance, payment of---Principle---Petitioners were aggrieved of non-payment of sums out of Insurance Fund---Plea raised by petitioners was that they had been contributing towards group insurance during their service---Validity---Group insurance was intended to extend monetary benefits to family of deceased employee, provided the employee had contributed in such head during his service---Group insurance was a kind of grant / compensation which had accrued after death of an employee---From inheritable benefits, group insurance had been excluded and was not a Tarka--- Family of any employee who had died during service was held entitled under S.15 of Federal Employees Benevolent Fund and Group Insurance Act, 1969, to receive insurance amount---High Court declined to interfere in the matter as claim of petitioners was untenable--- Constitutional petition was dismissed, in circumstances.

Fida Muhammad Durrani and others v. The Government of Khyber Pakhtunkhwa through The Chief Secretary Khyber Pakhtunkhwa Civil Secretariat, Peshawar and others (W.P.No.1355-P/2013); (Civil Petition No.11-P of 2017); Tanveer Musharraf and another v. Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat Peshawar and others 2019 SCMR 616; Erum v. Mst. Ameena and 5 others PLD 2015 Sindh 360; Mst Razia Ameer v. State Life Insurance Corporation of Pakistan through Chairman and 2 others 2018 CLD 289 and Shabaz Wali Khan and others v. Government of Pakistan, Establishment Division Regional Board Federal Employees 2019 PLC (C.S.) 1467 ref.

Mian Muhammad Javed for Petitioners.

Zahid Sikandar, Assistant Attorney General.

2022 P L C (C.S.) 56

[Lahore High Court (Multan Bench)]

Before Ahmad Nadeem Arshad, J

MUHAMMAD ASLAM

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.16392 of 2019, decided on 6th September, 2021.

Civil Service---

----Daily wagers (Chowkidars)---Regularization in service---Public limited company---Discrimination---Held, that 'Pakistan Agricultural Storage and Services Corporation' (PASSCO) was a public limited company registered under the Companies Act---Human Resource Policy, 2011 (H.R. Policy) was formulated by Board of Directors of PASSCO---Policy, 2011, was non-statutory in nature and was meant for internal working---Method of recruitment for their employment of permanent and temporary employees was altogether different---Permanent employees were recruited according to the HR Policy, 2011, while temporary employees/daily wagers according to the letter dated 28/11/2014---Huge number of seasonal workers were recruited on temporary basis who were called chowkidars and were appointed seasonally on contract basis as and when required according to wheat stock and for its security and safety for a specific period---Services of petitioners were hired for 85 days in the light of said letter, therefore, they were bound by the terms and conditions as settled in the same letter---Recruitment order had further clarified that petitioners' job was purely on temporarily basis---Petitioners' services stood terminated automatically without any prior notice on completion of task/disposal of stock and they could not claim regularization of their services---Keeping in view the nature of business, it was not feasible to appoint chowkidar on permanent regular basis---Break up in the services of petitioners/daily wagers was genuine and not artificial---Four supervisors and 35 persons out of almost 700/800 daily wagers were regularized to change nomenclature of 4 minor crops---Petitioners failed to make all the regularized persons as party in their petitions, therefore, no effective order can be passed against them in their absence---Petitioners failed to establish commission of any discrimination, infringement of their fundamental rights by the said regularization, or violation of service regulations---Contractual employees had no automatic right to be regularized---Constitutional petitions were dismissed accordingly.

Muhammad Rafi and another v. Federation of Pakistan 2016 SCMR 2146; Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068; Messrs Sui Southern Gas Company Ltd. v. Zeeshan Usman and others 2021 SCMR 609 and Pakistan Telecommunication Co. Ltd. through Chairmen v. Iqbal Nasir and others PLD 2011 SC 132 rel.

Malik Muhammad Latif Khokhar for Petitioner.

Ch. Shakeel Akhtar Sindhu, Assistant Attorney General for Respondents.

Malik Ghulam Qasim Rajwana, Advocate/Legal Advisor for PASSCO.

2022 P L C (C.S.) 92

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

ALTAF HUSSAIN

Versus

FPSC through Chairman and another

F.A.O. No.543 of 2015, decided on 26th November, 2020.

Civil service---

----Terms and conditions of service---Promotion---Evaluation of a candidate / civil servant via an interview---Scope---Interview of a candidate / civil servant was a subjective test, and it was not possible for a court of law to substitute its own opinion for that of a "viva voce board" or interview committee; and it was within domain of members of such a committee to determine as to what persuaded them to award certain marks to a particular candidate and a court of law could not substitute its findings for that of such committee.

Arshad Ali Tabassum v. The Registrar, Lahore High Court, Lahore 2015 SCMR 112; Miss Gulnaz Baloch v. Registrar, Balochistan High Court, Quetta and others 2015 PLC (C.S.) 393; Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157 and Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 rel.

Appellant in person.

2022 P L C (C.S.) 109

[Lahore High Court (Multan Bench)]

Before Raheel Kamran, J

QAMAR ALTAF

Versus

The COMMISSIONER MULTAN and others

Writ Petition No.1523 of 2021, decided on 10th August, 2021.

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

----Ss.42 & 53---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction---Concealment of facts---Respondent was compulsorily retired on charge of corruption and his allotment of government residence was cancelled---Suit for declaration/permanent injunction was dismissed by civil court---Respondent preferred appeal and injunctive order was passed---Respondent contended that he had preferred appeal against his compulsory retirement which was pending before Tribunal---Validity---Held, there was no entitlement to government accommodation save in accordance with allotment policy of the concerned government---No provision existed in the Policy Governing Allotment of Residential Government Accommodation, allowing retention of government accommodation till decision of any service appeal against compulsory retirement---Discretionary relief under S.42 of Specific Relief Act, 1877, could be provided only when party was able to establish its entitlement to any legal character/right in property---Injunctive order was passed by Appellate Court mechanically without considering essential ingredients governing the grant of injunction in civil cases---Injunctive order was obtained while concealing facts relating to filing/pendency of first appeal which was withdrawn by respondent immediately after grant of interim injunction in his second appeal---Inequitable conduct of respondent disentitled himself for the grant of equitable relief---Constitutional petition was disposed of accordingly.

Agha Nadeem v. Additional Secretary Welfare, Government of Punjab 2013 PLC (C.S.) 306; Shahab Mazhar Bhali v. Pakistan Railways 2014 PLC (C.S.) 356; Rehmatullah Khan v. Government of Pakistan 2003 SCMR 50; Malik Muhammad Khakan v. Trustees of Port of Karachi 2008 SCMR 428; Khurram Muggo v. Mst. Perveen Hameed Muggo PLD 2007 Lah. 518; Allah Dino and others v. Ali Muhammad and others 2016 YLR 890 and Baharo alias Bahar Ali v. Ghulam Rasool 2010 CLC 754 ref.

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

----S.10---Res sub judice-Applicability on appeals---Scope---Doctrine of res sub judice embodied in S.10 of Civil Procedure Code, 1908, extends in its application to appeals.

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

----O.XXXIII, R.1---Withdrawal of suit with permission to file afresh---Injunction/equitable relief---No permission was required for filing a fresh suit where the fresh suit had already been filed and withdrawal of the first suit was sought thereafter---Such a situation, however, would not absolve a plaintiff/appellant from approaching the Court with clean hands to seek any equitable relief/injunctive order.

Ghulam Nabi and others v. Custodian of Evacuee Property Pakistan PLD 1983 SC 44 and Bank of Punjab v. Messrs Gas Naturale (Pvt.) Ltd. and others 2017 CLD 959 ref.

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

----O.XXXIX, Rr.1 & 2---Injunction/grant of---Concealment of fact---Scope---Injunction could only be issued in aid of equity and justice and not in aid of injustice---Court would not confer its equitable relief upon party seeking its aid unless he had acknowledged/conceded all the equitable rights/claims/demands justly belonging to the adverse party, and growing out of or necessarily involved in the subject matter of controversy---Concealment of fact was material/consequential for administration of justice in civil cases---Concealment of facts diminished the probability of transfer of the second appeal to the same judge who heard the matter earlier---Such practice must be deprecated/arrested for otherwise it would give impetus to adventurists to enter the arena of litigation and undermine the solemnity of process of law and frustrate the course of justice.

Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092; Irshad Hussain v. Province of Punjab PLD 2003 SC 344; Syed Kamal Shah v. Government of N.W.F.-P. 2010 SCMR 1377; Mst. Saeeda v. Province of Punjab 2013 CLC 454; Sharifan Bibi v. Muhammad Abid Rasheed 2011 YLR 2396 and Lahore High Court Rules and Orders, Volume V, Chapter 1 (Judicial Business), Part A, Rule 1(a)(ix) ref.

(e) Constitution of Pakistan---

----Art.10A---Fair trial---Criminal and civil proceedings---Applicability---Requirement of fairness imposed under Art. 10A of the Constitution would apply to civil and criminal proceedings taken as a whole.

Golder v. U.K. (1975 EHHR 514) ref.

(f) Constitution of Pakistan---

----Art. 10A---Fair trial---Equality of arms, doctrine of---Concealment of facts---Scope---"Equality of arms" meant giving each party a reasonable responsibility to present its cause in such conditions as would not put one party in disadvantage to its opponent---Said principle was violated in every case where there was a concealment of facts regarding earlier proceedings that had been made apparently for 'forum shopping'---Such concealment/suppression would render the claim/suit/appeal of the concealing party to be void thus liable to outright rejection.

Ministry of Interior, Government of Pakistan v. Special Court PLD 2020 SC 82 ref.

(g) Constitution of Pakistan---

----Art. 10A---Fair trial---Integral part of legislation---Principles of fair trial, as guaranteed by Art.10A of the Constitution, were to be read as an integral part of every sub-constitutional legislative instrument that dealt with determination of civil rights and obligations of any person.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 ref.

Malik Muhammad Usman Bhatti for Petitioner.

Muhammad Shahid Riaz, Assistant Advocate General, Punjab for Respondents Nos.1 and 2.

Abdul Salam Alvi for Respondent No.3 (in F.A.O. No.55 of 2021).

2022 P L C (C.S.) 157

[Lahore High Court]

Before Anwaar Hussain, J

ASIF MUSHTAQ

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and 2 others

Writ Petition No.2477 of 2017, decided on 10th June, 2021.

(a) Civil service---

----Termination of service---Regularization of service---Scope---Challenge to validity of order passed by Service Tribunal---Maintainability---Scope---Petitioner invoked the constitutional jurisdiction of High Court on the ground that his wrongful termination deprived him from being regularized along with other similarly placed employees and his representation in that regard was wrongly rejected---Validity---Petitioner had assailed the order of his termination before the Service Tribunal by filing appeal and had sought reinstatement into service, which appeal was partially allowed---While the words stigmatizing the petitioner were deleted but his termination was never set aside---Judgment of the Service Tribunal had attained finality---Regularization could not be directed without reinstatement, which would otherwise imply the High Court sitting as an appellate forum of the Service Tribunal, which the Constitution debarred---Ad hoc employee had neither the right to hold the post beyond the period for which he was appointed nor the government had a right to continue with such ad hoc appointee for a long period---Moreso, when the petitioner had not been in ad hoc employment even for a year let alone for a long time creating any hope or legitimate expectation of retention, then he could not be considered for regularization---Constitutional petition was dismissed.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Muhammad Sheraz's case I.C.As. Nos.188 and 193 of 2012; Abu Bakar Farooq through Chairman and others v. Muhammad Ali Rajpar and others 2019 SCMR 830 and Dr. Jamshed Dilawar and 2 others v. Government of the Punjab through Chief Secretary and 4 others 2021 PLC (C.S.) 411 rel.

(b) Civil service---

----Ad hoc appointment---Scope---Ad hoc employee has neither the right to hold the post beyond the period for which he is appointed nor the government has a right to continue with such ad hoc appointee for a long period of time.

Abu Bakar Farooq through Chairman and others v. Muhammad Ali Rajpar and others 2019 SCMR 830 rel.

Pervaiz Inayat Malik for Petitioner.

Asif Afzal Bhatti, Additional Advocate General along with Nasir Ali, Law Officer, P&SHCD, Raja Naeem Ahmad, Deputy Secretary, Punjab Public Service Commission and Tariq Mahmood, Superintendent, Punjab Public Service Commission for Respondents.

2022 P L C (C.S.) 208

[Lahore High Court (Bahawalpur Bench)]

Before Muhammad Ameer Bhatti and Zafarullah Khan Khakwani, JJ

GOVERNMENT OF PUNJAB and others

Versus

Mst. SABA JABEEN

Intra Court Appeal No.67 of 2015, heard on 2nd February, 2016.\

Civil service---

----Appointment to advertised post---Wrong description of qualification---Scope---Respondent applied for the post of ESE (Sci-Math)---Policy for Recruitment provided that for appointment as ESE (Sci-Math), academic qualification of a candidate must be B.Sc. with at least two subjects out of Chemistry, Zoology, Botany, Physics, Math-A Course, Math-B Course and Math or B.Sc./B.A. in other subjects with F.Sc.---Respondent claimed to have passed her B.Sc. after having passed her F.Sc. Examination with Physics, Mathematics and Statistics---Authorities held that the respondent was not entitled to be appointed as she had passed her Intermediate Examination in General Science Group and her qualification could not be equated with F.Sc.---Respondent's constitutional petition against said order was accepted---Validity---F.Sc. by itself was no qualification and the term 'F.Sc' was alien to the Scheme of Studies/System of Education being non-existent---Boards of Intermediate and Secondary Education issued certificates to the successful candidates of Intermediate Examination with the specification as Intermediate (Annual/Supplementary) Examination and Groups such as Pre-Medical, Pre-Engineering, General Science, etc---Appellants' inviting applications from the candidates requiring qualification as F.Sc. was wrong---High Court observed that since the qualification acquired by the respondent did not match with requirements of the authorities as such she was rightly declared ineligible to be appointed against the post advertised---Order passed by Single Judge of High Court was set aside and the appeal was allowed.

Saeed Ahmad Chaudhry, Asstt. Advocate General with Samina Yasmin, D.E.O Elementary and Zahoor Ahmad Chohan, E.D.O. (Education), Bahawalnagar for Appellants.

Ch. Shafi Muhammad Tariq for Respondent.

2022 P L C (C.S.) 282

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD SHAFIQUE

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.1115 of 2019, heard on 8th September, 2021.

(a) Civil service---

----Contractual employment---Scope---Petitioner sought direction to the Provincial Government to regularize his services from the date of appointment as Junior Clerk with back benefits---Validity---Appointment of petitioner was only for 89 days and it was nowhere mentioned in the appointment letter that it was a job of permanent nature or the same was likely to be permanent in future---High Court observed that it was the prerogative of the department to determine which employees were required for the extended period---No vested right existed in favour of a particular employee to insist that the department be directed to retain or regularize his services---Constitutional petition was dismissed.

Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah 2021 SCMR 998 ref.

Pakistan Defence Officer's case 2013 SCMR 1707; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Abdul Wahab and others v. Hahib Bank Limited and others 2013 SCMR 1383; Pakistan International Airline and others v. Noreen Naz Butt 2017 PLC (C.S.) 923; Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278; 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 (CS.) 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 and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 rel.

Board of Intermediate and Secondary Education, D.G. Khan and another v. Muhammad Altaf and others 2018 SCMR 325; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181 and Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405 distinguished.

(b) Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978---

----Regln. 2(f)---"Employee"---Scope---Person who is appointed to a post on a project, on work charge employee or on daily wages, is not included in the definition of an "employee".

Tahir Khan for Petitioner.

Barrister Umair Khan Niazi, Additional Advocate-General.

Zubda-tul-Hussain for Respondents.

2022 P L C (C.S.) 319

[Lahore High Court]

Before Jawad Hassan and Sultan Tanvir Ahmed, JJ

NADEEM ABBAS

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others

Intra Court Appeal No.50364 of 2021, decided on 16th August, 2021.

Punjab Public Service Commission Regulations, 2016---

----Regln. 26---Action against candidates for using unfair means---Non-mentioning the fact of previous service---Scope---Appellant applied through online application for the post of Sub-Inspector and subsequently was recommended for the post---Thereafter, his candidature was cancelled due to non-disclosure about his previous government service and non-providing of "No Objection Certificate"---Specific ground was agitated by the appellant that not mentioning about previous job in online application form was not a wilful concealment rather it was only a mistake---Regulation 26 of the Punjab Public Service Commission Regulations, 2016, clearly demonstrated that if at any stage during the process of selection or even after the recommendations had been sent to the concerned department, a person was found to be deficient in any of the conditionalities of the eligibility, his or her candidature shall be cancelled and recommendations withdrawn---Since appellant had concealed the material information from the respondents, though he had provided NOC at a later stage, but the fact remained that he had withheld information which was important and mandatory for the post applied---Impugned order did not warrant interference by the Division Bench---Intra court appeal was dismissed.

Niazi Khan for Appellant.

2022 P L C (C.S.) 330

[Lahore High Court (Multan Bench)]

Before Shahid Jamil Khan and Muhammad Raza Qureshi, JJ

MUHAMMAD MUAZAM and 9 others

Versus

GOVERNMENT OF PUNJAB through Inspector General of Police, Punjab and 5 others

Intra Court Appeal No.56 of 2021 in Writ Petition No.7710 of 2019, decided on 3rd June, 2021.

(a) Civil service---

----Contractual appointment---Non-extension of contracts, challenged---Scope---Appellants assailed non-extension of their contractual appointments through constitutional petition, which was dismissed---Validity---Extension of contracts could not be granted to the appellants as of law as well as of right, firstly, for the reasons that on the day when the appellants had invoked the constitutional jurisdiction their status was of employees whose contracts had expired and High Court under its constitutional jurisdiction through a mandatory injunction could not force an unwilling employer to extend the contract of service which had already expired; secondly, for granting a relief canvassed by the appellants in the writ petition and in the Intra Court Appeal High Court could not undertake a factual inquiry i.e. whether the performance of appellant was satisfactory or not; thirdly, it was not the case of appellants that non-extension of their contracts suffered from mala fide in law as neither the Contract Policy, 2004, was challenged nor any statutory instrument or order was assailed---Intra Court Appeal was dismissed.

(b) Constitution of Pakistan---

----Arts.199 & 25---Constitutional petition---Equality of citizens---Contractual appointment---Non-extension of contracts, challenge of---Discrimination---Scope---Appellant assailed non-extension of their contractual appointments and contended that they were discriminated against the employees whose contracts were extended---Validity---To establish discrimination it was imperative for the appellants to substantiate that they were equally placed with the employees whose contracts were extended---Such an allegation that too bereft of any support or material under the law was bald and evasive.

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

(c) Civil service---

----Contractual appointment---Scope---Contract employee does not have a vested right to seek extension of his contract.

Province of Punjab through Secretary Schools Education Department, Punjab Civil Secretariat, Lahore and 2 others v. Muhammad Amir Hayat and 4 others 2021 PLC (C.S.) 245 rel.

Raja Naveed Azam for Appellants.

2022 P L C (C.S.) 338

[Lahore High Court]

Before Shujaat Ali Khan, J

PARVEEN RANI

Versus

CHIEF EXECUTIVE OFFICER and 3 others

Writ Petition No.41540 of 2021, heard on 29th September, 2021.

Civil service---

----Regularization of service---Death of employee prior to regularization order---Pensionary benefits, entitlement to---Scope---Petitioner's husband was appointed as (Elementary School Educator) (ESE) on contract basis---During interregnum period, Punjab Regularization of Service Act, 2018, was promulgated---As a result, the case of petitioner's husband was submitted before the District Education Officer but prior to approval of the matter by the Competent Authority, husband of the petitioner died---Notification regarding regularization of services of certain ESEs was issued but name of the petitioner's husband was missing---District Education Officer through impugned letter declined the request of petitioner on the ground that since her husband had died during collection of data, he was not entitled for regularization---Validity---Prior to death of petitioner's husband, he was found to be fit for regularization but the matter could not be decided by District Education Officer for which husband of petitioner could not be held responsible---Nobody could be prejudiced due to the act of the public functionaries and a person who was found eligible for any benefit was entitled to it from the date when the same accrued to him---Though other terms and conditions of the service of a civil servant abated upon his death but not the peculiar benefits to which the legal heirs would become entitled---Constitutional petition was accepted.

Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad 2013 SCMR 392 fol.

Junaid Jabbar Khan for Petitioner.

Rana Shamshad Khan, Additional Advocate-General, Punjab along with Javed Iqbal Babar, CEO (DEA), Hafizabad for Respondents.

2022 P L C (C.S.) 367

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD WARIS

Versus

DIRECTOR GENERAL, PUNJAB EMERGENCY SERVICES RESCUE 1122 , LAHORE and 3 others

Writ Petition No.39812 of 2019, decided on 24th June, 2021.

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

----S.7---Constitution of Pakistan, Arts. 199, 4 & 10-A---Constitutional petition---Rights of individuals to be dealt in accordance with law---Right to fair trial---Procedure where regular inquiry dispensed with---Scope---Petitioner assailed order of his removal from service---Show cause notice revealed that there were multiple stigmatic and serious allegations against the petitioner and the petitioner had refuted these allegations in his reply to the show-cause notice---Matter involving controversial questions of facts could not have been decided without detailed scrutiny and proper appreciation of oral and documentary evidence---Spirit of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, was that such major punitive action against an employee should have been taken after an inquiry---Department had proceeded to impose major penalty upon the petitioner without resorting to the procedure of inquiry as contemplated by the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Petitioner had fundamental rights to fair trial, due process and to be treated in accordance with law for determination of the civil rights and obligations as envisaged under Arts. 4 & 10-A of the Constitution---Constitutional petition was allowed, impugned order was set aside and the matter was remanded to the competent authority for holding regular inquiry strictly in accordance with law.

Salman Faruqui v. Javed Burki, Authorized Officer, Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and another 2007 SCMR 693; Saad Salam Ansari v. Chief Justice of Sindh High Court, Karachi through Registrar 2007 SCMR 1726; Muhammad Abdul Moied v. Government of Pakistan through Secretary, Ministry of Housing and Works and others 2010 PLC (C.S.) 1143; Muhammad Sadiq v. Inspector-General of Police Punjab Lahore and others 2017 SCMR 1880; Farhan Mehmood v. Secretary, Government of the Punjab Health Department and 3 others 2018 PLC (C.S.) Note 70; Prof. Dr. Abdul Waheed v. Rector, Comsats Institute of Information Technology, Islamabad and others 2019 PLC (C.S.) 235; Dr. Karim Shah v. Chairman, Search and Nomination Council / Health Minister, Government of Khyber Pakhtunkhwa, Peshawar and others 2021 PLC(C.S.) 235; Ishtiaq Ahmed v. Hon'ble Competent Authority through Registrar, Supreme Court of Pakistan 2016 SCMR 943 and Khalid Mehmood v. Punjab Labour Appellate Tribunal, Lahore and 3 others 2018 PLC 56 ref.

Abdul Qayyum v. D.G., Project Management Organization, JS HQ, Rawalpindi and 2 others 2003 SCMR 1110 rel.

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

----S.7---Procedure where regular inquiry dispensed with---Scope---Competent authority may, in exercise of powers under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, by dispensing with the requirement of regular inquiry, follow the summary procedure, but such power must be exercised in exceptional cases, in which either there is no factual controversy or the facts are admitted---Competent authority, may without holding a regular inquiry, pass the final order if the charge is not based on disputed questions of facts, otherwise dispensation of regular inquiry would amount to depriving of a person from right of defence and fair opportunity of hearing.

(c) Administration of justice---

----To draw a conclusion adverse to the interest of a person on the basis of disputed facts without recording the evidence and providing him proper opportunity of cross-examining the witnesses and to make his defence is against the principle of natural justice.

(d) Administration of justice---

----Reasons for decision---Scope---Any order passed by judicial or quasi-judicial authority has to be supported by lawful reasons.

Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Messrs United Woollen Mills Ltd. Workers' Union v. Messrs United Woollen Mills Ltd. 2010 SCMR 1475; Fasih-ud-Din Khan and others v. Government of Punjab and others 2010 SCMR 1778 and Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1 ref.

Malik Saleem Iqbal Awan for Petitioner.

Barrister Ameer Abbas Ali Khan, A.A.G. along with Muhammad Sohail Tufail and Muhammad Farooq Hameed, Law Officers for Respondents.

2022 P L C (C.S.) 434

[Lahore High Court]

Before Abid Aziz Sheikh, J

BUSHRA KHUSHI MUHAMMAD

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Chairman and 2 others

Writ Petition No.116118 of 2017 heard on 11th March, 2021.

(a) Police Order (22 of 2002)---

----Art.7(3c)---Sub-Inspectors and Inspectors (Appointment and Condition of Service) Rules, 2013---Appointment of Sub-Inspectors and Inspectors---Scope---Petitioner being Head Constable applied for the post of Sub-Inspector and cleared the written test, however, he was not recommended for appointment on the ground that he did not have the required three years' service experience---Contention of petitioner was that under Art.7(3c)(a) of Police Order, 2002, the promotion to the post of Sub-Inspector had to be made through selection-on-merit by the Public Service Commission; that in the said Article no experience was prescribed; that the condition of three years' experience introduced in the Sub-Inspectors and Inspectors (Appointment and Condition of Service) Rules, 2013, being beyond the scope of the Police Order, 2002, was ultra vires the law and that on the date of interview he had attained the required experience---Validity---Article 7(3c) of Police Order, 2002, was subject to the Rules---When Art. 7(3c) of the Police Order, 2002, itself provided that it was subject to Rules, then it could not be said that experience prescribed in the Rules was beyond the scope of the Police Order, 2002---Relevant date to reckon the experience as prescribed in the advertisement was the closing date in the advertisement and not the date of interview---Constitutional petition was dismissed, in circumstances.

SUO MOTU CASE No.13 OF 2009 PLD 2011 SC 619; Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others 2003 SCMR 370; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550; Mian Zaiuddin v. Punjab Local Government and others 1985 SCMR 365 and M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363 ref.

Jalal Din and others v. Sheikh Muhammd Rafiq and others PLD 1965 SC 261; Bahadur Yar Jang Cooperative Housing Society Ltd. v. Feroze Shamsi and others PLD 2010 SC 1058; K.R.C.S. Balakrishna Chetty and Sons & Co., v. The State of Madras AIR 1961 SC 1152 and 1992 SCMR 90 rel.

(b) Interpretation of statutes---

----Rules framed under an enactment must be consistent with the provisions of the enactment and if rules go beyond what the section contemplates, same must yield to the statute.

Mian Arshad Ali Mahar for Petitioner.

Barrister Ameer Abbas Ali Khan, Assistant Advocate-General, Punjab for Respondents.

2022 P L C (C.S.) 492

[Lahore High Court (Multan Bench)]

Before Shahid Jamil Khan, J

ALI SHER KHAN

Versus

DISTRICT AND SESSIONS JUDGE, MULTAN and others

Writ Petition No.8084 of 2021, heard on 3rd June, 2021.

(a) Administration of justice---

----Good governance---Recruitment---Transparency---Object, purpose and scope---Transparency is a tool, not only for ensuring but for showing that procedure adopted is unbiased, provides equality of status and opportunity to each eligible candidate for achieving goal of recruiting the most suitable person.

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

----R.17(v)---Punjab Civil and Sessions Court Establishment (Miscellaneous Post) Service Rules, 2005, R.2---Constitution of Pakistan, Art. 199---Constitutional petition---Recruitment process---Transparency, absence of---Petitioners assailed appointments on various posts by District and Sessions Judge alleging illegalities in procedure, lack of transparency and favouritism---Validity---During recruitment proceedings written tests were conducted and result was declared on the same day, without showing fairness or transparency from record---List of successful candidates was defective as it was not displayed, physically or electronically, as per prescribed procedure---Some candidates shown as successful were not declared successful in written test but their names were reflecting in the list of candidates called for interviews---Whole process of recruitment and consequent appointments were illegal---High Court directed to initiate fresh process with approval of High Court after advertising all clear cut vacancies in accordance with rules and law---Constitutional petition was allowed accordingly.

Mst. Nusrat Fatima and others v. Deputy Director (Admn.) Directorate of Elementary Education and others 2005 SCMR 955; Muhammad Sadiq and another v. Federal Service Tribunal, Islamabad and others 2003 PLC (C.S.) 1029 and Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769 rel.

Chaudhry Muhammad Khalid Mehmood for Petitioner.

Malik Shaukat Mehmood Marha, Assistant Advocate General, Punjab assisted by Abdul Qayyum, Staff Officer, Faisal Shahid, English Clerk and Altaf Hussain Bhatti, ACOC, Office of District and Sessions Judge, Multan for Respondents.

2022 P L C (C.S.) 525

[Lahore High Court]

Before Jawad Hassan, J

Syed ALI HAMZA and others

Versus

PROVINCE OF THE PUNJAB and others

Writ Petition No.52550 of 2020, heard on 30th June, 2021.

(a) Constitution of Pakistan---

----Arts.25 & 199---Regularization of service---Equality of citizens---Discriminatory treatment---Scope---Petitioners assailed denial of their request for regularization of service---Petitioners put much emphasis on the ground that they were entitled to regularization of their services as the authorities had regularized similarly placed persons who were appointed on daily wages/contract basis---Stance of authorities was that the petitioners were not entitled to regularization as the previous daily wages/contract employees were regularized after scrutinizing each and every case while the petitioners did not fall within the ambit of prescribed criteria---Validity---Petitioners, at the time of joining, had accepted all the terms and conditions of their contract employment and could not resile from the same at a belated stage---Perusal of prescribed criteria revealed that a person who was appointed to a post on work charge/daily wages must have one-year complete satisfactory service, must fulfil the qualification/experience and age limit as per the Regulations and the post for which he applied must exist in the budget/the Regulations---Record attached by the authorities revealed that amongst the petitioners, some did not fulfil the requirement of age limit, while others' work was not satisfactory and there was also service break in their employment---Petitioners did not fulfil the criterion for the regularization of their service and it could not be said that the respondents had treated them indifferently or given discriminatory treatment---Constitutional petition was dismissed, in circumstances.

Board of Intermediate and Secondary Education, D.G. Khan and another v. Muhammad Altaf and others 2018 SCMR 325; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181 and Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405 distinguished.

Shahzad Ghohar v. Government of Punjab and Aitchison College through its Board of Governor 2018 PLC (C.S.) Note-1; Muhammad Mohsin Ismail v. Managing Director Punjab Daanish Schools and 2 others 2018 PLC (C.S.) 722; Dr. Abid Ali v. Chief Secretary, Government of Punjab and 3 others 2017 PLC (C.S.) 488 and Mubashar Majeed v. Province of Punjab and 3 others 2017 PLC (C.S.) 940 rel.

(b) Constitution of Pakistan---

----Art.199---Master and Servant---Constitutional petition---Maintainability---Contractual employment---Relationship of Master and Servant---Scope---Where employment is on contract, there is a relationship of Master and Servant and in such like cases constitutional petition under Art.199 of the Constitution is not maintainable.

Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Pakistan Defence Officer's case 2013 SCMR 1707; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Syed Sadiq Shah and others 2021 SCMR 747 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Non-statutory rules of service---Scope---Constitutional petition wherein service grievance is agitated by a person/employee who is not governed by statutory rules of service, is not maintainable.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383 foll.

Pakistan International Airline and others v. Noreen Naz Butt 2017 PLC (C.S.) 923 and Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278 rel.

Lt. Col. Rtd. Aamir Rauf v. Federation of Pakistan through Secretary Ministry of Defence and 3 others 2011 PLC (C.S.) 654; Nadeem Ahmed v. Pakistan State Oil Company Limited and another 2005 PLC (C.S.) 1447 and Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman. PIA and others 2020 SCMR 1625 ref.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---Eligibility criteria---Policy matter---Scope---In assessment of suitability of a particular nature of job and its scope in the context of particular employer the Court cannot prescribe the eligibility or experience qualifications and work experience as these are matters of policy and best be left to the department.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Civil service---Policy decision---Scope---Court could not embark upon an inquiry as to whether a particular policy is wise and acceptable or whether better policy could be drafted---Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons or totally arbitrary, offending the basic requirement of the Constitution---Department was to decide as to how and in what manner the reservations should be made and such a policy decision normally would 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.

Imran Khan Kaliar for Petitioners.

Barrister Umair Khan Niazi, Additional Advocate General along with Rao Shahroz Khan for Respondents Nos.2 and 3.

2022 P L C (C.S.) 548

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi and Abid Aziz Sheikh, JJ

UMAR HAYAT KHAWAJA

Versus

NATIONAL BANK OF PAKISTAN through President, Karachi and others

I.C.A. No.7592 of 2019, heard on 12th October, 2021.

Civil service---

----Constitutional petition filed by petitioner, a Government owned Bank (National Bank of Pakistan) for grant of post-retirement benefits in line with Circular No. 19/95 dated: 14-03-1995 was dismissed on the ground that his case was covered under Circular No. 37/99 dated: 16-06-1999---Validity---Circular No. 19/95 dated: 14-03-1995 was issued on the strength of decision of Pakistan Banking Council which was later on dissolved and after its dissolution, all the affairs of the Bank employees relating to their appointment, transfer and monetary benefits were being decided by the Board of Directors of the Bank---Revised pay structure of executives/officers of the Bank, including retirement benefits and medical facilities was formulated vide Circular No. 37/99 dated: 16-06-1999---Appellant had retired from the Bank on 02-05-2006, therefore, he was to be treated in line with the later circular---Intra Court Appeal was dismissed.

W.P. No.19995 of 2011 and I.C.A. No.292 of 2015 distinguished.

Umar Hayat Khawaja Appellant in person.

Umer Abdullah and Dr. Mazhar Ilahi for Respondents.

2022 P L C (C.S.) 564

[Lahore High Court]

Before Shujaat Ali Khan, J

Mst. ASHI

Versus

PROVINCE OF PUNJAB through Chief Secretary, Government of the Punjab and 4 others

Writ Petition No.12022 of 2021, decided on 29th June, 2021.

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

----S.4---Punjab Land Records Authority Act (VI of 2017), Ss.11 & 31(f)---Punjab Civil Servants Act (VIII of 1974), S. 23---Regularization of service--- Service rules, nature of---Petitioners were appointed by Board of Revenue as Assistant Directors Land Records but their services were not regularized--- Validity---Prior to transfer of Punjab Land Revenue Authority (PLRA), terms and conditions of petitioners were governed under Punjab Directorate of Land Records Posts Service Rules, 2010, which were further amended in year 2016, framed under statutory provision of S. 23 of Punjab Civil Servants Act, 1974--- Such rules could not be termed as non-statutory---Petitioners were adjusted in PLRA in the light of S.31(f) of Punjab Land Records Authority Act, 2017---In cases where contract employees were appointed on recommendation of Punjab Public Service Commission, it was duty of the department to put up their cases before Appointing Authority for regularization--- In respect of petitioners, Appointing Authority was Member (Revenue) / Senior Member Board of Revenue---Appointment letters were issued in favour of petitioners by Directorate of Land Records, Board of Revenue---Incumbent upon Member (Revenue) / Senior Member Board of Revenue to regularize services of petitioners in the light of Punjab Regularization of Service Act, 2018---High Court directed the authorities to place case of petitioners and other selectees, who were in service, before Senior Member Board of Revenue to regularize services of petitioners and similarly placed person---Constitutional petition was allowed, in circumstances.

Chairman, Federal Board of Revenue, Islamabad and another v. Mrs. Naureen Ahmed Tarar and others 2020 SCMR 90; Zila Council Jehlum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others PLD 2016 SC 398; Water and Power Development Authority, Lahore through Chairman and others v. Haji Abdul Aziz and others 2012 SCMR 965; Government of Sindh through Secretary, Home Department and others v. Abdul Jabbar and others 2004 SCMR 639; Province of the Punjab through Secretary Agriculture Department and others v. Muhammad Arif and others 2020 SCMR 507; Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; 2017 PLC (C.S) 1274; 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; Pakistan Telecommunication Company Limited and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 SCMR 1526 and Ikram Bari and 524 others v. National Bank of Pakistan and another 2005 SCMR 100 ref.

(b) Punjab Land Records Authority Act (VI of 2017)---

----S.31(f)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Transfer of posts---Petitioners sought enforcement of their terms and conditions of service while serving in Board of Revenue in terms of S.31(f) of Punjab Land Records Authority Act, 2017---Plea raised by authorities was that petition was not maintainable---Validity---High Court could enforce statutory provision---Petition was maintainable in circumstances.

(c) Civil service---

----Terms and conditions of appointment---Scope---Terms and conditions of appointment against particular posts in government departments are determined on the basis of public advertisement pursuant whereto the recruitment process was to be undertaken.

LESCO v. Muhammad Shoaib 2020 PLC (C.S.) 654; Syed Faisal Ali v. Federation of Pakistan 2019 PLC (C.S.) 751; Muhammad Wasif Khan v. I.G. Police 2018 PLC (C.S.) Note 181 and Usman Ashraf v. Inspector General of Police 2017 PLC (C.S.) 232 rel.

Mian Bilal Bashir for Petitioner (in this petition).

Mushtaq Ahmad Mohal and Rana Iqbal Hussain for Petitioner (in Crl. Org. No.35362-W of 2019).

Rana Shamshad Khan, Additional Advocate General with Ehsan Bhutta, Secretary I&C; Ishfaq Ahmad Chaudhry, Secretary Revenue, BOR; Muhammad Zafar Haider, Deputy Secretary (Revenue), BOR; M. Zulfiqar Ali Director Legal, BOR and Sajjad Ahmad Khan, Addl. D.G., PLRA.

Mughees Aslam Malik and Muzaffar Islam for Respondents Nos.3 and 4 (Punjab Land Record Authority).

2022 P L C (C.S.) 604

[Lahore High Court]

Before Ch. Muhammad Iqbal and Shahid Waheed, JJ

MUHAMMAD MUMTAZ KHAN

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 2 others

I.C.A. No.68715 in Writ Petition No.39917 of 2020, decided on 24th December, 2020.

(a) Civil service---

----Contractual employment, termination of---Maintainability---Scope---Appellant was appointed as a driver but his driving licence was found to be bogus, thus he was terminated from service---Single Judge of High Court dismissed the constitutional petition---Validity---Competent authority in exercise of Cl. 9 of the offer of appointment letter had terminated the services of the appellant---Termination letter did not suffer from any infirmity---Appellant being contractual employee could not file writ petition to seek redress in respect of grievance relating to terms and conditions of his services---Appointment of appellant as driver was contractual in nature and there was no statutory obligation as between him and the respondents---Intra-Court Appeal was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Contractual employment---Maintainability---Scope---Contractual employee cannot file writ petition to seek redressal in respect of grievance relating to terms and conditions of his service---Constitutional petition may be granted in a case where there is statutory duty imposed upon the officer concerned and there is failure on the part of that officer to discharge that statutory obligation---Principal function of the Constitutional petition is to compel performance of public duty prescribed by the statute and to keep the subordinate officer exercising public function within the limits of his jurisdiction.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Contractual obligation---Scope---Any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant, cannot be enforced by the machinery Art. 199 of the Constitution.

Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others 2011 PLC (C.S) 623 and Muzaffar Khan and others v. Government of Pakistan and others 2013 SCMR 304 ref.

2022 P L C (C.S.) 642

[Lahore High Court]

Before Rasaal Hasan Syed, J

SENIOR AIR HOSTESS SAMINA SALEEM QURESHI

Versus

PAKISTAN INTERNATIONAL AIRLINES through Chief Executive Officer and 2 others

Civil Revision No.76153 of 2021, decided on 23rd December, 2021.

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

----S.42---Termination/dismissal from service for furnishing fake/bogus bachelor degree---Statutory corporation having no statutory rules---Master and servant, relationship of---Suit for declaration---Maintainability---Petitioner's suit was rejected by the Civil Judge on ground of being barred by law observing that remedy available to her was a suit for damages---Appeal was also dismissed by District Judge----Petitioner contended that there was no need to file Bachelor Degree and the required qualification for appointment was only Intermediate; that she filed Intermediate Certificate which was not found to be fake; and that she could not be dismissed on account of irrelevant document---Validity---Petitioner's reply to show cause notice and contents of her pleadings showed that she did not claim that there was no need to file Bachelor Degree and that the same was not required qualification for appointment---Petitioner previously sought direction of High Court through constitutional petition for constitution of a fresh Review Committee to consider her Bachelor Degree and High Court had dismissed the said petition in limine declaring the same to be unmaintainable because of her suit pending before Civil Court, but no comment was sought/required to be made as to maintainability of suit for declaration---Remedy did not lie in seeking declaration/injunction rather the petitioner would be entitled to seek damages which could be granted if she proved that the termination/removal was not genuine or bona fide or amounted to unfair treatment---Case of illegal termination of service of employees of the corporation would be regulated by rule of master and servant---Revision petition was dismissed accordingly.

Pakistan International Airlines Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545; Abdul Wahab and others v. Habib Bank Limited and others 2013 SCMR 1383 and Pakistan Refugee and Rehabilitation Finance Corporation, Lahore and another v. Syed Karamat Hussain PLD 1966 (W.P.) Lah. 442 ref.

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

----S. 42---No statutory rules---Master and servant, relationship of---Suit for declaration or suit for damages---Remedy---In absence of any statutory rules the employee cannot claim the rights and privileges as are available to civil servants---Instead the rule of master and servant would attract which is to the effect that unwilling employer cannot be compelled to accept the services of an employee who had been removed from service and if the employee feels that the order was not just/fair or suffered from any mala fide, the remedy will be to sue for damages and not for declaration for subsistence of service as no declaration could be issued as to the subsistence of a contract which by its own terms and conditions was terminable at the option of the employer.

Nabeel Javed Kahloon for Petitioner.

2022 P L C (C.S.) 675

[Lahore High Court]

Before Jawad Hassan, J

JAVED IQBAL KHAN

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.28503 of 2015, heard on 18th May, 2021.

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

----R.17-A---Appointment on reserved quota---Scope---Petitioner assailed rejection of his father's application filing after his retirement from service on medical grounds under R.17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, for appointment of his son as driver constable---Validity---Petitioner's father had retired on medical invalidation without receiving any injuries---Age of a candidate for the appointment to the post of driver constable on family claim basis was to be between 21 to 30 years as prescribed by the rules---Petitioner was found to be overage for the purpose of appointment---Respondents had passed the impugned order as per their rules/policy after examining all the record---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Civil service---Change in appointment criteria---Policy matter---Scope---Change in criteria for the appointment by the department is a policy matter and courts cannot interfere into the policy matters of the Department/Government, particularly when it is in the public interest---Court cannot embark upon an inquiry as to whether a particular policy is wise and acceptable or whether a better policy can be evolved---Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Constitution---Government was to decide on how and in what manner the reservations should be made and such a policy decision normally would not be open to challenge subject to its passing the test of reasonableness.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Pakistan Medical and Dental Council, Islamabad through Authorized Representative v. Maleeha Syed and 4 others PLD 2020 Lah. 16 ref.

Malik Abdullah Raza and Anas Irtiza Awan for Petitioner.

Barrister Umair Khan Niazi, Additional Advocate General along with Javed Iqbal, Inspector Investigation Branch, Mianwali for Respondents.

2022 P L C (C.S.) 691

[Lahore High Court]

Before Muhammad Ameer Bhatti, CJ

ABDUL HASEEB SHEIKH

Versus

The GOVERNMENT OF THE PUNJAB through Chief Secretary and 2 others

Writ Petition No.232186 of 2018, decided on 29th November, 2021.

Punjab Government Servants Housing Foundation Rules, 2013---

----R.6---Termination of membership of Foundation---Scope---Petitioner while keeping in view an order of his compulsory retirement approached the Punjab Government Servants Housing Foundation, where he had already got its membership for allotment of a house, through an application supported by an affidavit for withdrawal of the subscribed amount---Meanwhile, order of compulsory retirement was set aside and he was imposed upon a penalty of censure---Petitioner approached the Punjab Government Servants Housing Foundation for restoration of his membership, which was declined---Respondents had placed reliance on R.6(5) of the Punjab Government Servants Housing Foundation Rules, 2013---Validity---Had the petitioner either by mentioning about pendency of appeal against his punishment claimed return of amount due to his defective membership or not opted to withdraw the amount deposited for retaining the membership, the position would have been different---Issuance of direction would amount to permitting the authority to exceed confines of its authority in clear violation of the intention of legislature---No illegality was found in the impugned letter/order passed by the respondents---Constitutional petition was dismissed.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 and Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore PLD 2020 SC 324 rel.

Abdul Haseeb Sheikh for Petitioner.

Syed Mumtaz Hussain Bukhari, Legal Advisor for PGSHF / Respondents.

2022 P L C (C.S.) 736

[Lahore High Court (Bahawalpur Bench)]

Before Jawad Hassan, J

MUHAMMAD AZHAR KHAN

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.53 of 2021/BWP, decided on 6th January, 2021.

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

----Ss.2(c), 4 & 11---Constitution of Pakistan, Art.199---Constitutional petition---Harassment complainant---Recommendation of Ombudsperson---Petitioner was aggrieved of his transfer on the basis of letter issued by Ombudsperson written as a consequence of complainant filed by respondent---Validity---Ombudsperson while writing letter in question exercised powers under S.4 read with Ss.2(c) & 11 of Protection against Harassment of Women at the Workplace Act, 2010---Schedule and Ss.2(c) & 11 of Protection against Harassment of Women at the Workplace Act, 2010 provided Code of Conduct for protection against harassment of women at workplace---Ombudsperson in the letter relied on part-c of the Code 'Retaliation' by petitioner---Code was made under S.11 of Protection against Harassment of Women at the Workplace Act, 2010, which cast responsibility on employer to ensure implementation of Protection against Harassment of Women at the Workplace Act, 2010, and incorporate Code against harassment at workplace as part of their management policy---High Court declined to interfere in the notification of transfer of petitioner issued by authorities---Constitutional petition was dismissed in circumstances.

Asif Saleem v. Chairman Bog University of Lahore and others PLD 2019 Lah. 407; Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others 2011 SCMR 265; Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Zahid Akhtar v. Government of Punjab through Secretary Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 and I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division Islamabad and others 1991 SCMR 1041 ref.

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

Sardar M. Akram Khan Balouch and Raja Muhammad Sohail Iftikhar, Advocates Supreme Court for Petitioner.

2022 P L C (C.S.) 740

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD ARSHAD

Versus

PROJECT DIRECTOR PSIC and others

Writ Petition No.35942 of 2019, heard on 23rd June, 2021.

(a) Civil service---

----Pensionary benefits---Terms of service---Estoppel---Scope---Petitioner's case was that he was entitled to the grant of pensionary benefits as he had rendered thirty three years long standing service as confirmed employee, whereas stance of authorities was that the petitioner was not eligible for grant of pensionary benefits as his appointment was made against working capital---Validity---Petitioner after accepting the terms and conditions of his confirmed employment had submitted his joining report and was well aware about the fact that he was being appointed against a working capital and his salary and other benefits including pensionary benefits would be drawn out of the working capital---Petitioner's acknowledgement of his confirmation letter explicitly revealed that the same was accepted without any protest or objection, meaning thereby that the petitioner had accepted his confirmation in service with his free will and consent and had also received emoluments there-against, as such nothing was left to be claimed by him qua his pensionary benefits---Petitioner's case was hit by principle of estoppel---No element of mala fide on the part of department was shown by the petitioner towards refusing of pensionary benefits---Constitutional petition was dismissed.

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

----Art.114---Estoppel---Scope---Doctrine of estoppel means a disability where a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to such disability.

Secretary Economic Affairs Division, Islamabad and others v. Anwar ul Haq Ahmad and others 2013 SCMR 1687 rel.

Sh. Muhammad Umar Siddiq for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate General for Respondents.

2022 P L C (C.S.) 759

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD RAMZAN and others

Versus

CHIEF EXECUTIVE OFFICER and others

Writ Petition No.193776 of 2018, heard on 10th September, 2021.

Civil service---

----Appointment---Delay in issuance of appointment letters---Scope---Petitioners' only grievance was that they were selected on merit and their names were also reflected in the final merit list but appointment letters were not issued in their favour despite lapse of considerable period of time---Contention of respondents was that statutory period of 190 days had lapsed as such the petitioners were not entitled for the appointment---Validity---Once recruitment process was commenced then it had to be completed by the appointing authority within the statutory period---If the recruitment process was stopped due to transfer of the then CEO, as alleged, even then it was the duty of the Authority to give the charge to some other officer to perform functions in a smooth manner but nothing was brought on record by the authorities in that regard---Writ petition was allowed and the authorities were directed to issue appointment letters to the petitioners.

Malik Allah Baksh Shakeel for Petitioners.

Barriter Umair Niazi, Additional Advocate General and Muhammad Naeem Akhtar, Law Officer for Respondent No.1.

2022 P L C (C.S.) 783

[Lahore High Court]

Before Abid Aziz Sheikh, J

Dr. MUHAMMAD AZEEM KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and another

Writ Petition Nos. 26387, 27255 and 30330 of 2021, heard on 21st December, 2021.

(a) Civil Servants Promotion (BPS-18 to BPS-21), Rules, 2019---

----Rr. 8 & 10(5)---Constitution of Pakistan, Arts. 199 & 112---Promotion---Constitutional petition---Maintainability---Fitness for promotion, determination of---Exclusive jurisdiction of Authorities---Exception---Officers of Police Service including Petitioners were considered for promotion from BPS-20 to BPS-21---Central Selection Board (CSB) recommended "supersession" of petitioners in a meeting and did not promote them---Petitioners contended that after supersession instead of waiting for full one year, another CSB meeting was held in which petitioners were again superseded through impugned orders; that in CSB meeting only one year PER was considered whereas other PERs in which petitioners were found to be excellent" were not considered; that no adverse material was there in PER, but the same was found from somewhere by CSB; that High Court had concurrent jurisdiction in the matter; that petitioners challenged the impugned orders being against Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019, hence constitutional petition was maintainable---Held, that meeting of CSB took place and impugned order/letter communicated in Federal Capital Territory, but the Federal Government was functioning all over the country, and petitioners being residents of the province could agitate their grievance within the territorial jurisdiction of High Court of said province in which the impugned orders had affected them---High Court had concurrent jurisdiction of adjudicating the matter---Matters being for determination of fitness of civil servants for promotion, Service Tribunal had no jurisdiction in the matter and bar of Art.112 of the Constitution was not applicable---Under R. 10(5) of the Rules, 2019 civil servant once superseded for promotion under R. 8 of the Rules, 2019, would be eligible for reconsideration only after earning one more PER of full year---Once the petitioners were superseded by CSB in its meeting under R.8(a), their cases could only be reconsidered for promotion after they earn one more PER of full one year as required under R.10(5) of the Rules, 2019---Argument made by Law Officer that in decision of CSB , PERs of 2018 were considered, whereas in CSB meeting the PERs of 2019 were considered---Such an argument had no legs to stand in view of said R.10(5)---Question of fitness/ suitability for promotion had always been considered to be exclusively within the jurisdiction of the competent authority not shared by Courts/ Tribunals, exercising supervisory jurisdiction in respect of eligibility/ qualification---However, said principle was not attracted to cases where question was not substitution of an opinion of the competent authority but the vires of orders passed by CSB and competent authority were in question being against R.10(5) of the Rules, 2019---All the instant Constitutional petitions were allowed and respondents/authorities were directed to reconsider cases of petitioner for promotion.

Muhammad Iqbal and others v. Executive District Officers (Revenue), Lodhran and another 2007 SCMR 682 rel.

Sikandar Hayat Maken v. Federation of Pakistan, (W.P. No. 8 of 2020 passed by Islamabad High Court dated 06.08.2020 distinguished.

(b) Constitution of Pakistan---

----Arts. 198 &199---Territorial jurisdiction of High Court---If an authority was established under federal law and performing functions in connection with affairs of Federation, then regardless of where the authority was situated, if it passed any order/undertook any proceedings in relation to any person living/posted in any of the provinces, the High Court of that province in whose territory, the order would effect that person, would be competent to exercise jurisdiction in the matter.

LPG Association of Pakistan through its Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources Islamabad and 8 others 2009 CLD 1498; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Messrs AL-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 and Messrs Jet Greet (Pvt.) Limited v. Federation of Pakistan and others PLD 2021 Lah. 770 rel.

(c) Civil Servants Promotion (BPS-18 to BPS-21) Rules (2019)---

----R. 10(5)---Mere fact that Central Selection Board (CSB) in its two different meetings considered two different years' PERs, would not absolve it from following the mandatory requirement of R.10(5) of Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019---Obvious purpose of said R.10(5) was to give sufficient opportunity/time to the superseded officer to improve and bring to an end the reason on basis of which the deferment took place---Such time must commence from the date of supersession decision by CSB, so that he/she could know the reasons for supersession and might improve in one year if possible for his/her promotion innext meeting of CSB.

Muhammad Ahsan Bhoon, Shah Khawar, Barrister Haris Azmat, Naveed Ahmad Khawaja, Barrister Hamid Azim Leghari, Muhammad Qasim Tarar, Rafae Naguib Saigal and Barrister Maryam Hayat for Petitioners.

Malik Khalid Shafique, A.A.G.-Pk. along with Ali Raza, Section Officer, Establishment Division for Respondents.

2022 P L C (C.S.) 825

[Lahore High Court]

Before Shujaat Ali Khan, J

Syed HAMMAD RAZA

Versus

SPECIAL SECRETARY GOVERNMENT OF THE PUNJAB and 6 others

Writ Petition No.60128 of 2021, heard on 11th January, 2022.

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

----S.17---Constitution of Pakistan, Arts. 25 & 199---Disciplinary proceedings---Discrimination---Petitioner was serving as Inspector Market Committee who was compulsorily retired from service during departmental proceedings but lesser punishment was imposed upon Secretary Market Committee---Validity---If Administrator Market Committee had passed an illegal order without taking Secretary Market Committee into confidence, or without his guidance even after deposit of outstanding dues and issuance of receipts, the Secretary Market Committee could bring the matter into notice of Administrator for taking further steps in line with law on the subject but shyness on his part had spoken volumes about his dubious conduct towards performance of his duties---Present was a case of clear discrimination as no distinguishing feature for imposition of harsher penalty against petitioner as compared to Secretary Market Committee was mentioned---Such act of departmental authorities was violative of Art. 25 of the Constitution---High Court maintained the conviction but reduced the punishment into one imposed to the Secretary Market Committee--- Constitutional petition was dismissed accordingly.

Directorate General Emergency Rescue Service 1122 Khyber Pakhtunkhwa, Peshawar v. Nizakat Ullah 2019 SCMR 640; I.-G. (Prisons) N.-W.F.P. Peshawar and others v. Muhammad Israil, Assistant Superintendent Jail, Haripur 2006 SCMR 1948; Mazhar Ilyas Nagi and others v. Governor, State Bank of Pakistan and others 2018 PLC (C.S.) 99; Provincial Selection Board, Government of Khyber Pakhtunkhwa through Chairman/Chief Secretary, Khyber Pakhtunkhwa v. Hidayat Ullah Khan Gandapur 2021 SCMR 1904 and Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore v. Khadim Hussain 1999 SCMR 1639 ref.

Secretary Government of the Punjab v. Khalid Hussain Hamdani 2013 SCMR 817 and Mehar Muhammad Nawaz v. Managing Director, Small Business Finance Corporation and 2 others 2009 SCMR 187 rel.

Zohaib Imran Sheikh for Petitioner.

Rana Shamshad Khan, Additional Advocate General with Irshad Ali, Litigation Officer, Agriculture Department for Respondents.

Adnan Afzal for Respondents Nos.4 and 5.

2022 P L C (C.S.) 852

[Lahore High Court (Multan Bench)]

Before Jawad Hassan and Muzamil Akhtar Shabir, JJ

MUHAMMAD IRSHAD

Versus

GOVERNMENT OF PUNJAB through Secretary Irrigation and Power Department and 2 others

I.C.A. No.160 of 2021 in W.P. No.14247 of 2020, decided on 6th April, 2021.

(a) Civil service---

----Retirement---Authority of department to modify retirement order---Scope---Appellant sought modification of his retirement order issued on the basis of superannuation to order for retirement on medical invalidation basis---Contention of appellant was that he was declared as medically invalid prior to his date of superannuation, therefore, instead of issuing retirement order on the basis of superannuation the same should have been issued on medical grounds---Validity---For retirement of the appellant on medical ground basis, an order to that effect by the competent authority was required to be passed by application of mind to the facts and circumstances of the case, which order had not been passed till the date of superannuation as the report of Medical Superintendent to provide information of countersigning/confirming it by Director General Health Services was awaited and the same was received after the appellant had already stood retired on superannuation---By such time, the competent authority had also become functus officio---Retirement order with retrospective effect could not have been passed on the basis of medical invalidation when the appellant had earlier stood retired on the basis of superannuation---No ground to interfere in the order passed by Single Judge of High Court was made out---Intra Court Appeal was dismissed.

Muhammad Yousaf Butt v. Central Board of Revenue and another 2004 SCMR 1654 and Pakistan International Airlines Corporation v. Aziz ur Rehman Chaudhary and another 2016 SCMR 14 ref.

(b) Civil service---

----Retirement---Authority of department to modify retirement order---Scope---Once an order of retirement from service of officer was issued, the same cannot be re-opened in ordinary circumstances being past and closed transaction to which finality is attached.

Muhammad Yousaf Butt v. Central Board of Revenue and another 2004 SCMR 1654 ref.

2022 P L C (C.S.) 873

[Lahore High Court]

Before Anwaar Hussain, J

MUHAMMAD NAWAZ

Versus

DIRECTOR GENERAL RESCUE 1122 and another

Writ Petition No.5614 of 2017, heard on 31st May, 2021.

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

----R. 18(2)(ii) ---Recruitment policy---Eligibility of candidate in terms of his age---Cut-off date, determination of---Petitioner was over-aged by five days on closing date for submission of application---Contention of the petitioner was that he was well within prescribed upper-age limit as he submitted his application eleven days prior to the closing date, which date be considered vis-à-vis cut-off date---Validity---When cut-off date was fixed by the Department for fulfilling the prescribed qualification relating to age by a candidate for appointment effect of any non-prescription was that the candidate was not entitled to be considered for appointment in terms of R.18(2)(ii) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Petitioner did not fit in the eligibility criteria mentioned, as he on the said cut-off date was overaged by five days as per criteria laid down for the post-in-question, therefore, he was rightly not called for the interview---Constitutional petition was dismissed, in circumstances.

Fayyaz Ali v. Province of Sindh through Chief Secretary and others 2015 PLC (C.S.) 1014 ref.

Shazia Munawar v. Punjab Public Service Commission through Secretary PLD 2010 Lah. 160 distinguished.

(b) Civil service---

----Recruitment policy---Cut-off date, determination of---General principles---Cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment was the date fixed by the relevant service rules---If there was no cut-off date fixed by the rules, then such date shall be as mentioned in the advertisement calling for applications---If there was no such date fixed then the eligibility criteria shall be applied by reference to the closing date by which the applications were to be received by Authority.

Ashok Kumar Sharma and others v. Chander Shekar and another (1997) 4 SCC 18; Bhupinderpal Singh and others v. State of Punjab and others (2000) 5 SCC 262 and Jasbir Rani and others v. State of Punjab and another (2002) 1 SCC 124 ref.

Kh. Waseem Abbas for Petitioner.

Asif Afzal Bhatti, Additional Advocate General.

Sohail Tufail, Law Officer on behalf of Respondent No.1.

2022 P L C (C.S.) 894

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Dr. MAHA FATIMA TARIQ

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Lahore and 3 others

Writ Petition No.68978 of 2021, heard on 22nd December, 2021.

(a) Constitution of Pakistan---

----Arts.9, 18, 25 & 27---Security of person---Freedom of trade, business or profession---Equality of citizens---Safeguard against discrimination in services---Appointment to advertised post---Legitimate expectation---Scope---Petitioner was selected for recruitment against the post of Medical Officer being eligible candidate by the District Recruitment Committee and her name reflected in the original merit list prepared by it but she was not appointed---Validity---Undisputed merit list had created a vested right in favour of petitioner, which was required to be given due weight and regard as she had developed legitimate expectation to be considered for appointment---No valid reason and implicit justification was rendered for denying appointment to the petitioner---Impugned action was against fundamental rights of petitioner guaranteed under Arts. 9, 18, 25 & 27 of the Constitution---Constitutional petition was allowed and the respondents were directed to issue appointment letter in favour of the petitioner.

Muhammad Imran v. Punjab Public Service Commission Lahore through Secretary and 3 others 2016 PLC (C.S.) 363; Muhammad Javeid and others v. Azad Jammu and Kashmir Government through Chief Secretary and others 2016 PLC (C.S.) 1130; Munawar Hassan v. Chief Secretary, Government of Balochistan and 3 others 2017 PLC (C.S.) 81 and Fatima v. Federation of Pakistan through Secretary Ministry of Commerce, Islamabad and 2 others 2018 PLC (C.S.) 292 ref.

(b) Civil service---

----Appointment---Scope---Appointment in public sector is a trust in the hands of public functionaries and it is their moral duty to discharge their trust with zeal, efficiency and fairness as per law. [p. 898] C

(c) Public functionaries---

----Discretionary jurisdiction, exercise of---Scope---Discretion vested with the public authorities should be exercised with reasonableness.

Khawaja Tariq Sohail for Petitioner.

Barrister Ameer Abbas Ali Khan, A.A.G. along with Hamid Shahzad, Law Officer, Primary and Secondary Healthcare Department for Respondents.

2022 P L C (C.S.) 956

[Lahore High Court (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

SHAHID MAHMOOD

Versus

ISLAMIA UNIVERSITY BAHAWALPUR and others

Writ Petition No.3972 of 2021, heard on 4th September, 2021.

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

----S.33---Constitution of Pakistan, Art.199---Constitutional petition---Quo warranto, writ of---Appointment of Registrar---Scope---Petitioner assailed appointment of respondent as Registrar of the University on the ground that he was appointed without advertising the post---Validity---Syndicate was fully authorized under S. 33 of the Islamia University Bahawalpur Act, 1975, to make rules to regulate any matter relating to the affairs of the University---Rules for appointment to the posts of Registrar, Treasurer and Controller of Examinations were approved and all the terms and conditions were settled by the Syndicate in its meetings on the basis whereof respondent was appointed---University had produced advertisements for the post of Registrar, previously advertised by them, which showed that there was no malice on their part to appoint the respondent as Registrar---As the University had to run all its administrative affairs through the Registrar and in case as a result of advertisement if no one qualified for that post, the Syndicate had no option but make Rules and appoint somebody on the said post in order to run the affairs of the University---No illegality was found in the appointment of respondent as Registrar of the University---Constitutional petition was dismissed.

Munawar Khan v. Niaz Muhammad and others 1993 SCMR 1287 = 1993 PLC (C.S.) 797 distinguished.

Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977 rel.

Jamshaid Akhtar Khokhar for Petitioner.

A.R. Aurangzeb for Respondents.

2022 P L C (C.S.) 999

[Lahore High Court (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

Hafiz MUHAMMAD KALEEM UD DIN

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.3963 of 2021, decided on 13th September, 2021.

(a) Civil service---

----Constitutional petition---Pro forma promotion---Maintainability---Scope---Petitioner, a retired civil servant, sought direction to the department to promote him from his due date---Promotion of petitioner was deferred due to pendency of an inquiry against him and incomplete service record---Stance of petitioner was that the FIR lodged against him had been cancelled; that he had also provided the complete service record but still he was not promoted and that even junior officers were promoted---Validity---Retired employee had no other option but to knock the door of the Court under Arts. 199 & 204 of the Constitution---Undeniably, the petitioner was entitled to be considered for promotion to the next higher grade, however, due to pendency of inquiry petitioner was not considered for pro forma promotion---Mere pendency of inquiry was no ground to deprive the petitioner from his lawful right---Department had no right to withhold such right of petitioner---Writ petition was accepted and the department was directed to promote the petitioner from his due date.

Chief Secretary Government of the Punjab and others v. Muhammad Arshad Khan Niazi 2007 SCMR 1355; Shama Khan Zafar v. District Coordination Officer, Lodhran and others 2014 PLC (C.S.) 948 and Muhammad Amin v. Managing Director House Building Finance Corporation and 2 others 2016 PLC (C.S.) 569 ref.

Muhammad Akbar Khan Durrani v. Federation of Pakistan through Secretary Water and Power Government of Pakistan and 5 others 2017 PLC (C.S.) Note 31; Arshad Ali v. WAPDA and others 2020 PLC (C.S.) 1226 and Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126 rel.

(b) Civil service---

----Promotion---Pro forma promotion---Post retirement promotion---Scope---Right of promotion of a civil servant cannot be withheld merely on the ground of allegation---Even after retirement, he can agitate his right of pro forma promotion which was available to him during his service time.

Arshad Ali v. WAPDA and others 2020 PLC (C.S.) 1226 and Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126 rel.

Muhammad Naveed Farhan for Petitioner.

Sheharyar Ahsan Mehboob Assistant Advocate General, Punjab for Respondents.

2022 P L C (C.S.) 1021

[Lahore High Court]

Before Shahid Bilal Hassan and Masud Abid Naqvi, JJ

ASMA PARVEEN

Versus

The SECRETARY SCHOOL EDUCATION, CIVIL SECRETARIAT LAHORE and 4 others

I.C.A. No.4266 of 2022, in Writ Petition No.30309 of 2019 heard on 25th January, 2022.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Alternate and efficacious remedy---Contract employment---Master and servant relationship---Remedy of damages---Appellant was a contract employee and she was aggrieved of termination of her service due to poor performance---Single Judge of High Court, in exercise of Constitutional jurisdiction declined to restore appellant in service---Validity---Employment of appellant was contractual in nature and as a contractual employee, appellant had no automatic right to continue her job unless same was specifically provided in law---As a contractual employee, relationship between appellant and respondent/Government of Punjab was governed by principle of master and servant---Appellant was to serve till the satisfaction of her master---Contract employee was debarred from approaching High Court in its Constitutional jurisdiction for re-instatement or extension of contract---Only remedy available to contract employee was to file suit for damages alleging any breach of contract or failure to extend contract---Courts could not force employer to reinstate or extend contract of employee, even in case of any wrongful termination---When there was availability of alternate efficacious remedy/claim of damages/compensation, if any, to appellant/a litigant under law, constitutional jurisdiction of High Court was barred---Appellant failed to substantiate her case by giving valid grounds for setting aside termination order---Intra Court Appeal was dismissed, in circumstances.

Abdur Rashid v. Pakistan and others 1969 SCMR 141; Nawab Syed Raunaq Ali and others v. Chief Syed Settlement Commissioner and others PLD 1973 SC 236; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCMR 1462; Thakur Dan Singh Bist, and others v. Registrar of Companies AIR 1960 All. 160; Daulat Singh and others v. The Deputy Commissioner, Karnal and others AIR 1972 Punjab and Haryana 28 and Corporation of Calcutta v. Narayan Chandra Das AIR 1957 Cal. 447 ref.

Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573; Government of Khyber Pakhtunkhwa Workers Welfare Board through Chairman v. Raheel Ali Gohar and others 2021 PLC (C.S.) 125; Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 SCMR 1625; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 rel.

Riaz Ahmad Tahir for Appellant.

2022 P L C (C.S.) 1156

[Lahore High Court (Multan Bench)]

Before Abid Hussain Chattha, J

MUHAMMAD FAHEEM ZAFAR

Versus

GOVERNMENT OF THE PUNJAB through Accountant General, Punjab and 3 others

Writ Petitions Nos.17603 and 17602 of 2021, heard on 18th January, 2022.

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

----S.12---Punjab Revised Leave Rules (1981), R. 18---Voluntary retirement---Pension­---Right to leave preparatory to retirement ("LPR"), availing of---Petitioner/civil servant applied for voluntary retirement and was ultimately retired vide retirement order after the expiry of leave preparatory to retirement ("LPR")---Petitioner applied for pension but his case was returned by Authority on the ground that his age was less than 50 years at the time of retirement as per requirement under S. 12 of the Civil Servants Act, 1973---Petitioner contended that the Amended S.12 of the Act, 1974 could not apply to his case retrospectively as his retirement order was issued prior to the date of commencement of the Amended S.12 of the Act; that the retirement order lawfully passed by the competent authority could not be recalled; that date of retirement was to be reckoned from the date of retirement order and that withholding of pension was against the fundamental right of the Petitioner---Held, that amended S.12 of the Act shall apply prospectively and shall not affect the retirement orders lawfully passed by a competent authority before the date of its commencement---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 Act and further regulated by the Rules of 1963---Leave Preparatory to Retirement (LPR) could be recalled in terms of R.18 of the Rules, 1981, by the designated official therein but power so conferred was limited to the period of LPR---Said Rule it could not be applied to revoke the retirement order itself---Date of retirement order was actually the date of retirement as the right to retire/receive pension would mature on the said date---It was merely the initiation of pension which was given effect from the last date of LPR---Principle of locus poenitentiae was fully attracted in the petitioner's case as accrued right vested with the petitioner on 19/08/2020, i.e. the date of his retirement order, which was lawfully passed on the said date by the competent authority in accordance with prevailing law---Petitioner exercised his right in accordance with the applicable law at the relevant time by following the prescribed procedure and was duly granted retirement along with the benefit of availing of LPR as depicted from the retirement order, hence, he effectively retired on the date of retirement order which preceded the date of Amended S.12 of the Act---Future date regarding initiation of pension after availing of LPR which was subsequent to the date of commencement of Amended S.12 of the Act was, therefore, irrelevant for the application of the provisions of Amended S.12 of the Act as the right to retire/receive pension matured on the date of retirement which preceded the Amended S.12 of the Act---Constitutional petition was accepted accordingly.

Shaukat Ali Khan v. Federation of Pakistan through Secretary and 5 others 2019 PLC (C.S.) 1527; Fazal Haq Shah v. Deputy Commissioner, Lahore and others 1980 PLC (C.S.) 637; Secretary, Government of Punjab, Food and Co-operation Department v. Shamoon Bahadur PLD 1979 SC 83; Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others v. Nusrat Tahir and others 2018 PLC (C.S.) 669 and Muhammad Saeed and others v. Secretary Finance and others 2019 PLC (C.S.) 893 rel.

(b) Interpretation of statutes---

----Inconsistency of legal provisions---Preference of statutory provision on sub-ordinate legislation---Principle---Provisions of the statute preempt the rules in the event of inconsistency between the two.

(c) Interpretation of statutes---

----Prospective effect of statute---Statute/statutory provision would not apply retrospectively unless it was expressly stipulated in the statute itself.

Manzoor Ali and 39 others v. United Bank Limited through President 2005 SCMR 1785 rel.

(d) Interpretation of statutes---

----Statutory amendments changing the law---Application, commencement of---Statute changing the law ought not to apply, unless the intention appears with reasonable certainty to be understood as applied to facts, to events that have already occurred in such a way as to confer/impose or otherwise affect rights/liabilities which the law had defined with references to past events.

(e) Interpretation of statutes---

----Notification of Finance Department---Interpretation of law is purely and exclusively a judicial function under the scheme of trichotomy of power enshrined in the Constitution and jurisprudentially entrenched in the legal system through consistent and exhaustive pronouncements of the Supreme Court in this regard that need not be reiterated for the sake of brevity.

The Province of Punjab through Secretary Finance Department, Government of the Punjab, Lahore and others v. Kanwal Rashid and others 2021 SCMR 730 rel.

(f) Interpretation of statutes---

---Notification of Government Department---Prospective nature of---Administrative instructions/notifications which did not even fall in the category of delegated legislation could not be allowed to apply retrospectively or in derogation of law to take away vested and accrued rights/benefits.

(g) Civil service---

----Retirement date, intimation of---Neither the competent authority nor the civil servant has any right/power to withdraw/modify the date of retirement after the issuance of final lawful order of retirement by the competent authority.

I.G. Punjab and others v. Iqbal Mehmood 2012 SCMR 745 rel.

(h) Civil service---

----Leave preparatory to retirement ("LPR")---Scope---LPR was nothing but a kind of service benefit which was provided either in the form of leave or cash in lieu of leave if leave was not possible---Start of pension would be postponed to a future date in order to allow the civil servant to reap the earned service benefit by availing the LPR.

(i) Locus poenitentiae, doctrine of---

----Scope---Locus poenitentiae was a power of receding till a decisive step is taken---Doctrine was not a principle of law that an order once passed was irrevocable or was categorized as a past/closed transaction---Rather, if the order was illegal then perpetual rights could not be gained on the basis of an illegal order----Authority who was empowered to pass an order and take an action was also empowered to set aside, modify and vary such order or action subject to an exception, that was, if by such an order an action had been acted upon, thereby, creating a right in favour of the beneficiary of that order and in such event, such an order/action could not be set aside/modified so as to deprive the person of the said right to his disadvantage.

Shakeel Ahmad Zaidi and others v. Secretary, Higher Education, Government of Punjab, Lahore and others 2021 PLC (C.S.) 560 and Syed Farooq Ahmad Shah v. Government of the Punjab through Home Secretary Punjab, Lahore and others 2020 PLC (C.S.) 1378 rel.

(j) Civil service---

----Right to retire/pension, protection of---Locus poenitentiae, doctrine of---Scope---Accrued vested right to retire and receive pension was fully protected under the doctrine of locus poenitentiae.

Tariq Mahmood Dogar for Petitioner.

Khush Bakht Khan, Asstt. Advocate General, Punjab along with Muhammad Kamran Ashraf, Assistant Accountant Officer, Lodhran for the State.

2022 P L C (C.S.) 1209

[Lahore High Court (Multan Bench)]

Before Abid Aziz Sheikh and Anwaar Hussain, JJ

Dr. SHAMIM AKHTAR

Versus

PRINCIPAL SECRETARY TO CHIEF MINISTER PUNJAB, LAHORE/CONTROLLING AUTHORITY and 8 others

I.C.A. No.145 of 2021 in Writ Petition No.4167 of 2021, heard on 28th June, 2021.

(a) Constitution of Pakistan---

----Arts. 212 & 199---Constitutional petition---Maintainability---Deputation---Scope---Order in respect of a deputationist during the period of his deputation, which may be amenable to constitutional jurisdiction of High Court where bar under Art. 212 is not attracted can be one which is passed by the borrowing agency qua the terms of the deputationist while serving in the borrowing agency and not the order of repatriation, which is prerogative of the parent department/government to pass at any point of time.

(b) Civil service---

----Deputation---Scope---No deputationist, by any stretch of imagination and in absence of any specific provision of law, can ask to serve the total period of deputation in the borrowing agency---Such civil servant can be repatriated by the Competent Authority in the interest of exigency of service as and when so desired and such order of the Competent Authority cannot be questioned.

Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and others 2010 SCMR 378 rel.

(c) Civil service---

----Deputation---Period of deputation---Scope---Period of deputation can at the best be equated to that of an expression of maximum period which can be curtailed or extended by the Competent Authority and no legal or vested rights whatsoever are available to a deputationist qua tenure of deputation.

S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 and Prof. M. Ashraf Khan Niazi v. Chairman, Board of Governors, Allama Iqbal Medical College/Jinnah Hospital, Lahore and 2 others 2003 PLC (C.S.) 243 ref.

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

----S.9---Postings and transfers---Scope---Every civil servant is bound to serve anywhere within or outside the Province in any post under the Government of Punjab, Federal Government, any other Provincial government or local authority or corporation or any other body set up or established by such Government, which is evident from S. 9 of the Punjab Civil Servants Act, 1974.

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

---S. 2(1)(b)---Civil service---Deputation---Scope---Exclusion clause attached to definition provided in S.2(1)(b) of Punjab Civil Servants Act, 1974, reads that civil servant shall not include a person who is working on deputation to the Province from the Federation or any other Province or authority---Conditions laid down in the said exclusion clause are that a person working on deputation in the Province shall not be a civil servant if sent to work on the said post from such Province to the Federation, any other Province or authority.

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

----S.14---Officers of the Board---Scope---Section 14(2) of Punjab Boards of Intermediate and Secondary Education Act, 1976, has two parts---First part relates to the fact that the officers of the Board are entitled to hold the office at the pleasure of the Controlling Agency, which means that there is no vested right to continue for the entire period of deputation---In the second part, it is contemplated that in case there is any dissatisfaction qua performance of the officer of the Board, show cause notice is to be issued to such officer before an adverse order is taken against him.

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

----S.14---Officers of the Board---Deputationist---Scope---Bare reading of S.14(3) of the Punjab Boards of Intermediate and Secondary Education Act, 1976, indicates that when a civil servant is appointed on deputation as an officer of the Board by virtue of being a civil servant, he ceases to be the officer of the Board if he retires from the civil service---Right to continue for the period of deputation is irrelevant and the moment he retires from service, his appointment as officer of the Board also comes to an end---No distinction in Punjab Boards of Intermediate and Secondary Education Act, 1976, as to appointment by way of deputation on the basis of transfer or as a result of any competitive selection process.

Syed Riaz ul Hassan Gillani for Appellant.

Muhammad Aurangzeb Khan, A.A.G. for the Province.

Muhammad Aurangzeb Gillani and Syed Nasir Abbas Bokhari for Respondent No.9.

2022 P L C (C.S.) 1300

[Lahore High Court (Multan Bench)]

Before Raheel Kamran, J

Dr. RANA ZEESHAN

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.7096 of 2022, decided on 18th May, 2022.

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

----S.5---Initiation of proceedings---Termination from service---Withholding regular inquiry---Effect---Petitioner challenged order passed by department whereby his services were terminated on account of professional misconduct, negligence and inefficiency---Held, that impugned order carried a stigma with it, which had admittedly been passed without a regular inquiry---Impugned order was set aside for being void and having been passed without lawful authority---Competent authority could proceed against the petitioner on the basis of allegations in question after holding a regular inquiry---Constitutional petition was allowed.

(b) Civil service---

----Misconduct---Termination from service---Withholding regular inquiry---When an employee is to be terminated on the ground of misconduct, which in itself is a stigma, it is mandatory for the department to hold regular inquiry enabling the employee to defend the allegations levelled against him before an unbiased and independent forum.

Muhammad Riaz v. Medical Superintendent, Services Hospital, Lahore and 2 others 2016 PLC (C.S) 296; Farhan Mehmood v. Secretary, Government of the Punjab Healthcare Department and 3 others 2018 PLC (C.S.) 70 and Muhammad Waris v. Director General, Punjab Emergency Services Rescue 1122 (2022 PLC (C.S.) 367) ref.

Pakistan Defence Officer's Housing Authority and others v. Lt. Col. Syed Javaid Ahmed 2013 SCMR 1707; Zahoor Ahmed v. WAPDA and others 2001 SCMR 1566; Aleem Jaffar, Ex-Line Superintendent, WAPDA, Lahore v. WAPDA through its Chairman, Lahore and 2 others 1998 SCMR 1445; Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337 and The Secretary Government of the Punjab through Secretary Health Department, Lahore and others v. Riaz-ul-Haq 1997 PLC (C.S.) 873 rel.

Rana Muhammad Iqbal Noon for Petitioner.

Ahmad Nadeem Gehla, Assistant Advocate General, Punjab for Respondents.

2022 P L C (C.S.) 1351

[Lahore High Court (Rawalpindi Bench)]

Before Raheel Kamran and Mirza Viqas Rauf, JJ

HOLY FAMILY HOSPITAL and others

Versus

MUHAMMAD ADEEL and others

I.C.A. No.90 of 2019 (and connected others appeals), decided on 27th January, 2022.

(a) Punjab Medical and Health Institutions Rules, 2003---

----R.10---Contract Appointment Policy, 2004---Regularization of service---Category of employees---Scope---Respondents were employed on contract basis in medical and health institutions---Services and General Administration Department (Regulations Wing) issued notification whereby regularization of employees in BPS-1 to 15 recruited on contract basis under the provisions of Contract Appointment Policy, 2004, was ordered---Respondents approached High Court through constitutional petitions seeking direction to the appellants to regularize them---Constitutional petitions were allowed---Validity---Respondents were employees of the appellants, who were medical and health institutions the administration and management of which vested in the Board appointed by the Government in the light of Ss.5 & 6 of Punjab Medical and Health Institutions Act, 2003---Rule 10 of the Punjab Medical and Health Institutions Rules, 2003, laid down two kinds of categories of the employees i.e. (a) government employees appointed to an institution by transfer or promotion, who shall be subject to all relevant rules of the government and (b) employees in service of the institution appointed on contract---Respondents were not appointed under the Contract Appointment Policy, 2004, as such, the regularization notification was not attracted to their case---Appeals were allowed and the impugned judgment was set aside, in circumstances.

Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 SCMR 1625; Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock and Cooperative Department Peshawar and others v. Saeed-ul-Hassan and others 2021 SCMR 1376 and Province of Punjab through Secretary Agriculture Department, Lahore and others v. Muhammad Arif and others 2020 SCMR 507 ref.

Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others 2018 SCMR 1405; Pir Imran SAJID and others v. Managing Director/General Manager (Managing Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257 and Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547 distinguished.

(b) Constitution of Pakistan---

----Art.174---Suits and proceedings---Scope---Article 174 of the Constitution ordains that the Federation may sue or be sued by the name of Pakistan and a province may sue or be sued by the name of the Province.

Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another 2021 SCMR 305; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Government of Balochistan, CWPP&H Department and others 2010 SCMR 115 and Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16 ref.

(c) Constitution of Pakistan---

----Art. 199---High Court (Lahore) Rules and Orders, Vol. V, Part-J, R. 4---Constitutional jurisdiction---Pre-admission notice---Scope---By virtue of R. 4 subject to directions of the Court, notice of every application shall be served on all parties directly affected and for this purpose the applicant shall file within a week of the admitting order as many authenticated copies of the application and affidavit as there are parties to be served and the prescribed fee, provided that at the hearing of the application any person, who desires to be heard in opposition to the application and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with a notice and subject to such conditions as to costs as the Court may deem fit to impose---Respondents in writ petition should be required, when notices are issued, to file written statement, counter-affidavit, if any, and other documents on which they rely at least two days before the hearing---Rule 4 High Court (Lahore) Rules and Orders provides that in case of admission of the petition, notice(s) be issued to the parties---Issuance of pre-admission notice is alien to the Rules and Orders of the Lahore High Court.

(d) Civil service---

----Regularization of service---Scope---Employee cannot claim regularization of the service as his vested right.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Employees are precluded to invoke the constitutional jurisdiction of the High Court.

Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648 and Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 SCMR 1625 ref.

(f) Civil service---

----Creation of post---Scope---Creation of post is within the domain of Executive which authority cannot be assumed by the Court in exercise of constitutional jurisdiction.

Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock and Cooperative Department Peshawar and others v. Saeed-ul-Hassan and others 2021 SCMR 1376 rel.

(g) Constitution of Pakistan---

----Art.25---Equality of citizens---Scope---Article 25 of the Constitution though guarantees the right of equality of citizens but such right is founded on an intelligible differentia, which distinguished persons or things that were grouped together from those, who have been left out---Right of equality is always to be weighed amongst equal in all respects and it is not necessary that every citizen shall be treated alike in all eventualities.

Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Province of Punjab through Chief Secretary and another v. Samuel Bhatti and others 2009 SCMR 1034; Shahid Ahmed v. Oil and Gas Development Company Ltd. through Managing Director, Islamabad and others 2014 SCMR 1008 and Government of the Punjab through Chief Secretary, Lahore and others v. Ch. Abdul Sattar Hans and 29 others 2015 SCMR 915 ref.

Provincial Selection Board, Government of Khyber Pakhtunkhwa through Chairman/Chief Secretary, Khyber Pakhtunkhwa v. Hidayat Ullah Khan Gandapur 2021 SCMR 1904 rel.

Tariq Mahmood for Appellants.

Muhammad Siddique Awan and Raja Mehfooz Ali Satti for Respondents.

2022 P L C (C.S.) 1399

[Lahore High Court (Multan Bench)]

Before Muhammad Shan Gul, J

NADEEM SADIQ BHATTI

Versus

PRESIDENT NATIONAL BANK OF PAKISTAN and 3 others

Writ Petition No.15360 of 2017, decided on 14th February, 2022.

Civil service---

----Removal from service---Withholding criminal record---Scope---Petitioner laid a challenge to an order whereby his representation against an order of removal from service had been rejected---Validity---Petitioner had concealed the factum of lodging of an FIR against him by not submitting and withholding the police verification report or even informing the Bank (employer) about his arrest and involvement in the crime report---Petitioner had breached the trust of the respondent Bank by concealing this important information and it was only upon the Bank's own discovery that it learnt that the petitioner was involved in a criminal case prior to his gaining employment in the Bank---Petitioner by doing so had display conduct unbecoming of an officer eligible to work in the public domain---Impugned order was unexceptionable since it had been passed in accordance with law and in terms of the contract of appointment---Constitutional petition was dismissed, in circumstances.

Province of Punjab through Special Secretary, Specialized Healthcare and Medical Education Department, Lahore and others v. Khadim Hussain Abbasi 2021 SCMR 1419; Shahid Masood Malik v. Habib Bank Limited and another 2008 SCMR 1151; Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534; Nazir Ahmed v. Capital City Police Officer, Lahore and another 2011 SCMR 484; Zaka Ullah Bajwa v. Government of the Punjab through Secretary, Public Prosecution Department, Lahore 2013 PLC (C.S.) 344; The District Police Officer, Mianwali and 2 others v. Amir Abdul Majid 2021 SCMR 420 and Abdul Manan v. Provincial Police Officer 2017 PLC (C.S.) 862 rel.

Zohaib Hassan for Petitioner.

Sardar Riaz Karim and Ch. Shakeel Akhtar Sindhu, Asstt. Attorney General for Respondents.

2022 P L C (C.S.) 1433

[Lahore High Court]

Before Tariq Saleem Sheikh, J

Syed AMJAD ALI SHAH

Versus

DEPUTY CONTROLLER, ADMIN AND PERSONAL-III PTV, ISLAMABAD and 3 others

Writ Petition No.43795 of 2021, heard on 21st February, 2022.

(a) Constitution of Pakistan---

----Art.199---Pakistan Essential Services (Maintenance) Act (LIII of 1952), S. 6---Constitutional petition---Maintainability---Regulation of wages and conditions of service---Non-statutory rules of service---Scope---Question before High Court was whether the Pakistan Television Corporation Limited Employees Service Rules of 1978 were statutory or non-statutory---Contention of petitioner was that the specified authority had adopted and approved the Pakistan Television Corporation Limited Employees Service Rules of 1978 in exercise of powers conferred on it under S. 6 of the Pakistan Essential Services (Maintenance) Act, 1952---Validity---Mere fact that the specified authority had adopted and approved the Pakistan Television Corporation Limited Employees Service Rules of 1978 did not change their status and made them statutory rules---Constitutional petition was dismissed.

Muhammad Ramzan v. Federation of Pakistan through Ministry of Information and 3 others 2017 PLC (C.S.) Note 71; Khawar Azhar Safeer and others v. Federation of Pakistan and others (Writ Petition No. 3912/2020 decided by the Islamabad High Court on 21.12.2020); Safdar Ali v. Federation of Pakistan and others (C.P. No.1411/2019 decided by the Balochistan High Court on 7.12.2020; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549 and Sultan Khan Naeem and others v. Pakistan Television Corporation Limited and others (I.C.A No.280 of 2020 decided on 8-10-2020) ref.

Sohail Abbas Bokhari v. Secretary Information and Broadcasting/Chairman, Pakistan Television Corporation and 2 others 2009 PLC (C.S.) 565 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Person---Pakistan Television Corporation Limited PTVC---Scope---Pakistan Television Corporation (PTVC) was founded in 1964 and is one of the biggest media houses of Pakistan---PTV covers a number of "sister channels" such as PTV Sports, PTV News and PTV National---PTVC was registered under the Companies Act, 1913, but now is governed by the Companies Act, 2017---PTV is owned by the Federal Government and is run by a Board of Directors in terms of S. 183 of the Companies Act, 2017, read with Art.89 of its Articles of Association---PTVC not only qualifies the "function test" by all standards but also falls within the definition of "public sector company"---PTV, therefore, a "person" within the meaning of Art.199(1)(a) of the Constitution read with Art.199(5) thereof.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Aggrieved party---"Person"---Scope---Aggrieved party can invoke the jurisdiction of High Court under Art.199(1)(a) of the Constitution against a person performing, within its territorial jurisdiction, functions in connection with the affairs of the Federation, or a Province or a local authority---Article 199(5) elucidates that "person" includes any body politic or body corporate, any authority under the control of the Federal Government or a Provincial Government, and any court or tribunal, other than the Supreme Court, a High Court or a court or tribunal established under a law relating to the armed forces of Pakistan.

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

Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326; Federal Government Employees Housing Foundation and another v. Muhammad Akram Alizai PLD 2002 SC 1079; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707); Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Muhammad Zaman and others v. Government of Pakistan and others 2017 SCMR 571 and Human Rights Case No.3564 of 2018 - In the matter regarding appointment of Managing Director, Pakistan Television Corporation 2019 SCMR 1 ref.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---"Person"---Function test---Scope---Courts generally apply what is called the "function test" to determine whether an organization is a "person" within the meaning of Article 199 of the Constitution.

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

Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326; Federal Government Employees Housing Foundation and another v. Muhammad Akram Alizai PLD 2002 SC 1079; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707); Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Muhammad Zaman and others v. Government of Pakistan and others 2017 SCMR 571 and Human Rights Case No.3564 of 2018 - In the matter regarding appointment of Managing Director, Pakistan Television Corporation 2019 SCMR 1 ref.

(e) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Non-statutory rules of service---Principles detailed.

Employees of only those organizations discharging functions in connection with the affairs of the Federation can invoke the constitutional jurisdiction of the High Court in service matters whose employment is governed by statutory rules. Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 rel.

Executive Council, Allama Iqbal Open University, Islamabad and another v. Muhammad Tufail Hashmi 2010 SCMR 1484 ref.

If the terms and conditions of an employee are not governed by statutory rules but by regulations, instructions or directions issued for its internal use, any violation thereof would not normally be enforced through constitutional petition.

University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 foll.

(f) Interpretation of statutes---

----Delegated legislation---"Statutory rules of service"---"Non-statutory rules of service"---Explained.

Statutory rules are those which are framed under the powers conferred by an Act. Said rules are in the nature of delegated legislation and, if validly drawn, form part of the parent Act. Generally, they are required to be published in the government gazette before enforcement. On the other hand, non-statutory rules are made by the organization itself for smooth running of its affairs. The question as to whether the rules are statutory or otherwise depends on the source from which they originate and not on their form or nomenclature.

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

Statutory regulation means regulations which are legislative (as opposed to executive) made by a rule-making authority in exercise of statutory power with the approval of the central government or provincial government. Precisely it is the exercise of the delegated legislative power by the rule making authority. Ordinarily it is necessary also that making and promulgation of a rule should be attended by certain formalities e.g. publication in government gazette.

Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495 foll.

Statutory rules have three characteristics, (a) Rules or Regulations are framed by statutory or public body; (b) They are framed under the authority or powers conferred in the statute; and (c) They have statutory governmental approval or statutory sanction.

Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 foll.

Rules do not become statutory merely because an organization has adopted any rules framed by the government or has made them applicable by reference.

M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others 1994 SCMR 1024 rel.

The distinction between statutory and non-statutory rules is important because where the organization itself prescribes the terms and conditions of service of its employees, the principle of master and servant applies. Resultantly, neither a suit nor a Constitutional petition for the relief of re-instatement is competent.

Ch. Ishtiaq Ahmad Khan for Petitioner.

Barrister Muhammad Ahmed Pansota and Safi-ul-Hassan for Respondents.

2022 P L C (C.S.) 1464

[Lahore High Court]

Before Jawad Hassan and Muzamil Akhtar Shabir, JJ

MUHAMMAD IJAZ and others

Versus

GOVERNMENT OF THE PUNJAB and others

Intra Court Appeal No.74277 of 2021, decided on 29th November, 2021.

(a) Constitution of Pakistan---

----Arts.199 & 112---Jurisdiction of High Court---Civil service---Service Tribunal, exclusive jurisdiction of---Alternate/efficacious remedy---Single Judge of High Court dismissed the constitutional petition of the appellants---Held, that the appellants were, admittedly, the civil servants and their prayer pertained to terms/conditions of a civil servant---Appellants had an alternate efficacious remedy by approaching the departmental appellate authority and then the respective Service Tribunal for redressal of their grievance---Jurisdiction of High Court was barred---Constitutional petition was not maintainable due to the bar contained under Art.212 of the Constitution---Intra Court appeal was dismissed in limine.

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

(b) Constitution of Pakistan---

----Art. 199---Assumption of jurisdiction, question of---Principle---Every Court prior to taking congnizance/adjudicating upon an issue should first resort to the question of assumption of its jurisdiction and if it comes to the conclusion that jurisdiction is to be assumed only then the issue can be adjudicated upon.

Government of Sindh through, Secretary Education and Literacy Department and others v. Nizakat Ali and others 2011 SCMR 592 and Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 rel.

(c) Constitution of Pakistan---

----Arts.199 & 112---Service Tribunal, exclusive jurisdiction of---Terms/conditions of civil service, enforcement of---Scope---For enforcement of terms/condition of civil servants, Tribunals had been constituted under Art. 212 of the Constitution which had exclusive jurisdiction to look into the matter and decide the questions relating thereto.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; National Assembly Secretariat v. Manzoor Ahmed and another 2015 SCMR 253; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Khalil ur Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750 and Dr. Ghazanffarullah and 2 others v. Secretary Health, Government of Punjab, Lahore and 6 others 2010 PLC (C.S.) 51 rel.

2022 P L C (C.S.) 1472

[Lahore High Court (Multan Bench)]

Before Muhammad Shan Gul and Anwaar Hussain, JJ

BILAL AHMED

Versus

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 3 others

I.C.A. No.393 of 2020, heard on 8th March, 2022.

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

----Regln.4---Area Manager---Scope---Post of Area Manager is stipulated in Regln. No.4 of the State Life Employees (Service) Regulations, 1973, however, the competent authority has reserved for itself the power to review the performance of its employees including Area Manager and therefore, can always alter terms and conditions thereof ; it is otherwise in line with the authority of an employer to downgrade an employee based on his performance---Regulation 4(ii) of the State Life Employees (Service) Regulations, 1973, contemplates that there will be two categories of Area Managers, i.e. Area Manager on Special Basis and Area Manager on Ordinary Basis and salaries of both the categories of the Area Managers will also be different inasmuch as the Area Manager on Special Basis has been provided with Pay Scale whereas the Area Manager on Ordinary Basis is entitled to fix pay only---Perusal of Regln. 4(ii)(c)(1) & (2) further reveals that an Area Manager will be required to meet performance standards regarding new business, persistency and other operational factors---Area Manager's performance will also be reviewed by the Zonal Head on a six monthly basis or for such shorter period as deemed necessary by the Board---State Life Employees (Service) Regulations, 1973, further contemplates that if performance of the Area Manager, on review, is found to be short of prescribed standards, the Zonal Head may terminate his services after giving him three months notice or three months pay in lieu thereof or may take such measures including but not limited to reduction, curtailment or withdrawal of his emoluments or perquisites or all such measures together.

Muhammad Yafis Naveed Hashmi for Appellant.

Muhammad Tariq Rajwana and Hassan Bakhsh, Superintendent, State Life Insurance Corporation of Pakistan, Multan for Respondents.

2022 P L C (C.S.) 1523

[Lahore High Court]

Before Tariq Saleem Sheikh, J

AMNA ARSHAD

Versus

GOVERNMENT OF THE PUNJAB through Secretary Special Education Department, Punjab and others

Writ Petition No.65074 of 2021, heard on 10th February, 2022.

(a) Constitution of Pakistan---

----Arts.199 & 212---Constitutional jurisdiction---Terms and conditions of service---Maintainability---Scope---Transfer matters fall within the ambit of "terms and conditions of service" and the Service Tribunal has exclusive jurisdiction in respect thereof under Art. 212 of the Constitution but since the petition before High Court involved interpretation of fundamental rights with reference to persons with disabilities so the objection of maintainability was overruled.

Muhammad Akram Malik v. Province of Sindh through Chief Secretary, Government of Sindh, Karachi and 2 others 2002 PLC (C.S.) 1037; Muhammad Ibrahim v. Secretary to Government of Sindh and 3 others 2014 PLC (C.S.) 234 and Aftab Muhammad Khan v. The Federation of Pakistan through Secretary Ministry of Commerce and 2 others 2019 PLC (C.S.) 1483 ref.

(b) Interpretation of statutes---

----Municipal law---International law---Scope---General rule is that the provisions of a treaty are not automatically incorporated into municipal law and a country's legislature must enact law to implement them---In Pakistan, even where such legislation has not been passed, the courts are required to interpret and apply every statute, as far as its language admits, in accordance with the principles of comity of nations and established rules of international law.

The Hanover Fire Insurance Company v. Messrs Muralidhar Banechand PLD 1958 SC 138; 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 and Human Rights Case No.29388-K of 2013 PLD 2014 SC 305 ref.

Muhammad Usama Safdar Kassar for Petitioner.

Mukhtar Ahmed Ranjha, Assistant Advocate General with Muhammad Abu Bakar Aslam, Law Officer, Special Education Department for Respondents.

2002 P L C (C.S.) 1545

[Lahore High Court (Multan Bench)]

Before Sultan Tanvir Ahmad, J

Mst. AKBARI BEGUM and another

Versus

Mst. ISHRAT BANO (deceased) through L.Rs. and 4 others

Civil Revision No. 1156-D of 2018, decided on 13th January, 2022.

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

----O. XIV, R. 3---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Additional issues---Independent decision/findings, absence of---Pensionary benefits---Legal heirs, entitlement/share of---Suit for declaration was filed by respondents (legal heirs, i.e. widow/two children of the deceased/servant) claiming their entitlement of their respective shares in the pensionary benefits of the deceased---Additional issue regarding forgery in nikahnama was framed by the Trial Court on application of the petitioners/officials---Suit was concurrently decreed---Petitioners contended that Courts below had failed to discuss the additional issues; that in absence of the separate findings on the additional issue the impugned judgments/decrees were not tenable; that the Courts below caused prejudice by placing burden to prove the fraud with respect to the Nikahnama on the shoulders of the petitioners---Validity---Respondent claimed to be the widow of the deceased/servant which fact was denied by the petitioners---Trial Court framed issue in that regard which was comprehensive enough to cover the proposition/ dispute and wrapped ancillary question of genuineness of Nikahnama---Both parties led their respective evidences by producing witnesses and documentary evidences regarding Nikahnama---While giving final judgment, Trial Court did not mention the additional issue and rather framing of this additional issue was mentioned nowhere in the judgment---Language of the Trial Court's judgment would suggest that it had given its conscious decision as to proving /disproving of the Nikahnama after considering the same and being fully cognizant of the fact that the genuineness of Nikahnama was also in dispute---Appellate Court had also given details/sound reasons regarding the same issue---Failure to caption/reproduction of issue in the body of the judgment was barely important as long as judgment contained findings on material points in controversies, after application of judicial mind and resolution of the questions considering evidence and based on logical reasoning---Where both parties had led sufficient/relevant evidence, allocating onus of proof had no bearing---Revision petition was dismissed accordingly.

Muhammad Ibrahim (Deceased) through LRs and another v. Taza Gul and others 2020 SCMR 2033; Mian Muhammad Mehfooz and 2 others v. Mian Muhammad Sarfraz and 43 others 2018 YLR 872; Durga Prasad and another v. Ghanshiam Das and others PLD 1948 Privy Council 171; Mst. Qaisa'r Khatoon and 12 others v. Maulvi Abdul Khaliq and another (both represented by heirs) PLD 1972 SC 334 and Mst. Bakht Bano v. Mst. Zainab Khatoon 1991 MLD 2389 rel.

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

----O. XIV, R. 3---Issues, non-framing of---Scope---When one party affirmed material proposition of fact/law and the other denied, Court ought to frame issue as to disputed material proposition---Duty would also be imposed on parties to get proper issues framed and come forward with relevant objection/suggestions with respect to disputed material propositions that required formulation of issues---If a composite issue was framed that encompassed more than one contradictory stance, interconnected to each other, the same did not per se vitiate the trial---Party challenging a stance had to show some serious prejudice caused by not framing independent issues---When composite issues was framed and parties had led evidence accordingly, contention qua the non-framing of issue would fade as inconsequential, as long as judgment fulfilled the requirement of law.

Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Muhammad Amir through L.Rs. v. Muhammad Sher and others 2006 SCMR 185 and Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4 rel.

Raja Naveed Azam for Petitioners.

Rao Muhammad Arif Khan and Sumaira Hashmi for Respondents.

2022 P L C (C.S.) 1594

[Lahore High Court]

Before Muzamil Akhtar Shabir, J

NOMAN AMANAT, ADVOCATE

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 3 others

Writ Petition No.61661 of 2021, decided on 7th December, 2021.

Police Order (XXII of 2002)---

----Art.11---Constitution of Pakistan, Art. 199---Constitutional petition---Quo warranto, writ of---Appointment of Provincial Police Officer(Inspector General of Police) for Punjab was assailed by petitioner---Validity---Provincial Police Officer, under Art. 11 of Police Order, 2002 was to be appointed from panel of three police officers recommended by Federal Government--- Grade of such officers was not mentioned in Art.11 of Police Order, 2002 and it was not provided that officer having Grade-22 could only be appointed to rank of Inspector General of Police---Petitioner could not point out that respondent was not qualified to hold office of Provincial Police Officer or that there was no consensus between Federal and Provincial Governments for his appointment---No procedural defect going to root of matter causing prejudice to rights of Provincial Government for such appointment---Such was within the domain of appointing authority to determine who to appoint while making such appointment--- Court could not take upon its function of appointing authority in order to judge suitability of candidate for such appointment--- High Court declined to issue writ in the form of quo-warranto as the same was extra-ordinary discretionary jurisdiction and High Court was not bound to exercise such jurisdiction in each and every case---Constitutional petition was dismissed, in circumstances.

Asif Hassan and others v. Sabir Hussain and others 2019 SCMR 1720 rel.

Ch. Arshad Hussain for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General for Pakistan.

2022 P L C (C.S.) 15

[Peshawar High Court]

Before Musarrat Hilali and Muhammad Nasir Mahfooz, JJ

GHULAM MUHAMMAD

Versus

REGIONAL COMMISSIONER FOR FEDERAL OMBUDSMAN, PESHAWAR and 2 others

Writ Petition No. 3253-P of 2018, decided on 5th April, 2021.

(a) Interpretation of statutes---

----Ambiguity, avoiding of---Principle---Each and every part of statute has to be given its meaning so that any ambiguity in any enactment must be avoided.

Sheikh Saeed Ahmed and another v. Abdul Wahid 1999 SCMR 1852 rel.

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

----S.11---Women harassment---Employer, responsibility of---Petitioner was proceeded against on complaint of respondent for causing her harassment---As a result of proceedings before Federal Ombudsman / ombudsperson, major penalty of compulsory retirement was imposed upon the petitioner employee---Validity---Competent authority was not bereft of the powers to initiate any proceedings against petitioner---Ombudsman / ombudsperson and its office had conducted proceedings by recording some evidence in the matter---Such evidence could be treated in lawful exercise of powers but penalty of compulsory retirement against petitioner could not be imposed---High Court set aside imposition of major penalty to petitioner and remanded the matter to Organization (employer) to treat the same as regular inquiry under Efficiency and Discipline Rules, regulating terms and conditions of service---Constitutional petition was allowed accordingly.

Federation of Pakistan through Establishment Division v. Brig. (Rtd.) Zulfiqar Ahmad Khan and others 2007 SCMR 1313; Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman) Islamabad and others PLD 2016 SC 940 and Sheikh Saeed Ahmed and another v. Abdul Wahid 1999 SCMR 1852 rel.

Danial Khan Chamkani for Petitioner.

Nauroz Khan for Respondents.

2022 P L C (C.S.) 94

[Peshawar High Court (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

JAWAD KHAN and others

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA) through Chairman at Islamabad and others

Writ Petitions Nos.1043-M, 1044-M and 1045-M of 2018, decided on 1st December, 2020.

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

----Ss.3 & 35---Constitution of Pakistan, Art.3---Exploitation, elimination of---Non-statutory rules---Petitioners participated in process of recruitment for specific posts but authorities appointed them for some other posts lower in grade--- Plea raised by Authority was that petition was not maintainable as its service rules were non-statutory--- Validity--- State authorities, under Art. 3 of the Constitution were to ensure elimination of all forms of exploitation and gradual fulfillment of fundamental principles, from each according to his ability, to each according to his work--- Petitioners were not treated fairly over the years and unfair treatment of petitioners at the hands of employer in public sector domain was not at all acceptable--- National Database and Registration Authority was performing governmental functions, directly under the authority of Federal Government which was evident from S.3 of National Database and Registration Authority Ordinance, 2000--- National Database and Registration Authority was amenable to Constitutional jurisdiction of High Court--- High Court directed the Authority to treat petitioners similar to other officials--- High Court declared that petitioners were appointed to the posts for which they were tested and interviewed with effect from the date of their appointment---Constitutional petition was allowed accordingly.

1995 SCMR 650; 2005 SCMR 100; Umar Baz Khan through L.HRs v. Syed Jehanzeb and others PLD 2013 SC 268; 2016 SCMR 1299; 2016 SCMR 2146; 2014 PLC (C.S.) 987; 2017 CLC 1002; 2017 PLC (C.S.) 1270; 2018 PLC (C.S.) 133; 2018 PLC (C.S.) 292; 2019 PLC (C.S.) 1139; Dr. Shamsher Ali Khan and 27 others v. Government of Khyber Pakhtunkhwa through Secretary Finance and 2 others 2019 MLD 87; Hameed Akhtar Niaz v. The Secretary Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Government of Punjab, through Secretary Education Lahore and others v. Sameena Parveen and others 2009 SCMR 01; 2017 SCMR 571; Chairman NADRA Islamabad through Chairman and another v. Muhammad Ali Shah and others 2017 SCMR 1979 and Maj. (Retd.) Syed Muhammad Tanveer Abbas and another v. Federation of Pakistan through Secretary, Ministry of Interior and another 2019 SCMR 984 ref.

Dr. Shamsher Ali Khan and 27 others v. Government of Khyber Pakhtunkhwa through Secretary Finance and 2 others 2019 MLD 87; Chairman NADRA Islamabad through Chairman and another v. Muhammad Ali Shah and others 2017 SCMR 1979; Maj. (Retd.) Syed Muhammad Tanveer Abbas and another v. Federation of Pakistan through Secretary, Ministry of Interior and another 2019 SCMR 984 and Pakistan Telecommunication Co. LTD Through Chairman v. Iqbal Nasir PLD 2011 SC 132 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches---Principle---Laches has been relevant in grant or refusal of discretionary or equitable reliefs and is considered relevant---Laches has never been taken as an absolute bar in cases where petitioners were found entitled to a relief which has already been granted by Court of law to similarly placed other petitioner.

Saddaqat Ali Khan through LRs and others v. Collector Land Acquisition and others PLD 2010 SC 878; Umar Baz Khan through L.HRs v. Syed Jehanzeb and others PLD 2013 SC 268; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others 2009 SCMR 1 rel.

Muhammad Yar Malezai for Petitioners.

Fawad Ahmad, Legal Officer for NADRA/Respondents.

2022 P L C (C.S.) 120

[Peshawar]

Before Musarrat Hilali and Syed Arshad Ali, JJ

Syed ASHFAQ ANWAR

Versus

SECRETARY, HOUSING PESHAWAR and 4 others

Writ Petition No. 4336-P of 2020, decided on 13th April, 2021.

Khyber Pakhtunkhwa Housing Authority Act (XI of 2005)---

----S.10---Allotment of flats/appartments---Eligibility---Promissory estopple, principle of---Applicability---Petitioners had been serving in Khyber Pakhtunkhwa government for more than five years and had applied for allotment of flats/ apartments---Authorities declared petitioners ineligible for allotment on the ground that the scheme was only for retired employees---Validity---Initial advertisement, soliciting applications of government servants for sale/purchase of apartments, envisaged that an employee of Federal Government working in Basic Pay Scale-17 and above, who had worked with the affairs of Province of Khyber Pakhtunkhwa for 5 years, was eligible for allotment of apartment---To hold public servants responsible for their words, Court had always resorted to well enshrined principles of legitimate expectation and promissory estopple---Letter/order in question holding petitioners ineligible for apartments/flats was passed by a person who had no jurisdiction in the matter albeit based on alien considerations---High Court set aside letter/order declaring petitioners as ineligible for allotment of apartments/ flats as illegal and without lawful authority---High Court directed the authorities to place cases of petitioners before Special Committee established under S.10 of Khyber Pakhtunkhwa Housing Authority Act, 2005, for appropriate decision---Constitutional petition was allowed accordingly.

Iqbal Hussain v. Province of Sindh 2008 SCMR 105; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449; Mustafa Impex's case PLD 2016 SC 808; Peer Imran Sajid's case 2015 SCMR 1257; Aziz-ud-Din's case PLD 1970 SC 439; Al-Samraiz's case 1986 SCMR 1917; Aneesa Rehman 1994 SCMR 2232 and Hazara (Hill Tract) Improvement Trust v. Qaisara Elahi 2005 SCMR 678 ref.

S. M. Ilyas for Petitioner.

Sabah-ud-Din and Aamir Javed for Respondents.

2022 P L C (C.S.) 139

[Peshawar High Court]

Before Rooh ul Amin Khan and Syed Muhammad Attique Shah, JJ

MUHAMMAD NASIR through President Engineer and others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Writ Petition No.3695-P of 2019, decided on 29th September, 2021.

Peshawar Development Authority Act (XXXI of 2017)---

----S.8---Khyber Pakhtunkhwa Provincial Urban Development Board Employees Service Rules, 1978, R.4(j)---Constitution of Pakistan, Art.199---Constitutional petition---Appointment in Peshawar Development Authority (PDA)---Lateral entry/deputation---Petitioners were aggrieved of filling of promotion posts through deputationists---Validity---Peshawar Development Authority was empowered under Khyber Pakhtunkhwa Provincial Urban Development Board Employees Service Rules, 1978, for appointment to a post on 'Lateral Entry' which meant inviting employees from anywhere into the service of PDA---Such power and discretion could be exercised in case of dire need of borrowing department coupled with the consent of lending department, that too, in a situation when no fit and suitable employee would commensurate to such post available in borrowing department---No such exercise was undertaken, rather Provincial Government or Establishment Department imposed a good number of blue eyed officers upon borrowing department (PDA) to indispensably accept their services on deputation basis---Posting of outsiders on the basis of deputation created unrest and sense of deprivation amongst employees already working there---High Court declared practice of such appointments on deputation basis against justice, equity and good governance---Discretionary powers were not unbridled or unfettered but such discretion was required by law to be exercised in judicial manner on sound judicial principles---High Court further declared orders of respondents and other issued during pendency of petition whereby they were transferred to PDA on deputation or on pretext of 'Later Entry' as illegal, without lawful authority and were set aside---Constitutional petition was allowed accordingly.

Dr. Muhammad Amin v. President Zarai Taraqiati Bank Limited 2010 SCMR 1458; Human Rights Case No.8340, 9604-G, 1396-G, 13635-P and 14306-G to 143309-G of 2009; Walayat Ali Mir v. Pakistan International Airlines Corporation 1995 SCMR 650; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 and Contempt Proceedings against Chief Secretary Sindh and others 2013 SCMR 1752 ref.

Amir Javed for Petitioners.

Arshad Ahmad, A.A.G., Barrister Waqar Ali Khan, Muhammad Ijaz Sabi and Muhammad Esa Khan Khalil for Respondents.

2022 P L C (C.S.) 217

[Peshawar High Court]

Before Qaiser Rashid Khan, CJ and Muhammad Naeem Anwar, J

SAWAB KHAN

Versus

The VICE-CHANCELLOR AGRICULTURE UNIVERSITY, KHYBER PAKHTUNKHWA, PESHAWAR and another

Writ Petition No.3259-P of 2020, decided on 23rd February, 2021.

Khyber Pakhtunkhwa Universities Act (X of 2012)---

----S.28---University Employee---Promotion---Personal grade---Effect---Petitioner claimed his promotion to the post of Deputy Director BS-18 on the strength of his experience---Validity---Petitioner could not claim for his promotion to the post in question on the strength of his experience as that of Assistant Director---When law requires a thing to be done in a particular mode and procedure, the same must be done in that mode and manner and not otherwise---Statute of university provided a channel for promotion to the post of Deputy Director, which post, if existed could be filled by promotion from the post of Assistant Director having six years relevant experience--- Petitioner was awarded personal grade and the same could never be termed to be through due course of law or promoted in BPS-17, as such could not claim BS-18---Constitutional petition was dismissed, in circumstances.

2020 SCMR 2129 and Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 rel.

Zartaj Anwar for Petitioner.

Muhammad Zafar Tahir Kheli for Respondents.

2022 P L C (C.S.) 255

[Peshawar High Court]

Before Ikramullah Khan and Ijaz Anwar, JJ

TARIQ HUSSAIN SHAH

Versus

NADRA through Chairman and 2 others

Writ Petition No.4132-P of 2018, decided on 3rd September, 2020.

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

----S.45---National Database and Registration Authority Employees (Service) Regulations, 2002, Regln. 2(i)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Statutory rules---Pre-conditions---Dispute was with regard to fixing of seniority of petitioner---Plea raised by authorities was that petition was not maintainable---Validity---National Database and Registration Authority Employees (Service) Regulations, 2002, were framed under section National Database and Registration Authority Ordinance, 2000 and were duly published in official gazette, therefore, fulfilled requirement of statutory rules of service.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary Ministry Information Technology and Telecommunication and others 2013 SCMR 152; Pakistan International Airlines v. Tanweer-ur-Rehman PLD 2010 SC 676 and Shafique Ahmad Khan and others NESCOM through Chairman, Islamabad and others PLD 2016 SC 377 rel.

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

----S.45---National Database and Registration Authority Employees (Service) Regulations, 2002, Regln. 2(i)---Constitution of Pakistan, Art.199---Constitutional petition---Seniority, fixing of---Dispute was with regard to fixing of seniority of petitioner as to his employment with National Database and Registration Authority---Petitioner was initially hired with effect from 14-09-2000 and that his services were required to be regularized with effect from the same date and not from the date when he was allowed contract service vide letter dated 30-10-2004---Validity---In order to settle such controversy, the Authority constituted a Regularization Anomaly Committee where besides other issues, issue of effective date of initial appointment was also considered and Regularization Anomaly Committee submitted its recommendations which were duly approved by the Chairman National Database and Registration Authority---Employment on short term contract for a period not exceeding twelve months employment on work charge basis or paid from office contingencies were excluded from definition of 'employee' as provided in Regln. 2(i) of National Database and Registration Authority (Service) Regulations, 2002---High Court declined to interfere in the matter as counting of service of petitioner with effect from his hiring as contract employee was in accordance with terms of regularization---Constitutional petition was dismissed, in circumstances.

2019 SCMR 984; 2017 SCMR 1979; Sarhad Development Authority through Chairman v. Syed Muhammad Latif Shah 2015 SCMR 1060 and Chairman NADRA v. Muhammad Ali Shah (Civil Appeals Nos.1132 and 1133 of 2014) ref.

Muhammad Isa Khan Khalil for Petitioner.

Hassan U.K. Afridi for Respondent NADRA along with Muhammad Mubarak, Assistant Director (Legal), NADRA.

2022 P L C (C.S.) 341

[Peshawar High Court]

Before Waqar Ahmad Seth, CJ and Muhammad Naeem Anwar, JJ

Mst. FOZIA INAYAT and 35 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government and Rural Development Department and 154 others

Writ Petition No.3336-P of 2019, decided on 16th June, 2020.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.10---Constitution of Pakistan, Arts. 199 & 18---Appointment by initial recruitment---Advertisement for recruitment---Scope---Petitioners assailed appointments of respondents on the ground that they were appointed without following the prescribed procedure i.e. without being registered with "Employment Exchange" and publishing proper advertisement in newspapers---Official respondents conceded that for filling the posts, the official respondents had neither advertised the posts nor the respondents were registered with the Employment Exchange, however, added that as the authorities were not civil servants, so, they were not bound to follow the procedure as they had their own rules for initial recruitment---Validity---Statutory provisions of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, regarding appointment were applicable to the department---As the appointment of the respondents had not preceded by the advertisement of the posts or sending of requisition to the "Employment Exchange" with a view to enable other eligible persons to be considered for recruitment against the vacant posts, therefore, there was no escape from the conclusion that the respondents had got entry in the service by back door method and they were benefitted by fraudulent system of employment engineered by authorities---When the respondents were not appointed by following the prescribed procedure then they could not claim any leniency and protection even on the principle of locus poenitentiae---Constitutional petition was allowed, appointments were set aside and the competent authority was directed to re-initiate the selection process.

Abdul Razzaq v. Secretary Government 2004 PLC (C.S.) 653; 2017 PLC (C.S.) 1142; 2003 PLC (C.S.) 69; 2003 PLC (C.S.) 1484; 2002 SCMR 769; 2003 SCMR 291 and 2006 PLC (C.S.) 1278. ref.

Human Right's cases Nos.104(i), 104(ii), 104(iii) and 104 (iv) of 1992; 1996 SCMR 1349; Muhammad Ali and 11 others v. Province of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education, Peshawar and others 2012 SCMR 673; Sareer Ahmad v. The Secretary, Government of Khyber Pakhtunkhwa 2019 PLC (C.S) 170 and Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others 2012 PLC (C.S.) 772 rel.

Shah Faisal Illyas for Petitioners.

Barrister Amir Khan Chamkani for Official Respondents.

Qazi Jawad Ihsan Ullah for Private Respondents.

2022 P L C (C.S.) 398

[Peshawar High Court]

Before Ijaz Anwar and S M Attique Shah, JJ

KALIM ARSHAD KHAN

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar and others

Service Appeal No.06-P of 2021, decided on 18th December, 2021.

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

----S.5---Khyber Pakhtunkhwa Judicial Service Rules, 2001, Rr. 5(c)(ii) & 10---Appeal---Seniority list---Fixation---Principle---Appellant assailed final seniority list and claimed his position much higher than the one reflected in the list---Plea raised by authorities was that the list was filed with an unexplained delay---Validity---Merely because certain tentative / provisional seniority lists were issued and not questioned before Service Tribunal at the relevant time, were not tenable as only final seniority list could be questioned before the Tribunal in terms of S.5 of Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991---Question of seniority of appellant was never decided nor attained finality at any stage, therefore, the same could not be termed as 'past and closed matter'---Earlier judgment of Service Tribunal could not be made hurdle in the case of appellant as it was duly questioned before Supreme Court and when that seniority list was set declared to be without lawful authority, seniority of appellant was required to be re-determined---Appellant was not assigned correct seniority along with his batch mates---Mere fact that appellant was appointed in the batch vide an order passed subsequently, could not deprive him of his seniority in terms of R.5(c)(ii) read with R.10 of Khyber Pakhtunkhwa Judicial Service Rules, 2001---High Court directed that appellant be assigned seniority with effect from the date his batch mates of the same selection process were appointed--- Appeal was allowed accordingly.

National Institutional Facilitation Technologies (Pvt.) Limited v. The Federal Board of Revenue through Chairman and others PLD 2020 Isl. 378; Ibrar Hussain v. Collector Customs and others 1997 PLC (C.S.) 885; Adalat Khan v. Mst. Begum Bibi through Legal Heirs and another 1991 SCMR 1381; Shah Behram v. Akbar Khan and another PLD 1992 Pesh. 18; Quetta Development Authority v. Abdul Basit 2021 SCMR 1313; Jamal Ali v. Engineer-in-Chief, GHQ, Rawalpindi 1998 SCMR 2472; Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Pakistan 1996 SCMR 1185; Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen 2009 SCMR 1; Rasool Khan v. Federation of Pakistan through Secretary, Ministry of Information and Technology 2021 PLC (C.S.) 14; unreported judgment dated 16.10.2017 passed by the Division Bench of the Hon'ble Peshawar High Court in Writ Petition No.227-M/2014; Sarosh Haider v. Muhammad Javed Chundrigar and others PLD 2014 SC 338; Wazir Khan v. Government of N.W.F.P. through Secretary Irrigation, Peshawar and others 2002 SCMR 889; Fida Muhammad Sanai v. Chairman, Federal Service Tribunal, Islamabad and others PLD 1996 SC 845; Muhammad Tufail Mir and others v. Secretary Electricity Department, Azad Government of the State of Jammu and Kashmir and others 2017 PLC (C.S.) 1457; S.H.M Rizvi and 05 others v. Maqsood Ahmad and 05 others PLD 1981 SC 612; Syed Firdos Ali v. Secretary, Establishment Division, Islamabad and 02 others 1997 SCMR 1160; Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287; Mir Ajab Khan and another v. Deputy Postmaster General, SRP, Dera Ismail Khan and others 2013 SCMR 1053; Anwar Muhammad v. General Manager, Pakistan Railways, Lahore and another 1995 SCMR 950; Muhammad Aslam Javed v. Government of Pakistan through Secretary, Establishment Division, Islamabad and others 2002 SCMR 1383; Musa Wazir v. N.W.F.P. Public Service Commission 1993 PLC (C.S) 1188; Fazal Muhammad v. Government of N.W.F.P. and others 2009 SCMR 82; Nadir Shah, S.D.O., Minor Canal Cell, Irrigation Sub-Division, Dera Murad Jamali and 2 others v. Secretary, Irrigation and Power Department, Balochistan, Quetta and 7 others 2003 PLC (C.S.) 961 and Chairman, FBR through Member Administration v. Muhammad Asfandyar Janjua and others 2019 SCMR 349 ref.

Hamid Ali Shah and Barrister Syed Mudassir Ameer for Appellant.

Khalid Rehman, A.A.G along with Syed Shakir Hussain Shah, Litigation Assistant, Peshawar High Court for Respondents.

Respondents Nos.4, 9 and 10 in person.

2022 P L C (C.S.) 418

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Muhammad Naeem Anwar, JJ

DANISH USMAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Chief Secretary and 6 others

Writ Petition No.5988-P of 2019, decided on 16th March, 2021.

Civil service---

----Appointment---Selection Committee, findings of---Substitution---Jurisdiction of High Court---Scope---Petitioner sought his appointment on the ground that he was eligible for the post in question and even if no mark was given by Selection Committee he could have been selected---Validity---Petitioner had requisite qualification and obtained higher marks in screening test but it was not the only criteria for final selection rather it was only for shortlisting purpose---Selection Committee had unanimously declared petitioner as failed and no marks were given---Interviewing committee had to adjudge short listed candidates for the purpose of selection of specific job---Interview was subjective test and it was not possible for Court of law to substitute its own opinion for that of an interview board, as it was in the domain of members of the Committee---Petitioner was not awarded any marks in interview, as such, he was not placed in merit list for the purpose of selection---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157 and Dr. Mir Alam Jan v. Dr Muhammad Shahzad and others 2008 SCMR 960 rel.

Shahid Qayum Khattak for Petitioner.

Arshad Ahmad, A.A.G for Respondent.

2022 P L C (C.S.) 461

[Peshawar High Court (Bannu Bench)]

Before Muhammad Naeem Anwar, J

RIAZ MUHAMMAD and another

Versus

ASAD ULLAH KHAN and 19 others

Civil Revision No.45-B of 2014, decided on 29th September, 2021.

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

----S.42---Constitution of Pakistan, Arts. 9 & 27---Personal security and rule of law---Appointment---Procedure---Accrual of right---Respondent's suit against authorities of education department was concurrently decreed against appointments, on ground that the same were without authority and in violation of law---Petitioners' (appointees) contented that suit was filed without asserting right, without accrual of cause of action, based upon alleged transfer of immovable property against which no service could be claimed; that suit was defective for non-joinder/misjoinder---Validity---E.D.O.(E&SE) was given additional charge for looking after the matters but he could not make any appointment against the posts in question---Recommendations forwarded by inquiry committee against E.D.O.(E&SE) showed that he had violated rules and misused his official powers and was not empowered for any appointment/transfer---On the basis of said inquiry, Secretary Education had imposed upon E.D.O. (E&SE) penalty of withholding of his two annual increments---Appointments of petitioners were without authority and were of no legal effect---Petitioners were initially appointed on fix pay and were not regular employees at the time of institution of respondent's suit, hence, no right was accrued at that time---Petitioners had opportunity to defend their right and contest the suit but they could not substantiate their version---Concurrent findings of courts below were well-reasoned and legally correct---Where law required doing something in a particular manner it had to be done in the same manner and not otherwise---Authority was incompetent, proper procedure was not adopted, neither the posts were advertised nor applications were invited---Petitioners remained in service/received salary, so principle of locus poenitentiae could not attract---Revision petition was dismissed accordingly.

Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Shahida Bibi v. Habib Bank Ltd. PLD 2016 SC 995; Human Rights Cases Nos. 4668 of 2006 and others PLD 2010 SC 759; Muhammad Nadeem Arif v. IGP Punjab Lahore 2011 SCMR 408 and Nadeem Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh 2009 PLC (C.S.) 161 ref.

(b) Constitution of Pakistan---

----Arts.189 & 203---Decision of High Court, finality of---Issue decided against a party if not challenged before apex Court, should attain the finality. [p. 469] L

Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah 1996 SCMR 1862 and Kanwal Nain v. Fateh Khan PLD 1983 SC 53 rel.

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

----O.I, R. 9---Non-joinder/mis-joinder ipso facto could not result into dismissal of suit in accordance with the procedural law. [p. 468] I

Muhammad Tariq Qureshi and Younas Ali Khan Marwat for Petitioners.

Saif-ur-Rehman Khattak, A.A.G for Official Respondents.

Muhammad Usman Khan for Private Respondent.

2022 P L C (C.S.) 478

[Peshawar High Court]

Before Rooh ul Amin Khan and Muhammad Nasir Mehfooz, JJ

QAISER SHAH and 6 others

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary Health, Civil Secretariat, Peshawar and 3 others

Writ Petition No.3987-P of 2020, decided on 17th December, 2020.

(a) Civil service---

----Withdrawal of appointment order---Order passed on political pressure---Scope---Petitioners assailed withdrawal of their appointment orders by the Medical Superintendent of the District Headquarter Hospital (DHQ)---Validity---Appointment orders of the petitioners were withdrawn on the sole ground of political pressure as stated by the Medical Superintendent in the impugned order and since no legal or justifiable ground was available, therefore, the impugned order was liable to be set aside---Constitutional petition was allowed.

(b) Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.10---Appointment by initial recruitment---Scope---Petitioners of connected writ petition claimed that they were registered with the Employment Exchange prior in time but the department had illegally appointed the respondents without their due turn---Validity---Contention of petitioners was not tenable because second proviso attached to R. 10 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, provided that appointment in Basic Pay Scale 3 to 5 shall be made on the recommendations of the Departmental Selection Committee through District Employment Exchange concerned---Appointment of respondents was made on the recommendations of the Departmental Selection Committee and through the District Employment Exchange, which were mandatory requirements of the rule---Said rule had not made it mandatory that appointment of those candidates registered prior in time with the Employment Exchange shall be made on priority basis---When the law required a thing to be done in a particular manner the same should be done in that manner otherwise not---Constitutional petition was dismissed.

(c) Administration of justice---

----When the law requires a thing to be done in a particular manner the same should be done in that manner otherwise not.

Noor Rahim and Said Khan for Petitioners.

Umar Farooq, A.A.G. for Respondents.

2022 P L C (C.S.) 508

[Peshawar High Court (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

Dr. AAMIR ZEB

Versus

CHIEF COLLECTOR OF EXAMINATION, (CPSP) and 5 others

Writ Petition No.653-M of 2020, decided on 12th January, 2021.

Civil service---

----Audi alteram partem, principle of---Applicability---Allegation of fraud---Petitioner was a doctor and employee of health department of Khyber Pakhtunkhwa Government--- Petitioner was not allowed to take FCPS Part-II examination on the allegation that letter showing approval of his thesis was found fake by examination authorities--- Grievance of petitioner was that disciplinary committee imposed penalty upon him without affording him opportunity of hearing--- Validity--- Rule of audi alteram partem was not given due deference and petitioner was not afforded a proper opportunity of hearing--- Proper opportunity of hearing was neither afforded to petitioner during inquiry, nor at appellate stage---High Court set aside decision of Disciplinary Committee and remanded the matter for initiation of fresh inquiry and petitioner would be confronted with gist of allegations in writing---High Court directed Federal Investigation Agency to expedite proceedings of inquiry requited by CPSP as the matter was sensitive in nature and could have a negative bearing on specialized education in medical filed in Pakistan---Constitutional petition was disposed of accordingly.

The University of Dacca through its Vice Chancellor and another v. Zakir Ahmed PLD 1965 SC 90; Hazara (Hill Tract) Improvement through its Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 ; PLD 1964 SC 410; 2002 PLC (C.S.) 128 and 2003 PLC (C.S.) 497 rel.

Qazi Zaki-ud-Din for Petitioner.

Salah-ud-Din Khan for Respondents.

2022 P L C (C.S.) 550

[Peshawar High Court (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

ADNAN KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education Khyber Pakhtunkhwa, Peshawar and 6 others

Writ Petition No.287-M of 2017, decided on 29th September, 2020.

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.9, 13 & 14---Pakistan Citizenship Rules, 1952, R.23---Appointment against the posts of Primary School Teacher---Domicile of the candidate, determination of---Contention of the petitioner-candidate was that the respondent-candidates had secured appointment (as Primary School Teacher) by wrongly obtaining domicile of the district where the post existed---Held, that posts of Primary School Teacher were district-wise posts under S.3 of Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 ('the 2011 Act'), which (posts) were required to be filled from candidates belonging to the Union Councils where the posts existed ---If an eligible candidate was not available in a Union Council then appointment could be made from adjacent Union Council and person from other district could not be appointed on the post of Primary School Teacher---In order to ensure that the residents of concerned Union Council were to be appointed on such post, Legislature had further particularized that permanent address of candidates of concerned Union Council was required to be mentioned in their Computerized National Identification Card (CNIC) and Domicile Certificate---Domicile was taken as one testimonial that the person was permanently resident of the district where he had applied for appointment while another such testimonial was CNIC---Petitioner had not raised objection regarding CNICs of the respondents which (CNICs) showed the permanent addresses of both as the district where the post-in-question pertained (though temporary address of one respondent was mentioned of some other district)---Main purpose of obtaining domicile was not establishing an entitlement to the job but such purpose was made one of the touchstones for determining one's entitlement for job of Primary School Teacher under S.3 of the 2011 Act ---Issuance of a domicile had not been a permanent feature to the effect that a person, obtaining it once, had to carry the same till his death---Sections 13 & 14 of the Succession Act, 1925, stipulated that an earlier domicile could be substituted through a subsequent domicile and the acquisition of subsequent domicile by a person was authorized by law---Competent authority (Deputy Commissioner) of both the districts had satisfied themselves while cancelling previous domiciles and issuing new ones---Respondents had placed their testimonials (domicile certificates and CNICs ) before the Recruitment Authorities who were also satisfied regarding their permanent addresses---Disputed question of fact could not be determined by the High Court while exercising constitutional jurisdiction as the same could be determined by the Civil Court---Petitioner had failed to make out case for the intervention of the High Court---Constitutional petition was dismissed, in circumstances.

Muhammad Yar Khan v. Deputy Commissioner cum Political Agent Loralai and another 1980 SCMR 456; Ahmad Developers v. Muhammad Saleh 2010 SCMR 1057; PLD 2009 SC 217 and Sardar Naseer Ahmad Mooiani v. Chief Executive/Chief Secretary Government of Balochistan Quetta 2007 SCMR 105 ref.

Syed Abdul Haq for Petitioner.

Raza-ud-Din Khan, A.A.G. and Sabir Shah for Respondents.

2022 P L C (C.S.) 590

[Peshawar High Court (Abbottabad Bench)]

Before Mohammad Ibrahim Khan and Shakeel Ahmad, JJ

MUHAMMAD AWAIS RAZAQ, SDO OPERATION, ABBOTTABAD and 4 others

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary Ministry of Power, Islamabad and 4 others

Writ Petition No.714-A of 2020, decided on 1st June, 2021.

Civil service---

----Non-statutory rules of service---Maintainability---Scope---Petitioners during their service were suspended on account of poor photo billing accuracy amounting to misconduct---Petitioners were later on reinstated, show cause notices were withdrawn and the intervening period was treated as leave without pay---Petitioners filed departmental appeal for allowing suspension grant, however, the appeal was turned down---Petitioners were confronted with question as to whether the petitioners could invoke the constitutional jurisdiction of High Court for redressal of their grievances in absence of violation of law or any statutory rules, he stated that the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, adopted by the respondent were statutory in nature---Validity---Adoption of the rules of Government or their application by reference did not lend a statutory cover or content to the rules---Employee of a corporation or company in the absence of violation of law or statutory rules could not press into service the constitutional jurisdiction for seeking relief relating to the terms and conditions of his service---Constitutional jurisdiction could not have been invoked by the petitioners---Constitutional petition being not maintainable was dismissed.

Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another PLD 1979 Lah. 803; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Chairman Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No.2070 of 1993); Mrs. M. N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Messrs Malik and Haq and another v. Muhammad Shams ul Islam Chowdhury and 2 others PLD 1961 SC 531; Zain-ul-Abideen v. Multan Central Co-operative Bank Limited, Multan PLD 1966 SC 445; Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40; Lt. Col. Shuja-ud-Din Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566; The Principal Cadet College Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan and another PLD 1984 SC 194; Syed Akhtar Ali Bukhari v. State Bank of Pakistan and others PLD 1977 Lah. 234; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224 and The Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275 ref.

Lahore Central Co-operative Bank Limited v. Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210 fol.

Munir Ahmad Bhatti for Petitioners.

Muhammad Bilal Khan, Assistant Attorney General for the Federation.

2022 P L C (C.S.) 635

[Peshawar High Court (D.I. Khan Bench)]

Before Abdul Shakoor and Sahibzada Asadullah, JJ

FARMAN ULLAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and 4 others

Writ Petition No.1127-D of 2017, decided on 25th January, 2021.

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

----S.9(1)---Service Tribunals Act (LXX of 1973), Ss.4 & 22---Recruitment policy for the post of Junior Clerk---Promotion against non-selection post---Fitness criteria---"Seniority-cum-merit" or "seniority-cum-fitness"---Scope---Petitioners (Class-IV employees) having higher education as well as seniority than the respondent, were dropped and latter were promoted on the basis of fitness---Contention of the petitioners was that the fitness criteria , as determined by the authorities with regard to the promotion (for the post of junior clerk), was highly unjust/discriminatory and against the policy in vogue of the Provincial Government---Validity---Recruitment policy of the provincial government provided that in every department the post of Junior Clerk was to be filled through 67% direct recruitment on the basis of open merit, whereas, for the purpose of promotion, Class-IV employees (Naib Qasid, Chowkidar etc.) had 33% share on the basis of seniority-cum-fitness---For the purpose of such promotion ( to the post of Junior clerk), Naib Qasid, Chowkidar etc. must possess Matriculation qualification---Four posts of Junior Clerk, in the present case, were lying vacant for which through advertisement applications were invited from Class-IV for promotion against 33% quota to the post of Junior Clerk---Prevalent Rules and Policy method of recruitment i.e. qualification and other conditions revealed that minimum qualification for appointment or promotion to the post of Junior Clerk, a speed of 30 words per minute in typing was essential and sine qua non---Petitioners had failed in the typing test which was necessary requirement for the promotion as Junior Clerk---Petitioners were not eligible according to the Rules and Policy as they had failed in typing test---Plea of malice or discrimination raised by the petitioners qua their deferment was not substantiated---Department had rightly denied the petitioners the promotion---Fitness criteria, thus, as determined by the authorities was just and in accordance with Policy in vogue by the Provincial Government---Depriving the petitioners from award of promotion to the post of junior clerk on the basis of fitness was on compact ground---No legal infirmity, material irregularity or jurisdictional error was found in the impugned recommendations made by the Departmental Promotion Committee, which did not call for any interference by the High Court in exercise of constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

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

----S.9(1)---Service Tribunals Act (LXX of 1973), Ss. 4 & 22---Constitution of Pakistan, Arts. 199 & 212---Promotion, right of---Criteria---Constitutional petition---Maintainability---Held, that 'eligibility for promotion' and 'determination of fitness' were two different criteria---Eligibility primarily related to the terms and conditions of service and their applicability to the civil servants, whereas question of fitness was a subjective evaluation on the basis of objective criteria---Section 9(1) of the Civil Servants Act, 1973, stipulated that civil servant had a right to be considered for promotion if eligible on account of possessing the prescribed minimum qualification etc.---Civil servant had no vested right to be promoted---Section 4 of the Service Tribunals Act, 1973, contemplated that civil servant who was aggrieved with respect of the terms and conditions of the service had right to file appeal before appropriate tribunal established for such purposes within prescribed period---Law did not provide any remedy of appeal or representation in view of S.22 of the Civil Servants Act, 1973, for determination of fitness of a civil servant to be promoted to a higher post---Petitioners had, therefore, no right to appeal or representation against the impugned recommendation of authorities for the promotion---In view of the specific bar contained in Cl. (b) of proviso to S.4(1) of Service Tribunals Act, 1973 , the petitioners lacking adequate efficacious remedy, therefore, had a right to seek the constitutional remedy---Constitutional petition was, thus not violative to the mandate of Arts. 199 & 212 of the Constitution and was maintainable.

Miss Zubaida Khatoon v. Mrs.Tehmina Sajid Sheikh and others 2011 PLC (C.S.) 596 ref.

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

----S.9(1)---Service Tribunals Act (LXX of 1973), Ss. 4 & 22---Promotion---"Seniority-cum-fitness" ---Scope---Held, that "Seniority-cum-fitness" meant that due and equal regard should be paid both to seniority and fitness and since fitness was a matter of degree, it would appear that a senior person could be overlooked in favour of a junior who was demonstrably more fit for the appointment than he was---Provision for promotion on the basis of seniority-cum-fitness, therefore, permitted the authorities to select a junior who was demonstrably more fit than the senior.

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

----S.9(1)---Service Tribunals Act (LXX of 1973), Ss.4 & 22---Promotion---"Seniority-cum-merit" or "seniority-cum-fitness"---Rule of comparative assessment---Applicability---Principle of "Seniority-cum-Merit" or "Seniority-cum-Fitness" visualized rejection of the unfit only---Difference existed where the promotion was based on the pure seniority and promotion based on seniority-cum-fitness---Whereas in a case of promotion based on seniority-cum-fitness apart from pure seniority, the person's fitness to hold the post to which he could be promoted , his physical fitness, his acquirement of qualification prescribed for the promotion post or such other positive factors from which it would be obvious that he was fit for promotion would have to be taken into account---Rule of comparative assessment was applicable.

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

----S.9(1)---Service Tribunals Act (LXX of 1973), Ss.4 & 22---Promotion---Equal opportunity---Adherence to the Statutory Rules and Procedures for selection of public jobs was the only surest method to objectively select the best out of the best from a competing lot; it was rooted into the fundamentals of equal opportunity, equal treatment and equal protections; any deviation therefrom would rock the bottom of the State, resting upon equiponderance ---State authority in every sphere of life was a sacred trust to be exercised fairly and justly by the functionaries to accomplish the purposes assigned to them by the law; it was their bounden duty to do right to the all manner of people, without any distinction.

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

----S.9(1)---Service Tribunals Act (LXX of 1973), Ss. 4 & 22---Promotion, right of---Competent authority, powers of---Non-selection post---No vested right accrued to the petitioners in case of promotion---Promotion against the non-selection post would be made on the basis of seniority-cum-fitness and a civil servant could not claim or ask for a promotion as a matter of right, as it was within the exclusive domain of the competent authority or Departmental Selection Committee---Neither the promotion could take place automatically nor the seniority alone was a deciding factor, as number of factors constituted fitness for promotion.

Muhammad Sajid Awan for Petitioner.

Kamran Hayat Miankhel, Addl. Advocate General and Umar Farooq Bhittani for Respondents.

2022 P L C (C.S.) 668

[Peshawar High Court]

Before Ijaz Anwar and Arshad Ali, JJ

MUDASIR NAZAR and 35 others

Versus

BANK OF KHYBER through M.D. Peshawar and 3 others

Writ Petition No.4539-P of 2018, decided on 17th February, 2021.

Civil service---

----State owned Bank employee---Outsourced employee---Service structure---Petitioners were employees of respondent Bank and their grievance was that their services had not been regularized---Contention of respondent Bank was that they were outsourced employees provided by a contractor---Validity---Petitioners were issued appointment orders by contractor on different dates starting from 2013 and onwards and mostly they were appointed against contract post of Credit / Assistant / Cashier / Cash sorter---Petitioners were holding prescribed qualifications required for their post and were performing duties of opening of accounts, online transfers, assigned targets for recovery of loan and achieving targets regarding deposit in Bank---High Court declared the petitioners as employees of respondent Bank for all intents and purposes as they were performing core functions of banking in respondent Bank---High Court declared that petitioners were entitled to similar service protection at par with their colleagues serving in Bank on regular basis---Constitutional petition was allowed accordingly.

Government of Khyber Pakhtunkhwa v. Jawad Ali and others 2021 SCMR 185 distinguished.

2015 PLC (C.S.) 1487; 2019 PLC (C.S.) 751; 2020 PLC (C.S.) 70; 2005 SCMR 100; 2013 SCMR 1253; 2015 SCMR 1257; 2018 SCMR 1405; PLD 2011 SC 22; 2007 PLC 472 and Haider Ali v. The Managing Director Bank of Khyber 2021 PLC (C.S.) Note 4, p.6 ref.

Messrs State Oil Company Ltd. v. Bakht Sadique and others 2018 SCMR 181; Abdul Ghafoor and others v. President National Bank of Pakistan 2018 SCMR 157; Sohail Ahmad v. National Bank of Pakistan and others 2019 PLC (C.S.) Note 7; Nilgiri Coop. Mkt. Society Ltd: v. State of T.N AIR 2004 SC 1639; National Bank of Pakistan v. Talimand and others Civil Appeal No.1549 of 2014; Kashif Salah-ud-Din and others v. National Bank of Pakistan (W.P. No.69-A/2014 decided on 25.5.2014) and 2009 SCMR 01 rel.

Zahanat Ullah for Petitioners.

Qazi Jawad Ehsan Ullah for Respondents.

2022 P L C (C.S.) 695

[Peshawar High Court (Bannu Bench)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

MEHERBAN KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Khyber Pakhtunkhwa Peshawar and 8 others

Writ Petition No.841-B of 2020, decided on 1st December, 2020.

(a) Civil service---

----Pensionary benefits---Scope---Petitioner sought release of his pensionary benefits---Validity---Petitioner had throughout worked and discharged his functions as Assistant Taxation Officer---Employment and retirement benefits were neither a bounty nor largess, but the same had to be earned by performing the assigned job and discharging the prescribed duties, which criteria the petitioner had fully met to the satisfaction of his superior/employers---Petitioner having been notified as Assistant Taxation Officer and having served for a long span of time could not be denied his perks and privileges as such---Payments of such perks, privileges and benefits were also protected under the doctrine of legitimate expectancy, as in the circumstances the petitioner was wholly justified in expecting such payments---Constitutional petition was allowed and the employers were directed to release the pension of petitioner.

(b) Civil service---

----Pensionary benefits---Scope---Pension is a retirement benefit, paid regularly based generally on the length of service of a pensioner---It is a series of periodic money payments made to a person who retires from employment because of age, disability, or the completion of an agreed span of service---Payments generally continue for the remainder of the natural life of the recipient or to a widow or any other survivor, as the case may be.

H.R.C. No.40927-S of 2012 (PLD 2013 SC 823) ref.

Ghulam Sadiq v. Government of Pakistan 2005 PLC (C.S.) 1114; Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif 2015 SCMR 1472; Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer 2015 PLC (C.S.) 296 and I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041 rel.

(c) Civil service---

----Pension---Scope---Right to a pension may be made to depend upon such conditions, as the grantor may see fit to prescribe.

Ghulam Sadiq v. Government of Pakistan 2005 PLC (C.S.) 1114; Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif 2015 SCMR 1472; Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer 2015 PLC (C.S.) 296 and I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041 rel.

(d) Civil service---

----Pension---Scope---Pension is the right of the civil servant by way of statute, which cannot be taken away arbitrarily---Such right accrues in favour of the retired civil servant due to the length of his service and that right is then bestowed upon the persons mentioned in the Rules in the event of their death.

The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P. Communications and Works Department, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514 and Haji Muhammad Ismail Memon Advocate Complaint PLD 2007 SC 35 rel.

Ahmad Farooq Khattak for Petitioner.

Umar Farooq, Additional Advocate General for Respondents.

2022 P L C (C.S.) 778

[Peshawar High Court]

Before Waqar Ahmad Seth, C.J. and Musarrat Hilali, J

Raja MUHAMMAD ZUBAIR and others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Writ Petition No. 743 of 2018, decided on 24th July, 2018.

(a) Elections Act (XXXIII of 2017)---

----S.230---Care-taker Government, functions/ powers of---Scope---Provincial Law Officers---Removal from service by Provincial Caretaker Government---Legality---Caretaker Government of the Province removed the petitioners from their services (as law officers) vide notifications without any notice, and appointed the respondents on such vacancies on the same date---Question in the present case was whether S.230 of Elections Act, 2017, gave unfettered powers to Caretaker Government for removing/terminating a permanent/contractual employee---Held, that Caretaker Government would enjoy limited powers of administrative continuity within available resources while preventing any major decision from being taken---Petitioners were removed from their seats without assigning any reason and appointed respondents on same date while two of the Additional Advocate Generals were retained---Emergency/short-term appointments had to be made as to temporarily fill vacancies when department had an emergency and such vacancies were not expected to be filled immediately in prescribed manner---Caretaker Government was not vested with power of removal/dismissal/termination/reduction in rank---Removing the petitioners from their respective offices was mala fide exercise of powers and was contrary to the mandate of the statute---High Court allowed the Constitutional petition declaring impugned Notifications void ab-initio and non est in eye of law.

(b) Elections Act (XXXIII of 2017)---

----S. 230---Caretaker Government, powers of---Scope---Section 230 of Elections Act, 2017 empowers a Caretaker Government only to execute the routine functions of Government making sure that the country does not come to a standstill position in the time between dissolution of the Parliament till the new elected Government is formed.

Sardar Nasir Aslam, Sardar Aman Khan and Syed Sikandar Hayat Shah for Petitioners.

Abdul Samad Khan, Advocate General, Khyber Pakhtunkhwa for Respondents.

2022 P L C (C.S.) 855

[Peshawar High Court]

Before Lal Jan Khattak and Musarrat Hilali, JJ

IFTIKHAR and another

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others

Writ Petition No.5206-P of 2019, decided on 21st October, 2021.

(a) Medical Teaching Institutions Reforms Act (IV of 2015)---

----Ss. 2(g-i) & 16---Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018), S.2(a) (Act, 2018)---Constitution of Pakistan, Art. 25---Vires of statute---Principles---Intelligible differntia---Scope---Maxim "salus populi suprema lex esto"---Petitioners/public servants contended that they were allotted residential accommodation; that S.2(a) of Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act, 2018, defined allottee; that Act, 2018, was amended in 2019 which held Medical Teaching Institutions also entitled for the residential accommodation; that petitioners serving in Public Service Commission were ousted by employing gross indiscrimination; that petitioners were issued cancellation order of their accommodations; that discrimination was meted out against them; hence such discriminatory provisions of the Act, 2018, needed to be struck down; that Medical Teaching Institution was an autonomous body, therefore, the amendment made in favour of the employees thereof and exclusion of the Commission employees were based on discrimination---Held, that admittedly, employees of the Provincial Assembly were civil servants and per the terms/conditions of their service, they were entitled to the official accommodation---Medical Teaching Institution was autonomous administratively/financially---Amendments in Act, 2018, had been made under the requirement that certain medical staff needed to be on call and required to be available for emergency---Inclusion of Medical Teaching Institutions employees thus appears to be a formula based on intelligible differntia and distinguished the role of civil servants mentioned in section 16 of the Medical Teaching Institutions Reforms Act, 2015 and thus the same had reasonable nexus with the object sought to be achieved---Welfare of people was the supreme law---Power to legislate was a plenary power vested in the legislature and those who challenged the legislation were required to show that their fundamental rights under the Constitution were affected or that the legislature lacked the legislative competence, in which the petitioners had not succeeded---Constitutional petition was dismissed accordingly.

Executive District Officer (Revenue) District Khushab at Jauharabad and others v. Ijaz Hussain and another 2011 SCMR 1864 and Riaz Hanif Rahi v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and 09 others PLD 2015 Isl. 07 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---"Ultra vires"----Scope---Ultra vires simply meant "beyond powers"---Basic criteria for declaring a law ultra vires was that if the same was found repugnant to or inconsistent with any provision of the Constitution and was beyond the mandate of the legislature.

Naveed Akhtar for Petitioners.

Sardar Ali Raza, A.A.G. for Respondents.

2022 P L C (C.S.) 886

[Peshawar High Court (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

ZAKIR ULLAH and others

Versus

DISTRICT HEALTH OFFICER, SWAT AT GULKADA SAIDU SHARIF, SWAT and others

Writ Petitions Nos.419-M, 465-M, 487-M, 999-M of 2019, 510-M, 920-M, 938-M, 1016-M, 1025-M, 1065-M, 1141-M of 2020, 90-M, 91-M, 325-M, 419-M, 424-M, 695-M, 705-M, 797-M, 931-M, 1122-M, 1146-M, 651-M, 1087-M, 584-M, 913-M, 82-M, 556-M, 1253-M and 40-M of 2021 with Interim Relief and C.M. No.1619 of 2020, decided on 8th December, 2021.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.10(4)---Quota reserved for appointment of retired employees' sons---Petitioners contended that authorities did not consider to appoint them under quota reserved for retired employees' sons---Validity---Grievance redressal mechanism was provided by Provincial Government, therefore, sons of all former employees, claiming rights under the quota, if their grievance was not redressed by their respective competent authorities, would approach appropriate forums provided for redressal of grievances---Unless and until they had availed that remedy at departmental end, they would not be able to invoke Constitutional jurisdiction of High Court---Unless matters were finalized at departmental end and final orders were passed, the matter could not be brought under adjudication in Constitutional Court, except in those cases, where there had been an express case of want of jurisdiction, mala fide or a situation where actions of administrative authorities, if allowed to continue would perpetuate injustice---High Court directed to send the petition to respective Grievance Committees of concerned departments and all petitions would be treated as representations filed before them---Constitutional petition was disposed of accordingly.

Sh. Ajaz Rasool v. Vice Chancellor, Karachi University, Karachi and 3 others 1999 CLC 1942; Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance 1984 CLC 142; Raja Muhammad Sadiq v. Water and Power Development Authority through its Chairman, Lahore PLD 1978 Lah. 738; Syed Ali Abbas Gardezi and another v. Government of Pakistan through Secretary Establishment Division, Islamabad and 3 others 2010 PLC (C.S.) 478 and Rana Aftab Ahmad Khan v. Muhammad Ajmal PLD 2010 SC 1066 rel.

Barrister Dr. Adnan Khan, Faheem Naeem, Syed Aziz-ud-Din Kakakhel, Shahzad Ahmad, Muhammad Nabi, Shams-ul-Hadi, Sardar Muhammad Arif Tajik, Syed Abdul Haq, Rahim Khan, Muhammad Amin Khan, Mushtaq Ahmad Khan, Abdul Nasir, Muhammad Rahim Shah Khan, Sabir Shah Advocates and Junior to Malik Muhammad Ajmal via video link for Petitioners.

Muhammad Kibria, petitioner in person (in W.P No. 938-M / 2020).

Atif Ali Khan, Addl:A.G along with Zubair Ahmad, Special Secretary Establishment via video link.

2022 P L C (C.S.) 930

[Peshawar High Court]

Before Muhammad Nasir Mehfooz and Syed Arshad Ali, JJ

MUHAMMAD SHAFIQUE SHAH and others

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division, Islamabad and others

Writ Petition No.371-P of 2020, decided on 8th December, 2020.

Civil service---

----Absorption in service---Petitioners were regular employees of Pakistan Tourism Development Corporation (PTDC) who sought their absorption in other offices of Provincial Government---Validity---Provincial Government was not bound by any law to absorb employees of PTDC who were being laid off---When PTDC offered retiring benefits to petitioners then they had no case of their absorption in services of Province---Provincial Government had neither agreed with management of PTDC nor evolved any mechanism for absorption of employees of PTDC rather employees of Tourism Department of Khyber Pakhtunkhwa were parked in surplus pool---High Court declined to interfere in the matter as grievance of petitioners had already been addressed by PTDC---Constitutional petition was dismissed, in circumstances.

Munir Hussain Lughmani for Petitioners.

Qazi Babar Irshad, Additional Attorney General, Muhammad Riaz Khan, Additional Advocate General, Barrister Awais Babar and Farmanullah along with Muhammad Azeem-ush-Shan, Section Officer (ORG-PTDC) Cabinet Division and Asad Bilal Jehangir, Manager (P&A) PTDC, Islamabad for Respondents.

2022 P L C (C.S.) 955

[Peshawar High Court]

Before Qaiser Rashid Khan, ACJ and Syed Arshad Ali, J

MUHAMMAD ISLAM

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Religious Affairs, Zakat, Ushr and Minorities Affairs, Islamabad and others

Writ Petition No.3014-P of 2020, decided on 16th December, 2020.

Khyber Pakhtunkhwa Zakat and Ushr Act (XVII of 2011)---

----S.12(4)---Age of Chairman---Appointment of Chairman District Zakat Committee was assailed on the plea that he was below 45 years of age---Validity---No bar of age existed in appointing a person as Chairman District Zakat Committee---Provision of S.12(4) of Khyber Pakhtunkhwa Zakat and Ushr Act, 2011 was in respect of appointment of Chairman Khyber Pakhtunkhwa Zakat and Ushr Council--- Constitutional petition was dismissed, in circumstances.

Malik Usman Rahim Khattak for Petitioner.

Qazi Babar Irsahd, Additional Attorney General for the Federation.

2022 P L C (C.S.) 985

[Peshawar High Court]

Before Qaiser Rashid Khan, CJ and Musarrat Hilali, J

SHAHERYAR GUL

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Principal Secretary to Governor Khyber Pakhtunkhwa, Peshawar and others

Writ Petition No.6843-P of 2019, decided on 27th October, 2021.

(a) Civil service---

----Termination of service---Departmental inquiry---Maxim "nemo debet esse judex in propriasua causa"---Applicability---Reinstatement with all back benefits---Petitioner was appointed as Computer Operator (BPS-12)---Department amended service rules and filled the post of Assistant Programmer (BPS-16) by promotion from Data Processing Supervisors (BPS-14)---Subsequently, posts of Computer Operator and Data Processing Supervisors had been upgraded from (BPS-12) and (BPS-14) respectively to (BPS-16)---Petitioner moved application for issuance of joint seniority list of Computer Operators and Assistant Programmers---New post of Assistant Director (IT) (BPS-17) was created by the Department and only cadre of Assistant Programmer was allowed for promotion to the said post---Petitioner filed departmental appeal followed by constitutional petition, and during pendency of said petition, department issued show-cause notice to the petitioner which was replied by petitioner, yet he was removed form service---Validity----Petitioner vide his reply (to show-cause notice of the department) denied all the allegations, but respondent/department imposed major penalty of removal from service upon the petitioner without holding regular inquiry---Reasons for not holding inquiry as given by the department was against the intent of law and principles of natural justice---Order of removal was not only biased but also predetermined and was contrary to the basic principles of jurisprudence---"Nobody could be the judge of his own cause"---Respondent/department issued show cause notice to petitioner alleging therein that he maligned the Office of Ombudsman particularly the department---On reply filed by the petitioner, department without holding inquiry imposed upon him major penalty of removal form service---Constitutional petition was allowed, in circumstances and petitioner was reinstated into service with all back-benefits.

Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another 2008 SCMR 1369; Government of N.W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104 and PLD 2012 SC 553 rel.

(b) Civil service---

----Major penalty---Departmental inquiry, mandatory nature of---Principle---Before imposing major penalty, holding of an inquiry was mandatory---In absence thereof the order of major penalty could not sustain.

2004 SCMR 316 rel.

Noor Muhammad Khattak for Petitioner.

Muhammad Sohail, Additional Advocate General for Respondents.

2022 P L C (C.S.) 1004

[Peshawar High Court (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ

MUNAWAR LAL

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary Election Commissioner and 6 others

Writ Petition No.719-B of 2021, decided on 21st October, 2021.

Cantonments Ordinance (CXXXVII of 2002)---

----S. 60---University of Science and Technology Bannu Service Statutes, 2018, S. 3---Contractual employment---Scope---Petitioner and respondent submitted their nomination papers for Special Interest Seats in elections of Cantonment Boards---Nomination papers of respondent were rejected on the ground that he was in service of a University, thus, he was disqualified in terms of S. 60(1)(g) of Cantonment Ordinance, 2002, being in service of a statutory body---Respondent assailed said order through an appeal, which was allowed---Validity---Respondent was in the employment of a University wherein the status of his service was mentioned as of "contract"---University had its own statutes framed and approved---Section 3 of the University of Science and Technology Bannu Service Statutes, 2018, revealed that the respondent being contract employee would not be dealt with the statutes of University---Impugned order did not suffer from infirmity or jurisdictional defect---Constitutional petition was dismissed.

Ahmad Farooq Khattak and Yasir Rauf for Petitioner.

Qudratullah Khan Gandapur, A.A.G for Respondents.

Muhammad Usman Khan for Respondent No.5.

Hamed Khan for Respondent No.6.

Muhammad Shah Nawaz Khan Sikandari for Respondent No.7.

2022 P L C (C.S.) 1028

[Peshawar High Court]

Before Rooh ul Amin Khan and Muhammad Nasir Mehfooz, JJ

ALTAF, JUNIOR CLERK, STORE PURCHASE SECTION, UNIVERSITY OF PESHAWAR and 3 others

Versus

The CHANCELLOR, PESHAWAR UNIVERSITY, PESHAWAR and 2 others

Writ Petition No.1598-P of 2018, decided on 3rd February, 2021.

Civil service---

----Contractual employment, regularization of---Scope---Petitioners being contractual employees sought regularization of their services---Validity---Petitioners were serving in the University for a considerable period of thirteen years, however, the 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 having entered into contract of service on the same or similar terms and said conditions having no vested right to seek regularization of their employment, which was discretionary with the employer---Contract employees and fixed salaried employees had no right to claim regularization---Constitutional petitions were dismissed.

Civil Review Petitions Nos.61 to 96 and 88 to 91 of 2018; Suo Motu No.69 of 2018; 2013 SCMR 304; Government of Balochistan v. Zahida Kakar 2005 SCMR 642 and 2013 SCMR 13 ref.

Civil Petitions Nos.4504 to 4576, 4588 and 4589 of 2017; Government of Khyber Pakhtunkhwa Workers Welfare Board through its Chairman v. Raheel Ali Gohar and others (C.P. No.73 of 2020); Miss Mehwish Asif v. Vice Chancellor Shaheed Benazir Bhutto University and 02 others 2016 MLD 95; Writ Petition No.122-P of 2016 and Mubashar Majeed v. Province of Punjab and 3 others 2017 PLC (C.S.) 940 rel.

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

Muhammad Asif Yousafzai for Petitioners.

Khalid Rehman Waseem ud Din Khattak for Respondents.

2022 P L C (C.S.) 1196

[Peshawar High Court]

Before Rooh ul Amin Khan and S M Attique Shah, JJ

Mst. ISLAM BIBI

Versus

GOVERNMENT OF PAKISTAN through Secretary State and Frontier Regions Division, Islamabad and 3 others

Writ Petition No.1705-P of 2021, decided on 10th November, 2021.

Civil Servants Act (LXXI of 1973)---

----S.19(2)---Pension/pensionary benefits---Alleged resignation of the deceased employee---Petitioner/widow contended that her husband died after 23 years of service; respondent/Deputy Commissioner instead of issuing retirement order issued appointment letter to his son accepting the resignation of the deceased; that deceased had never tendered any resignation during his life time; and that such resignation was false; and that she approached the authorities but of no avail---Held, that petitioner being widow of the deceased/servant was his legal heir---After rendering 23 years of un-blemished service the petitioner's husband fell fatally ill due to cancer and died---No document pertaining to resignation of the deceased had been annexed with the comments---Assistant Attorney General produced a resignation tendered a photocopy of the resignation letter---Tendering of resignation of the deceased after 23 years long service would not appeal to a prudent mind---Acceptance of the alleged resignation on the date of demise of the deceased servant also seemed dubious---Petitioner (legal heir of the deceased servant) had locus standi to file the constitutional petition---High Court allowed the constitutional petition and directed the authorities to grant/pay the pension/pensionary benefits to the petitioner.

Government of Punjab through Secretary Education Lahore and others v. Sameena Parveen and others 2009 SCMR 1 and Rakhshinda Habib v. Federation of Pakistan and others 2014 PLC (C.S.) 247 rel.

(b) Civil service---

----Pension/pensionary benefits---Nature and scope---Pension/pensionary benefit was not a bounty/ex-gratia payment but a right acquired in consideration of past service---Such right was conferred by law and could not be arbitrarily abridged/reduced except in accordance with law as it was the vested right and legitimate expectation of retired civil servant.

Secretary to Government of the Punjab, Finance Department v. M. Ismail Tayer and 269 others 2015 PLC (C.S.) 296 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Pension/pensionary benefits--Legal heirs of deceased civil servant---Locus standi---Service Tribunals have been constituted under Art.212 of the Constitution for dealing with the grievances of civil servants and not for their legal heirs---No provision in the Service Tribunals Act, 1973, to provide any remedy to the successors-in-interest of a civil servant---Appeal before Service Tribunal would not be maintainedable---Constitutional petition was maintainable in the High Court under its constitutional jurisdiction.

Muhammad Nawaz Special Secretary Cabinet Division through his Legal Heirs v. Ministry of Finance Government of Pakistan through its Secretary Islamabad 1991 SCMR 1192 ref.

Jehangir Khan Mohmand for Petitioner.

Rab Nawaz Khan, A.A.G. and Jawad Ali, Assistant Attorney General for Respondents.

2022 P L C (C.S.) 1239

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak and Ijaz Anwar, JJ

MUHAMMAD RUSTAM

Versus

REGISTRAR, PESHAWAR HIGH COURT, PESHAWAR and 2 others

Writ Petition No.817-A of 2017, decided on 22nd January, 2019.

(a) Khyber Pakhtunkhwa Civil Servants Act, 1973---

----Ss.9 & 26---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R. 18---Khyber Pakhtunkhwa Civil Servants Promotion Policy, 2009, Para I(a)---Promotion of High Court employees---Petitioner sought for his proforma upgradation to BPS-20 with retrospective effect from the date when he had completed 17 years of service and above---Petitioner contended that he was having more than 5 years service in BPS-18, as such, the Notification dated 04.11.2011 was upgraded vide Notification dated 28/03/2017 and 3 private secretaries of High Court were upgraded, as such, similar treatment should also be given to the petitioner---Respondent / authorities contended that there was no concept of retrospective upgradation; that by the time when the up-gradation to BPS-20 was allowed to certain officers of the High Court, the petitioner had already retired; that retired employees could not claim parity with the serving employees; that petition in hand was hit by the principle of 'laches' and where there was inordinate delay in filing of constitutional petition, High Court was not required to go into the merits of the case---Held, that promotion policy could not be applied in isolation---Length of service as to determine eligibility for promotion as given in Para No.I(a) of the Khyber Pakhtunkhwa Civil Servants Promotion Policy, 2009, only provided the minimum length of service for promotion of a civil servant to become eligible for promotion but of course it was subject to recruitment rules framed by the Government for respective departments providing channel of promotion---Administration Committee in its meeting further modified the upgradation order and gave it retrospective effect---High Court had upgraded the posts of all those Private Secretaries and Readers/Superintendents (BPS-18), who had completed 12 years satisfactory service to BPS-17 and above to BPS-19---As per the mandatory terms of upgraded policy, the officers so upgraded had to stay at least l0 years in a upgraded post---Petitioner had already retired and was benefited vide Notification when he was upgraded to BPS-19, was having no right whatsoever to claim further upgradation without completion of 10 years in that scale---Constitutional petition was dismissed accordingly.

Federal Public Service Commission through Secretary v. Anwar-ul-Haq (Private Secretary) Islamabad and others 2017 SCMR 890 and I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 rel.

(b) Khyber Pakhtunkhwa Civil Servants Act, 1973---

----Ss. 9 & 26---Khyber Pakhtunkhwa Civil Servants Promotion Policy (2009), Para I(a)---Scope---Promotion Policy, 2009 could not be outstretched so that it might be made a base for the promotion of civil servant---For upgradation there was a special policy of the provincial government i.e. "Policy and Criteria for Upgradation of Posts".

Muhammad Waqas for Petitioner.

Khalid Rehman for Respondents.

2022 P L C (C.S.) 1275

[Peshawar High Court (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

Mst. NADIA and 2 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health, Khyber Pakhtunkhwa, Peshawar and 3 others

Writ Petitions Nos.1110-M and 1172-M of 2018 with Interim Relief, decided on 10th March, 2021.

(a) Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.10---Regularization of service---Contract appointment---Recruitment through agency---Petitioners were appointed for project through a recruiting agency and sought their regularization in service---Validity---Method of appointment was prescribed under R.10 of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, by initial recruitment---Khyber Pakhtunkhwa Civil Servants Act, 1973, and Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 nowhere provided that appointment to a civil service could be made by or through some agency or private limited company or any other entity---Powers of government to devolve such authority to any other private entity was not provided or reserved under Khyber Pakhtunkhwa Civil Servants Act, 1973 and Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---Petitioners were appointed for Peoples' Primary Health Initiative Program under the umbrella of Sarhad Rural Support Program---Such appointments were not appointments made in service of Province---Government did not provide any such authorization under the contract entered with Sarhad Rural Support Program for implementation of Peoples' Primary Health Initiative Program---High Court declined to interfere in the matter of regularization of petitioners---Constitutional petition was dismissed, in circumstances.

Government of Khyber Pakhtunkhwa through Secretary Health, Peshawar and others v. Jawad Ali and others 2021 SCMR 185 ref.

(b) Constitution of Pakistan---

----Art.240---Regularization of service---Principle---When an employee seeks regularization of service of Province or Federation, he in fact seeks his appointment thereto---Law is required under Art.240 of the Constitution, which should provide for such appointment to civil service of the Federation or civil service of Province.

Hafiz Bakht Amin for Petitioners.

Haq Nawaz, Asstt: A.G. for Respondents.

2022 P L C (C.S.) 1335

[Peshawar High Court (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

SHER ZAMAN KHAN and 2 others

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affairs Department and 4 others

Writ Petition No.540-M of 2020 with Interim Relief (N), decided on 16th February, 2021.

Khyber Pakhtunkhwa Khasadar Force Act (XXXIV of 2019)---

----S.12--- Khasadar Force (Absorption in the Khyber Pakhtunkhwa Police) Rules, 2019, R. 7---Constitution of Pakistan, Art. 199---Terms and conditions of service of Khasadar Force---Scope---Petitioners being Khasadars/Sepoys were ordered to be retired from service on attaining the age of 50 years---Contention of petitioners was that after promulgation of 25th Constitutional Amendment, Federally Administered Tribal Areas (FATA) had merged in the Province of Khyber Pakhtunkhwa; that all laws of the Khyber Pakhtunkhwa had been extended to FATA; that to regulate and maintain the Khasadar Force, the Government of Khyber Pakhtunkhwa had promulgated the Khyber Pakhtunkhwa Khasadar Force Act, 2019, (the Act) for re-constitution, regulation and maintenance of Khasadar Force; that in pursuance of S. 5 as well as R.3 of the Khasadar Force (Absorption in the Khyber Pakhtunkhwa Police) Rules, 2019, all members of the Khasadar Force of a certain district were absorbed with effect from the date of their initial appointments; that they were informed that on attaining the age of 50 years as Khasadar, they had been retired from service and that since an age of 60 years had been provided for civil servants of the Province of Khyber Pakhtunkhwa as the date of superannuation, therefore, their age of superannuation was to be considered as 60 years instead of 50 years---Validity---Section 13(2)(a) of the Act provided that existing terms and conditions of service of the Khasadar Force unless amended through a substitute rules or instrument, would not be affected by promulgation of the Act or any provision thereof, unless specifically provided otherwise---Rules were framed under S. 10 of the Act but the new rules had not totally repealed the earlier rules---Rule 7 of the Khasadar Force (Absorption in the Khyber Pakhtunkhwa Police) Rules, 2019, provided that all rules, orders or instructions, in force in respect of the Khasadar Force immediately before the commencement of the Rules would be deemed to have been repealed, so far as those rules, orders or instructions were inconsistent with the new rules---Earlier rules also held the field except in cases of inconsistency with the new rules---No period of retirement had been provided in the new rules---Age of retirement given in the earlier rules was 50 years of age or twenty five years of service, whichever was earlier---Constitutional petition was dismissed.

Muhammad Ashfaq Khan Akhunkhail for Petitioners.

Haq Nawaz, Asst: A.G. for Respondents along with Muhammad Zada, Assistant in person.

2022 P L C (C.S.) 1387

[Peshawar High Court (Abbottabad Bench)]

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

SHAKIR ALI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Population Welfare Khyber Pakhtunkhwa, Peshawar and 2 others

Writ Petition No.1101-A of 2021, decided on 22nd March, 2022.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.10---Appointment by initial recruitment---Scope---If a civil servant dies, or is rendered invalidated or incapacitated permanently during his/her service, one of his/her child or widow/wife may be appointed to a post in any of the basic pay scales Nos.1 to 15, if he/she possesses minimum qualification prescribed for appointment against such post---However, in R.10 there is no scope of appointment for a widower/husband in case his wife dies during service or retires on medical ground except one of her children be appointed according to his/her qualification. [p. 1390] A

Syed Waqas Naqvi for Petitioner.

Raja Muhammad Zubair, A.A.G for Respondents.

2022 P L C (C.S.) 1467

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

MUKHTAR-UL-HAQ and 4 others

Versus

DISTRICT POLICE OFFICER, SWAT and 7 others

Writ Petition No.805-M of 2021 with Interim Relief, decided on 11th May, 2022.

Khyber Pakhtunkhwa Civil Servants Pension Rules, 2021---

----R.2(c)---Pension/salary, stoppage of---Petitioners were brothers and sisters of deceased civil servant who met Shahadat during her service---Term "family"---Scope---Grievance of petitioners was that pension / salary of deceased civil servant was stopped by the authorities after the death of their mother---Validity---Petitioners were brothers and sisters of martyred and under R.2(c) of Khyber Pakhtunkhwa Civil Servants Pension Rules, 2021, who did not fall within the ambit of term "family"---Though full sister was a legal heir as per table or sharers provided in Islamic law subject to the condition that deceased when had no child, child of a son how-low-soever, father, true grandfather or full brother, with a further condition that with full brother sister would become a residuary---Even in accordance with injunctions of Islam, brothers and sisters with such condition were legal heirs---All legal heirs were not included in definition of "family"---Package of Shuhada to the extent of continuation of salary was restricted to the term "family" as provided in Khyber Pakhtunkhwa Civil Servants Pension Rules, 2021---Petitioners did not fall within the definition of "family" as such they were not entitled for continuation of salary---Authorities upon death of mother of the Shaheed police lady constable rightly stopped her salary---Petitioners could not establish infringement of their Constitutional rights nor violation of any law against authorities---According to rules, husband, widows and children constituted "family" who were entitled to receive gratuity and pension in case of death of the employee---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Mst. Hussan Jamala and another v. Government of Khyber Pakhtunkhwa through Secretary, Home and Tribal Affairs, Peshawar PLD 2013 Pesh. 1 ref.

Imtiaz Ali Khan for Petitioners.

2022 P L C (C.S.) 1540

[Peshawar High Court]

Before Qaiser Rashid Khan, CJ and Muhammad Naeem Anwar, J

RAZA ALI KHATTAK and 3 others

Versus

VICE-CHANCELLOR ABDUL WALI KHAN UNIVERSITY, MARDAN and 2 others

Writ Petition No.746 of 2019, decided on 24th February, 2021.

(a) Khyber Pakhtunkhwa Universities Act (X of 2012)---

----S.11(5)(e)---Contractual employment---Regularization of services---Scope---Petitioners where aggrieved of issuance of an office order whereby they were relieved from their services---Validity---Petitioners were appointed as contractual employees of the respondent for a period of one year or till the arrival of regular selectees and as per Cl. (1) of terms and conditions of their appointment orders their services were to be terminated at any time/stage without serving any prior notice---Petitioners though had served in the university from the years 2013 to 2019 but there was no provision in the Khyber Pakhtunkhwa Universities Act, 2012, under which they could claim their regularization as a right---Constitutional petition was dismissed.

Owais Shams Durani and others v. Vice-Chancellor Bach Khan University, Charsadda and another 2020 SCMR 1041 rel.

(b) Civil service---

----Contractual employment---Scope---Employees having entered into contract of service had no vested right to seek regularization of their employment, which was discretionary with the master and the master was well within his rights to retain or dispense with the service of his/its Employees on the basis of satisfactory or otherwise performance.

PLD 2011 SC 132; 2013 SCMR 302; 2005 SCMR 642; 2016 MLD 95; 2013 SCMR 13; 2013 SCMR 304 and 2017 PLC (C.S.) 940 ref.

Waseem ud Din Khattak and Muhammad Ayaz Khan for Petitioners.

Mansoor Tariq for Respondents.

2022 P L C (C.S.) 1585

[Peshawar High Court (Abbottabad Bench)]

Before Muhammad Ibrahim Khan and Shakeel Ahmad, JJ

Sardar MUHAMMAD RAMZAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and 4 others

Writ Petition No.1384-A of 2020, decided on 2nd November, 2021.

(a) Khyber Pakhtunkhwa Galiyat Development Authority Act (XII of 2016)---

----S.10 [as amended by Khyber Pakhtunkhwa Galiyat Development Authority (Amendment) Act, 2020)]---Constitution of Pakistan, Art. 199 (1)(b)(ii)---Quo warranto, writ of---Locus standi---Director General, Galiyat appointment of---Petitioner assailed appointment of respondent as Director General of Galiyat Development Authority---Validity---Any person and not necessarily an aggrieved person, can seek redressal from High Court against usurpation of a public office by a person who is holding it "without lawful authority" on that account---On such account it could not be doubted that petitioner did not have any locus standi to file petition---Respondent was serving as an officer in BPS-18 in Pakistan Railways and was posted as Director (Admn) Galiyat Development Authority in his own pay scale on deputation basis---Respondent was also given additional charge of the post of Director General Galiyat Development Authority, till further orders---Subsequently he was appointed as Director General in exercise of powers under S.10 of Khyber Pakhtunkhwa Galiyat Development Authority Act, 2016---High Court declared that appointment of respondent was made in violation of S.10 of Khyber Pakhtunkhwa Development Authority Act, 2016, in excess of authority and the same was declared illegal, without lawful authority and of no legal effect---Constitutional petition was allowed accordingly.

Arun Kumar v. Union of India and others AIR 1982 Rajasthan 67; Pir Sabir Shah v. Government of Pakistan 1994 CLC 5; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2019 SC 644; Masood-ul-Hassan v. Khadim Hussain and another' PLD 1963 SC 203 and Capt (Retd) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 02 others 2000 SCMR 1720 ref.

(b) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Quo warranto writ of---Scope---Procedure of quo warranto gives judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right---Such proceedings also tend to protect public from usurpers of public office, who might be allowed to continue either with connivance of the Executive or by reasons of its apathy.

Tauqir Ahmad for Petitioner.

Sardar Muhammad Asif, Assistant Advocate General and Rashid-ul-Haq Qazi for Respondent No.3.

2022 P L C (C.S.) 1486

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman, Muhammad Sajid Mehmood Sethi and Sardar Muhammad Sarfraz Dogar, Members

MUHAMMAD SHABBIR AHMED MINHAS

Versus

LAHORE HIGH COURT through Registrar and another

Service Appeal No.13 of 2004, heard on 19th November, 2021.

(a) Civil service---

----Dismissal/major penalty awarded to Judicial Officer---Impersonation and cheating---Appellant/Civil Judge cum Judicial Magistrate had been awarded major penalty, i.e. dismissed from his post---Allegation was made by Chairman Education Board of relevant Division that appellant had appeared in intermediate examinations held in 1987 and 1988 in place of his elder brother; that in his capacity as Civil Judge, appellant had stamped for attestation of the copies of National Identity Card and Intermediate examination result card appended with the application of his brother for obtaining duplicate copy of result card---Appellant denied the said charges, however, he admitted that he attested the result card---Inquiry Officer/District Judge submitted report concluding that all the charges stood proved---After providing to the appellant with opportunity of personal hearing, major penalty was imposed and departmental appeal /review was dismissed---Appellant contended that allegation was not sufficiently proved; that alleged impersonation belonged to period much prior to the appellant's appointment as judicial officer, hence the disciplinary proceedings were invalid and that inquiry proceedings were concluded much beyond the period stipulated under the law---Validity---Department examined 07 witnesses---Appellant's brother was examined who admitted that photographs affixed on the admission form were not his photographs---During departmental hearing before Authorized Officer, appellant admitted that his photographs were available on the application form and he also admitted the existence of his signatures (as attestation) on copies of his brother's Identity Card and result card---Appellant produced 03 witnesses including one Handwriting Expert but could not rebut the charges, discard the evidence brought on record and prove his innocence---No malice had been attributed to the witnesses who supported the challenges levelled against the appellant---No effect was prescribed in the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, where the inquiry proceedings were not concluded within a period of 90 days---No material was placed on record to establish that any prejudice was caused to the appellant due to delay in conclusion of inquiry proceedings---Appeal was dismissed accordingly.

Rizwana Altaf v. Chief Justice, High Court of Sindh through Registrar 2020 PLC (C.S.) 1244; Raja Muhammad Shafique Javaid v. Lahore High Court through Registrar 2005 PLC (C.S.) 1015 and Balvantaray Ratilal Patel v. State of Maharashtra AIR 1968 SC 800 rel.

(b) Civil service---

----Major penalty---Judicial officer, conduct of---Character before appointment, relevancy of---Man is a product of his habbits/behaviour developed in youth---Evil ways get deeply seated in those who fall prone to them in early stages of life, making this almost impossible for them to let the wickedness go---Judge should be above any fault of character, otherwise little semblance of justice judiciary finds in society will give way to total chaos.

(c) Civil service---

----Departmental proceedings---Expeditious conclusion---Regular inquiry, exemption of---When there was sufficient documentary evidence available, regular inquiry could be dispensed with to secure expeditious conclusion of departmental proceedings after confronting the delinquent officer with the available evidence and providing him an opportunity to explain his position.

Deputy Inspector-General Investigation, Lahore v. Asghar Ali 2011 SCMR 138; Hassan Raza v. Federal Board of Revenue through Chairman and others 2020 SCMR 994 and Chief Postmaster Faisalabad, GPO and another v. Muhammad Afzal 2020 SCMR 1029 rel.

(d) Civil service---

----Departmental proceedings---Inquiry, delay in conclusion of---Prejudice to the accused/servant---Scope---Mere delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer---Each delay does not necessarily prejudice the accused---Material has to be presented to demonstrate how it had prejudiced the appellant in the conduct of the departmental inquiry.

Kamleshbhai B. Mehta v. Registrar, High Court of Gujarat 2004 (3) GLR 2290; Additional Superintendent of Police v. T. Natarajan, 1998 (7) S.L.R. 403 and Abdul Rehman Antulay v. R.S. Nayak AIR 1992 SC 1701 rel.

Tallat Farooq Shaikh for Appellant.

Iftikhar Ahmad Khan for Respondent No.1.

Hafiz Tariq Naseem for Amicus Curiae:

2022 P L C (C.S.) 535

[Balochistan High Court]

Before Rozi Khan Barrech, J

HATIM AMEER BALOCH

Versus

SHAHBANA KHUDA BAKHSH and another

Succession Appeal No.04 of 2020, decided on 13th August, 2020.

Balochistan Civil Servants Pension Rules 1963---

----R.4(10)(a)---Succession Act (XXXIX of 1925), Ss.372 & 384---Succession of pension---Entitlement---Widow of deceased civil servant sought her succession to pension which was allowed by Trial Court but claim of son was denied---Validity---Widow was dependent on her deceased husband who was a government servant and she was entitled for pension amount---High Court declined to interfere in the order passed by Trial Court as there was no illegality or irregularity committed by the Court---Appeal was dismissed, in circumstances.

Federal Government v. Public at Large PLD 1991 SC 731 rel.

Ghulam Mohiuddin Sasoli for Appellant.

Behlol Khan Kasi for Respondent No.1.

2022 P L C (C.S.) 560

[Balochistan High Court]

Before Jamal Khan Mandokhail, CJ and Abdul Hameed Baloch, J

MUHAMMAD ZAKRIA

Versus

DISTRICT AND SESSIONS JUDGE, QUETTA and another

C.P. No.439 of 2020, decided on 31st August, 2020.

Civil service---

----Dismissal from service---Wilful absence---Scope---Petitioner assailed order passed by competent authority whereby he was dismissed from service---Validity---Conduct of the petitioner showed that he was a wilful absentee and his conduct was unbecoming---Biometric attendance of the petitioner showed that he had continuously remained absent from his duty---Concerned officer had repeatedly issued show-cause notices to the petitioner for his wilful absence but he had remained careless and repeated the same---Petitioner had failed to satisfy the inquiry officer through tangible and satisfactory evidence---Constitutional petition was dismissed, in circumstances.

Government of Khyber Pakhtunkhwa through Capital City Police Officer Peshawar v. Shahid 2020 SCMR 981 rel.

Abdul Rasheed Awan for Petitioner.

Nemo for Respondents.

2022 P L C (C.S.) 770

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ

Dr. ILYAS and another

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others

Constitution Petition No. 379 of 2021, decided on 6th December, 2021.

(a) Bolan University of Medical and Health Sciences Act (VII of 2017)---

----S. 15---Constitution of Pakistan, Art. 105---Vires of S.15, Bolan University of Medical and Health Sciences Act, 2017---Vice-Chancellor---Appointment by Governor/ Chancellor without advice by Government/ Cabinet/Chief Minister---Scope---Chancellors of universities had to be bound in the same manner as the Governor of a province would act and was bound under clause (1) of Art. 105 of the Constitution---Section 15(1) of the Bolan University of Medical and Health Sciences Act, 2017, was inserted in complete disregard of the spirit of 18th Amendment and in violation of Art. 105 of the Constitution---Contention that the Governor while working under a statute was not bound to act on the advice of the Provincial Government was devoid of force and had no legs to stand---Any attempt to expound or advance any distinction between the Governors' constitutional powers/functions and his powers or functions under any statute would run contrary to the law---Governor was bound to act on the advice of Chief Minister in appointment of Vice-Chancellor of government universities---Constitutional petition was allowed and Cls. (1) & (2) of S.15 of the Act, 2017, were struck down from the statute being violative of Art. 105 of the Constitution.

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Aamir Raza Ashfaq v. Minhaj Ahmed Khan 2012 SCMR 6 rel.

(b) Constitution of Pakistan---

----Fourth Schedule, Part II, Entry No. 12---Standards in institutions for higher education and research, scientific and technical institutions---Before the 18th Amendment, education as a subject was placed at Entry 38, under Part I of the Concurrent List, which was moved to the Federal Legislative List, Part II, as Entry 12---Joint jurisdiction of both the Provinces and the Federation had been established over the subject---Education was recognized as a right but not a justiciable one, however, the 18th Amendment Act made the said right justiciable, i.e. it could be enforced through Courts---Eighteenth Amendment ensured autonomy for the federating units and it was after the passage of the same that the subject of education fell under the exclusive domain of the provinces---Federal Legislature could not enact legislation in the provinces except in the matter pertaining to higher education, research and scientific and technical institutions.

----Arts. 48 & 105---Advice of Prime Minister and Chief Minister---Strict construction---Scope---Except otherwise so provided under the Constitution, the President and Governor are bound by the advice tendered by the Prime Minister and the Chief Minister respectively and in the manner prescribed in the Constitution---Governor has no other powers except those which are expressly conferred upon him by the Constitution.

Muhammad Ali Kanrani and Hazrat Ali Kakar for Petitioners.

Shai Haq Baloch, Addl. A.G. and Syed Iqbal Shah, D.A.G. for Official Respondents.

Khalid Sultan for Respondent No.6.

2022 P L C (C.S.) 1192

[Balochistan High Court]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

IMRAN RAHIM DURRANI

Versus

PROVINCE OF BALOCHISTAN through Chief Secretary Civil Secretariate, Quetta and 8 others

Constitution Petition No.299 of 2018, decided on 28th June, 2019.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Scope---Petitioners were Employees of Irrigation Department---"Aggrieved person"---Scope---Construction of dams by Public Health Engineering Department---Contention of petitioners was that construction of dams was exclusive domain of Irrigation Department---Validity---Petitioners invoking constitutional jurisdiction had to establish that their legal or fundamental rights had been violated and they were "aggrieved persons"---Petitioners had to prove their locus standi to seek direction for initiation of action against the respondents---Petitioners were employees of Irrigation Department and they could not challenge way of business being carried out by the Government's competent functionaries---Public Sector Development Program had to be approved by the Cabinet and then sent to the Assembly and after passing of the budget the work of said program would be reflected in the budget---Construction of dam by Public Health Engineering Department had been approved by the Cabinet as well as by the Assembly---Secretary Irrigation Department had not challenged the decision of construction of dam made by the Government for assigning said construction to Public Health Engineering Department---Petitioners being employees of Irrigation Department did not fall within the definition of 'aggrieved person'---Petitioners could not be termed to be 'aggrieved persons' for challenging orders, acts or proceedings done by the respondent department---Constitutional petition being not maintainable was dismissed, in circumstances.

N.W.F.P Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 rel.

Haqdad Azad for Petitioner.

Shai Haq Baloch, A.A.G. for Respondent/State.

2022 P L C (C.S.) 1326

[Balochistan High Court]

Before Jamal Khan Mandokhail, CJ and Muhammad Kamran Khan Mulakhail, J

SAIRA ATTA

Versus

The GOVERNMENT OF BALOCHISTAN through Chief Secretary and others

C.P. No.555 of 2020, decided on 31st May, 2021.

Balochistan Civil Servants Act (IX of 1974)---

----S.14---Employment after retirement---Scope---Petitioner was aggrieved of the re-employment of respondent after his retirement on attaining the age of superannuation---Contention of Provincial Government was that the contract period of respondent had expired and his contractual appointment was not extended, whereas the post created for his appointment had also been abolished---Validity---Re-employment of any retired civil servant had to be made subject to S. 14 of the Balochistan Civil Servants Act, 1974, read with instructions contained in Estacode---Re-employment of respondent was virtually against the Balochistan Civil Servants Act, 1974 and the instructions contained in Sl. No. 21 of Estacode, which otherwise had force of rule and law---Re-employment of persons in service on their retirement could be made in public interest because re-employment against a sanctioned post was likely to affect the junior officers, who were waiting for promotion to the next higher rank as their right of promotion was blocked and they would have to wait till such re-employed officer completed his contract---In the meanwhile, they would have to face difficulties in maintaining their seniority---Promotion of an employee was not to be blocked to accommodate a retired officer, however, if the right of promotion was not blocked by re-employment, then such powers could be exercised and that too in exceptional cases---Official respondents were directed to avoid any such appointment, and in case there was a dire need of any appointment the guidelines given by the Supreme Court were to be followed in letter and spirit---Petition was disposed of accordingly.

Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 rel.

Suo Motu Gas Case No.16 of 2011 along with CMAs PLD 2013 SC 443 fol.

Muhammad Ali Kanrani, Hazrat Ali Kakar, Anayat Kasi and Masood Tareen for Petitioners.

Shai Haq Baloch, A.A.G. for the State.

2022 P L C (C.S.) 1369

[Balochistan High Court]

Before Jamal Khan Mandokhail, CJ and Muhammad Kamran Khan Mulakhail, J

ABDUL GHAFFAR KUDEZAI and 2 others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat, Quetta and 2 others

C.P. No.1173 of 2020, decided on 31st May, 2021.

Balochistan Civil Servants Act (IX of 1974)---

----S.2(1)(b)---Constitution of Pakistan, Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.2(a)---Bar of jurisdiction---Retired civil servant---Scope---Petitioners, retired civil servants, were aggrieved of payment of benevolent fund on the lower side---Validity---Definition of civil servant as provided in S.2(1)(b) of the Balochistan Civil Servants Act, 1974 when considered with Art. 212 of the Constitution and Service Tribunals Act, 1974, included the person who had remained as civil servant---Retired civil servants were not ousted from agitating their claims regarding terms and conditions of their service before the Service Tribunals---Petitioners being civil servants were barred from agitating their claim before the High Court and such bar was created through Art.212 of the Constitution---Constitutional petition was dismissed.

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

Aminullah Gharsheen for Petitioners.

2022 P L C (C.S.) 1459

[Balochistan High Court]

Before Jamal Khan Mandokhail and Abdul Hameed Baloch, JJ

MUHAMMAD FURQAN KHAN

Versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and 5 others

C.P. No.1057 of 2020, decided on 27th November, 2020.

Civil service---

----Laches---Applicability---Limitation---Object, purpose and scope---Petitioner sought implementing of Cabinet decision passed in year 1993, regarding regularizing his service---Validity---Object of law of limitation is to help vigilant and not to indolent and delay defeats equities---Court of equity has always referred its aid to state demand where a party has slept upon his right and acquiesced for a great length of time---Question of laches in filing Constitutional petition has to give serious consideration unless plausible explanation is forthcoming for such delay and same cannot be overlooked---Petitioner after induction became silent, when he was repatriated then he filed application for implementing decision of Cabinet passed in year 1993, which was time barred---Constitutional petition was dismissed, in circumstances.

Muhammad Islam v. Inspector General of Police Islamabad 2011 SCMR 8 rel.

Syed Ayaz Zahoor for Petitioner.

2022 P L C (C.S.) 1494

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

ABDUL RAUF and others

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Services and General Administration Department and others

Constitution Petitions Nos.48, 363, 401, 656, 678 and 1173 of 2019, decided on 3rd January, 2020.

Civil service---

----Advertisement for appointments---Locus poenitentiae, principle of---Applicability---Candidates having qualified written test and interview were recommended for appointment by the Recruitment Committee---Department did not announce result on the basis of said recommendations but re-advertised the posts on the ground of delay in completion of recruitment process---Validity---Department had constituted Selection Committee for conducting written test and interview for the posts in question---Petitioners had qualified written test and interview and merit list had been prepared---Candidates had been recommended by the Selection Committee for appointment---Petitioners who had been recommended by the Recruitment Committee after due process were not at fault for protracted and lengthy process of recruitment---Re-advertisement of the posts in question was not justified and plausible, in circumstances---No plausible and legal justification existed for cancellation of recommendations of Recruitment Committee---No illegality or irregularity had been pointed out in the constitution of Selection Committee---Once process of selection had been completed in an ordinary manner then it could not be upset in an arbitrary manner---Process of recruitment in the present case had been completed and all decisive steps had been taken for recruitment---Any lapse or delay in executing a clerical or inconsequential formality would not render such process incomplete---Right had accrued in favour of petitioners for job against the posts for which they had been selected---No power of locus poenitentiae was left with the department to retract from their steps---Department was directed by the High Court to issue appointment orders in favour of petitioners after due verification of their credentials---Constitutional petition was allowed, in circumstances.

2004 PLC (C.S.) 99 rel.

Ghulam Mustafa Buadar for Petitioner (in Constitution Petitions Nos.401, 678 and 1173 of 2019).

Zahoor Ahmed Baloch for Petitioner (in Constitution Petition No.656 of 2019).

Abdul Khair Achakzai for Petitioners (in Constitution Petitions Nos.48 and 363 of 2019).

Zahoor Baloch, Additional Advocate General (AAG), Abdullah Shahwani DG along with Abdul Mateen Kakar, Director (Judicial) Mines and Minerals Department Government of Balochistan for Respondents.

2022 P L C (C.S.) 1

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

GUL ROZ

Versus

The GOVERNMENT OF PAKISTAN through Secretary SAFRON and others

Civil Petitions Nos. 1557 and 1569 of 2017, decided on 24th January, 2018.\

(On appeal from the judgment/order dated 14.02.2017 passed by Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.P. No.500-M of 2016 and W.P. No. 753-M of 2016)

Civil service---

----Interim order /suspension order suspending promotion to next rank---Scope and effect---Suspension order was neither a final adjudication about the validity of a promotion order nor it tantamount to its reversal.

Petitioner who served as Subedar, Levies was promoted to rank of Subedar Major. However due to an interim order passed by the High Court, the petitioner's promotion was suspended. The whole controversy in the present case turned on the effect of the interim order of the High Court. That order did not validate or reverse the promotion of the petitioner; it merely postponed the implementation of the said promotion order. The mere fact that the promotion order of the petitioner was suspended, did not mean that he had been demoted or reverted or that the order had been cancelled. The continuance of the petitioner in the rank of Subedar on account of the interim order did not count towards his substantive tenure in that post but was merely a consequence of the interim order. Therefore, such service could not count towards the exhaustion of his tenure as Subedar for the purpose of retirement. In the circumstances of the present case the tenurial criterion could not be the determining factor for fixing the date of retirement of the petitioner. This was because such criterion for retirement was rendered superfluous due to the interim order passed in pending litigation.

Rather than implementing the promotion order of the petitioner as Subedar Major or taking other proceedings in relation thereto, the Commandant wrongly presumed that the petitioner was ineligible for that post. Hence he directed the said post of Subedar Major to be officiated by a junior officer and recalled the petitioner to the Levies Lines pending his retirement. Said approach was wrong on the facts of the case and the law applicable thereto. Accordingly, the promotion order of the petitioner merited implementation in accordance with law and the criteria laid down in the relevant service rules. Petitions for leave to appeal were converted into appeals and allowed accordingly.

Qazi Jawwad Ehsanullah, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in both cases).

Nemo for Respondent No.1 (in both cases).

Abdul Latif Yousafzai, A.G. Khyber Pakhtunkhwa for Respondent No. 2 (in both cases).

Alamgir Khan, Additional Assistant Commissioner (Levies) Malakand for Dy. Commissioner/Commissioner Malakand Levies Malakand (in both cases).

Misbahullah Khan, Advocate Supreme Court for Respondent No. 4 (for C.P. No. 1569 of 2017).

Nemo for Respondent No. 5 (in C.P. No. 1557 of 2017).

2022 P L C (C.S.) 23

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Public Health Engineering, Peshawar and others

Versus

ABDUL MANAN and others

Civil Appeals Nos. 239, 274 and 283 of 2020, decided on 14th July, 2021.

(Against the judgment dated 27.09.2016, 17.07.2018 and 14.11.2018 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 767-P, 1674-P of 2016 and 3108-P of 2018)

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

----Ss. 2(1)(b) & 3---Contract/ad hoc employees---Regularization in service---Scope---To be regularized under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') the employee in question may be an ad hoc or a contract employee who must be appointed by the Government---Three categories of employees cannot take benefit of S. 3 of the 2009 Act and claim regularization; first, project employees, that is, employees who were appointed against a project post---Whenever the said project came to an end unless otherwise provided, the posts in the said project too came to an end and all appointees stood relieved; second, employees appointed on a work charge basis, and third, those employees who were paid out of contingencies---Last proviso was perhaps there because funds for contingencies were limited and mostly time-bound, as such, whenever the contingent funds ran out, employees may be relieved, by following the proper procedure.

(b) Interpretation of statutes---

----When the intent of the legislature was manifestly clear from the wording of the statute, the rules of interpretation required that such law be interpreted as it is by assigning the ordinary English language and usage to the words used, unless it caused grave injustice which may beirremediable or led to absurd situations which could not have been intended by the legislature --- Only then, the Court may see the mischief which the legislature sought to remedy and interpret the law in a manner that met the intent of the legislature.

(c) Interpretation of statutes---

----Prospective effect of an Act---Scope---When the law itself provided a date for the application of an Act, the Court cannot, on any ground, amend the said date and extend the application of the Act to the extent that those who were not covered under it, gain its benefit.

Shumail Ahmed Butt, A.G. Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional A.G., Khyber Pakhtunkhwa, Irum Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, A.D. Fisheries, Khyber Pakhtunkhwa, Gulzar Mahmood, A.D. Fisheries Khyber Pakhtunkhwa, Engineer Falak Niaz, A.D. (Dost), Rajbar Khan, SDO, PHE, Khyber Pakhtunkhwa, Saadullah, Assistant Secretary, BOR, Khyber Pakhtunkhwa, Faheem Ullah Khan, Senior Law Officer, KPPSC, Assad Ullah Khan, SO, P&D Department, Amanatullah Qureshi, Deputy Secretary Finance Department, Khyber Pakhtunkhwa for Appellants.

Khaled Rahman, Advocate Supreme Court for Respondents (in C.A. No. 274 of 2020).

M. Ijaz Khan Sabi, Advocate Supreme Court for Respondents (in C.A. No. 283 of 2020).

Nemo for Respondents (in C.A. No. 239 of 2020).

2022 P L C (C.S.) 47

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. Ijaz ul Ahsan and Muhammad Ali Mazhar, JJ

MUHAMMAD SHAFIQUE

Versus

The ADDITIONAL FINANCE SECRETARY (BUDGET) GOVERNMENT OF PAKISTAN, ISLAMABAD and another

Civil Appeal No. 469 of 2021, decided on 10th September, 2021.

(Against the judgment dated 07.08.2019 passed by Federal Service Tribunal, Islamabad in A.525(P)CS/2016).

(a) Government Servants (Efficiency and Discipline) Rules, 1973 [since repealed]---

----R. 4(1)(b)(i)---Constitution of Pakistan, Art. 10A---Malpractice, misconduct and misuse of official decision---Major penalty of reduction to lower post--- Whether employee (appellant) was provided a proper right of defence during inquiry proceedings---Held, that departmental proceeding against the appellant was initiated on issuing show cause notice with the statement of allegations, the appellant submitted reply to the show cause notice and since his reply was not found satisfactory, therefore, an impartial domestic inquiry was conducted against him---During the inquiry proceedings, ample opportunity was afforded to the appellant, his statement was also recorded and before taking disciplinary action, second show cause notice was also issued to him---Even in the departmental appeal, the right of audience was provided by the appellate authority to the appellant---Right to a fair hearing and or trial necessitated that a person should be afforded a fair opportunity to defend the inquiry or trial against him---In the present case, it was clearly manifesting from the record that proper right of defence was provided to the appellant in the inquiry proceedings before taking disciplinary action---No bias, unfairness or partiality was alleged or pointed out against the inquiry committee which might have any element to cause prejudice or setback to the case of appellant during inquiry---Appeal was dismissed and major penalty of reduction to lower post was maintained.

(b) Government Servants (Efficiency and Discipline) Rules, 1973 [since repealed]---

----R. 4(1)(b)(i)---Constitution of Pakistan, Art. 10A---Employee of National Saving Center---Unauthorized and illegal checking and retention of prize bonds---Major penalty of reduction to lower post---Plea that that no loss was caused to the government or the public exchequer as the prize bond, which won the prize was not encashed by the appellant---Held, that record showed that encashment was immediately stopped when the scam was disclosed to the higher management---Since present case was one of misconduct, the plea of non-encashment of prize bond with no loss to government did not endow any help or support to the appellant's case for dislodging or setting aside major penalty or exonerating him from the charge and guilt---Appellant was found guilty in an impartial inquiry and the competent authority had already taken a lenient view as instead of removal or dismissal from service, they only imposed penalty of reduction to a lower post---Appeal was dismissed and major penalty of reduction to lower post was maintained.

(c) Civil service---

----Employees of a Government financial institution---Public trust and confidence---Duties of employees of a Government financial institution explained.

All financial institutions had traditionally recognized their duty to act in a manner of public trust and confidence. Its reputation, goodwill and integrity was its most valuable virtue and asset which was indeed established by the demeanor of its employees and management who had a duty to perform their duties with utmost honesty, dedication, professional manner and commitment without any cause of complaint to its customers/clients. They were expected to act in a way that enhanced reputation of the institution and nurtured its client relationships and did not to give rise to a conflict of interests between their personal interests and their financial institution. They need to provide their customers transparency, reciprocal loyalty, and truly personal customer relationships. In the line of duty they should shun and avoid involvement in any act of misconduct, embezzlement or fraudulent activity which may destroy or shatter the confidence of public on the credibility and goodwill of the financial institutions which would obviously result in immediate disciplinary action without any leniency and imposition of penalty in accordance with law.

Assistant Director (Admin) National Savings Center and others v. Muhammad Anwar 1990 SCMR 1214; Divisional Superintendent, Postal Services, Gujranwala and another v. Muhammad Arif Butt 2021 SCMR 1033; Ghulam Mustafa Channa v Muslim Commercial Bank Ltd, 2008 SCMR 909 and Shaukat Ali and others. v. Allied Bank of Pakistan Ltd. and others 2007 PLC 55 ref.

(d) Civil Servants (Efficiency and Discipline) Rules, 2020---

----R. 4(3)(b)---Government Servants (Efficiency and Discipline) Rules, 1973, R. 4(1)(b)(i) [since repealed]---Fundamental Rules, F.R. 29---Major penalty of reduction to a lower post and pay scale from the substantive or regular post for a specific period---While passing an order, imposing the penalty of reduction to a lower post or time scale or to a lower stage in the time scale, the conditions laid down in F.R. 29 of the Fundamental Rules i.e. fixing the specific period of reduction to lower post, should be considered and followed.

Tanvir Ahmed v. Chief Secretary, Government of Punjab, Lahore 2004 SCMR 647; Government of Pakistan through Secretary Establishment Division, Islamabad and others v. Muhammad Umer Morio 2005 PLC (C.S.) 169 = 2005 SCMR 436; Member (A.C.E. & S.T.) Federal Board of Revenue, Islamabad and others v. Muhammad Ashraf and 3 others 2008 SCMR 1165; Muhammad Sidiq v. Superintendent of Police and others 2008 SCMR 1296; Secretary Kashmir Affairs and Northern Areas Division, Islamabad v. Saeed Akhtar PLD 2008 SC 392 and Mirza Aamer Hassan v. Commissioner of Income Tax and others 2020 SCMR 1218 ref.

Burhan Latif Khaisori, Advocate Supreme Court for Appellant.

Syed Nayab Hasan Gardezi, DAG and Muhammad Sultan, AD Legal for Respondents.

2022 P L C (C.S.) 85

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

VICE-CHANCELLOR, BACHA KHAN UNIVERSITY CHARSADDA, KHYBER PAKHTUNKHWA and others

Versus

TANVEER AHMAD and others

Civil Appeals Nos. 670 to 671 of 2020, Criminal Appeal No. 45 of 2021 and Civil Petitions Nos. 131 to 133 of 2021, decided on 6th July, 2021.

(Against the order dated 12.03.2020 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 2123-P etc of 2019)

(a) Civil service---

----Contractual employees---Such employees had no vested right of regularization in service---By mere efflux of time, an employee could not claim regularization and knock on the door of the Court for the same.

Khushal Khan Khattak University through Vice Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Master-servant relationship---Contractual terms of employment---Matters such as how and when and on what terms and conditions an employee was to be hired by the employer, were not to be decided by the courts; it was the prerogative of the employer to decide such matters and the terms and conditions of employment were such as were incorporated in the employment contract---Where relationship was governed by the principle of master and servant, then except in exceptional circumstances, disputes arising therefrom were beyond the jurisdiction and parameters of the (High) Courts under Art. 199 of the Constitution---Forcing an institution/employer to act as per the whims and wishes of certain employees was not only burdensome, but was also a transgression of the powers vested with the High Court under Art. 199 of the Constitution---Even otherwise, contractual terms and conditions could neither be enforced, nor a contract be extended or renewed under Art. 199 of the Constitution.

Khushal Khan Khattak University through Vice Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977 ref.

Syed Haziq Ali Shah, Advocate Supreme Court and Muhammad Ashfaq, AR(Legal for Appellants.

Syed Javed Akbar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent (in C.A. No. 670 and C.M.A. No. 7485 of 2020).

Rana Ali Ahmed, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondents (in C.M.As.. Nos. 671, 5023 of 2020 and C.M.A. No. 5094 of 2021).

Fazal Shah, Advocate Supreme Court for Respondents (in Criminal Appeal No. 45 of 2021).

2022 P L C (C.S.) 104

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY AGRICULTURE, LIVESTOCK AND COOPERATION DEPARTMENT, PESHAWAR and others

Versus

ANEES AHMAD

Civil Appeal No. 40 of 2021, decided on 8th June, 2021.

(Against the judgments dated 12.09.2019, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeal No. 625 of 2018)

Civil service---

----Pro forma promotion---Respondent, who was otherwise eligible for promotion, was not promoted by the Departmental Promotion Committee (DPC), as it adjourned its meeting to a later date, by which time the respondent had retired---Held, that respondent had completed the requisite years of service provided by the promotion rules and the relevant official had also certified that there was no impediment in grant of promotion to him---Departmental Promotion Committee (DPC) for considering promotion was held on 19-06-2017 but was adjourned on the pretext that fresh option of officials forgoing their promotion be obtained---After adjourning of the meeting by DPC, the next meeting took place on 19-10-2017, but in the meantime, the respondent had retired from service on 21-06-2017---Due to the department's own non-vigilance and the DPC being insensitive to the employees who were on the verge of retirement, the department could not simply brush aside the case of an employee by merely saying that he had retired---Once the case of respondent had matured for promotion while in service and was placed before the DPC before his retirement, it was incumbent upon the DPC to fairly, justly and honestly consider his case and then pass an order of granting promotion and in case it did not grant promotion, to give reasons for the same---Impugned judgment of the Tribunal, directing the department to consider the case of promotion of respondent, did not suffer from any illegality---Appeal was dismissed.

Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa, Asad ud Din, Asif Jan, Superintendents and Javaid Maqbool Butt, Incharge Litigation, Agriculture Department, Khyber Pakhtunkhwa for Appellants.

Fazal Shah Mohmand, Advocate Supreme Court for Respondents.

2022 P L C (C.S.) 132

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY ELEMENTARY AND SECONDARY EDUCATION DEPARTMENT, GOVERNMENT OF KHYBER PAKHTUNKHWA,PESHAWAR and others

Versus

NOOR-UL-AMIN---Respondent

Civil Appeal No. 985 of 2020, decided on 22nd February, 2021.

(Against the judgment dated 21.11.2019 of the Khyber Pakhtunkhwa Service Tribunal, Peshawar passed in Appeal No.961 of 2018)

Civil service---

----Failure to report to duty on expiry of ex-Pakistan leave---Removal from service---Service Tribunal by way of impugned judgment converted the major penalty of removal from service into a major penalty of compulsory retirement with effect from the date of his absence, and the absence period was treated as unauthorized absence---Tribunal proceeded to modify the penalty on two counts; one that no regular inquiry was conducted and the other that the respondent had 10 years' service---Legality---Held, that the very fact of respondent-civil servant remaining absent was not a disputed fact and thus there was no occasion for holding a regular inquiry in the matter---Being an employee for 10 years did not give any authority to the respondent on the basis of which he could stay away from his job continuously for years altogether and thus, such ground could not have been pressed for modifying the penalty imposed by the department upon the respondent giving premium to him for his misconduct---More so, looking at the travelling history of the respondent, it showed that almost twelve times the respondent had visited abroad and returned to Pakistan showing that he was involved in some other activities and thus was not interested in continuing his government service---In such circumstances the modification of penalty by the Tribunal was not in accordance with law---Impugned judgment to the extent of modification of penalty was set aside and the appeal to such extent was allowed.

National Bank of Pakistan and another v. Zahoor Ahmed Mengal 2021 SCMR 144; Commissioner Faisalabad Division, Faisalabad and another v. Allah Bakhsh 2020 SCMR 1418 and Government of the Punjab through Chief Secretary v. Muhammad Arshad and 2 others 2020 SCMR 1962 ref.

Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa for Appellants.

Khaled Rahman, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2022 P L C (C.S.) 164

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Agriculture, Livestock and Cooperative Department Peshawar and others

Versus

SAEED-UL-HASSAN and otherss

Civil Appeals Nos. 249, 250, 255 and 257 of 2020 and Civil Appeals Nos. 273, 285, 289 and 301 of 2020, decided on 21st April, 2021.

(Against judgment dated 04.10.2017, 22.11.2017, 25.10.2017, 04.10.2017, 29.11.2018, 22.01.2019, 14.03.2019 of Peshawar High Court passed in Writ Petitions Nos. 1298-P/17, 287-M/13, 1800/17, 2234-P/17, 449-P/15, 3289-P/17, 818-B/17 and 6347-P/17)

(a) Civil service---

----Contract/project posts---Termination from service on completion of projects---High Court ordering reinstatement and regularization of project employees---Legality---Policy for the projects in question stated that the employees, who were employed in a project, would stand terminated, on the completion of the project---Only exception was that the said employees would be re-appointed on need basis if the project was extended over any new phase or phases---Record revealed that the respondents were terminated after the projects in which they were appointed came to an end or, were converted to the regular side---Appointments on the regular and newly created posts was to be made through advertisement and open competition through a transparent process via the Provincial Public Service Commission---Thus, former project employees could not claim regularization as a matter of right---Furthermore, it had been specifically mentioned in the appointment orders of the respondents/employees that they could not claim regularization and further, that they were employed on contract for a specific period of time---High Court could not have altered, amended or renegotiated the terms and conditions of the appointment orders of the respondents/employees for the simple reason that it did not have jurisdiction to do so---Appeals were allowed and impugned judgments of the High Court ordering reinstatement and regularization of respondents/employees in service were set aside.

(b) Civil service---

----Contract/project posts---Regularization in service, right of---Scope---Long or satisfactory contractual service did not confer a vested right for regularization as conversion from contractual to regular appointment required statutory support---Creation of a post or posts on the regular side did not confer, in the absence of any statutory support, an automatic right of regularization in favour of the employees employed on contractual basis against project posts.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Jurisdiction of the High Court was to interpret the law, test its vires on the touchstone of the Constitution and examine the legality of executive/administrative actions in exercise of its powers of judicial review---Court was supposed to interpret the law and apply it in letter and spirit---Court could not go beyond what the law was, and what interpretation permitted---Courts lacked jurisdiction to provide remedies which were otherwise not in the law or the Constitution by inventing remedies of their own---Reading provisions or interpreting existing provisions in a manner which had the effect of virtually adding new provisions constituted excessive and arbitrary exercise of jurisdiction and encroached upon the domain of the executive and legislative authority---Such modus operandi militated against the fundamental principle of trichotomy of powers which was a cornerstone of the Constitution.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Civil service---Creation/abolishment of posts---Domain of Executive---Executive policy making was not the domain of the High Court in the scheme of the Constitution and, was the prerogative of the executive to ascertain on the basis of its need, requirement, available resources and fiscal - space, which posts it wished to keep and which it wished to abolish.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Discretionary jurisdiction under Art. 199 of the Constitution could not be exercised in a vacuum; it must be grounded on a valid basis of violation of specific and enforceable legal or constitutional rights---Such discretion must be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as by the Supreme Court.

Shumail Ahmad Butt, A.G., Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G., Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional A.G., Khyber Pakhtunkhwa, Iram 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, Sadullah, Asst. Secretary, BOR, Khyber Pakhtunkhwa, Faheem Ullah Khan, Sr. LO, KPPSC, Assad Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secy. FDKP for Appellants.

Muhammad Asif Yousafzai, Advocate Supreme Court for Respondents (in C.A. No. 249 of 2020).

Nasir Mahmood-P, Advocate Supreme Court for Respondents (in C.A. No. 250 of 2020).

Khalid Rehman, Advocate Supreme Court for Respondents (in C.A. No. 257 of 2020).

Muhammad Ijaz Khan Sabi, Advocate Supreme Court for Respondents (in C.A. No. 273 of 2020).

Naveed Akhtar, Advocate Supreme Court and M. Sharif Janjuha, Advocate-on-Record for Respondents (in C.A. No. 285 of 2020).

Respondent No. 2 in person (wife of enter appearance) (in C.A. No. 301 of 2020).

2022 P L C (C.S.) 186

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY LOCAL GOVERNMENT, ELECTION RURAL DEVELOPMENT, KHYBER PAKHTUNKHWA and others

Versus

MUHAMMAD TARIQ KHAN and others

Civil Appeals Nos. 957 and 958 of 2014, decided on 1st July, 2021.

(On appeal against judgment dated 19.06.2013 passed by the Peshawar High Court, Peshawar in Writ Petition No. 2927 of 2009)

(a) Civil service---

----Contract/project employees---Expiry of tenure of project---Such employees had no vested right of regularization in service.

Contract/project employees had no vested right to claim regularization. The direction for regularization, absorption or permanent continuance could not be issued unless the employee claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules and against the sanctioned vacant posts, which admittedly was not the situation in the present case. Admittedly, both the respondents were contract employees and were hired by the Project Management Unit for the project of slum upgrading, site and service etc, which subsequently came to an end and the respondents were terminated from service. Respondents were appointed on temporary basis pursuant to the service rules, which did not contain any provision for absorption of a project employee.

The respondents had no vested right to claim regularization against regular posts, being contractual employees of the project, the tenure of which had already been expired, thus they being project employees and hired for the said project period were not entitled to be regularized. When the project was completed and closed, the employees had to go along with its closure. Temporary/project employees, who were appointed specifically till the completion of a certain project could not be regularized as they neither had any vested right to hold such post beyond prescribed period nor the Government owed any obligation to maintain continuity in their service for an unlimited period.

Furthermore, appointment letters of respondents specifically mentioned that their employment was purely temporary and could be terminated at one month's notice or in case of the other respondent at any time without notice. Respondents had accepted the contingent terms of service and could not blow hot and cold in the same breath to claim regularization subsequently.

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

----S. 11---Res-judicata, doctrine of ---Principles relating to doctrine of res-judicata stated.

According to the maxim 'res judicata pro veritate accipitur', a suit/dispute in which a matter directly or substantially in issue has been decided directly/substantially by a competent court in a former suit/proceeding between the same parties or between parties under whom they or any of them claim, shall not be tried again in the same matter in any other court. A decision once rendered by a competent court on a matter in issue between the parties after a full inquiry should not be permitted to be agitated again by the same court or some other court between the same parties in the same matter. The rule of estoppel by res judicata is a rule of evidence, which prevents any party to a suit/proceeding which has been adjudicated upon by the competent court from disputing or questioning the decision on merit in subsequent litigation. It is based on the concept of public policy and private justice which apply to all the judicial proceedings. According to this, public policy involves that the general interest of the litigation must come to an end or that the litigation must have its finality. Similarly, private justice requires that an individual should be protected from vexatious multiplication of suits and prosecutions at the instance of an opponent whose superior power and resources may enable him to abuse the process of court. A decision by a competent court, which is final, should be binding and the same questions are sought to be controverted in the subsequent litigation.

Khurshid Soap and Chemical Industries (Pvt) Ltd v. Federation of Pakistan PLD 2020 SC 641 ref.

Barrister Qasim Wadood, Additional A.G. for Appellants (in both cases).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondents (in C.A. No. 957 of 2014).

Syed Iqbal Hussain Shah Gillani, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 958 of 2014).

Sabah ud Din Khattak, Advocate Supreme Court for Respondent No. 2 (in C.A. No. 958 of 2014).

2022 P L C (C.S.) 202

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MINISTRY OF FINANCE through Secretary and others

Versus

Syed AFROZ AKHTAR RIZVI and others

Civil Appeal No. 1496 of 2019, decided on 12th July, 2021.

(Against judgment dated 05.10.2018 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 256(R)CS of 2016)

Civil Service Regulations (C.S.R.)---

----Art.371-A---Contract employees subsequently regularized in service---Pension---Conditions of qualifying service---Article 371 of Civil Service Regulations (C.S.R.) did not allow Government servants rendering temporary service in a temporary establishment for more than 5 years to be entitled for grant of pension rather such period could be counted towards calculation of pension only if otherwise entitled to pension by meeting the criteria of qualifying service---Where the services of a contractual employee were converted into regular employment the period spent in contractual employment subject to a minimum of five years could be included in calculating pensionary benefits but only and only in a situation where the employee was otherwise entitled/eligible to receive pension subject to having rendered qualifying service (10 years) in permanent employment---Unless he met the criteria of having served for the duration of the qualifying period, the period spent in contractual employment could not be added to make up for any deficiency in qualifying service for the purpose of eligibility to receive pension.

An employee who was employed on contractual basis and was subsequently regularized may be entitled to pensionary benefits provided:

i) He was eligible for pension having served for the qualifying period (10 years) as a regular employee.

ii) For the purpose of calculating pensionary benefits his service as a contractual employee could be factored in to provide him any financial benefit that may be due to him.

iii) The period spent in employment as a contractual employee and as a regular employee could not be aggregated in order to determine his eligibility for entitlement to pension.

iv) Eligibility to receive pension was directly related to rendering qualifying service as a regular employee. Unless an employee had performed services in a regular appointment for the duration of the qualifying period (10 years), he was not entitled to receive pension.

Chairman, Pakistan Railway, Government of Pakistan v. Shah Johan Shah PLD 2016 SC 534 ref.

In case, an employee had served a Government department for the duration of the period qualifying him to receive pension, the period spent as a contractual employee may be added to his regular qualifying service only and only for the purpose of calculating his pension and for no other purpose. The provisions of Article 371-A of Civil Service Regulations (C.S.R.) started with a non obstante clause which meant that the said Article did not relate to the question entitlement or eligibility to receive pension. It was clearly and obviously restricted to counting the period of a minimum of five years which had been rendered by a temporary contractual employee to be taken into account with the object of calculating the quantum of his pension and not more. The non-obstante clause in Article 371-A of C.S.R. did not allow those who did not fulfil the requisite conditions for qualifying for pension to bypass such conditions and add up regular and contractual periods of employment for the purpose of meeting the eligibility criterion of ten years of service. Such an interpretation would create absurd situations and would render other provisions and Articles of C.S.R. redundant, unnecessary and surplus. Therefore, Article 371 of C.S.R. did not allow Government Servants rendering temporary service in a temporary establishment for more than 5 years to be entitled for grant of pension rather such period could be counted towards calculation of pension only if otherwise entitled to pension by meeting the criteria of qualifying service.

Chairman, Pakistan Railway, Government of Pakistan v. Shah Johan Shah PLD 2016 SC 534 ref.

Sohail Mehmood, Additional AGP, Khan Hafeez, JS, Fin. Div., Abdul Ghaffar, SO, Fin. Divi. and Sajid Javed, Legal Assistant Fin. Div. for Appellants.

M. Ramzan Khan, Advocate Supreme Court, Syed B.H. Shah, Advocate-on-Record along with Respondent No. 1 in person for Respondents.

2022 P L C (C.S.) 229

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

GHAYASUDDIN SHAHANI and others

Versus

AKHTAR HUSSAIN and others

Civil Miscellaneous Applications Nos. 1824, 2357 and 2358 of 2021 in Civil Petitions Nos. Nil of 2021 and Civil Petitions Nos. 802 and 979 of 2021, decided on 19th May, 2021.

(CMAs have been filed seeking permission to file and argue the civil petitions)

(On appeal against the judgment dated 12.02.2021 passed by the High Court of Sindh, Karachi in Constitutional Petitions Nos. D-7382/2019, D-7625/2019, D-7809/2019, D-4704/2020 and D-5755/2020)

(a) Civil service---

----Posts of vaccinators (BPS-6)---Qualifications for candidates---Recruitment process---High Court in the impugned judgment had addressed all the issues those were brought forth in the recruitment process---Recommendations made by the High Court were in furtherance of clarity in the (recruitment) process and certainly would defeat any chance of nepotism, favourtism and undue enrichment of individuals---High Court had also given directions to establish an institute for training of vaccinators and in the meanwhile, the successful candidates of the interview had been required to undergo training of vaccinator---Said direction of High Court was specifically very timely and beneficial to public at large when such vaccinators were primarily meant to deal with infants and the younger generation---No fundamental right of the petitioners had been infringed because the recruitment process was initiated through advertisement with certain terms and conditions and only those who fulfilled those conditions were eligible to be appointed---Petitions for leave to appeal were dismissed and leave was refused.

(b) Civil service---

----Posts of vaccinators (BPS-6)-- Appointment process---Selection of candidates on union-wise basis instead of district or provincial level---Legality---Basic purpose of (selecting vaccinators for the) Expanded Program on Immunization (EPI) was to control the spread of Vaccine Preventable Diseases among infants/children and this target could not be achieved unless it went to grass roots level, which meant that it needed to be spread over the union council level by making appointments of the vaccinators from the concerned union councils enabling the public at large to benefit from the same---Secondly, it was specifically mentioned in the advertisement that an applicant must be resident of the same union council---Petitions for leave to appeal were dismissed and leave was refused.

(c) Civil service---

----Advertisement for a post---Terms of advertisement---Scope---Whatever the terms of the advertisement were, the appointments must follow the criterion as disclosed therein without any departure so that no one could raise any objection regarding its transparency.

M. M. Aqil Awan, Senior Advocate Supreme Court for Applicants/Petitioners (in C.M.As. 1824, 2357, 2358/2021 and C.P. 979/2021).

Petitioner No. 1 in person.

Javed A. Khan, Advocate Supreme Court for Respondents Nos.1-8 (in C.M.A. 1824/2021).

Nemo for other Respondents.

2022 P L C (C.S.) 278

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

DEPUTY INSPECTOR GENERAL OF POLICE, LAHORE and others

Versus

SARFRAZ AHMED

Civil Appeal No. 648 of 2021, decided on 4th October, 2021.

(On appeal against the judgment dated 14.05.2019 passed by the Punjab Service Tribunal, Lahore in Appeal No. 2887 of 2017)

(a) Civil service---

----Police constable---Willful absence from duty, involvement in criminal cases and maintaining relations with criminals---Dismissal from service---Department had conducted a regular inquiry against the respondent-police constable in which it was found that he had close relations with criminals operating in the city against whom as many as 37 FIRs had been registered for the offences of robbery, kidnapping for ransom, dacoity etc.---Department had followed all the legal formalities while awarding penalty of dismissal to the respondent and he was given full opportunity to defend himself---Furthermore respondent remained absent (from duty) for a long period of about 55 days without taking prior leave or without informing his higher ups---Respondent being a member of a highly disciplined force was required to maintain strict discipline having regard to nature of duties enjoined to such forces and his attitude could not be excused and tolerated---Appeal was allowed, impugned judgment of Provincial Service Tribunal was set-aside, and major penalty of dismissal from service imposed upon respondent was maintained.

WAPDA v. Shan Elahi 1998 SCMR 1890 and NAB v. Muhammad Shafique 2020 SCMR 425 ref.

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

----S. 5---Power of Provincial Service Tribunal to confirm, set aside, vary or modify a punishment imposed by the department/competent authority---Scope---Such power was not to be exercised arbitrarily or capriciously or on the basis of wrong premises or misconception of law.

WAPDA v. Shan Elahi 1998 SCMR 1890 ref.

Zafar Hussain Ahmed, Additional A.G. and H. Majid, DSP for Appellants.

Umer Farooq, Advocate Supreme Court for Respondent.

2022 P L C (C.S.) 288

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and

Sayyed Mazahar Ali Akbar Naqvi, JJ

QUETTA DEVELOPMENT AUTHORITY through Director General

Versus

ABDUL BASIT and others

Civil Appeal No. 1562/2020, C.M.A. No. 259-Q/2020 in C.A. No. 1562/2020 and C.A. No. 1563/2020, C.M.A. No. 260-Q/2020 in C.A. No. 1563/2020, C.A. No. 1564/2020, C.M.A. No. 262-Q/2020, C.A. No. 1565/2020 and C.M.A. No. 264-Q/2020 in C.A. No. 1565/2020, decided on 31st May, 2021.

(On appeal from the judgment dated 16.9.2020 passed by the High Court of Balochistan, Quetta in C.P. No.970/2015, C.P. No.1011/2015, C.Ps. Nos. 1258/2015, 1257/2018)

(a) Civil service---

----Appointment orders, restoration of---Res-judicata, principle of--- Applicability---Appellant Authority/employer ('the Authority") in the present round of litigation, had once again raised the same points of facts and the law raised in an earlier round of litigation involving other similarly placed employees regarding nature of appointments and then dismissal from service of the respondent-employees---Earlier part of the litigation had come to an end and had attained finality between the parties---Questions in the earlier round of litigation once decided by the competent Court of law, could not be re-agitated again by the Authority---Such aspect/issue would act as res judicata against the Authority precluding it to question the order of appointments of respondents and then their dismissals---Pros and cons of the appointments and the dismissal orders of similarly placed employees were thoroughly considered by the High Court and then upheld by the Supreme Court in the earlier round of litigation; they had attained finality, and were not open to any further dilation and consideration---Appeals were dismissed.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Appointment orders, restoration of---Relief of restoration of appointments orders granted to similarly and equally placed employees---Present employees/respondents were appointed on the same terms and conditions of service as that of similarly placed employees ('earlier litigants') who had been given relief of restoration of their appointment orders by declaring the orders of their withdrawal/cancellation as null and void---Present respondents were hired and fired together in the same manner as earlier litigants and were standing on the same pedestal as them---Both sets of appointees could not be separated from each other with regard to their appointments and dismissal---Only difference between the two sets was that the earlier group/earlier litigants litigated for their rights and second group, i.e. the present respondents, did not go into litigation earlier and through present litigation sought the relief already given to the first group who litigated---To claim such a relief was the fundamental right of respondents and the Constitution extended protection to such right and as such they could not be treated differently; this was the mandate of Art. of 25 of the Constitution---Respondents being equally and similarly placed as the earlier litigants, they become entitled to the same relief which was extended to them---Appeals were dismissed.

Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185; Tara Chand v. Karachi Water and Sewerage Board 2005 SCMR 499; Government of Punjab v. Sameena Parveen 2009 SCMR 1 and Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2014 SCMR 1336 ref.

(c) Constitution of Pakistan---

----Art 199---Constitutional petition before the High Court---Laches, principle of---Scope---Rule of laches was applied in accordance with facts and circumstances of each case, and it could not be made a rule of universal application.

Syed Ayaz Zahoor, Advocate Supreme Court for Appellant (Via Video Link, Quetta) (in all cases).

Gul Hassan Tareen, Advocate Supreme Court (Via Video Link, Quetta) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. Nos. 1562-1563/2020).

Nemo for Respondents (in C.As. Nos. 1564-1565/2020).

2022 P L C (C.S.) 288

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and

Sayyed Mazahar Ali Akbar Naqvi, JJ

QUETTA DEVELOPMENT AUTHORITY through Director General

Versus

ABDUL BASIT and others

Civil Appeal No. 1562/2020, C.M.A. No. 259-Q/2020 in C.A. No. 1562/2020 and C.A. No. 1563/2020, C.M.A. No. 260-Q/2020 in C.A. No. 1563/2020, C.A. No. 1564/2020, C.M.A. No. 262-Q/2020, C.A. No. 1565/2020 and C.M.A. No. 264-Q/2020 in C.A. No. 1565/2020, decided on 31st May, 2021.

(On appeal from the judgment dated 16.9.2020 passed by the High Court of Balochistan, Quetta in C.P. No.970/2015, C.P. No.1011/2015, C.Ps. Nos. 1258/2015, 1257/2018)

(a) Civil service---

----Appointment orders, restoration of---Res-judicata, principle of--- Applicability---Appellant Authority/employer ('the Authority") in the present round of litigation, had once again raised the same points of facts and the law raised in an earlier round of litigation involving other similarly placed employees regarding nature of appointments and then dismissal from service of the respondent-employees---Earlier part of the litigation had come to an end and had attained finality between the parties---Questions in the earlier round of litigation once decided by the competent Court of law, could not be re-agitated again by the Authority---Such aspect/issue would act as res judicata against the Authority precluding it to question the order of appointments of respondents and then their dismissals---Pros and cons of the appointments and the dismissal orders of similarly placed employees were thoroughly considered by the High Court and then upheld by the Supreme Court in the earlier round of litigation; they had attained finality, and were not open to any further dilation and consideration---Appeals were dismissed.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Appointment orders, restoration of---Relief of restoration of appointments orders granted to similarly and equally placed employees---Present employees/respondents were appointed on the same terms and conditions of service as that of similarly placed employees ('earlier litigants') who had been given relief of restoration of their appointment orders by declaring the orders of their withdrawal/cancellation as null and void---Present respondents were hired and fired together in the same manner as earlier litigants and were standing on the same pedestal as them---Both sets of appointees could not be separated from each other with regard to their appointments and dismissal---Only difference between the two sets was that the earlier group/earlier litigants litigated for their rights and second group, i.e. the present respondents, did not go into litigation earlier and through present litigation sought the relief already given to the first group who litigated---To claim such a relief was the fundamental right of respondents and the Constitution extended protection to such right and as such they could not be treated differently; this was the mandate of Art. of 25 of the Constitution---Respondents being equally and similarly placed as the earlier litigants, they become entitled to the same relief which was extended to them---Appeals were dismissed.

Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185; Tara Chand v. Karachi Water and Sewerage Board 2005 SCMR 499; Government of Punjab v. Sameena Parveen 2009 SCMR 1 and Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2014 SCMR 1336 ref.

(c) Constitution of Pakistan---

----Art 199---Constitutional petition before the High Court---Laches, principle of---Scope---Rule of laches was applied in accordance with facts and circumstances of each case, and it could not be made a rule of universal application.

Syed Ayaz Zahoor, Advocate Supreme Court for Appellant (Via Video Link, Quetta) (in all cases).

Gul Hassan Tareen, Advocate Supreme Court (Via Video Link, Quetta) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. Nos. 1562-1563/2020).

Nemo for Respondents (in C.As. Nos. 1564-1565/2020).

2022 P L C (C.S.) 336

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

WALI JAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Agriculture, Livestock Cooperative Department, Peshawar and others

Civil Appeal No. 931 of 2020, decided on 1st February, 2021.

(Against the judgment dated 8.9.2015, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar, in Appeal No.1681 of 2011)

Constitution of Pakistan---

----Arts. 187(1) & 212(3)---Service appeal before the Supreme Court---Scope---Party (civil servant) had no right to raise an absolutely new plea before the Supreme Court and seek a decision on it, nor could such plea be allowed to be raised as a matter of course or right on the pretext of doing complete justice---Besides, the Supreme Court in its appellate jurisdiction would not generally determine a question of fact that had not been pleaded or raised by the party in the lower forum.

Sarhad Development Authority N.W.F.P. (Now KPK) v. Nawab Ali Khan 2020 SCMR 265 ref.

Amjad Ali (Mardan), Advocate Supreme Court (via video link from Peshawar) and Haji Muhammad Zahir, Advocate-on-Record (absent) for Appellant.

Zahid Yousaf Qureshi, Addl. A.G., Khyber Pakhtunkhwa for Respondents.

2022 P L C (C.S.) 356

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Prosecutor General Accountability, NAB Headquarters, Sector G-5/1, Islamabad

Versus

FARAZ AHMED SHERWANI and others

Civil Appeal No. 1000 of 2020, heard on 9th June, 2021.

(Against the judgment dated 22.06.2020, passed by the High Court of Sindh, Karachi in C.P. No.D-253 of 2015)

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

----Para. 14.08---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 3(2)---Post of Private Secretary (BPS-17) in National Accountability Bureau (NAB)---History of creation of said post and service rules applicable to the same stated.

National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS), 2002 ('TCS-2002') did not mention the post of Private Secretary (BPS-17) but the fact remains that firstly a Private Secretary, though on temporary post, was appointed in the NAB on 15.11.2002. Subsequently, more Private Secretaries were appointed on 15.02.2006, 24.03.2006, 01.06.2012, 10.07.2012 and 29.03.2013, while three temporary posts were converted into permanent posts on 02.01.2008 and further two permanent posts of Private Secretary (BPS-17) were created on 30.01.2012. Posts of Private Secretary (BPS-17) were created in NAB by adopting the rules applicable to the Government Servants. Thus, the posts of Private Secretary (BPS-17), apparently, were created by following the rules as were applicable to the Government Servants and this was done under paragraph 14.08 of TCS-2002.

Thus, on the basis of paragraph 14.08 of TCS-2002, in matters not covered under the TCS-2002, the employees of NAB were to be governed by the rules as applicable to the other civil servants and instructions issued from time to time by the Federal Government on the subject. The rules applicable to the civil servants for appointment to the posts of Private Secretary (BPS-17) were adopted by NAB on 24.10.2005 and the rules applicable to other civil servants in the light of paragraph 14.08 of TCS-2002 were applicable to the posts of Private Secretary (BPS-17). Thus, the posts of Private Secretary (BPS-17) were created in NAB by adopting the rules on 24.10.2005, and for all intends and purposes, TCS-2002 stood amended by adoption of the rules applicable to other civil servants in respect of the posts of Private Secretary (BPS-17) on 24.10.2005. When the posts were created by following the rules as were applicable to the other civil servants, obviously the manner in which they were to be filled in was also to be adopted and such adoption was provided in SRO No.99(KE)/87, dated 22.10.1987 where the posts of Private Secretary (BPS-17) were to be filled in from amongst the Stenographers, including those in the Selection Grade. The post of Stenographer and the post of Personal Assistant, both being in BPS-16, their line of promotion as per rules was to the post of Private Secretary (BPS-17). [p. 365] B

Muhammad Amin v. Chief Engineer, Irrigation and others 2012 PLC (C.S.) 834 ref.

Imran ul Haq, Deputy Prosecutor General, NAB and Muhammad Sharif Janjua, Advocate-on-Record for Appellant.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondents Nos. 1 - 2.

2022 P L C (C.S.) 383

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

Syed AZAM SHAH

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another

Civil Appeal No.764 of 2021, decided on 19th November, 2021.

(Against the judgment dated 24.09.2018 passed by Federal Service Tribunal, Islamabad in Appeal No.4231(R)CS/2017 with M.P. No.1538 of 2018)

(a) Constitution of Pakistan---

----Art. 25---Equality of citizens-- Reasonable classification on basis of intelligible differentia---Connotation and Scope---Equality clause (Article 25 of the Constitution) did not prohibit classification for those differently circumstanced provided a rational standard was laid down---Protection of Art. 25 of the Constitution could be denied in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which must have rational nexus to the object sought to be achieved by such classification---Intelligible differentia connoted dissimilarity or disparity capable of being comprehended---Classification must be based on an intelligible differentia which should distinguish the persons that were grouped together from others left out of the group and the differentia or categorization/cataloguing must have a logical and commonsensical nexus with the object sought to be achieved ---Definition of classification "intelligible differentia" meant differentiating between two sets of the people or objects---All such differentiations should be easily understood and should not be artificial---Concept of reasonableness was rationally a fundamental component of equality or non-arbitrariness.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Secretary Economic Affairs Division, Islamabad and others. v. Anwarul Haq Ahmed and others 2013 SCMR 1687; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Tariq Aziz-ud-Din and others (Human Rights cases Nos.8340 of 2009, etc.) 2010 SCMR 130 and Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another 1997 SCMR 1026 ref.

(b) Constitution of Pakistan---

----Arts. 185(3) & 199--- Policy formulated by Government for civil servants --- Judicial review---Scope---Not the role of the Courts to interfere in policy decisions, unless it was manifest that such policy decisions were the outcome of arbitrary exercise of power, mala fides, patently illegal or manifestly unreasonable.

Compass and magnitude of judicial review of governmental policy was now well settled and defined in which the court cannot act as an appellate authority with the aim of scrutinizing the rightness, fittingness and aptness of a policy nor it may act as advisor to the executives on matters of policy which they were entitled to formulate. The extensiveness of judicial review of a policy was to test out whether it violates the fundamental rights of the citizens or is at variance to the provisions of the Constitution, or opposed to any statutory provision or demonstrably arbitrary or discriminately. The court may invalidate laws, acts and governmental actions that are incompatible with a higher authority more so, an executive decision may be invalidated for being unlawful. This can be sought on the grounds that a decision arises when a decision maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting ultra vires. A decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it or a failure to observe statutory procedures. The dominance of judicial review of the executive and legislative action must be kept within the precincts of constitutional structure.

Abdul Hameed and others. v. Water and Power Development Authority through Chairman, Lahore and others 2021 SCMR 1230 and Asaf Fasihuddin Khan v. Government of Pakistan 2014 SCMR 676 ref.

(c) Civil service---

----Locus-poenitentiae, principle of---Applicability---Benefit/allowance wrongly extended to a civil servant due to some misunderstanding, error, misconception of law or without sanction of competent authority---Such benefit/allowance cannot be claimed in perpetuity under the guise of locus poenitentiae principle---Perpetual rights cannot be gained on the basis of an illegal order.

There is no hard and fast rule that if some benefit was wrongly extended due to some misunderstanding, error, misconception of law or without sanction of competent authority, that act should be treated so sacred and sacrosanct which could not be withdrawn to retrace or redo the wrong decision or action under the guise of locus poenitentiae principle. A wrong benefit extended beyond the scope of law and rules/policy cannot be claimed in perpetuity or eternity hence the applicability of the doctrine of locus poenitentiae depends on the circumstances of each and every case and cannot apply universally or randomly without adverting to the merits of each case in its peculiar circumstances.

Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order.

Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 207 and Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 ref.

Principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law which was violative of the provisions of the Constitution.

Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

Muhammad Ramzan Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Sohail Mehmood, Additional Attorney General for Respondents.

2022 P L C (C.S.) 424

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

Messrs SUI SOUTHERN GAS COMPANY LTD.

Versus

ZEESHAN USMANI and others

Civil Appeals Nos. 936 and 937 of 2020, decided on 18th February, 2021.

(On appeal against the judgment dated 07.04.2020 passed by the High Court of Sindh, Karachi in Constitutional Petitions Nos.D-5850 and D-5851 of 2018)

(a) Master-servant---

----Contract employees of Sui Southern Gas Company Ltd.---Plea for regularization in service, dismissal of---Admittedly, the respondents were contract employees and their relationship was governed by the principle of 'master and servant'---Regularization of the respondents was not part of the terms and conditions of their service because for that purpose statutory rules were required and admittedly there were no statutory rules for Sui Southern Gas Company Ltd.---Appeals were allowed.

(b) Master-servant---

----Contract employees---Such employees had no vested right to claim regularization.

Government of Khyber Pakhtunkhwa Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068 ref.

Asim Iqbal, Advocate Supreme Court for Appellant (in both cases).

Malik Naeem Iqbal, Advocate Supreme Court (Islamabad) and Mrs. Abida Parveen Channar, Advocate-on-Record (through video link from Karachi) for Respondent No. 1.

2022 P L C (C.S.) 449

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SABOOR KHAN and another

Versus

CHAIRMAN WAPDA, WAPDA HOUSE, LAHORE and another

Civil Petitions Nos.3604 and 3605 of 2018, decided on 27th January, 2021.

(On appeal against the judgment dated 27.07.2018 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.2198(R)CS/2015 and 2199(R)CS/2015)

(a) Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978---

----Rr. 4(1)(b)(iii), 4(1)(b)(iv) & 6---Security guards (petitioners) deliberately causing injuries to their senior---'Removal from service'---During the departmental proceedings, both the petitioners had submitted an affidavit wherein they admitted the incident---However, they took the stance that it was their senior, who hurled abuses at them and pointed a rifle towards them, upon which they punched him---Such story of the petitioners appeared to be an afterthought, because, if this was the position, why they did not make a complaint against their senior and kept mum for four days until the explanation was sought from them---Inquiry was conducted by the Deputy Director Security wherein two Junior Engineers were also members---All the legal requirements for appointment of Inquiry Officer or an Inquiry Committee provided under R. 6 of the Pakistan Wapda Employees (Efficiency and Discipline) Rules, 1978 were fulfilled---Inquiry report categorically showed that four witnesses appeared against the petitioners and while recording the statement of each witness, ample opportunity was given to the petitioners to cross-examine them but they declined to cross-examine the witnesses---In the present case disciplinary proceedings were being carried out against the petitioners, therefore, there was no need to join the injured during the inquiry proceedings---Petitioners being security guards were supposed to perform their duties in a disciplined manner---Due to their conduct, the trust and faith showed by their employer was shattered resulting in loss of confidence---Manner in which the petitioners, on whom confidence was reposed to give protection and to perform their duty in a disciplined manner, attacked their supervisor repelled any consideration of treating them leniently---Petitions for leave to appeal were dismissed and leave was refused.

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

----S. 4(1)(a)---Service Appeal filed before the Federal Service Tribunal without waiting for the prescribed 90 days period to expire after filing of departmental appeals---Competency---Such Service Appeal would be incompetent in view of the specific bar contained in S. 4(1)(a) of the Service Tribunals Act, 1973.

Civil Petitions Nos. 3311 to 3313 of 2016 ref.

Muhammad Aftab Alam Rana, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in both cases).

Nemo for Respondents (in both cases).

2022 P L C (C.S.) 474

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MEMBER (ADMINISTRATION), FEDERAL BOARD OF REVENUE and others

Versus

MIAN KHAN

Civil Petition No. 1033 of 2020, decided on 26th April, 2021.

(On appeal against the judgment dated 08.01.2020 passed by the Federal Service Tribunal, Islamabad in Appeal No. 878(R)CS/2019)

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

----R. 4(1)(b)(ii)---Taking bribe---Major penalty imposed on basis of CCTV footage without forensic audit of such footage---Legality---Admittedly in the present case no regular inquiry was conducted by the Department and the same was dispensed with on the ground that the other evidence in the shape of CCTV footage was so authentic that major penalty could be imposed upon the respondent in the absence of regular inquiry and while imposing the major penalty CCTV footage was made the sole criterion to proceed against the respondent---Said CCTV footage was never sent to the office of Forensic Science Laboratory for its authenticity---In the absence of any forensic report qua the authenticity of the CCTV footage, the same could not be considered a legal basis for proceeding against a person---Said footage was even not produced before the Service Tribunal---Even otherwise, mere producing of CCTV footage as a piece of evidence without any forensic test was not sufficient to be relied upon unless and until corroborated and proved to be genuine---Persons who allegedly gave the bribe to the respondent, had also not been associated with the departmental proceedings---Service Tribunal had rightly set-aside the penalties of compulsory retirement and reduction to the lower rank awarded to the respondent---Petition for leave to appeal was dismissed by the Supreme Court with the observation that departmental proceeding in such a casual way by the departmental authority inviting a public servant into litigation for considerable time should be avoided because on one end, it wasted time of the court and on the other it caused physical stress, loss of reputation in public eyes, which ultimately led to mental agony for a public servant, which had no legal or moral justification.

Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 ref.

M.D. Shahzad Feroz, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

2022 P L C (C.S) 486

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

CIVIL APPEAL NO. 1486 OF 2017

(Against the judgment dated 29.03.2016 passed by Peshawar High Court, Peshawar in W.P.1457-P/2013)

AND C.M.A.498-P/2016 in C.A.1486/2017

(Stay application)

PROVINCIAL SELECTION BOARD, GOVERNMENT OF KHYBER PAKHTUNKHWA through Chairman/Chief Secretary, Khyber Pakhtunkhwa

Versus

HIDAYAT ULLAH KHAN GANDAPUR

Civil Appeal No. 1486 of 2017 and C.M.A. No. 498-P in C.A. No. 1486 of 2017, decided on 1st October, 2021.

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

----S. 3(1)---National Accountability Ordinance (XVIII of 1999), Ss. 9, 10, 15 & 25---Pro-forma promotion---Scope---Civil servant released after plea bargain with National Accountability Bureau (NAB) dismissed from service by his department---Whether upon retirement such civil servant could seek pro-forma promotion having admitted to his guilt---Held, that respondent-civil servant was arrested by NAB for his involvement in corruption and corrupt practices; he confessed to his guilt and put forward an application for plea bargain; he also surrendered Rs.17.5 million which he gained on account of corruption or corrupt practices---Respondent was a civil servant and once he availed the benefits of plea bargain and his request was accepted by the court, he would be deemed to have been convicted of the offence of corruption and corrupt practices---Section 15 of the National Accountability Ordinance, 1999 ('the Ordinance') stipulated that if an accused person was convicted under S. 9, he shall forthwith cease to hold public office if any held by him and further he shall be disqualified for a period of ten years to be reckoned from the date of his release---Proviso attached to said section provided that any accused person who had availed the benefit of subsection (b) of S. 25 (plea bargain) shall also be deemed to have been convicted for offence under the Ordinance and shall forthwith cease to hold public office --- In such circumstances the respondent was not entitled to claim pro-forma promotion as a vested right---Direction issued by the High Court to grant pro-forma promotion to the respondent was not based on correct exposition and elucidation of law and facts---Appeal was allowed and impugned judgment of High Court was set aside.

State through Chairman NAB v. Hanif Hyder and another 2016 SCMR 2031; Muhammad Aslam, Ex-Deputy Director (Audit) District Govt. Lahore v. Auditor-General of Pakistan, Islamabad 2013 SCMR 1904 and Suo Motu Case No. 17/2016. (Unreported Order dated 24.10.2016) ref.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Wrong benefit/order passed in favour of a civil servant---Such benefit/order could not be used as a foundation (by another civil servant) for avowing equality or equal opportunity for enforcement of treatment alike, rather such right should be founded on a legitimate and legally implementable right---Wrong order could not be allowed to carry on which hardly conferred any right to claim parity or equality.

Mian Shafaqat Jan, Additional A.G., Khyber Pakhtunkhwa for Appellant.

Respondent in person.

2022 P L C (C.S.) 514

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY, MINISTRY OF FINANCE, ISLAMABAD and others

Versus

TAYYABA HALIM SUBHANI and others

Civil Appeal No. 1546 of 2019 and Civil Petitions Nos.2503 to 2519 and 2660 of 2019, decided on 27th January, 2021.

(Against judgments dated 25.02.2018 and 23.04.2019 of Federal Service Tribunal, Islamabad, passed in Appeals Nos.3622(R)CS of 2017 and 3192 (R)CS of 2012) etc.)

(a) Civil Service Regulations (CSR)---

----Art. 361---Constitution of Pakistan, Art. 25---Teachers/lecturers employed on daily wage basis before being regularized---Pensionary benefits, calculation of---Whether service period rendered by teachers/lecturers on daily wage basis was to be counted towards calculation of pensionary benefits and pay---Held, that respondents (lecturers/teachers) were working in institutions that were admittedly being managed by the Federal Directorate of Education ('the Directorate'), which had itself issued the Education Code, 2006 which such schools were required to follow to regulate their affairs---Paragraph 30 of said Code provided that the Directorate had empowered heads of institutions to manage pays and salaries of daily wage staff---Services of the respondents were utilized by the Directorate/Government for years on end to their satisfaction until the time the respondents asked for pay protection and pension; their services were substantive and permanent which were paid for on behalf of and with the consent or approval of the Government---Although employment of the respondents was not permanent within the meaning of Art. 361 of Civil Service Regulations, the establishment under which they were working was permanent and the fact that they rendered services for years showed that they were not employed on temporary basis as a stop-gap arrangement for short periods of time---Offering respondents new contracts from time to time after expiry of previous contract, were artificial breaks, which could not render their services to be purely temporary---Moreover the Federal Public Service Commission was approached to test the qualifications and antecedents of respondents and make its recommendations by itself, which showed that these posts were permanent in nature---Further an order/memorandum dated 25-01-2006 was passed by Ministry of Education whereby it was stated that service rendered by lecturers on an ad hoc basis could be counted towards their pay and pensionary benefits---If this was so, it was hard to understand why the same benefit was not extended to respondents, who were initially appointed on daily wage basis---Service Tribunal had rightly ordered the Directorate/Government to provide pay protection to the respondents by counting the service they had rendered on daily wage basis for pensionary benefits and pay---Appeal and petitions for leave to appeal were dismissed with the observation that employing teachers on daily wages basis was not only detrimental to the education sector of the country but was also a discouraging factor for future teachers who in turn were demotivated and discouraged a profession which was pivotal in the lives of future generations.

Ikram Bari and 524 others v. National Bank of Pakistan 2005 SCMR 100 and Board of Intermediate and Secondary Education, Multan v. Muhammad Sajid 2019 SCMR 233 ref.

(b) Civil service---

----'Temporary' and 'permanent posts'---Distinction---Employees working on 'stop-gap arrangement'---Meaning---Stop-gap arrangement was one where a temporary arrangement was made for a limited time for a few months at the most until something better or more suitable could be found---Such an arrangement was typically made until someone could be hired permanently through the process provided in the law, rules or regulations---Where employees were continuously employed for long periods of time running into years and their contracts were renewed/extended from time to time, through artificial breaks, it could not convert their employment into a stop-gap arrangement.

Chairman Evacuee Trust Property Board and others v. Khawaja Shahid Nazir 2006 PLC (C.S.) 1261 ref.

Sajid Ilyas Bhatti, Additional AGP, M. Rehan, AD Legal and M. Ahmed, AD Legal for Appellants/Petitioners.

Respondent-in-person (in C.A. No. 1546 of 2019).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No. 1 and M. Sharif Janjua, Advocate-on-Record (in all C.Ps.).

2022 P L C (C.S.) 594

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

MUHAMMAD AMJAD

Versus

The DIRECTOR GENERAL, QUETTA DEVELOPMENT AUTHORITY and another

Civil Appeal No. 202 of 2021, decided on 27th January, 2022.

(Against the judgment passed by High Court of Balochistan at Quetta on 24.10.2019 in C.P. No. 833 of 2015)

(a) Civil service---

----Promotion---'Eligibility' and 'fitness' of candidate---Scope---Though promotion is not a vested right, but it depends on the eligibility as well as fitness of the candidate---Concept of eligibility implies a qualification to be appointed or promoted, whereas determination of fitness encompasses a person's competence to be chosen or selected for appointment or promotion subject to the availability of post on which the credentials and antecedents of person could be examined for examining his merits and worthiness for promotion---Neither promotion can take place automatically, nor seniority alone is the deciding factor as a number of factors constitute fitness for promotion.

(b) Civil service---

----Promotion---Not a vested right---Promotion to a certain post is never considered to be a vested right of a civil servant---In case of non-selection post, the promotion is made on the basis of seniority-cum-fitness and no civil servant can ask for or claim a promotion as a matter of right as it is within the exclusive domain of the government.

Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan through Secretary and others PLD 2008 SC 395 ref.

(c) Civil service---

----'Upgradation of post'---Scope---Expression up-gradation is disparate and incongruent to the term promotion which is resorted to in order to ventilate the sufferings of employees from stagnation who are stuck up in some isolated posts without any pathway or probability of promotion despite satisfactory length of service in a particular post---Upgradation cannot be claimed as a matter of right but it is in fact based on a policy decision of the competent authority for its implementation across the board for the particular categories of employees jotted down in the scheme/notification who fulfil the required qualification which is normally a particular length of service in a particular pay scale.

Fida Muhammad v. Government of Khyber Pakhtunkhwa 2021 SCMR 1895 ref.

(d) Civil service---

----'Upgradation of post' and 'promotion'---Distinction---Promotion involves advancement in rank, grade or a footstep enroute for advancement to higher position, whereas the facility or benefit of upgradation simply confers some monetary benefits by granting a higher pay scale to ventilate stagnation.

(e) Civil service---

----'Upgradation of post'---Scope---Upgradation cannot be made to benefit a particular individual in terms of promoting him to a higher post or further providing him with the avenues of lateral appointment or transfer or posting---In order to justify the upgradation, the Government is required to establish that the department needs restructuring, reform or to meet the exigency of service in public interest---In the absence of said pre-conditions, upgradation is not permissible.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Regional Commissioner Income Tax v. Syed Munawar Ali 2016 SCMR 859 and Federal Public Service Commission through Secretary v. Anwar-ul-Haq (Private Secretary) Islamabad and others 2017 SCMR 890 ref.

(f) Civil service---

----Promotion---No vested right can be claimed on the basis of promotion issued without any legal sanction or authority---Wrong benefit extended beyond the scope of law and rules/policy cannot be claimed in perpetuity or eternity.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Appellant.

Ayaz Khan Swati, Additional A.G. Balochistan along with Mehmood A. Shaikh, Advocate-on-Record for Respondents.

2022 P L C (C.S.) 610

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

BASHIR AHMED BADINI, D&SJ, DERA ALLAH YAR and others

Versus

CHAIRMAN AND MEMBER OF ADMINISTRATION COMMITTEE AND PROMOTION COMMITTEE OF HIGH COURT OF BALOCHISTAN and others

Civil Appeals Nos.446 to 454 of 2021, decided on 28th January, 2022.

(Against the judgment dated 30.11.2020 passed by the Balochistan Sub-Ordinate Judiciary Service Tribunal, Quetta in Service Appeals Nos. 02/2017, 07/2019, 09/2019, 10/2019, 07/2019, 09/2019, 10/2019, 07/2019 and 10/2019)

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

----R. 8-B--- Acting charge appointment--- Scope---Acting charge appointment does not amount to an appointment by promotion on regular basis for any purpose including seniority, and also does not confer any vested right for regular promotion to the post held on acting charge basis.

(b) Civil service---

----Promotion---'Eligibility' and 'fitness'---Factors to be considered---Eligibility itself is not the benchmark for promotion, rather the most vital yardstick is fitness, which can be judged from the service record which includes ACRs, qualification, length of service in a particular grade/scale, integrity, knowledge and proficiency in the work/ assignments, all of which are essential dynamics for weighing and appraising the merits for promotion to the selection post which is quite common procedure and practice articulated under the law for considering the promotions on merit.

(c) Civil service---

----Promotion---Eligibility and fitness---Distinction---Question of eligibility is different from the question of fitness---Concept of eligibility implies a qualification to be appointed or promoted, whereas that of fitness encompasses a person's competence to be chosen or selected for appointment or promotion---Question whether a person is legally qualified for appointment or promotion to a particular post and grade is relatable to the factum whether he possesses the requisite qualifications for consideration, whereas the question of fitness pertains to the competency of the person concerned, which is to be decided by the competent authority---Question of fitness for being appointed is to be determined by the functionaries mentioned therein---Person may be eligible for consideration for a particular post, but may not be fit to be appointed---Tests for eligibility are objective and open to scrutiny by a judicial forum---However, even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other, is to be formed.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 and Muhammad Rahim Khan v. The Chief Secretary, N.W.F.P. and 4 others 1999 SCMR 1605 ref.

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

----R. 19---Ad-hoc employee---Seniority---Seniority in the grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade---Services rendered by the employees on ad-hoc basis prior to their regularization cannot be counted for the purpose of their seniority but their seniority will be counted from their substantive/regular appointments---Ad-hoc employees cannot claim precedence in seniority over the regularly appointed employees; their status will be reckoned with their batch mates and after regularization their seniority will be fixed accordingly.

Director-General Intelligence Bureau, Islamabad and others v. Amir Mujahid Khan and others 2011 SCMR 389 ref.

(e) Civil service---

----Seniority---Retrospective effect---Seniority with retrospective effect cannot be conferred unless such right was established.

Fasihuddin Siddiqui's case 1998 SCMR 637; Muhammad Yousaf's case 1996 SCMR 1297; Rustam Khan's case 1994 SCMR 1957; Muhammad Zakir Khan's case 2004 SCMR 497; Jehangir Mirza's case PLD 1990 SC 1013; Wajahat Hussain's case PLD 1991 SC 82; Sh. Anwar Hussain's case 1985 SCMR 1201; Muhammad Yousaf's case 1996 SCMR 1297 and Nazeer Ahmed's case 2001 SCMR 352 = 2001 PLC (C.S.) 394 ref.

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

----R. 19---Ad-hoc employee---No vested right of regular appointment---Scope---Ad hoc appointment is an appointment of a duly qualified person made otherwise in accordance with prescribed method of recruitment and is made only in exceptional circumstances---Such stopgap arrangement as a temporary measure for a particular period of time does not by itself confer any right on the incumbent for regular appointment or to hold it for indefinite period but at the same time if it is found that incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, he would carry the right to be considered for permanent appointment through the process of selection as the continuation of ad hoc appointment for considerable length of time would create an impression in the mind of the employee that he was being considered to be retained on regular basis.

Naveeda Tufail v. Government of Punjab 2003 SCMR 291 ref.

(g) Civil service---

----Antedated promotion---Departmental Promotion Committee (DPC)---Delay in holding DPC meeting---Effect---Where the meeting of DPC scheduled to be held is postponed or adjourned without announcing any future date or not convened within reasonable period to the prejudice of an officer/employee, the competent authority in order to foster justice may grant antedated promotion to the higher post bearing in mind the eligibility and fitness in the DPC so that such officer/employee may not be subjected to a lower position in his/her seniority list or become victim of unwarranted delay in holding DPC by the competent authority.

(h) Judgment---

----Merger, doctrine of---Scope and applicability---In case an appeal or revision is provided before a superior court against an order passed by any Court or Tribunal or any other authority and the superior court where the appeal is preferred modifies, reverses or affirms the decision of lower fora then the order or decision passed by subordinate or lower forum is merged into the decision rendered by superior courts which will remain operative for enforcement in accordance with law---In order to apply the doctrine of merger in letter and spirit, there must be a decision of a subordinate forum or Tribunal and against any such decision, there must be a right of appeal or revision provided under the relevant law---While deciding any such appeal or revision, the appellate forum must have affirmed, modified or reversed the order or judgment of the court below.

(i) Civil service---

----Judgment in rem---Scope---Where the Tribunal or the Supreme Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken up legal proceedings, in such a case, the dictates of justice and rules of good governance demand that the benefit of the judgment be extended to other civil servants, who may not be parties to the above litigation, instead of compelling them to approach the Tribunal or any other legal forum.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 ref.

(j) Administration of justice---

----Cause of action---Scope---Cause of action is predominantly a technical legal term meant for the set of circumstances and facts which give rise to institute and lodge the claim in the court of law but not any premature claims or grievances---Right to sue originates and is triggered by a wrongdoing---Court cannot hear any case nor render any decision without a valid cause of action or without accrual of right to sue or in other words without accrual of cause of action to set the law into motion---Court of law does not decide the lis on mere sentiment, presumption or mere apprehension but the cause of action should be based on a real cause for remedying the wrong into right---Not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim.

Abdul Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos.446, 453 and 454/2021).

Shams ud Din, Advocate Supreme Court for Appellants (in C.As. Nos.447-449/2021).

Muhammad Rauf Atta, Advocate Supreme Court for Appellants (in C.As. Nos.450, 451 and 452/2021 via Video Link from Quetta)

Ayaz Khan Swati, Additional A.G. Balochistan on Courts Notice.

Rashid Mehmood, Registrar High Court Balochistan and Arshad Mehmood, Additional Registrar High Court Balochistan for Respondent No. 2 (via video link from Quetta) (in C.A.No.446/21).

Muhammad Rauf Atta, Advocate Supreme Court for Respondents Nos. 4, 6 and 7 (in C.A. No.446/21).

Gul Hassan Tareen, Advocate Supreme Court for Respondents Nos. 9 - 10 (in C.A. No. 446/21).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondent No. 1 (in C.As. Nos.447 to 452/2021).

Nemo for remaining Respondents in Civil Appeals.

2022 P L C (C.S.) 659

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Amin-ud-Din Khan, JJ

PROVINCE OF SINDH and others

Versus

SHAHZAD HUSSAIN TALPUR

Civil Petition No. 407-K of 2019, decided on 30th December, 2021.

(Against the judgment dated 15.03.2019 passed by the Sindh Service Tribunal at Karachi in Service Appeal No. 815/2017)

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

----R. 4(1)---Sindh Public Service Commission (Functions) Rules, 1990, R. 3(1)(i)---Special Auditor, Cooperative Societies---Appointment, legality of---Special Auditor was required to be selected by the Provincial Public Service Commission ('the Commission')---Special Auditor was a grade 17 post and the Secretary, Cooperative Societies was not authorized to either select or appoint a person in Grade 17.

Perusal of the original file and documents pertaining to the appointment of the respondent as Special Auditor, Cooperative Societies showed only the relevant notification appointing the respondent; there is nothing therein regarding the number of persons who had applied for the position of Special Auditor, how many had participated in the test and interview, the results of such test and interview, and culminating in a seriatim listing of the applicants in the order of merit - the merit list. The respondent was pre-selected and appointed by the Secretary, Cooperative Societies and this was done without making him take any test and/or interview.

The Secretary issued the notification appointing the respondent by using the ubiquitous term competent authority, without disclosing the designation and name of the competent authority. Secretary also did not disclose that he himself was the competent authority in respect of appointments to a Grade 16 position. To enable himself to appoint the respondent, the Secretary illegally downgraded the position of Special Auditor from Grade 17 to Grade 16, and, to ensure that the nexus between him and the respondent went unnoticed the Secretary did not mention the full name of the respondent in the notification and left out the names shared between them -'Mir' and 'Talpur'.

Special Auditor was required to be selected by the Provincial Public Service Commission ('the Commission'). Special Auditor was a Grade 17 post and the Secretary was not authorized to either select or appoint a person in Grade 17. In selecting and appointing the respondent as Special Auditor the Secretary had acted illegally. Respondent was not selected by the Commission yet he was appointed as Special Auditor, and, it would not make a difference even if it be accepted that the post of Special Auditor was in Grade 16 because selection to Grade 16 posts was also to be done by the Commission. Appointment of respondent as Special Auditor was patently illegal.

(b) Civil service---

----Appointment---Use of the term "competent authority" in notifications, orders, office memorandums, instructions, letters and other communications---Deprecated---Using the term 'competent authority' but without disclosing such person's designation and name is against public policy and also against the public interest since it facilitates illegalities to be committed and protects those committing them.

It is an individual who holds a particular position and by virtue of such position exercises power. Merely mentioning the competent authority without disclosing the designation and name of the person who is supposed to be the competent authority is utterly meaningless. Non-disclosure serves to obfuscate and enables illegalities to be committed.

The use of vague and imprecise language, such as, the competent authority, in legal matters is an anathema and oftentimes results in avoidable disputes, which unnecessarily consume time and public resources. The use of accurate and precise language helps avoid disputes. Using the term the competent authority but without disclosing such person's designation and name is against public policy and also against the public interest since it facilitates illegalities to be committed and protects those committing them. Every functionary of the government, and everyone else paid out of the public exchequer, serves the people; positions of trust cannot be misused to appoint one's own or to illegally exercise power.

There is a need to put a stop to the use of the illusive and elusive term - the competent authority without disclosure of the competent authority's designation and name. Therefore, all the Provincial Governments, Registrars of the Supreme Court and all High Courts, and through the Registrars of the High Courts all District and Sessions courts, are required to issue requisite orders/directions that they and their respective functionaries, semi-government and statutory organizations whenever issuing notifications, orders, office memorandums, instructions, letters and other communications must disclose the designation and the name of the person issuing the same to ensure that it is by one who is legally authorized to do so, and which will ensure that such person remains accountable.

Saulat Rizvi, Additional Advocate-General, Sindh, Ghulam Rasool Mangi, Advocate-on-Record, Ali Gul Sanjrani, Deputy Secretary and Abdul Latif Qazi, Deputy Registrar for Petitioners.

Mukesh Kumar G. Karara, Advocate Supreme Court along with Respondent and M. Iqbal Ch., Advocate-on-Record (absent) for Respondent.

2022 P L C (C.S.) 679

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

SENIOR SUPERINTENDENT OF POLICE (OPERATIONS) and others

Versus

SHAHID NAZIR

Civil Appeal No. 608 of 2021, decided on 12th October, 2021.

(Against the judgment dated 11.02.2020 passed by Punjab Service Tribunal, Lahore in Appeal No.1975/2019)

(a) Civil service---

----Concurrent 'departmental disciplinary proceedings' and 'criminal proceedings' against an employee over the same allegations---Distinction and purpose stated.

Purpose and sagacity of initiating disciplinary proceedings by the employer was to find out and come to a decision whether the charges of misconduct leveled against the delinquent officer/employee were proved or not and in case his guilt was established, what action should be taken against him under the applicable Service laws, Rules and Regulations, which may include the imposition of minor or major penalties in accordance with the fine sense of judgment of the competent Authority/Management. In contrast, the perception and rationality to set into motion criminal prosecution was altogether different where the prosecution had to prove the guilt of an accused beyond any reasonable doubt. Both had distinct features and characteristics with regard to the standard of proof. The prosecution in criminal cases as well as the departmental inquiry on the same allegations could be conducted and continued concurrently without having any overriding or overlapping effect. The object of criminal trial was to inflict punishment of the offences committed by the accused while departmental inquiry was geared up or activated to inquire into the allegations of misconduct in order to keep up and maintain the discipline and decorum in the institution and efficiency of department to strengthen and preserve public confidence in any such institution. Even an acquittal by criminal court would not debar an employer from exercising disciplinary powers in accordance with applicable service Rules and Regulations.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 6(3)(b)---Discretion of department to dispense with regular inquiry---Scope---No hard and fast rule that in each and every case after issuing show cause notice the regular inquiry should be conducted but if the department wanted to dispense with the regular inquiry there must be some compelling and justiciable reasons assigned in writing.

(c) Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 6(3)(b)---Misconduct---Involvement in criminal cases and failure to perform duty efficiently---Whether competent authority could dispense with regular inquiry in view of registration of FIRs against the delinquent police official/respondent---Held, that in the present case although the respondent (police official) was booked in some FIRs lodged against him but he was not convicted by the court in any case when the show cause notice was issued to him, therefore, in order to reach just and proper conclusion, regular departmental inquiry should have been conducted by the police department as the case of respondent's misconduct could not be solitary based on mere documentary evidence but on the basis of the FIRs lodged where the prosecution had to prove the guilt of accused beyond any reasonable doubt---Inquiry was dispensed with on the pretext that FIRs were lodged which did not culminate in the conviction of the respondent before show cause notice, therefore, in the peculiar circumstances, neither inquiry could be dispensed with nor registration of FIRs could relax or absolve the obligation of holding regular inquiry to decide the allegations of misconduct against the respondent---Appeal was dismissed and judgment of Service Tribunal whereby respondent's dismissal from service was converted into forfeiture of two years of service was maintained with the observation that conduct of the police department in the present case was quite negligent and reckless giving the impression that departmental inquiry was intentionally dispensed with to accord technical benefit to the respondent by perpetration of procedural lapses.

Basharat Ali v. Director, Excise and Taxation, Lahore and another 1997 SCMR 1543; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 868; Shakeel Ahmad v. I.G. Punjab Police, Lahore and others 2007 SCMR 192; Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another 2008 SCMR 1369; Pakistan International Airlines Corporation v. Ms. Shaista Naheed 2004 SCMR 316; Inspector-General of Police, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 2007; Fuad Asadullah Khan v. Federation of Pakistan 2009 SCMR 412 and Chief Postmaster Faisalabad, GPO and another. v. Muhammad Fazal 2020 SCMR 1029 ref.

Shaukat Rauf Siddiqui, Additional A.G. Punjab along with Ms. Nazia, DSP for Appellants.

Respondent in person.

2022 P L C (C.S.) 701

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

DEPUTY DIRECTOR FINANCE AND ADMINISTRATION FATA through Additional Chief Secretary FATA, Peshawar and others

Versus

Dr. LAL MARJAN and others

Civil Appeals Nos. 231, 233, 235, 236, 238, 241, 242, 243, 256, 260, 262, 263, 264, 266, 278, 279, 281, 286, 287, 290, 291, 292, 293, 294, 295, 296, 297, 299, 300, 304 and 306 of 2020, decided on 28th January, 2022.

(Against judgment dated 14.10.2014 of Peshawar High Court, Peshawar passed in Writ Petitions Nos. 390-P of 2012 etc.)

(a) Interpretation of statutes---

----'Casus omissus', principle of---Scope---Said principle provides that, where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution and would constitute an order without jurisdiction.

(b) Civil service---

----Contractual employees---Regularization in service---Regularization is not a vested right but requires a statutory basis---Where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such a claim.

(c) Civil service---

----Contractual employees---Regularization in service---Long service is no ground for regularization---Regularization has to be supported by legislation and is not an automatically accruing right.

Shumail Ahmad Butt, Advocate General Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional A.G. Khyber Pakhtunkhwa with Erum 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, Sadullah, Asstt. Secretary, BOR, Khyber Pakhtunkhwa, Fahim Ullah Khan, Sr. Law Officer, KPPSC, Assad Ullah Khan, SO, P&D Department and Amanat Ullah Qureshi, Dy. Secy., Finance Deptt. Khyber Pakhtunkhwa for Appellants.

Khalid Rahman, Advocate Supreme Court for Respondents (in C.A. No.286/2020).

Respondent No. 2 in Person (in C.A. No.231/2020).

Haji Muhammad Zahir Shah, Advocate-on-Record for Respondents (in C.A. No.233/2020).

Afnan Karim Kundi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.A. No.235/2020).

Liaquat Ali Tareen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. Nos.241 and 300/2020).

Saleem Ullah Ranazai, Advocate Supreme Court for Respondents (in C.As. Nos.242/2020 and 243/2020).

Nasir Mehmood-P, Advocate Supreme Court for Respondents (in C.A. No.264/2020).

Muhammad Asif Yousafai, Advocate Supreme Court for Respondents (in C.A. No.252/2020 and C.A. No.282/2020).

Waseem ud Din Khattak, Advocate Supreme Court for Respondents (in C.A. No.278/2020 and C.A. No.279/2020).

Muzammil Khan, Advocate Supreme Court and Syed Haziq Ali Shah, Advocate Supreme Court for Respondents (in C.A. No. 260/2020).

Respondent No. 1 in person (without enter appearance) (in C.A. No.263/2020).

Muhammad Asif, Advocate Supreme Court for Respondents (in C.A. No.266/2020).

Muhammad Munir Paracha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.A. No.281/2020).

Asad Jan, Advocate Supreme Court for Respondents (in C.A. No.299/2020).

Nemo for Respondents (in C.A. No.236/2020, C.A. No.238/2020, C.A. No.281/2020, C.As. Nos.290-297/2020, C.A. No.304/2020 and C.A. No. 306/2020).

2022 P L C (C.S.) 730

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sajjad Ali Shah, JJ

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY (NEPRA) through Chairman

Versus

AIJAZ AHMED and others

Civil Appeals Nos. 1576 and 1577 of 2019, decided on 8th January, 2020.

(Against the order dated 27.10.2016 of the Islamabad High Court, Islamabad passed in Writ Petitions Nos. 1448 and 1593 of 2015)

Civil service---

----Probationary employees---Unsatisfactory performance during probation period---Termination of service---In case of a probationary employee the competent authority is possessed of powers to terminate his services at any time and it may do so for any reason relatable to the exigencies of service--- No show cause notice is required in such cases---Probationer has no vested right to continue in service.

Respondents were probationary employees of National Electric Power Regulatory Authority (NEPRA), whose services were terminated due to their unsatisfactory performance during the probation period. Their appointment on probation for a period of one year is an admitted fact. Further, the preparation of their evaluation report by the officials of the appellant-department is also admitted. The contention that the officials of the appellant-department were not competent to make evaluation for the reason that they were not regular employees of the appellant, although raised but could not be substantiated. More so, for the reason that even though they may not be regular employees of the appellant they have the technical capacity skill know how and competence to evaluate the performance of the respondents. Nothing was brought on record to indicate any restriction or bar on the power of the appellant-department or its officials from getting the performance of its officials who are on probation from any source. Such evaluation could also be obtained by the appellant otherwise than by its own employees through outside professional sources consultants.

In case of a probationary employee the competent authority is possessed of powers to terminate his services at any time and it may do so for any reason relatable to the exigencies of service. No show cause notice is required in such cases. A probationer has no vested right to continue in service.

Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275 ref.

Respondents have neither alleged nor do their termination letters state that their services have been terminated on account of misconduct. Consequently, neither any constitutional protection nor issuance of show cause notice or an opportunity to respond to the same is available to them.

Pakistan (Punjab Province). v. Riaz Ali Khan 1982 SCMR 770 and Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 ref.

There was no merit in the argument of the counsel for the respondents that their rights have been prejudiced by termination of their services without issuing a show cause notice or giving them an opportunity of personal hearing during the period when they were under probation. The only ground on the basis of which their services were dispensed with was their unsatisfactory performance which does not constitute stigma. Appeals were allowed, and impugned judgment of High Court was set aside.

Ejaz Ahmed Dar v. Director General Pakistan Rangers PLD 2003 SC 913 ref.

Barrister Umer Aslam, Advocate Supreme Court for Appellant (in both cases).

Muhammad Ramzan Khan, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 1576 of 2019).

Ms. Shireen Imran, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1 (in C.A. No. 1577 of 2019).

2022 P L C (C.S.) 745

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SINDH IRRIGATION AND DRAINAGE AUTHORITY

Versus

GOVERNMENT OF SINDH and others

Civil Appeals Nos. 10-K to 17-K of 2019, decided on 24th March, 2021.

(Against judgment dated 28.08.2018 of Sindh Service Tribunal at Karachi, passed in Appeals Nos. 1015, 1063, 1156 to 1159, 1161 and 1164 of 2015)

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

----S. 2(1)(b)---"Civil servant"---Meaning---Civil servant is someone who has been employed by the competent authority i.e., either the Provincial or Federal Public Service Commission, in the prescribed manner after following due process of law and having gone through the process of competition.

Muhammad Mubeen us Salam and others v. Federation of Pakistan PLD 2006 SC 602 ref.

(b) Sindh Water Management Ordinance (XL of 2002)---

----Ss. 3 & 12(1)--- Employees of Sindh Irrigation and Drainage Authority ("SIDA")---Said employees were not civil servants; they were not employed by the Provincial or Federal Public Service Commission neither is there any notification or any other document on the record that confers on them the status of civil servants.

(c) Sindh Water Management Ordinance (XL of 2002)---

----Ss. 12(1) & 16---Employees of Sindh Irrigation and Drainage Authority ("SIDA")---Appointment---Power of Board of Management---Scope---Powers to appoint the staff of SIDA vests with the Board of Management of SIDA since the Board has powers as per Section 12(1) of the Sindh Water Management Ordinance, 2002 ('the Ordinance') to administer all matters of SIDA including employment of its staff---Section 12(1) read with Section 16 of the Ordinance clearly indicates that any and all appointments shall be made by the Board of Management of SIDA---As such, no other authority/person could exercise such powers without express authorization given by the Board.

(d) Civil service---

----Government official, powers of---Scope---Such an official can only exercise as much power as is granted to him/her by law.

(e) Civil service---

----Public functionary---Fiduciary duty---Scope---Public functionaries owe a fiduciary duty to act in good faith and discharge their duties with honesty and in accordance with law---If a public functionary does not exercise such power in good faith and with honesty, the principle of merit gets compromised which damages the superstructure of merit, competence and good governance.

(f) Sindh Civil Servants Act (XV of 1973)---

----S. 5(2)---Civil Procedure Code (V of 1908), S. 12(2)---Application under Section 12(2), C.P.C.---Sindh Service Tribunal, jurisdiction of---Scope---Said Tribunal had jurisdiction to decide an application filed under Section 12(2), C.P.C.

Rahat Naseem Malik v. President of Pakistan and others 2003 PLC (C.S.) 759 ref.

(g) Fraud---

----Fraud vitiates the most solemn proceedings.

Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364 ref.

Malik Naeem Iqbal, Advocate Supreme Court, Sh. Khurram Aziz, Secy, SIDA and Altaf Hussain, Law Officer (via Video Link Karachi) for Appellant.

Mukesh Kumar G. Karara, Advocate Supreme Court, Mansoor ul Haq Solangi, Advocate Supreme Court, Muhammad Ali Zardari, AWB Ghotki, Sibtain Mehmood, Additional A.G. Sindh, Sikandar Hassan, DS Irrigation Sindh, Khadim Hussain, DS Irrigation Sindh and Abdul Hafeez Memon, SO Irrigation Sindh (via Video Link Karachi) for Respondents.

2022 P L C (C.S.) 765

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

CIVIL APPEAL NO. 756 OF 2021

(Against the judgment dated 25.09.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1332(R)CS of 2016)

AND

CIVIL REVIEW PETITION NO. 11 OF 2021 IN CIVIL APPEAL NO. 493 OF 2020

(Against the order dated 04.12.2020 passed by this Court in Civil Appeal No. 493 of 2020)

DIVISIONAL ACCOUNTS OFFICER, PAKISTAN RAILWAYS, RAWALPINDI nd another

Versus

MUHAMMAD YASEEN (DECEASED) through LRs and others

Civil Appeal No. 756 of 2021, Civil Review Petition No. 11 of 2021 in Civil Appeal No. 493 of 2020, decided on 23rd December, 2021.

Civil service---

----Medical allowance for pensioners---Employee of Pakistan Railways allowed move over to BS-16 claiming benefit of medical allowance for BS-15 employees on the basis that his substantive grade at time of his retirement was BS-15---Held, that respondent-employee had opted for move-over to BS-16 in which he chose to retire and was granted pension on the basis of last drawn pay of BS-16 and medical allowance of 20% of the pension permissible to those in BPS-16---Medical allowance was payable on the pension drawn---In view of the fact that the respondent admittedly drew pension calculated on the basis of his last drawn pay which was that of BS-16, he was correctly paid medical allowance @ 20% of the pension drawn---Respondent was actually claiming two benefits; while on the one hand he was drawing pension calculated on the basis of his last drawn pay in BS-16 and on the other hand he claimed benefit of a higher medical allowance at the rate of 25% of pension payable to persons retiring in BS-15, which is contrary to the plain language of the relevant Office Memorandum---Appeal was allowed, and impugned judgment of Service Tribunal allowing respondent medical allowance of 25% of the pension was set aside.

Jawad Mehmood Pasha, Advocate Supreme Court (via video link from Lahore) for Appellants (in C.A. No. 756 of 2021).

Ch. Aamir Rehman, Additional A.G.P. and Sajid Javed, Assistant (Legal) Finance Division for Petitioner (in C.R.P. No. 11 of 2021).

Asim Yasin (son of respondent) for Respondent.

2022 P L C (C.S.) 794

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah, Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

HADAYAT ULLAH and others

Versus

FEDERATION OF PAKISTAN and others

Civil Review Petitions Nos. 292 to 302 of 2021 and Civil Review Petitions Nos. 351 to 432 of 2021 and Civil Review Petitions Nos. 442 to 456 of 2021 along with C.M.As. Nos. 11812 to 11814 of 2021, C.M.As. Nos. 11837, 11862 to 11864 of 2021, C.M.As. Nos. 11902-11903, 11982-11983 of 2021, C.M.A. No. 11987 of 2021, C.M.As. Nos. 11679, 12017, 12019, 12020, 12024 of 2021, C.M.As. Nos. 12025, 12028, 12029, 12031-12033 of 2021, C.M.As. Nos. 12035, 12075, 11993, 12103-12104 of 2021, C.M.As. Nos. 12161-12162, 12172-12173, 12403 of 2021 and C.M.As. Nos. 12372-12373 of 2021 and along with Civil Miscellaneous Appeals Nos. 168, 158 and 175 of 2021, decided on 17th December, 2021.

(For review of the judgment dated 17.08.2021 passed in C.A. No.491 of 2012, etc.).

Per Umar Ata Bandial, J; Sajjad Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ agreeing; Syed Mansoor Ali Shah, J dissenting.

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

----Ss. 2(d) & 4 & Preamble---Constitution of Pakistan, Arts. 4, 8, 9, 18, 25, 184(3) & 187---Sacked Employees (Re-instatement) Act, 2010, ('Act of 2010'), vires of---Said Act of 2010 was violative of, inter alia, Article 25, 18, 9 & 4 of the Constitution and therefore void under the provisions of Article 8 of the Constitution---Review petitions were dismissed with certain directions regarding services rendered by the re-instated employees of the "employers" [as defined in Section 2(d) of the Sacked Employees (Re-instatement) Act, 2010]. [Majority view]

Supreme Court declared the Sacked Employees (Re-instatement) Act, 2010 as violative of the Constitution and thus void. However, in exercise of the Court's jurisdiction under Article 184(3) of the Constitution read with Article 187, the Court took into consideration the services rendered by the re-instated employees of the "employers" [as defined in section 2(d) of the Sacked Employees (Re-instatement) Act, 2010], and passed the following directions:

(i) Employees who were holding posts that on the date of their initial termination of service (from 01.11.1996 to 12.10.1999) did not require any aptitude or scholastic or skill test, for appointment thereon, shall be restored from the date of the judgment under review to the posts they were holding on the same terms and conditions of service applicable on the date of their termination pursuant to the judgment under review;

(ii) Such other employees who were holding posts that on the date of their initial termination of service (from 01.11.1996 to 12.10.1999) required the passing of any aptitude or scholastic or skill test, for appointment thereon shall from the date of the judgment under review be restored to their said posts on the same terms and conditions of service applicable on the date of their initial termination;

(iii) Any improvement in the terms and conditions of service of all the restored employees shall be granted strictly in accordance with the laws and rules applicable to their service or employment and in the absence thereof by regulations laid down for this purpose by their respective employers; and

(iv) The relief granted in sub-paragraphs (i) and (ii) above shall not be granted to employees whose initial termination of service (from 01.11.1996 to 12.10.1999) was on grounds of absence from duty, misconduct, corruption, misappropriation of money/stock or unfitness on medical grounds if such termination was not set aside finally by a Court of law.

Per Syed Mansoor Ali Shah, J; dissenting with Umar Ata Bandial, J. [Minority view]

(b) Parliamentary sovereignty, principle of---

----Scope---Parliamentary sovereignty or legislative supremacy was the cornerstone of a strong democracy---Courts must, therefore, recognize the central role of the legislature---Undermining the legislature undermined democracy---Both the legislature and the judicature must play their role in a spirit of profound respect for the other and within the limits set out in the Constitution.

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

----Ss. 2(f)(vi), 4(a), 10, 11, 12 & 13 & Preamble---Constitution of Pakistan, Arts. 4, 9 & 25---Sacked Employees (Re-instatement) Act, 2010, ('Act of 2010'), vires of---By way of judgment under review the Supreme Court held that the Sacked Employees (Re-instatement) Act, 2010 violated Article 4, 9 & 25 of the Constitution and was thus void and ultra vires the Constitution---Held, that judgment under review was to be recalled---His Lordship declared that only certain sections, and parts of sections of the Sacked Employees (Re-instatement) Act, 2010 were ultra vires the Constitution and passed certain directions regarding restoration in service of employees terminated from service on basis of judgment under review. [Minority view]

(i) Only certain sections and part of sections of the Sacked Employees Reinstatement Act, 2010 ('the 2010 Act') were ultra vires the Constitution: firstly, sections 4(a) and 10 to the extent of reinstatement and regularization on "one scale higher", which gave an undue advantage to the reinstated employees to the detriment of the rights of the already working regular employees and thus violated their fundamental rights. The provisions of the said sections, except the words "one scale higher", shall however remain operative with effect from the date of enactment of the 2010 Act, and be read to mean the reinstatement and regularization in the same or restructured, as the case may be, scale, grade, cadre, group, post or designation; secondly, sections 2(f)(vi), 11, 12 and 13, which dealt with and provided for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness attained finality by being unchallenged or unsuccessfully challenged. Such employees fell outside the class of sacked employees who suffered "political victimization," envisaged by the 2010 Act for a beneficial treatment, and they by themselves did not constitute a distinct class having an intelligible differentia, which bore a reasonable relation to the object and purpose of the 2010 Act;

(ii) All the employees terminated from service on the basis of the judgment under review, stood restored in the service with effect from the date they were so terminated, and shall be paid the pay of the intervening period treating the said period as an extraordinary leave with pay; and

(iii) The cases decided by the judgment under review, which now stood recalled, shall be deemed pending and decided on their own merits by the regular Bench(es) of the Supreme Court in accordance with the provisions of the Sacked Employees Reinstatement Act 2010, subject to the declaration made at para (i) above.

In attendance:

Kh. Muhammad Arif, Advocate Supreme Court (in C.R.P. Nos. 292 and 388 of 2021).

Muhammad Yousaf Khan, (in C.R.P. No. 293 of 2021).

Muhammad Tariq Asad, Advocate Supreme Court (in C.R.P. No. 294 and C.M.A. No.12033 of 2021).

Khalid Javed Khan, Attorney General for Pakistan

Ayaz Shoukat, D.A.G. along with Ms. Maryam Rasheed and Usman Paracha, Advocates (in C.R.P. No. 295 of 2021)

Muhammad Nawaz Abbasi (in person) (in C.R.Ps. Nos. 296 and 446 of 2021)

S.A. Mehmood Khan Sadozai, Advocate Supreme Court (in C.R.Ps. Nos. 297-300 and 416 of 2021).

Muhammad Ilyas Siddiqui, Advocate Supreme Court (in C.R.P. No. 301 of 2021).

Hazrat Said (in C.R.P. No. 302 of 2021).

S. Iftikhar Hussain Gillani, Sr. Advocate Supreme Court (in C.R.Ps. Nos. 351 and 392 of 2021)

Ms. Shireen Imran, Advocate Supreme Court (in C.R.Ps. Nos. 252, 393, 394, 448 and C.M.A. No. 12104 of 2021).

M. Safdar Shaheen Pirzada, Advocate Supreme Court (in C.R.Ps. Nos. 253, 372 and 375 of 2021).

Nisar A. Mujahid, Advocate Supreme Court (in C.R.P. No. 354 of 2021).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. Nos. 355, 374, C.M.As. Nos. 11982 and 12029 of 2021).

Ch. Afrasiab Khan, Advocate Supreme Court (in C.R.P. No. 356 of 2021).

Mian Raza Rabbani, Senior Advocate Supreme Court, Saalim Salam Ansari, Advocate Supreme Court assisted by Zeeshan Abdullah (in C.R.P. No. 357, C.M.Apl. No. 175, C.M.As. Nos. 12172 and 12173 of 2021)

Shah Khawar, Advocate Supreme Court and Hassan Rashid Qamar, Advocate Supreme Court (in C.R.Ps. Nos. 355, 378-381, 442, 455, 456, C.M.As. Nos. 12028 and 12162 of 2021).

Zubair Hussain, Advocate Supreme Court (in C.R.P. No. 359 and C.M.A. No. 11983 of 2021).

Syed M. Iqbal Hashmi, Advocate Supreme Court (in C.R.Ps. Nos. 360-363 of 2021).

Mazullah Khan (in-person) (in C.R.P. No. 364 of 2021).

Zulfikar Khalid Maluka, Advocate Supreme Court (in C.R.Ps. Nos. 365 and 428 of 2021).

Ghulam Sajjad Gopang, Advocate Supreme Court (in C.R.P. No. 366 of 2021).

Omer Farouk Adam, Advocate Supreme Court (in C.R.P. No. 367 of 2021).

Tariq Mehmood Mughal, Advocate Supreme Court (in C.R.P. No. 368 of 2021).

Syed Rifaqat Hussain Shah, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. Nos. 369, 385, 420, C.M.Apl. No. 168, C.M.As. Nos. 12032 and 12035 of 2021).

Muhammad Sharif Janjua, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. Nos. 370, 386, 399, 400 and 423 of 2021).

Saleem Ullah Ranazai, Advocate Supreme Court (in C.R.P. No. 371 of 2021).

Kamran Murtaza, Senior Advocate Supreme Court (in C.R.Ps. Nos. 373 and 377 of 2021).

Waseem Sajjad, Senior Advocate Supreme Court (in C.R.Ps. Nos. 376 and 383 of 2021).

Dr. Saeed Ahmed (in person) (in C.R.P. No. 382 of 2021).

Aftab Alam Yasir, Advocate Supreme Court (in C.R.P. No. 384 and C.M.A. No. 12020 of 2021).

Abdul Razzaq Shar, Advocate Supreme Court (in C.R.Ps. Nos. 387, 454 and C.M.A. No. 12024 of 2021).

Jam Khursheed Ahmed, Advocate Supreme Court (in C.R.P. No. 389 of 2021).

Muhammad Sajid Khan, Advocate Supreme Court (in C.R.P. No. 390, C.M.As. Nos. 12031 and 12161 of 2021).

Hamid Khan, Senior Advocate Supreme Court and M. Waqar Rana, Advocate Supreme Court (in C.R.P. No. 391 of 2021).

Liauqat Ali Karim, Advocate Supreme Court (in C.R.P. No. 395 of 2021).

Abid A. Zuberi, Advocate Supreme Court (in C.R.P. No. 396 of 2021).

Azhar Navid Shah, Advocate Supreme Court (in C.R.P. No. 397 of 2021).

Malik Faiz Rasool Rajwana, Advocate Supreme Court (in C.R.P. No. 398 of 2021)

Muhammad Umair Baloch, Advocate Supreme Court and Shoaib Shaheen, Advocate Supreme Court (in C.R.Ps. Nos. 401-415, 418, 419 and C.M.A. No. 12372 of 2021).

Muhammad Haseeb Jamali, Advocate Supreme Court (in C.R.P. No. 417 of 2021).

Malik Mansoor Hussain, Advocate Supreme Court (in C.R.P. No. 421 of 2021).

Ch. Aitzaz Ahsan, Advocate Supreme Court and Gohar Ali Khan, Advocate Supreme Court (in C.R.P. No. 422 of 2021).

Shakirullah (in-person) (in C.R.P. No. 424 of 2021).

Muhammad Nawaz Rai, Advocate Supreme Court (in C.R.P. No. 425 of 2021).

Muddasar Khalid Abbasi, Advocate Supreme Court (in C.R.P. No. 426 of 2021).

Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court (in C.R.P. No. 427 of 2021).

Khalid Javed (in-person) (in C.R.P. No. 429 of 2021).

Abdul Latif Afridi, Sr. Advocate Supreme Court (in C.R.Ps. Nos. 430-431 of 2021).

S. Asghar Hussain Sabzwari, Senior Advocate Supreme Court, S. Qamar Hussain Shah Sabzwari, Advocate Supreme Court and S. Nayyar Hussain Bukhari, Advocate Supreme Court (in C.R.P. No. 432 of 2021).

Sh. Mehmood Ahmed, Advocate-on-Record (in C.M.A. No. 11812 of 2021).

Sikandar Javed, Advocate Supreme Court (in C.M.As. Nos. 11813 and 11993 of 2021).

Ms. Attiya Khanam (in-person) (in C.M.A. No. 11814 of 2021).

Fazal e Rabbi (in-person) (in C.M.A. No. 11837 of 2021).

Malik Muhammad Riaz, (in-person) (in C.M.A. No. 11862 of 2021).

Arshad Ali Makhdoom, Advocate Supreme Court (in C.M.A. No. 11863 of 2021).

Muhammad Ibrahim (in-person) (in C.M.A. No. 11864 of 2021).

Faisal Siddiqui, Advocate Supreme Court (in C.M.A. No. 11902 of 2021).

Anees M. Shahzad, Advocate-on-Record/Advocate Supreme Court (in C.M.A. No. 11903 of 2021).

Mir Aurangzeb, Advocate-on-Record/Advocate Supreme Court (in C.M.A. No. 11987 of 2021).

Jawaid Masood Tahir Bhatti, Advocate Supreme Court (in C.M.A. No. 11679 and C.M.Apl. No. 158 of 2021).

Mir Shahzad Khan Talpur (in-person) (in C.M.A. No. 12017 of 2021).

Malik Muhammad Munsif Awan, Advocate Supreme Court (in C.M.A. No. 12019 of 2021).

Muhammad Afzal Khan (in C.M.A. No. 12025 of 2021).

Tassawar Abbas Tanvir (in-person) (in C.R.P. No. 443 of 2021).

Dr. Umar Farooq Siddiqui (in-person) (in C.R.P. No. 444 of 2021).

Sardar M. Latif Khosa, Sr. Advocate Supreme Court and Sardar M. Shahbaz Khosa, Advocate Supreme Court (in C.R.Ps. Nos. 445, 447 of 2021).

Pervez Rauf, Advocate Supreme Court (in C.R.Ps. Nos. 449, 452 of 2021).

Mir Afzal Malik, Advocate Supreme Court (in C.R.P. No. 450 of 2021).

Malik Saleem Iqbal Awan, Advocate Supreme Court (in C.R.P. No. 453 of 2021).

Raja Farakh Arif Bhatti, Advocate Supreme Court (in C.M.A. No. 12075 of 2021).

Rai M. Nawaz Kharal, Advocate Supreme Court (in C.M.A. No. 12103 of 2021).

Ch. M. Younas, Advocate Supreme Court (in C.M.A. No. 12403 of 2021).

Shahid Anwar Bajwa, Advocate Supreme Court (in C.M.A. No. 12373 of 2021).

Niazullah Niazi, AG ICT

SSGPL

Barrister Umer Aslam

State Life

Syed Waqar Naqvi, Advocate Supreme Court.

OPF

Aftab Alam Yasir, Advocate Supreme Court.

SNGPL

Asad Jan, Advocate Supreme Court.

2022 P L C (C.S.) 837

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others

Versus

INTIZAR ALI and others

Civil Appeals Nos. 759/2020, 1448/2016, 1483/2019, 760/2020, 761/2020, 1213/2020 to 1230/2020, decided on 28th January, 2022.

(On appeal from the judgments/orders dated 20.06.2017, 18.09.2015, 27.10.2016, 27.03.2018, 14.03.2016, 07.04.2016, 11.09.2017, 19.09.2017, 16.10.2017, 18.04.2018, 03.05.2018, 17.05.2018, 24.05.2018, 18.10.2018, 11.10.2018, 04.07.2017, 20.11.2018, 15.05.2019 and 07.03.2019 of the Peshawar High Court, Peshawar; Peshawar High Court, Mingora Bench (Dar-ul-­Qaza), Swat; KPK Service Tribunal, Peshawar; and Peshawar High Court, D.I. Khan Bench passed in Writ Petitions Nos. 1714-P/2015, 3592-P/2014, 3909-P/2015, 602-P/2015 and 4814-P/2017; Civil Revision No. 493-P/2015; Writ Petitions Nos. 1851-P/2014, 3245-P/2015, 429-M/2014 and 3449-P/2014; Appeals Nos. 62/2020, 63/2020 and 326/2015; and Writ Petitions Nos. 778-M/2017, 1678-P/2016, 3452-P/2017, 4675-P/2017, 2446-P/2016, 3315-P/2018, 667-D/2016, 2096-P/2016, 2389-P/2018 and 965-P/2014)

(a) Khyber Pakhtunkhwa Sacked Employees (Appointment) Act (XVII of 2012)---

----S.7 & Preamble---Sacked employees---Pre-requisites for reinstatement under the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 ('the 2012 Act')---To become eligible to get the relief of reinstatement, one has to fulfill (all) three conditions; first, the aggrieved person should be a regular employee; second, he must have the requisite qualification and experience for the post during the period from 01-11-1993 to 30-11-1996 and not later, and, third, he was dismissed, removed or terminated from service during the period from 01-11-1996 to 31-12-1998---Temporary/ad-hoc/contract employees have no vested right to claim reinstatement under the 2012 Act.

(b) Civil service---

----Temporary/contract/project employees---Such employees had no vested right to claim regularization.

PTCL v. Muhammad Samiullah 2021 SCMR 998 ref.

(c) Interpretation of statutes---

----Natural and ordinary meaning of words---When meaning of a statute is clear and plain language of statute requires no other interpretation then intention of Legislature conveyed through such language has to be given full effect---Plain words must be expounded in their natural and ordinary sense---Intention of the Legislature is primarily to be gathered from language used and attention has to be paid to what has been said and not to that what has not been said. [p. 847] E

Government of Khyber Pakhtunkhwa v. Abdul Manan 2021 SCMR 1871 ref.

(d) Words and phrases---

----'Ultra vires' and 'illegal'---Distinction---Term 'ultra vires' literally means "beyond powers" or "lack of power"; it signifies a concept distinct from "illegality"---In the loose or the widest sense, everything that is not warranted by law is illegal but in its proper or strict connotation "illegal" refers to that quality which makes the act itself contrary to law.

(e) Constitution of Pakistan---

----Arts. 185 & 199---Factual controversies---Superior Courts can not engage in factual controversies---Matters pertaining to factual controversy can only be resolved after thorough inquiry and recording of evidence in a civil court.

Fateh Yarn (Pvt.) Ltd. v. Commissioner Inland Revenue 2021 SCMR 1133 ref.

(f) Constitution of Pakistan---

----Arts. 4 & 9---Civil service---Government departments---Practice of not formulating statutory rules of service---Such practice was deprecated by the Supreme Court.

In a number of cases the statutory departments, due to one reason or the other, do not formulate statutory rules of service, which in other words is defiance of service structure, which invariably affects the sanctity of the service. Framing of statutory rules of service is warranted and necessary as per law. It is invariably true that an employee unless given a peace of mind cannot perform his/her functions effectively and properly. The premise behind formulation of statutory rules of service is gauged from Articles 4 and 9 of the Constitution. An employee who derives his/her employment by virtue of an act or statute must know the contours of his employment and those niceties of the said employment must be backed by statutory formation. Unless rules are not framed statutorily it is against the very fundamental/structured employment as it must be guaranteed appropriately as per notions of the law and equity derived from the Constitution.

Shumail Butt, Advocate General, Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional A.G., Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G., Khyber Pakhtunkhwa, Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Iftikhar Ghani, DEO (Male) Bunir, Muhammad Aslam, S. O. (Litigation), Fazle Khaliq, Litigation Officer/DEO (Male) Swat, Fazal Rehman, Principle/DEO Swat Ms. Roheen Naz, ADO (Legal)/DEO(F) Nowshera, Malik Muhammad Ali, S. O. C&W Department, Khyber Pakhtunkhwa and Jehanzeb Khan, SDO/XEN C&W for Appellants (in all cases).

Sh. Riaz-ul-Haque, Advocate Supreme Court for Respondents (in C.As. Nos.759/2020, 1483/2019, 760, 1214, 1215, 1217, 1218, 1220 and 1223/2020).

Fazal Shah, Advocate Supreme Court for Respondents Nos.1 and 2 (in C.A. No.1448/2016), Respondents Nos.2 to 4, 8, 9, 11 and 12 (in C.A. No.1213/2020) and Respondents (in C.A. No.1229/2020).

Abdul Munim Khan, Advocate Supreme Court for Respondents (in C.A. No.761/2020).

Barrister Umer Aslam Khan, Advocate Supreme Court for Respondent No.1 (in C.A. No. 1213/2020).

Taufiq Asif, Advocate Supreme Court for Respondents (in C.A. No. 1221/2020).

Misbah Ullah Khan, Advocate Supreme Court for Respondents (in C.A. No.1222/2020).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos.1, 3 to 8 (in C.A. No.1225/2020).

Saleem Ullah Ranazai, Advocate Supreme Court for Respondents (in C.A. No.1227/2020).

Chaudhry Muhammad Shuaib, Advocate Supreme Court for Respondent No.2 (in C.A. No.1228/2020).

Fida Gul, Advocate Supreme Court for Respondents (in C.A. No.1230/2020).

Nemo for Respondents Nos. 5 to 7 and 10 (in C.A. No.1213/2020), Respondents in C.As. Nos.1216/2020, 1219/2020, 1224/2020 and 1226/2020), Respondent No.2 (in C.A. No.1225/2020 and Respondents Nos.1 and 3 (in C.A.1228/2020).

2022 P L C (C.S.) 859

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Muhammad Ali Mazhar, J

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others

Versus

SHABIR HUSSAIN and others

Civil Petition No. 3455 of 2020, decided on 1st December, 2021.

(Against the judgment dated 12.10.2020 Islamabad High Court, Islamabad in W.P. No.3200 of 2013)

(a) Capital Development Authority Employees (Service) Regulations, 1992---

----Reglns. 4.04, 4.17 & 4.18---Employees of Capital Development Authority (CDA)---Promotion order, withdrawal of---Legality---Vested right to promotion---Scope---Locus poenitentiae, principle of---Applicability---Respondents were regular employees of CDA; they were considered for promotion on the basis of their seniority, and their promotion to the post of Assistant Directors in BS-17 was recommended by the Departmental Promotion Committee (DPC) after due consideration of credentials and ACRs---Competent authority approved the promotion of respondents to the post of Assistant Director (BS-17) in Engineering Cadre on acting charge basis with immediate effect---Subsequently the promotion of the respondents was regularized vide an office order but the said office order was withdrawn/cancelled vide another office order without assigning any reason or notice---Held, that in the present case, on the face of it, neither any fault or defect of respondents was pointed out by CDA nor any oversight or error on the part of DPC members or its composition or jurisdiction which could result in an unceremonious withdrawal of promotion order after considerable period---In these set of circumstances, the doctrine of vested right was applicable which provided that once a right was lawfully created, its existence should be recognized and acknowledged, therefore the benefit of promotions earned on DPC recommendations had become an undeniable and incontrovertible right of the respondents which could not be cancelled or withdrawn---Another shortcoming and unlawfulness was that no prior notice or justification was even shown in the cancellation letter which was flagrant violation of well settled principle of natural justice---Further more it was not the case of CDA that promotion was accorded to the respondents due to some misunderstanding, error, misconception of law or without sanction of competent authority therefore, the principle of locus poenitentiae was also attracted to ameliorate and ventilate the sufferings of the respondents---Petition for leave to appeal was dismissed, leave was refused and order of High Court was upheld whereby CDA's order for withdrawal/cancellation of promotion of respondents was set aside.

Chairman, Central Board of Revenue and another v. Muhammad Malook and 11 others 1999 SCMR 1540 and Province of Sindh through A.G., Sindh, Karachi v. Kazi Siraj Ahmad 2002 SCMR 862 ref.

(b) Civil service---

----Promotion---Departmental Promotion Committee, role of---As a rule, the Departmental Promotion Committee (DPC) was constituted by the competent authority to consider promotion and making recommendations---Promotions of employees/civil servants were generally decided on the basis of recommendations made by the Departmental Promotion Committee which was entrusted an onerous and arduous task to judge the suitability of officers for promotions to selection and or non-selection posts after assessment of performance, conduct, aptness and qualification with certain guidelines to standardize and synchronize the assessment benchmarks of all contenders in a fair, unbiased and transparent manner keeping in view the "dossier" (detailed record and information with regard to an officer; a collection of documents concerning a particular person or matter) or working paper including Annual Confidential Reports (ACRs) of every individual officer/employee.

(c) Natural justice, principles of---

----Scope---Principles of natural justice were firmly established and deep rooted in the judicial conscience and was entrenched and embedded in every decision making function either judicial, quasi-judicial or administrative and as a fundamental rule of law, no decision must be taken affecting the right of any person without first being informed of the case and affording an ample opportunity of defence.

Warid Telecom (Pvt.) Limited v. Pakistan Telecommunication Authority 2015 SCMR 338 ref.

Hafiz Arfat Ahmad, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2022 P L C (C.S.) 877

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. ,Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

MUNIR HUSSAIN and 3 others

Versus

PROVINCE OF SINDH and others

Civil Petition No. 404-K of 2019, decided on 28th October, 2021.

(Against judgment dated 24.04.2019 of the High Court of Sindh Court at Karachi, passed in C.P. No. D-5009 of 2014)

(a) Civil service---

----Vacant posts, filling of---After the process of written test and interview a merit list was prepared by the Provincial Public Service Commission ('the Commission) for appointment against the advertised posts---Some of the candidates who had been recommended by the Commission had either not joined or after joining quitted the posts in question with the result that a few posts fell vacant and were available to be filled---Petitioners who were neither recommended nor their names appeared on the merit list, claimed that they had also passed the written test and interview but secured lesser marks than those recommended for appointment against the available posts; that the vacant and available posts should have been filled by going down the merit list and the petitioners should have been appointed against the said posts---Held, that there is no obligation on the Commission to prepare a list of the candidates who had failed to meet the merit or a waiting list to cater for a situation where a candidate otherwise qualified but having scored less marks than the other candidates may be appointed in case a seat became available in the future---In the absence of any provision in the law requiring the Commission to maintain a complete list of successful candidates whether or not they were recommended for appointment or obligating the Commission to maintain a waiting list, no legal or constitutional right accrued in favour of the petitioners to claim appointment and use the mode of approaching the High Court seeking to invoke its constitutional jurisdiction to grant relief---Petition for leave to appeal was dismissed and leave was refused.

Government of NWFP v. Qasim Shah 2009 SCMR 382 distinguished.

Musa Wazir v. NWFP Public Service Commission 1993 SCMR 1124 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Court lacked jurisdiction or power to create rights which were not provided by the Constitution or a validly enacted law.

(c) Constitution of Pakistan---

----Art. 185(3)---Leave refusing order of the Supreme Court---Such order did not constitute precedent.

(d) Civil service---

----Vacant posts, filling of---Advertised posts falling vacant either due to selected candidates (appearing on merit list) not joining service or quitting their posts after joining---Principles for filling such vacant posts stated.

Following are the principles to be followed for filling vacant posts that fall vacant either due to selected candidates (appearing on merit list) not joining service or quitting their posts after joining:

(i) In matters of competitive examination held by Public Service Commissions all vacancies were required to be filled up in one go. Even if the filling up was staggered the competitive examination was one and had to be treated as one selection for the purpose of recruitment;

(ii) In posts remaining vacant on account of non-availability of suitable candidates, failure of the recommended candidates to occupy or falling vacant by reason of the qualified candidates quitting the posts after joining needed to re-advertised and subjected to open competition;

(iii) The practice in the matter of recruitment/promotion, etc must always be fair, transparent and open to competition in order to hire the best available human resource to foster, competence, excellence and efficiency in public service; and

(iv) Only in exceptional cases and provided the rules and regulations provided for waiting list of the qualified candidates who did not in the first place meet the merit, to be maintained for a limited time (maximum of three months) on the request of the department by the relevant Public Service Commission or the department (in case recruitment was made by the department under the law, rules and regulations through an open and transparent recruitment process involving test and interview) in order to ensure that in case of an urgent need to fill the vacancies, the qualified candidates may be recommended and offered the available seats from such "waiting list" strictly following the rule of merit. However, such practice must always be limited to exceptional circumstances and provided the laws, rules and regulations of the Public Service Commissions and/or the concerned departments so permitted.

Musa Wazir v. NWFP Public Service Commission 1993 SCMR 1124 ref.

M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioners.

Sibtain Mehmood, Additional A.G. Sindh, Syed Atta Ullah Shah Bokhari, Secretary SPSC and M. Yousaf Alvi, Law Officer, SPSC for Respondents.

2022 P L C (C.S.) 899

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

SAQIB ALI KHOKHAR, DIRECTOR (REGIONAL)/ ADDITIONAL DIRECTOR through Managing Director (STEVTA)

Versus

INAYATULLAH LOHAR and others

Civil Appeal No. 607 of 2021, decided on 8th November, 2021.

(Against judgment dated 24.02.2021 of Sindh Service Tribunal, Karachi passed in Service Appeal No. 888 of 2018)

Sindh Technical Vocational Training Authority Act, 2009 (VIII of 2010)---

----Ss.15(2) & 15(3)---Sindh Technical Education and Vocational Training Authority Employees (Appointment, Promotion and Transfer) Rules, 2012, R. 13---Sindh Civil Servants Act (XIV of 1973), S. 9---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rr. 7 & 8---Constitution of Pakistan, Art. 240---Civil servants belonging to different departments and cadres transferred/posted to Sindh Technical Education and Vocational Training Authority (STEVTA) but not absorbed therein---Promotion---All employees of STEVTA who had been transferred/posted to STEVTA from different departments of Provincial Government continued to be employees of the Government and various aspects of their service including seniority and promotion were governed by the Sindh Civil Servants Act, 1973 and they had to follow the channels of promotion available in their own departments and cadres under the Sindh Civil Servants Act, 1973 and the Rules made thereunder.

Employees/civil servants of Provincial Government who were transferred to Sindh Technical Education and Vocational Training Authority (STEVTA) but not absorbed therein had to be promoted through their parent channels under the Rules framed under Sindh Civil Servants Act, 1973. Granting of promotion to civil servants who had been transferred to STEVTA for the time being under the Sindh Technical Education and Vocational Training Authority Employees (Appointment, Promotion and Transfer) Rules, 2012 framed by STEVTA was illegal and without lawful authority.

Administrative changes, transfers and postings of civil servants to different departments, agencies or authorities working as a part of the Government or under the Government could not change the service structure and the conditions of service including seniority of civil servants which could only be done by a statutory instrument in terms of Article 240 of the Constitution.

Muhammad Bachal Memon v. Tanveer Hussain Shah 2014 SCMR 1539 ref.

Provincial Assembly did not make any amendments in the Sindh Civil Servants Act, 1973 or the Rules framed thereunder in order to change, modify or alter the terms and conditions of service of those transferred to STEVTA. For the purpose of promotion, STEVTA could not exclude the applicability of the Sindh Civil Servants Act, 1973 and the Rules farmed thereunder and apply its own rules. All employees of STEVTA who had been transferred/posted to STEVTA from different departments of Provincial Government continued to be employees of the Government and various aspects of their service including seniority and promotion were governed by the Sindh Civil Servants Act, 1973 and they had to follow the channels of promotion available in their own departments and cadres under the Sindh Civil Servants Act, 1973 and the Rules made thereunder.

M. Shoaib Shaheen, Advocate Supreme Court for Appellant.

Syed Ghulam Shabbir Shah, Advocate Supreme Court (via video link from Karachi) assisted by Awwad Anwar, Advocate and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent No. 1.

Fauzi Zafar, Additional A.G. Sindh for Respondents Nos. 2 - 4.

2022 P L C (C.S.) 914

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and ljaz ul Ahsan, J

ABDUL SATTAR JATOI

Versus

CHIEF MINISTER SINDH through Principal Secretary, Chief Minister Secretariat, Karachi and others

Civil Appeal No. 1167 of 2020, decided on 10th January, 2022.

(Against the judgment dated 22.09.2020, passed by the Sindh Service Tribunal, Karachi in Appeal No.1009 of 2019)

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

----S. 4, proviso (b)---Appeal to Tribunal---Jurisdiction of Tribunal---Scope---Proviso (b) of S. 4 of the Sindh Service Tribunals Act, 1973 ('Act of 1973'), bars filing of a service appeal before the Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade---Said provision deals with a situation that the departmental authority has dealt with the matter of promotions of all the employees eligible for promotion to a post and having found a certain employee to be fit for promotion, promoted him---Remaining civil servants whose case for promotion was considered but found not fit to be promoted, such civil servants' service appeals before the Tribunal would not lie.

Proviso (b) of section 4 of the Sindh Service Tribunals Act, 1973 ('Act of 1973'), bars filing of a service appeal before the Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. This provision deals with a situation that the departmental authority has dealt with the matter of promotions of all the employees eligible for promotion to a post and having found a certain employee to be fit for promotion, promoted him. The remaining civil servants whose case for promotion was considered but found not fit to be promoted, such civil servants' service appeals before the Tribunal would not lie. In the present case, no such order or decision, determining the fitness or otherwise of a person to be appointed, has either been made by the departmental authority nor the question of fitness of the appellant to be promoted has at all been raised. The grievance, in the service appeal filed by the respondent before the Tribunal was that the departmental authority did not at all consider the case of the appellant's own batch-mates including the respondent who were working in the post of BPS-19 in the Health Department for promotion to the post of BPS-20, in that, only the appellant was picked up by the departmental authority for grant of promotion to him in BPS-20 and the senior batch-mates of the appellant have altogether not been considered for granting of promotion to the post of BPS-20. Had the departmental authority considered the case of promotion of all the batch-mates of the appellant working in BPS-19 in the Health Department and the respondent having been found not fit for promotion to the post of BPS-20 by the departmental authority, the service appeal on such question would have been barred before the Tribunal, but such is not the case in hand before the Court. Thus, the Tribunal had jurisdiction to entertain the service appeal filed by the respondent.

Shafi Muhammad Mughal v. Secretary Establishment Division and others 2001 SCMR 1446; Zafar Iqbal v. M.G.O. M.G.O. Branch, GHQ Rawalpindi and 3 others 1995 SCMR 881 and Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others 2011 PLC (C.S.) 596 distinguished.

(b) Civil service---

----Promotion---Merit---Competent authority is bound to consider all eligible candidates for promotion on merit---In the matter of civil service, there should not at all be any instance where the competent authority is found to be accommodating any one civil servant for grant of promotion by not considering or ignoring all other equals and even seniors.

Competent authority while considering grant of promotion is duty bound and obliged under the law to consider merit of all the eligible candidates and after due deliberations, to grant promotion to such eligible candidates who are found to be most meritorious among them. The law does not permit the competent authority to just pick one specific person and amend the rules for him and then create a post and oblige and grant promotion to that one person. Competent authority is bound to consider all eligible candidates for promotion on merit. [p. 925] B

Right to promotion is not an illusionary nor a perfunctory right which could be ignored casually. Non-considering of an officer being equally eligible for promotion is a serious matter and not only undermines discipline but creates serious bad blood and heart burning amongst the rank and file of civil service. In the matter of civil service, there should not at all be any instance where the competent authority is found to be accommodating any one civil servant for grant of promotion and availing of better service benefits leaving all other equals and even seniors abandoned.

(c) Civil service---

----Person specific post, creation of---Illegal.

Creation of a specific post for the benefit of one specific civil servant was illegal.

Secretary Agriculture, Government of the Punjab, Lahore v. Muhammad Akram 2018 SCMR 349; In the matter of Contempt of Court Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 and Baz Muhammad Kakar and others v. Federation of Pakistan and others PLD 2012 SC 870 ref.

M. M. Aqil Awan, Senior Advocate Supreme Court for Appellant.

Syed M. Saulat Rizvi, Additional Advocate General, Sindh (via video link from Karachi) for Respondents Nos.1 - 4.

Respondent No. 5 in person.

2022 P L C (C.S.) 947

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

PROVINCE OF PUNJAB through Chief Secretary, Lahore and others

Versus

Prof. Dr. JAVED IQBAL and others

Civil Appeal No. 966 of 2020, decided on 14th July, 2021.

(Against order dated 26.06.2019 of Lahore High Court, Lahore passed by in Writ Petition No. 23925 of 2016)

(a) Civil service---

----Appointment---Court cannot step into the shoes of the appointing authority.

(b) Civil service---

----Contractual employees---Regularization in service---Scope---Regularization takes effect prospectively, from the date when a regularization order is passed---In the absence of any law/order/policy providing for retrospective regularization, contractual employees cannot claim regularization of their services based on past service rendered on contract basis as well as the period during which they are out of service---Employee has no automatic right to get his/her past service rendered on contract basis counted towards regular service or regularization---Employee also cannot choose the date when he/she wishes to be regularized---Regularization is the prerogative of the Executive and it cannot be arbitrarily interfered with by the Court.

Khushal Khan Khattak University v. Jabran Ali Khan 2021 SCMR 977 ref.

(c) Constitution of Pakistan---

----Art. 199---Civil service---Constitutional jurisdiction of the High Court---Scope---High Court in exercise of its constitutional jurisdiction has no power to extend expired contracts or order reinstatement of contractual employees.

(d) Civil service---

----Contractual employees---Regularization in service---Scope---Long and satisfactory contractual service does not confer any right on an employee to claim regularization at all or for that matter from an earlier date.

Government of Khyber Pakhtunkhwa and others v. Saeed ul Hassan and others 2021 SCMR 1376 ref.

Ch. Faisal Fareed, Additional A.G. Punjab and Abbas Ali, Law Officer, Health Department, Punjab for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Hifz-ur-Rehman, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents.

2022 P L C (C.S.) 961

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

The POSTMASTER GENERAL SINDH PROVINCE, KARACHI and others

Versus

SYED FARHAN

Civil Petition No. 342-K of 2020, decided on 13th May, 2022.

(Against the judgment dated 03.03.2020 passed by Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.85(K)CS/2019).

(a) Civil service---

----Punishment---Award and quantum of punishment---Scope---Award of appropriate punishment under the law is primarily the function of the concerned administrative authority and the role of the Tribunal/Court is rather secondary---Court ordinarily would not substitute its own finding with that of the said authority unless the latter's opinion is unreasonable or is based on irrelevant or extraneous considerations or is against the law declared---Law provides for more than one kind of punishments keeping in view the object of such penal provisions and the gravity of the charge in a case---Conceptually punishment to a delinquent public servant is premised on the concept of retribution, deterrence or reformation---In awarding punishments, the competent authority has to keep in mind the underlying object of law and the severity of the misconduct.

Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817 ref.

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

----S. 5(1)---Service Tribunal, powers of---Scope---'Negligence' and 'gross negligence'---Distinction---Expression "negligence" connotes a dearth of attentiveness and alertness or disdain for duty---Genus of accountability and responsibility differentiates and augments an act of gross negligence to a high intensity rather than an act of ordinary negligence---To establish gross negligence, the act or omission must be of a worsened genre whereas ordinary negligence amounts to an act of inadvertence or failure of taking on the watchfulness and cautiousness which by and large a sensible and mindful person would bring into play under the peculiar set of circumstances---In unison, recklessness is a mental state or state of mind which is adjudged both subjectively and objectively---Gross negligence or recklessness in performing the designated or assigned duty are both flagrant acts of negligence and tantamount to misconduct which is of course subject to realizing and understanding the gravity and seriousness of the allegations of misconduct complained of---Sometimes a little or minor mistake or negligence or inefficiency may cause serious disaster or devastation and have severe ramifications---So, while declaring or weighing any act of negligence or inefficacy vis-à-vis the penalty imposed by the management, either major or minor, and before the conversion of the sentence, the Service Tribunal is bound to revisit the entire evidence available on record with the inquiry findings and report and, if conversion is required in the interest of justice, then it should be with due weightage, commensurate and proportionate to the gravity of charges and act of negligence/inefficiency and not on the basis of an uncontrolled or unbridled exercise of discretionary powers of the Tribunal without any raison d'être.

(c) Civil service---

----Post Office Manual, Vol. IV, Appendix No. 27---Junior Accountant, General Post Office (GPO)---Negligence and inefficiency in supervising subordinate official found guilty of committing fraud---Major penalty of removal from service converted into minor penalty of withholding of promotion for a period of three years---In the present case, the respondent was found guilty of failing to perform his acute and crucial responsibility of checking and supervision---Respondent was not found directly guilty of misappropriation or embezzlement of pension fund for his own benefit, on the contrary, the main accused was convicted by the Court and also repaid the misappropriated amount to the department---In cases where public money and its embezzlement is involved or at stake, the responsible persons cannot be let free or exonerated with low degree of minor penalty---Quantum of punishment should be proportionate and complementary to the charge of misconduct even for the minor act of negligence and inefficiency committed by the delinquent in his duties so that the punishment even in the minor category should be of such kind which may create at least some deterrence for the delinquent and other employees to be more vigilant and attentive to their duties in future rather than performing the tasks with callous attitude---Respondent had failed to perform and fulfill his duties in accordance with the job description of Junior Accountant as prescribed in Post Office Manual, Volume IV, Appendix No. 27---Service Tribunal itself found the respondent inefficient in performing his duties as required under the Rules and further held that, had he performed his duties as prescribed under the Rules, the alleged offence of misappropriation of government money could have easily been anticipated---In such circumstances conversion of sentence of removal of service by the Tribunal into penalty of withholding of promotion for a period of one year only was neither sufficient nor justified---Civil petition for leave to appeal was converted into appeal and allowed, and penalty of withholding of promotion for a period of one year was modified and converted into penalty of withholding of promotion for a period of three years without accumulative effect.

Auditor-General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60 and Secretary, Ministry of Finance and another v. Kazim Raza PLD 2008 SC 397 ref.

Nishat Warsi, D.A.G. and Rahat Ali, Assistant Superintendent for Petitioners.

Sanaullah Noor Ghouri, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

2022 P L C (C.S.) 990

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Muhammad Ali Mazhar, J

UZMA MANZOOR and others

Versus

VICE-CHANCELLOR KHUSHAL KHAN KHATTAK UNIVERSITY, KARAK and others

Civil Petitions Nos. 2913, 3224 and 3628 of 2021, decided on 29th November, 2021.

(Against the judgment dated 30.03.2021 Peshawar High Court, Bannu Bench, in W.P. No.709-B of 2020)

(a) Civil service---

----Recruitment process---Selection criteria---Scope---Mere submitting of an application for joining recruitment process in response to an advertisement did not create any vested right to claim the job---Before finalizing a fit candidate by the competent authority or Selection Board, the testimonials and antecedents of each candidate were to be considered in accordance with the prescribed benchmarks but in order to maintain level playing field and even-handed competition amongst all candidates, the qualification and competency in all fairness should be considered and adjudged in accordance with the qualification notified to apply in the advertisement and to extend any preference or favourable treatment, the settled terms and conditions could not be disregarded---Selection process should be within the specified spectrum and attributes (mentioned in the advertisement) and breach of such protocol attracted the doctrine of legitimate expectation, which sought to rescue and ventilate the sufferings of candidates who are under the bona fide belief that their applications for appointment would be considered (in terms of the qualifications notified in the advertisement).

(b) Legitimate expectation, doctrine of---

----Scope and connotation---Doctrine of legitimate expectation connoted that a person may have a reasonable expectation of being treated in a certain way by administrative authorities owing to some uniform practice or an explicit promise made by the concerned authority---In fact, a legitimate expectation ascended in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of government or a public authority---When such a legitimate expectation was obliterated, it afforded locus standi to challenge the administrative action and even in the absenteeism of a substantive right, a legitimate expectation may allow an individual to seek judicial review of a wrongdoing---In deciding whether the expectation was legitimate or not, the courts may consider whether the decision of public authority had breached a legitimate expectation and, if it was proved so, then the court may annul the decision and direct the concerned authority/person to live up to the legitimate expectation--- Said doctrine was basically applied as a tool to watch over the actions of administrative authorities and in essence imposed obligations on all public authorities to act fair and square in all matters encompassing legitimate expectation.

Judges Pension's case PLD 2013 SC 829; Halsbury's Laws of England, Volume 1(1), 4th Edition, paragraph 81, at pages 151-152; R. v. Secretary of State of Transport Exporte Greater London Council (1985) 3 ALL.ER 300 and Union of India v. Hindustan Development Corporation (1993) 3 SCC 499 ref.

Raja Muhammad Farooq, Advocate Supreme Court for Petitioner (in C.P. No. 2913 of 2021).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioner (in C.P. No. 3224 of 2021).

Ghulam Mohyuddin Malik, Advocate Supreme Court for Petitioner (in C.P. No. 3268 of 2021).

Nemo for Respondents (in C.P. No. 2913 of 2021).

Raja Muhammad Farooq, Advocate Supreme Court for Respondent No. 1 (in C.Ps. Nos. 3224 and 3628 of 2021).

2022 P L C (C.S.) 1008

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY FINANCE, FINANCE DIVISION PAK. SECRETARIAT, ISLAMABAD

Versus

MUHAMMAD FAROOQ KHAN and others

Civil Appeal No. 550 of 2020, decided on 14th December, 2021.

(Against the judgment dated 17.12.2018, passed by the Federal Service Tribunal, Islamabad in Appeal No.1571(R)CS/2016)

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

----Rr. 7 & 8---Time scale promotion from BPS-17 to BPS-18 without change in designation of post---Premature increment, eligibility for---Employee granted time-scale promotion was also granted premature increment on order of the Service Tribunal---Legality---Grant of time scale promotion was not a promotion in terms of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---In the present case, the notification through which the respondent was given time scale promotion was issued in pursuance of a Finance Division's Office Memorandum and Establishment Division's Office Memorandum---Establishment Division specifically noted in its Office Memorandum that time scale formula was simply grant of higher grade without any change in designation of posts and did not involve upgradation of posts and amendment in recruitment rules---Said wording of the Office Memorandum was also incorporated in the notification through which the respondent was given time scale promotion---Importantly when the respondent had not challenged the said notification to the extent that grant of time scale promotion did not allow him promotion, and had not made such prayer in his memo of appeal before the Tribunal, the Tribunal could not in the presence of the notification allow the claim of the respondent for grant of premature increment---Impugned judgment of Service Tribunal whereby it termed the grant of time scale promotion as a promotion in service and granted premature increment to the respondent was not sustainable---Appeal was allowed and impugned judgment of Service Tribunal was set aside.

PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others 2021 SCMR 637; Muhammad Ashraf and others v. Federation of Pakistan through Secretary, Ministry of Railways, Islamabad and others 2000 SCMR 477 and Khushdil Khan Malik v. Secretary, Establishment Division Cabinet Block, Islamabad and others 2021 SCMR 1496 ref.

Government of the Punjab through Secretary Services Punjab Lahore and 4 others v. Muhammad Awais Shahid and 4 others 1991 SCMR 696 distinguished.

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan, Khan Hafeez, Joint Secretary, Finance Division and Sajid Javed, Legal Assistant, Finance Division for Appellant.

Kamran Afzal, Secretary Finance Division on Court's Notice.

Ms. Farah Hamid Khan, Secretary, Ministry of Federal Education and Professional Training on Court's Notice.

Dr. Ijaz Munir, Secretary for Establishment Division on Court's Notice.

Ms. Shireen Imran, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

2022 P L C (C.S.) 1128

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

MANZAR ZAHOOR

Versus

LYARI DEVELOPMENT AUTHORITY and another

Civil Petition No. 677-K of 2019, decided on 16th February, 2022.

(Against the Order dated 07.10.2019 passed by the High Court of Sindh, Karachi in C.P. No. D-4379 of 2019)

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

----R. 12A---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 12-A---Sindh Civil Services Rules [C.S.R.] Vol I, R. 171---General Financial Rules of the Federal Government (G.F.R), Vol. I, para. 116---Date of birth, alteration/rectification of---Scope---Civil Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in a suit---Mode of correction in the date of birth of a civil servant is provided under R.12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is part of the terms and conditions of service of a civil servant and cannot be resorted to through the civil suit---No provision exists in Federal Civil Servant Rules or laws which may permit an alteration in the date of birth except in the case of a clerical error, and no condition is endorsed or jotted down stating that the correction should be applied for within two years.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Dr. Muhammad Aslam Baloch v. Government of Balochistan 2014 SCMR 1723; Muhammad Khaliq Mandokhail v. Government of Balochistan through Chief Secretary, Civil Secretariat Quetta and another 2021 SCMR 595 and Inspector General of Police, Balochistan, Quetta and others v. Mohibullah 2022 SCMR 9 ref.

Naveed Ahmed Khan, Advocate Supreme Court and Ms. Abida Parveen Channar, Advocate-on-Record for Petitioner.

Miran Shah, Additonal A.G. Sindh, K.A. Wahab, Advocate-on-Record, Irfan Ali Abro, Law Officer and Ali Gul Jalbani, S.O. for Lyari Development Authority/Respondent No.1.

2022 P L C (C.S.) 1201

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

SOHAIL AHMAD

Versus

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

Civil Appeal No. 1684 of 2021, decided on 10th May, 2022.

(Against the Order of Federal Service Tribunal, Islamabad dated 15.11.2018 in Appeal No. 1492(P)CS/2018)

(a) Frontier Constabulary Rules, 1958---

----R. 8---Constitution of Pakistan, Art. 13---Member of Frontier Constabulary---Punishment imposed without opportunity of personal hearing---Two punishments imposed for the one and same offence---Neither any show cause notice was issued to the appellant, nor any inquiry was conducted into any allegation, nor any right of personal hearing was afforded, which was against the principles of natural justice---Two punishments issued in continuation for the one and the same cause were hit by the doctrine of double jeopardy---Transfer Order of the appellant and the subsequent order whereby his seniority was upset and he was made junior most in his platoon were set aside.

An inquiry was conducted on the complaint of the appellant against some of his colleagues. Though upon holding the inquiry, the allegations levelled by the appellant in his complaint were found baseless, nevertheless, the appellant could not have been transferred as a punishment or revenge for the reason that he filed a false complaint against some of his colleagues which was found false without issuing show cause notice or providing the right of personal hearing to him. The matter did not rest here as through another office order his seniority was disturbed as a second punishment for the same alleged offence and he was made junior most in his platoon. While imposing the first punishment of transfer, or even at the time of upsetting his seniority, neither any show cause notice was issued to the appellant, nor any inquiry was conducted into any allegation, nor any right of personal hearing was afforded in compliance with the Frontier Constabulary Rules, 1958. Both punishments for the one and the same alleged offence were imposed in a nasty and injudicious manner.

Under Article 13 of the Constitution, it is clearly provided that no person shall be prosecuted or punished for the same offence more than once. In the present case, it was apparent that the appellant was vexed twice for the same alleged offence of making false complaint against his colleagues who were found innocent after inquiry. The punishment of transfer as well as declaring him junior by upsetting his seniority through another office order issued in continuation for the one and the same cause was also hit by the doctrine of double jeopardy.

Transfer Order of the appellant and the subsequent order whereby his seniority was upset and he was made junior most in the Platoon were set aside. Appeal was disposed of with the clarification that in case of allegations of misconduct against the appellant, the Department may issue a show cause notice to him and if the reply is found unsatisfactory, a regular inquiry may he conducted in accordance with the law for further action.

(b) Natural justice, principles of---

----Principles of natural justice require that the delinquent should be afforded a fair-minded opportunity to converge, give explanation and contest the allegation before he is found guilty and condemned--- No decision affecting the right of any person should be taken without providing an opportunity of being heard.

(c) Constitution of Pakistan---

----Art. 187---Power of the Supreme Court to issue directions, orders or decrees as may be necessary for doing complete justice --- Phrase 'complete justice'---Scope---Article 187 of the Constitution endows the Supreme Court with the power to issue directions, orders or decrees as may be necessary for doing complete justice and also to mould the relief sanguine to the circumstances of the case in order to secure the ends of justice---Phrase "complete justice" is actually a wide-ranging and all-inclusive expression articulating to do justice by all means so that the dominant interest of justice is not altered or distorted on mere technicalities.

Muhammad Asif, Advocate Supreme Court for Appellant.

Farman Ullah Khattak, Advocate Supreme Court for Respondents Nos. 2 - 4.

2022 P L C (C.S.) 1225

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Forest, Peshawar and others

Versus

SHER AMAN and others

Civil Appeals Nos. 232, 244, 247, 261 and 282 of 2020, decided on 18th October, 2021.

(Against judgments mentioned in Schedule-I of this judgment)

(a) Civil service---

----Contractual employee adjusted against a permanent post in a department---Legality---Permanent posts in a department were required to be filled in a transparent manner, after due advertisement, open competition, a level playing field for all eligible candidates, the best and most qualified of them being employed in accordance with a merit list prepared after fulfilling all necessary testing, interview and short-listing requirements---Contractual employees could not be adjusted against permanent posts without following the said process.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Contractual employment---Project posts---Constitutional jurisdiction of the High Court---Scope---High Court could not step into the shoes of the appointing authority---When the High Court was exercising jurisdiction under Art. 199 of the Constitution, it could not extend the scope of a contract or alter/amend the terms and conditions of employment in favour of employee that had been signed by an employee as the same went against the spirit of the very concept of contract employment---When an employee accepted a post in a project, he was aware of the fact that the project would come to an end on its completion or cessation of its funding (as the case may be) and with that, his employment would also come to an end---Forcing the Government to "accommodate/adjust" such employees was not only a transgression of the powers vested with the High Court under Art. 199 of the Constitution, but was also a burden on the Government Exchequer which the court was not at liberty to place---Employer had the prerogative to decide the terms and conditions of an employee's contract, and it was not for the court to step into the shoes of the employer and force him to employ someone for whom there was no available post and even if there was one, without following due process, procedure and criteria.

(c) Constitution of Pakistan---

----Art. 199---Civil service---Project posts---Constitutional jurisdiction of the High Court---Scope---Once the project in question had come to an end and the project employees were relieved from their services, High Court in its Constitutional jurisdiction ordered Provincial authorities to adjust the project employees against regular posts in a Municipal Committee, opining that constitution of a fresh Committee for fresh appointments would be "wastage of time and money" and that the respondents had a preferential right to serve in the project till its life---Legality---Ascertaining what and what did not constitute wastage of resources was not the domain of the High Court; this went against the basic principle of separation of powers and entering the domain of executive policy making which under the scheme of the Constitution fell in the domain of the executive---Role of the courts was to interpret the law and not delve in matters involving policy issues---High Court could not have assumed the role of the executive or a policy maker and opined that constituting a Committee for fresh appointments would have been "wastage of time and resources"---If a private organization or project, or the government thought fit to constitute a committee, the only interference which may be warranted was in exceptional circumstances showing mala fides and/or arbitrary exercise of power by any of the members of the Committee so constituted---Appeal was allowed and impugned judgment of High Court directing adjustment of project employees against regular posts was set aside.

(d) Civil service---

----Contract employees---Regularization in service---Contractual employees had no vested right of regularization---Regularization cannot take place without statutory backing---In the absence of any law, policy or rules, an employee could not knock the door of the Court for regularization of his/her services.

Government of Khyber Pakhtunkhwa, Workers Welfare Board v. Raheel Ali Gohar 2021 PLC (C.S.) Note 125 and Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977 ref.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Discretionary jurisdiction under Art. 199 of the Constitution could not be exercised in a vacuum; it must be grounded on valid basis, showing violation of specific and enforceable legal or Constitutional rights---Such discretion must be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as the Supreme Court.

Shumail Ahmad Butt, A.G. Khyber Pakhtunkhwa, Atif Ali Khan, Ad. A.G. Khyber Pakhtunkhwa, Barrister Qasim Wadood, Ad. A.G. Khyber Pakhtunkhwa, Ms. 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, Sadullah, Asst. Secretary, BOR, Khyber Pakhtunkhwa, Faheem Ullah Khan, Senior LO, KPPSC, Assad Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secy. FDKP for Appellants.

Shahid Kamal Khan, Advocate Supreme Court, Ahmed Nawaz Chaudhry, Advocate-on-Record for Respondents (in C.A. No. 232 of 2020).

Khaled Rehman, Advocate Supreme Court for Respondents (in C.A. No. 244 of 2020).

Mukhtar Ahmad Maneri, Advocate Supreme Court for Respondents (in C.A. No.247 of 2020).

Aftab Alam Yasir, Advocate Supreme Court for Respondents (in C.A. No. 261 of 2020).

M. Asif Yousafai, Advocate Supreme Court for Respondents (in C.A. No. 282 of 2020).

2022 P L C (C.S.) 1262

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

SUI SOUTHERN GAS COMPANY LIMITED and others

Versus

SAEED AHMED KHOSO and another

Civil Appeal No. 1477 of 2021, decided on 1st March, 2022.

(On appeal against the judgment dated 19.07.2021 passed by the High Court of Balochistan, Quetta in C.P. No. 950 of 2021)

(a) Master and servant---

----Non-statutory rules of service---Where employment rules are non-statutory in nature, the relationship of employer and employee is governed by the principle of master and servant.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Master-servant---Employee of company registered under the Companies Ordinance, 1984 or the Companies Act, 2017 in which the Government has a shareholding---Not necessary that such company is to be treated at par with statutory Corporations and authorities for purposes of determining whether the Constitutional petition filed by its employee was maintainable.

Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159; Muhammad Rafi v. Federation of Pakistan 2016 SCMR 2146 and Pakistan Defence Officers Housing Authority v. Itrat Sajjad Awan 2017 SCMR 2010 ref.

Faisal Mehmood Ghani, Advocate Supreme Court for Appellants.

M. Shoaib Shaheen, Advocate Supreme Court for Respondent No. 1.

2022 P L C (C.S.) 1284

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWAthrough Secretary Communication and Works Department, Peshawar and another

Versus

BACHA ALAM KHAN and another

Civil Petition No. 132-P of 2021, decided on 16th December, 2021.

(Against the judgment dated 23.12.2020 Peshawar High Court, Peshawar, in W.P. No.3990-P of 2020)

(a) Khyber Pakhtunkhwa Public Service Commission Regulations, 2017---

----Regln. 19(f)(ii)--- Advertised post--- Prescribed qualification---Candidate possessing higher qualification than the one prescribed for the post---In view of clear provision incorporated in Regln. 19(f)(ii) of Khyber Pakhtunkhwa Public Service Commission Regulations 2017, it was within the dominion of Khyber Pakhtunkhwa Public Service Commission to forward the recommendations of a candidate who possessed qualification higher than the prescribed qualification.

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

(b) Khyber Pakhtunkhwa Public Service Commission Ordinance (XI of 1978)---

----S. 7---Public Service Commission---Purpose---Recommendations for appointment forwarded by the Public Service Commission---Scope---Purpose of establishing Public Service Commission was to ensure that the recruitment process should be see-through and transparent and only competent persons ought to give way to serve rather than incompetent and unskillful persons---No doubt the recommendations forwarded by the Public Service Commission did not infer the appointment automatically unless approved by the competent authority but at the same time it could not be inferred that the recommendations of Public Service Commission should be divested without any justifiable or justiciable reasons---If the recommendations of Public Service Commission were taken in a cavalier or perfunctory manner, then the entire purpose of constituting the Commission and its infrastructure under the law to regulate recruitment process and undertake burdensome and time-consuming exercise of scrutinizing the applications, conducting tests and interviews, then forwarding recommendations to the competent authority which requisitioned the recruitment process, would be a futile and worthless exercise.

Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa along with Malik Muhammad Ali, S.O. (PW. KP) for Petitioners.

Nemo for Respondents.

2022 P L C (C.S.) 1319

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

KASHIF AFTAB AHMED ABBASI

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad

Civil Petition No. 419 of 2019, decided on 6th June, 2022.

(Against the judgment of Federal Service Tribunal, Karachi Bench dated 03.12.2018, in Appeal No.51 (K) CS of 2018)

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

----Rr. 5 & 11---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, R. 7---Seniority, determination of---Civil servant inducted on reserved quota of Armed Forces joining Common Training Programme (CTP) after a delay of several years---In the present case while performing his duties as Lieutenant in the Navy, petitioner was appointed ADC to the Provincial Governor---During the posting, the petitioner was given an option to join Federal Civil Service---Petitioner joined the selection process and on the recommendations of the Federal Public Service Commission, he was inducted in the Police Service of Pakistan in BS-17---Petitioner was called upon to undertake 35th Common Training Program (CTP) but the Provincial Governor refused to relieve the petitioner and requested for his deferment---Petitioner was deferred every year on the requests of Governor Sindh till 2015---Eventually the petitioner joined 43rd CTP and his inter se seniority was fixed with 43rd CTP---Petitioner claimed antedated seniority from 2007 with 35th CTP members of service---Held, that record reflected that on recommendation of the Federal Public Service Commission, the competent authority issued an offer letter to the petitioner on 31-08-2007 for his induction in the Police Service of Pakistan in BS-17 on certain terms and conditions of service which, inter alia, provided that the petitioner was required to qualify every examination to the satisfaction of the head of training/ Educational Institution where he shall undergo training---So far as the seniority was concerned, it was clearly mentioned in the offer letter that the seniority of the petitioner in the group/service shall be determined by the appointing authority after the final passing out of examination in accordance with Rule 7 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990---Petitioner was being continuously called upon to join Common Training Programme (CTP) but on continuous requests of his deferment the matter lingered on---Completion of training was mandatory which the petitioner failed to join until 43rd CTP---Claim that though the petitioner was willing to join CTP but under some compelling circumstances, he was prevented and his continuous deferments were being asked without his consent or unwillingness, was beyond reasonable comprehension---Nothing was placed on record to show that he ever raised any objection or demur that he wanted to join training rather than enjoy the post of ADC---Nothing was placed on record to show that he ever requested the Provincial Governor to release him for joining CTP---Keeping in view his complete silence at least for eight deferments, the possibility could not be ruled out that the deferments were requested and allowed with his consensus and acquiescence---Petition for leave to appeal was dismissed and leave was refused.

(b) Civil service---

----Seniority and promotion---No one has a vested right to a particular promotion or particular seniority but it is always governed and regulated in accordance with the applicable rules and regulations.

(c) Civil service---

----Antedated seniority---No antedated seniority can be claimed as a vested right. Abdur Rahim Bhatti, Advocate Supreme Court, Malik Naeem Iqbal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Ayaz Shaukat, D.A.G. for the Respondent.

2022 P L C (C.S.) 1341

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

PRESIDENT, ZARAI TARAQIATI BANK LIMITED, HEAD OFFICE, ISLAMABAD

Versus

KISHWAR KHAN and others

Civil Petition No. 419 of 2020, decided on 6th June, 2022.

(Against the judgment of Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat dated 13.11.2019, in C.R. No.382-M of 2018)

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, Rr. 10 & 11---Employees in a master-servant relationship---Civil suit filed by such employees against the employer---Competency---Employees of Zarai Taraqiati Bank Limited (ZTBL) were penalized for violating Standing Instructions of State Bank of Pakistan---Employees filed their appeals against the penalty but they were not decided on the ground that meeting of Board of Directors could not be convened to consider the appeals---Meanwhile employees filed a suit for declaration and injunction against the penalty imposed by ZTBL---Zarai Taraqiati Bank Limited (ZTBL) filed two miscellaneous applications under Order VII, Rule 10, C.P.C. and under Order VII, Rule 11, C.P.C. for dismissal of the suit on the basis that the Civil Court had no jurisdiction to entertain the suit as employees were governed under the rule of master and servant---Said applications were dismissed upto the High Court---Held, that ZTBL failed to point out any specific regulation which impliedly or expressly barred the jurisdiction of civil Court---Nothing had been placed on record to show whether the penalty was imposed after issuing any show cause notice and holding any regular inquiry against the employees to establish their guilt---Being in a relationship of master and servant the only course left for the employees was to file a suit for redress of their grievances---Employees had not approached the civil Court for any declaratory decree against the termination or dismissal of service or damages but were only seeking declaratory decree and injunctive relief against the imposition of penalty and its recovery from them---Issue of imposition of penalty whether rightly imposed or wrongly, or whether it was imposed after providing any opportunity of hearing to the private respondents/employees or not, or whether any regular inquiry was conducted or not to fix the responsibility, required full-fledged trial and evidence---Zarai Taraqiati Bank Limited and the other defendants in the suit had already filed their written statements and obviously after providing fair opportunity of adducing evidence and hearing, the Trial Court would decide the suit on its own merits---On one hand ZTBL filed an application under Order VII, Rule 10, C.P.C. for return of plaint which means that the proceedings were attacked on the grounds that the Court had no jurisdiction to entertain the suit but on the other hand, another application under Order VII, Rule 11, C.P.C. was moved for the rejection of the plaint---No justification was placed before the court of moving two applications simultaneously having different rudiments in C.P.C. but the grounds in both applications were absolutely alike---Civil petition for leave to appeal was dismissed and leave was refused.

Tanweer-ur­-Rehman's case PLD 2010 SC 676; PIAC v. Syed Suleman Alam Rizvi 2015 SCMR 1545; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Syed Nazir Gilani v. Pakistan Red Crescent Society and another 2014 SCMR 982 ref.

(b) Master and servant---

----Relationship of master and servant and remedies available to a servant in case of dismissal from employment, explained.

The phrase "master and servant" is an archaic legal phrase meant to describe the relationship of employer and employee which arises out of an express contract of service which may contain certain terms and conditions agreeable to the parties. The general rule is that the master may hire and fire the services of the servants. The amount of compensation is ordinarily regulated by an agreement. The lawsuits encompassing the relationship of master and servant in fact leads to the claim of dismissed or terminated employee for award of damages/ compensation against wrongful dismissal or termination.

In case of employees who are neither covered under the labour laws nor the Civil Servants laws nor have any statutory rules or regulations of service, they may, due to lack and non-existence of statutory remedy or statutory rules of service, file civil suit for satisfaction of their claims including the damages/compensation for wrongful dismissal. The relationship of master and servant is not meant for mere exploitation.

(c) Administration of justice---

----Substantial justice---Court, duty of---Function of the court is to do substantial justice and not to knockout or non-suit the party on technicalities.

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

----O. VII, R. 11---Rejection of plaint---Principles---Order VII, Rule 11, C.P.C. enlightens and expounds rejection of plaint if it appears from the averments articulated in the plaint to be barred by any law or discloses no cause of action---Court is under obligation to give a meaningful reading to the plaint and if it is manifestly vexatious or meritless in the sense of not disclosing a clear right to sue, the court may reject the plaint---With the aim of deciding whether the plaint discloses cause of action or not, the court has to perceive and grasp the averments made in the plaint and the accompanying documents---In case of any mix question of law and facts, the right methodology and approach is to let the suit proceed to written statement and discovery and determine the matter either on framing preliminary issues or regular trial---Order VII, Rule 11, C.P.C. does not justify the rejection of any particular portion of the plaint or in piecemeal as the concept of partial rejection is seemingly incongruous to the said provision.

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

----O. VII, R. 11---Return of plaint---Principles---Order VII, Rule 10, C.P.C. provides that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted---If the Court is of the opinion that it has no jurisdiction to entertain the suit, it is not open to that Court to dismiss the suit on that account, but the Court is required to proceed under Order VII, Rule 10, C.P.C. directing that the plaint should be returned to the plaintiff for presentation to the proper Court and on returning a plaint, the Judge must endorse the date of its presentation and return, the name of the party presenting it, with a brief statement of the reasons for returning it.

Mian Muhammad Hanif, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2022 P L C (C.S.) 1374

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

FIDA MUHAMMAD

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Education, Peshawar and others

Civil Appeal No. 465 of 2021, decided on 28th September, 2021.

(Against the judgment dated 13.09.2018 passed by Peshawar Court, Peshawar in W.P. 2370-P/2018)

(a) Civil service---

----Upgradation of post---Scope---Upgradation could not be claimed as a matter of right but was in fact based on a policy decision of the competent authority jotted down in a scheme/notification for its implementation across the board for particular categories of employees who fulfilled the required qualification which was normally a particular length of service in a particular pay scale.

(b) Civil service---

----'Upgradation of post' and 'promotion'---Distinction---Promotion involved advancement in rank, grade or a footstep en route for advancement to higher position whereas the facility or benefit of upgradation simply conferred some monetary benefits by granting a higher pay scale to ventilate stagnation---Up-gradation was carried out under a policy and specified scheme---In an upgradation, the candidate continued to hold the same post without any change in his duties but he was accorded a higher pay scale---Benefit of upgradation was normally granted to persons stuck-up in one pay-scale for considerable period of their length of service either having no venue for promotion or progression---Up-gradation under a scheme was personal to the incumbents of the posts---In order to minimize the anguish or suffering of being stuck-up in particular pay scale for a sizeable period, the mechanism of up-gradation as a policy decision was used for redressal.

Regional Commissioner Income Tax v. Syed Munawar Ali 2016 SCMR 859 and Federal Public Service Commission through Secretary v. Anwar-ul-Haq (Private Secretary) Islamabad and others 2017 SCMR 890 ref.

Naeem Jan, Advocate Supreme Court for Appellant.

Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa, Abdul Samad, Dy. Dire. E&S Education Khyber Pakhtunkhwa and Shakirullah Khan, SO (Lit) Finance, Khyber Pakhtunkhwa for Respondents.

2022 P L C (C.S.) 1382

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

MUHAMMAD ANWAR

Versus

CHAIRMAN WAPDA and others

Civil Petition No. 231-K of 2020, decided on 19th January, 2022.

(Against the judgment dated 22.01.2020 passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.7(K)CS/2019)

(a) Civil Service Regulations (CSR)---

----Art.486---Emoluments and Average Emoluments---Pensionary benefits, calculation of---Scope---Consistent with Civil Service Regulations (CSR), Art. 486, emoluments are to be calculated upon what the officer was receiving immediately before his retirement i.e. Basic Pay, Senior Post Allowance, Special Pay of all types and nature, Personal Pay, Technical Pay, Index Pay, Increments accrued during leave preparatory to retirement (LPR), and any other emoluments which may be specially classed as Pay---Term "emoluments" as is defined by CSR 486 apparently seems to be all inclusive and though the word "include" has been used but it does not seem to enlarge the scope from the one that is enumerated in items (a) to (h) of CSR 486---Term "include" as appearing in CSR 486 will not include alien and extraneous elements for calculation of emoluments rather it will confine itself to the incidence attached to or connected with enumerated items (a) to (h).

Federation of Pakistan through Secretary v. Sultan Ahmed Shams and 17 others 2014 SCMR 570 ref.

(b) Civil service---

----Conditional or qualified grant---Scope----No vested right can be claimed on the basis of a conditional or qualified grant unless its conditions are fulfilled.

Petitioner in person.

Dr. Raana Khan, Advocate Supreme Court/Advocate-on-Record along with Mukhtar Ahmed, Director Finance for Respondents Nos. 1 - 4.

2022 P L C (C.S.) 1390

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

Homoeo Dr. ASMA NOREEN SYED

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Health Department and others

Civil Appeal No. 1653 of 2021, decided on 12th May, 2022.

(Against the Judgment of Punjab Service Tribunal Rawalpindi Bench dated 20.10.2020 in Appeal No.3950 of 2020)

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

----S. 8(5) [as amended by section 3 of the Punjab Civil Servants (Amendment) Act, 2005]---Proforma promotion after retirement---Scope---Judgment of Tribunal based on an incorrectly published provision of a statute---Section 8(5) of the Punjab Civil Servants Act, 1974 [as amended by section 3 of the Punjab Civil Servants (Amendment) Act, 2005] provided that a retired civil servant shall not be eligible for grant of promotion; provided that he/she may be considered for grant of proforma promotion as may be prescribed---Therefore, the appellant, who had since retired, was also entitled to be considered for proforma promotion after retirement---Impugned judgment of the Service Tribunal was based on an incorrect exposition of law as a result of adverting to a wrongly published gazette notification from which for the most part the rider enabling and facilitating the proforma promotion in certain cases was missing which was actually in field even at the time of passing the impugned judgment by the Tribunal---Foremost duty in the dispensation of justice was to apply the correct law---Appeal was allowed and the matter was remanded to the Service Tribunal to decide the appeal afresh in accordance with law.

(b) Administration of justice---

----Maxim "actus curiae neminem gravabit"---Meaning and scope---Patent and obvious error or oversight on the part of Court in any order or decision may be reviewed sanguine to the renowned legal maxim "actus curiae neminem gravabit" which is a well-settled enunciation and articulation of law expressing that no man should suffer because of the fault of the court or delay in the procedure---Parties should not be made to suffer on account of an act or omission on the part of Court or other State functionaries---Maxim 'actus curiae neminem gravabit' is interrelated and intertwined with the state of affairs where the court is under an obligation to reverse the wrong done to a party by the act of Court which is an elementary doctrine and tenet to the system of administration of justice---Court and Tribunal should become conscious and cognizant that as a consequence of their mistake, nobody should become victim of injustice and in the event of any injustice or harm suffered by mistake of the court, it should be remedied by making necessary correction forthwith---If the Court is satisfied that it has committed a mistake, then such person should be restored to the position which he would have acquired if the mistake did not happen.

State v. Asif Adil and others 1997 SCMR 209 ref.

(c) Administration of justice---

----Law should be worn by the Judge on his sleeves---Justice should be imparted according to the law, notwithstanding whether the parties in a lis before the Court are misdirected and misplaced in that regard.

PLD 2013 SC 829 ref.

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record for Appellant.

Shaukat Rauf Siddiqui, Additional Advocate General, Punjab and M. Johar Aqeel, Lit. Officer Health Department for Respondents.

2022 P L C (C.S.) 1407

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

POSTMASTER GENERAL, KARACHI and another

Versus

ARSHAD ALI

Civil Appeal No. 18-K of 2021, decided on 2nd August, 2022.

(On appeal against judgment dated 28.01.2020 passed by Federal Service Tribunal Bench, Karachi in Appeal No. 13(K) CS/2005)

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

----S.3---Post Office Manual, Vol. VI, Chapt. 8, R. 403---Head Postmaster (Incharge)---Fraud in Savings Bank Accounts---Misconduct, inefficiency, connivance, abetment of fraud---Dismissal from service---Respondent (Head Postmaster) was bound to perform his duties in accordance with his job description but he was found to be reckless and incompetent---Argument that misappropriation of huge amount of public money from savings accounts was not in the knowledge of respondent was nothing but a figment of imagination and also beyond reasonable comprehension---In contrast, it was a deceptive and dishonest plea in, which in fact aggravated the degree of negligence, inefficiency and incompetence and proved that the respondent was not capable or qualified to hold any responsible post as he failed to sense any act of embezzlement and misappropriation of public money in the post office under his command, which could not have happened had the respondent performed his duties diligently and kept a vigilant eye on the books of account with periodic exercise of reconciliation for prompt checking and reporting in case any mishap or misappropriation of public funds was detected in the accounts---Being the Postmaster, he was responsible for overseeing all aspects of the post office including the management of staff and the services or products offered by the post office---Corruption of substantial sums of public money could not be taken so lightly and that was why the respondent was dismissed by the management, but the Service Tribunal without any just cause took the lenient view whereas the respondent did not deserve any compassion or sympathy---Appeal was allowed, judgment of Service Tribunal was set-aside with the consequence that respondent was dismissed from service.

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

----S. 5---Negligence or inefficiency---Service Tribunal---Evaluation of evidence---Scope---Sometimes little negligence or inefficiency may cause serious disaster and stern end results, therefore, at the time of appraising any act of misconduct contrasted with the penalty imposed by the management/department, the Service Tribunal is obligated to re-evaluate the evidence all-inclusive and then the inquiry findings with recommendations.

(c) Civil service---

----Concurrent disciplinary and criminal proceedings---Scope and purpose--- Purpose of initiating disciplinary proceedings is to ascertain whether the charges of misconduct against the delinquent are proved or not, whereas prosecution under the penal statutes is altogether different where the prosecution has to prove the guilt of accused beyond any reasonable doubt---Purpose of criminal trial is to mete out punishment for the offences committed by the accused while departmental inquiry is started off for making inquiry into the allegations of misconduct in order to maintain and uphold discipline and decorum in the institution and efficiency of the department to strengthen and preserve public confidence.

(d) Civil service---

----Concurrent disciplinary and criminal proceedings---Acquittal in criminal proceedings--- Effect--- Civil servant cannot escape departmental proceedings or consequences thereof on account of his acquittal/exoneration on a criminal charge---While facing expulsive proceedings on departmental side on account of his indictment on criminal charge, he may not save his job in the event of acquittal as the department may still have reasons to conscionably consider his stay in the service as inexpedient---Department can assess the suitability of a civil servant, confronted with a charge through a fact finding method, which is somewhat inquisitorial in nature, but without the 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 and District Police Officer, Mianwali and 2 others v. Amir Abdul Majid 2021 SCMR 420 ref.

Nishat Warsi, DAG, Rahat Ali, Assistant Superintendent and Mrs. Abida Parveen Channar, Advocate-on-Record for Appellants.

Altaf Hussain, Advocate Supreme Court for Respondent along with Respondent in person.

2022 P L C (C.S.) 1445

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

FARAZ NAVEED

Versus

DISTRICT POLICE OFFICER GUJRAT and another

Civil Petition No. 3122 of 2020, decided on 28th February, 2022.

(Against the judgment dated 22.09.2020 Punjab Service Tribunal, Lahore, in Appeal No. 2541 of 2019)

(a) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 2(iii) & 6---Police Order, 2002, Arts. 3 & 4---Police Rules, 1934, Rr. 14.4 & 16.3---Concurrent criminal and disciplinary proceedings against a police official accused of violent and brutal murder of an innocent citizen---Accused-police official (petitioner) was convicted and sentenced to death by the Anti-Terrorism Court but the High Court acquitted him from the charge on basis of benefit of doubt---Question was whether after such acquittal, the petitioner's dismissal from service was justified---Held, that after proper inquiry, the petitioner was found guilty in a heinous crime and he was rightly dismissed from service---If the acquittal was found as a result of extending benefit of doubt or some other technical reasons, there was no bar for initiation of departmental enquiry and it was the prerogative rather an onerous responsibility of the employer to consider nature of offence for an appropriate action interdepartmentally---Criminal proceedings and disciplinary proceedings have distinctive characteristics and attributes with regard to the standard of proof---Strict proof 'beyond reasonable doubt" is required in a criminal trial, whereas for departmental inquiry, the standard of proof is that of "balance of probabilities" or "preponderance of evidence"---Prosecution in the criminal cases as well as the departmental inquiry on the same allegations can be conducted and continued concurrently at both venues without having any overriding or overlapping effect---Object of criminal trial is to mete out punishment of the offences committed by the accused while departmental inquiry is inaugurated to enquire into the allegations of misconduct in order to keep up and maintain the discipline and decorum in the institution and efficiency of department to strengthen and preserve public confidence---Petition for leave to appeal was dismissed and leave was refused with the observations that the police force is a disciplined force with cumbersome accountability and responsibility of maintaining law and public order in the society and populace, therefore, any person who wants to be part of the disciplined force should be a person of utmost integrity and uprightness with unimpeachable/spotless character and clean antecedents; and that a person having criminal antecedents would not be fit to be restored or reinstated to his previous position or post.

(b) Civil service---

----Concurrent criminal and disciplinary proceedings against a civil servant---Permissible---Civil servant cannot escape departmental proceedings or consequences thereof on account of his acquittal/ exoneration on a criminal charge arising out of the same impugned transaction; these two are entirely different jurisdictions with different standards of proof as well as procedures---Criminal prosecution requires strict proof through a narrowly jacketed procedure and, thus, State's failure on the criminal side does not provide shield of double jeopardy to a delinquent officer.

Dr. Sohail Hassan Khan and others v. Director General (Research), Livestock and Dairy Development Department, Punjab, Lahore and others 2020 SCMR 1708; District Police Officer, Mianwali and 2 others v. Amir Abdul Majid 2021 SCMR 420; 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; Begum Shams-un­-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413; Union Territory, Chandigarh Administration and others v. Pradeep Kumar and another (2018) 1 SCC 797; The Deputy Inspector General of Police and others v. S. Samuthiram (2013) 1 SCC 598; The State of Rajasthan and others v. Heem Singh AIR 2020 SC 5455; Southern Railway Officers Association v. Union of India (2009) 9 SCC 24 and Muhammad Ramzan v. The State PLD 1984 SC 184 ref.

Dr. Muhammad Islam v. Government of N.W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993 distinguish.

Aftab Alam Yasir, Advocate Supreme Court for Petitioner.

Shaukat Rauf Siddiqui, Additional A.G., Punjab with M. Aslam Gondal, Inspector Gujrat for Respondents.

2022 P L C (C.S.) 1481

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhel, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Civil Secretariat, Peshawar and others

Versus

FAZLI GHUFRAN

Civil Appeal No. 654 of 2021, decided on 16th November, 2021.

(On appeal from the judgment dated 25.9.2019 passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeal No. 1207 of 2018)

Civil service---

----Promotion---Senior most candidate on seniority list---Right to promotion from date when post becomes vacant---In the present case, after promotion of the officials/officers at Serial Nos.1 to 3 of the seniority list, respondent became senior most, topping the seniority list as a Soil Conservation Inspector (BPS-11)---One of the Soil Conservation Assistants (BPS-17) retired on 12th May, 2015, and his retirement resulted into a vacant post of Soil Conservation Assistant (BPS-17)---Respondent being the senior most, was entitled for the promotion to occupy the said vacant post of Soil Conservation Assistant (BPS-17) and promotion in the given circumstances had become his legal and vested right, but the same was denied to him by the Department with no valid reasons and also no fault on his part---Respondent was compelled to approach the Tribunal, which allowed his appeal declaring him entitled to be promoted; and denying him, his legal right was also declared as an unlawful and arbitrary exercise of authority resulting in injustice to him---Said decision of the Tribunal though was implemented but with immediate effect i.e. from 29th May, 2018 and not from the date the post became vacant/ available i.e. from 13th May, 2015, as the respondent was admittedly eligible for promotion on that date---Such promotion order with immediate effect, once again compelled the respondent to struggle for his accrued right, and the Tribunal once again came to his rescue and rightly ordered his promotion from the date, the post fell vacant---Supreme Court observed that omissions and commissions such as the one in the present case whereby decision of Tribunal was not implemented as par mandate of law were made by the authorities concerned intentionally, purposely and also in a casual manner without application of mind; that this became very troublesome for the affectee who remained in the courts for years to seek his legal and due rights; that when such type of settled matters came to the courts, it created problems not only for the Government Departments but also for those suffering from such reckless and irresponsible conduct of the concerned besides the financial losses and wastage of precious time of the courts and the parties concerned--- Appeal was dismissed.

Muhammad Amjad and others v. Dr. Israr Ahmed and others 2010 PLC (C.S.) 760 and Luqman Zareen v. Secretary Education 2006 SCMR 1938 ref.

Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa and Khalid Gohar Khan, Deputy Director, Agricultural Department, Khyber Pakhtunkhwa for Appellants.

Fazal Shah, Advocate Supreme Court for Respondent.

2022 P L C (C.S.) 1501

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

INSPECTOR GENERAL OF POLICE, QUETTA and another

Versus

FIDA MUHAMMAD and others

Civil Appeal No. 17-Q of 2021, decided on 18th April, 2022.

(Against the judgment dated 07.04.2021 Balochistan Service Tribunal, Quetta, in S.A. No. 542 of 2019)

(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 9(6)---Reinstatement in service---Violation of principles of natural justice---Vested right to appointment---Locus poenitentiae, doctrine of---Appointment letters were cancelled through an omnibus order without disclosing any reason, providing any opportunity of hearing or issuing any show cause notice---Legality---In the present case all the appointment letters were issued by the Deputy Inspector General of Police with the approval of the Inspector General of Police after fulfillment of and contentment of required codal formalities including the recommendation of Departmental Selection Committee, constituted by the competent authority---All the respondents/employees were appointed on different posts in BPS-1 as admissible under the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 ('the 2009 Rules') against the existing vacancies---Appointment letters did not reflect that all the appointments were made for one District only, but names of other various districts were also mentioned---No convincing or persuasive raison d'être was brought forward to assume the ground of debarring the respondents from selection in view of the rigors of Rule 9(6) of the Rules, which did not seem to have been violated in any way while appointing the respondents on the recommendation of the Departmental Selection Committee---Nothing was articulated to allege that the respondents by hook and crook managed their appointments or committed any misrepresentation or fraud or their appointments were made on political consideration or motivation or they were not eligible or not local residents of the district advertised for inviting applications for the job---Despite that, an omnibus order was issued by the DIG Police for cancellation of appointments without disclosing any reason for cancellation or withdrawal and without issuing any show cause notice or providing any opportunity of audience to the respondents---Appointing authority had, therefore, violated the principle of natural justice and due process---Respondents were appointed after fulfilling codal formalities which created vested rights in their favour that could not have been withdrawn or cancelled in a perfunctory manner on mere presupposition and or conjecture which was clearly hit by the doctrine of locus poenitentiae---Appeal was dismissed with the observation that some strenuous action should have been taken against persons involved in the selection and appointment process who allegedly violated the rules rather than accusing or blaming the low paid poor employees of downtrodden areas who were appointed after due process in BPS-1 for their livelihood and to support their families.

Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451; Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077; Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724; Muhammad Shoaib and 2 others v. Government of N.W.F.P. through the Collector, D.I. Khan and others 2005 SCMR 85; Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others 2015 SCMR 1418 and Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350 ref.

(b) Natural justice, principles of---

----Purpose and scope of the principles of "natural justice" stated.

The doctrine of natural justice is destined to safeguard individuals and whenever civil rights, human rights, Constitutional rights and other guaranteed rights under any law are found to be at stake, it is the religious duty of the Court to act promptly to shield and protect such fundamental rights of every citizen of the country. The principles of natural justice and fair-mindedness are grounded in the philosophy of affording a right of audience before any detrimental action is taken in tandem with its ensuing constituent; that the foundation of any adjudication or order of a quasi-judicial authority, statutory body or any departmental authority regulated under some law must be rational and impartial and the decision maker has an adequate amount of decision making independence and the reasons of the decision arrived at should be amply well-defined, just, right and understandable. Therefore, it is incumbent that all judicial, quasi-judicial and administrative authorities should carry out their powers with a judicious and evenhanded approach to ensure justice according to tenor of law and without any violation of the principle of natural justice.

Principles of natural justice must be read in each and every statute unless and until the same were excluded from the wording of the statute itself.

Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451 ref.

(c) Vested right, doctrine of---

----Scope---Doctrine of vested right upholds and preserves that once a right is coined in one locale, its existence should be recognized everywhere and claims based on vested rights are enforceable under the law for its protection---Vested right by and large is a right that is unqualifiedly secured and does not rest on any particular event or set of circumstances---In fact, it is a right independent of any contingency or eventuality which may arise from a contract, statute or by operation of law.

(d) Civil service---

----Illegal order---If an order is illegal then perpetual rights cannot be gained (by employees) on the basis of such an illegal order.

Ayaz Khan Swati, Additional A.G. Balochistan for Appellants.

M. Rauf Ata, Advocate Supreme Court for Respondents Nos. 2, 3, 5 7-10, 12 and 13.

Respondents Nos. 1, 4, 10 in person.

2022 P L C (C.S.) 1533

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Jamal Khan Mandokhail, JJ

BADSHAH ZAMIN and others

Versus

SIRAJ KHAN and others

Civil Appeals Nos. 290 to 297 of 2022, decided on 2nd June, 2022.

(On appeal from the judgments of the Khyber Pakhtunkhwa Service Tribunal dated 17.11.2020 in Service Appeals Nos. 126, 127, 129, 131 of 2019 and 805 of 2018)

Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 3 & 4---Khyber Pakhtunkhwa Public Service Commission Regulations, 2003, Reglns. 35(3)(a) & 35(3)(b)---Seniority---Prior to commencement of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act'), the Provincial Public Services Commission ('the Commission') recommended employees in batches owing to their large number---Some batches were recommended for appointment prior to commencement of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act'), while others after its commencement---Employees from batches recommended by the Commission, after the commencement of the 2009 Act, would also get the benefit of section 4 of the 2009 Act---In such circumstances, other employees whose services were regularized pursuant to the 2009 Act, shall rank junior to those candidates, whose recommendations were made by the Commission, prior to the commencement date of the 2009 Act.

Section 4 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') given preference (for seniority purposes) to those employees, whowere recommended by the Provincial Public Services Commission ('the Commission') for their appointment, before the promulgation of the 2009 Act, irrespective of their actual date of appointment.

In the present case, the first batch of the employees was recommended by the Commission on 15th September 2009, before the commencement of the 2009 Act, whereas, because of bulk of the candidates, the recommendations of rest of the candidates were made on different dates, after the commencement of the 2009 Act. The question before the court is that rest of the candidates, who were recommended by the Commission for their appointments, after the commencement of the 2009 Act, would get the benefit of section 4 of the Act or otherwise?

Regulations 35(3)(a) and 35(3)(b) of the Khyber Pakhtunkhwa Public Service Commission Regulations, 2003 ('the 2003 Regulations') clarify that in case of more than one candidate, if the recommendation of the Commission is withheld or delayed in respect of one or more candidates, for want of completion of the process or for any other reason, beyond the control of the candidates, the recommendations of the Commission made subsequently on different dates, are to be considered to have been made by the Commission on the dates, when first recommendation was made. Under such circumstances, the date of the recommendations of the first batch, sent to the competent authority for the appointment shall be considered as the date of recommendation for all.

In the present case, admittedly the recommendation of the first batch amongst the appellants were made by the Commission to the competent authority on 15-09-2009, whereas the 2009 Act was promulgated on 24-10-2009, therefore, the recommendations of all the appellants shall be deemed to have been made to the competent authority prior to the commencement of the 2009 Act, irrespective of the subsequent recommendations and dates of their appointments. Hence, the services of those employees, which were regularized pursuant to the 2009 Act, shall rank junior to those candidates, whose recommendations were made by the Commission, prior to the commencement of the 2009 Act.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Appellants (in all appeals).

Aftab Alam Yasir, Advocate Supreme Court for Private Respondents.

Zahid Yousaf Qureshi, Additional A.G. and Shahid Iqbal, L.O. (KPPSC) for Khyber Pakhtunkhwa.

2022 P L C (C.S.) 1562

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

USMAN GHANI

Versus

The CHIEF POST MASTER, GPO KARACHI and others

Civil Appeal No. 1-K of 2021, decided on 28th December, 2021.

(Against the judgments dated 06.11.2019 passed by Federal Service Tribunal Islamabad (Karachi Bench) in Appeal No. 12(K)CS/2019 respectively)

(a) Civil service---

----Departmental inquiry---Purpose---Foremost aspiration of conducting departmental inquiry was to find out whether a prima facie case of misconduct was made out against the delinquent officer for proceeding further---Guilt or innocence could only be thrashed out from the outcome of inquiry and at the same time it was also required to be seen by the Service Tribunal as to whether due process of law or right to fair trial was followed or ignored which was a fundamental right.

(b) Civil service---

----"Regular inquiry" and "preliminary/fact finding inquiry"---Distinction---Regular inquiry was triggered after issuing show cause notice with statement of allegations and if the reply was not found suitable then inquiry officer was appointed and regular inquiry was commenced (unless dispensed with for some reasons in writing) in which it was obligatory for the inquiry officer to allow evenhanded and fair opportunity to the accused to place his defence and if any witness was examined against him then a fair opportunity should also be afforded to cross-examine the witnesses--- Whereas a discrete or fact finding inquiry was conducted at initial stage but internally to find out whether in the facts and circumstances reported, a proper case of misconduct was made out to initiate disciplinary proceedings.

(c) Civil service---

----Misconduct---Departmental inquiry and criminal trial---Distinct standards of proof---Standard of proof looked for in a departmental inquiry deviated from the standard of proof required in a criminal trial----In the departmental inquiry conducted on the charges of misconduct, the standard of proof was that of "balance of probabilities or preponderance of evidence" but not a "proof beyond reasonable doubt", which strict proof was required in criminal trial.

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

----S. 5(1)---Service Tribunal, powers of---Scope---Where the order of the competent authority based on inquiry report was challenged before the Service Tribunal then it was the legal duty of the Service Tribunal to give some reasons and there should be some discussion of evidence on record which was necessary to deliberate the merits of the case in order to reach just conclusion before confirming, reducing or setting aside the penalty.

Sanaullah Noor Ghouri, Advocate Supreme Court for Appellant.

Nishat Warsi, D.A.G. for Respondents.

2022 P L C (C.S.) 1577

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Syed Mansoor Ali Shah, JJ

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY and others

Versus

ARY COMMUNICATIONS LTD. and others

Civil Petitions Nos. 1716 to 1724 of 2022, decided on 25th July, 2022.

(Against the consolidated order of High Court of Sindh, Karachi dated 08.02.2022, passed in C.Ps. Nos. D-2795, D-2796, D-2797, D-3308, D-3312, D-3313, D-3314 of 2018, C.Ps. Nos.D-6644 and D-6645 of 2017)

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

----S. 26---Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010, R. 3---Constitution of Pakistan, Arts. 25 & 27---Honorary appointments to public offices---Appointment process---Chairperson and Members of the Council of Complaints ("COC"), Pakistan Electronic Media Regulatory Authority ("PEMRA")---Appointments to honorary public offices, such as the COC, are to be made through an open and competitive process including advertisement---Offices of the COC are associated with important roles and are required to be filled with the most meritorious candidates---Although neither the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') nor the Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010 ("Rules"), expressly require the public advertisement of the COC slots, however, the Ordinance, and also the Rules, require that the Chairperson and Members of the COC shall be citizens of eminence---Equally true that "citizens of eminence" may not themselves come forward to apply for these honorary positions, rather, the Government itself needs to spot such individuals through a process of headhunt---Relevant directions issued by the Supreme Court for filling places available on the COC stated.

Appointees to the Council of Complaints ("COC") play an important role in public life relating to the issue of public complaints in the realm of regulation of electronic media in the country. Obviously, the process of making such public appointments should be designed and conducted in a way to ensure that the best people, from the widest possible pool of candidates, are considered and appointed to these positions.

Sir Gerry Grimstone, 'Better Public Appointments - A Review of the Public Appointments Process' (Cabinet Office Whitehall 2016) ref.

Open selection process allows for unexpected expressions of interest. It prioritizes competition and helps discovering best possible candidates. The process, in turn, improves the governance and performance of the organization. In addition, such transparent process wins public confidence that appointees are selected on merit from a wide and inclusive pool of applicants. On the other hand, a closed selection approach limited to a headhunt itself conducted by the Government may prevent the organization from tapping in best available talent. Many outstanding candidates of whom the Government is unaware can be missed. Headhunting selectors have been observed to be looking for people like themselves and thus limiting the prospect of diversity. Besides, public appointments made behind closed doors raise eyebrows because the door of partisan intervention and patronage remains open.

Elena Doldor, Susan Vinnicombe, Mary Gaughan and Ruth Sealy, 'Gender Diversity on Boards: The Appointment Process and the Role of Executive Search Firms' (Equality and Human Rights Commission Research Report 85, International Centre for Women Leaders, Cranfield School of Management Cranfield University 2012) ref.

Making appointment to a public office is a sacred trust which is to be discharged justly and fairly in the best interest of the public, based on a process that is fair, transparent and nondiscriminatory. Highest standards of diligence, transparency and probity are to be observed so that a qualified, eligible and most deserving person is selected for a post. The constitutional guarantee of equality and safeguard against discrimination is not limited to paid services or jobs but extends to all appointments to public offices, honorary or otherwise.

Chief Secretary Punjab v. Abdul Raoof Dasti 2006 SCMR 1876; Syed Mubashir Raza Jaffri v. Employees Old Age Benefits Institutions (EOBI) 2014 SCMR 949; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159 and Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

There cannot be agreement with the argument that COC appointments being of honorary nature do not need to go through the requirements associated with other appointments' selection process. It is as if to suggest that honorary appointments are not important enough to merit a selection process based on competitive transparency. Such a notion is belied by the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') which requires that only eminent citizens could be given a place on the COC. The words "citizens of eminence" show that seeking the best person for the job becomes the only consideration before the appointing authority. COC offices are associated with important roles and are required to be filled with the most meritorious candidates. The honorary nature of COC appointments is significant and a step in the direction to attract eminent persons willing to take up the job of independently settling complaints against electronic media without any pecuniary strings attached to the terms and conditions of their offices. This further accentuates the need that COC membership should consist of the finest and most accomplished persons.

Hadayat Ullah v. Federation of Pakistan 2022 SCP 242 (Syed Mansoor Ali Shah J) and Moinuddin v. State of Uttar Pradesh AIR 1960 All 484 ref.

Although neither the Ordinance nor the Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010 ("Rules"), expressly require the public advertisement of the COC slots, however, the Ordinance, and also the Rules, require that the Chairperson and Members of the COC shall be citizens of eminence. The idea is that the composition of the COC shall consist of respected, qualified and experienced members of society who shall work independently under facilitation of PEMRA and take action on the complaints received against broadcast media and distribution service providers. The search for such an array of individuals must begin with a transparent call for candidates. Only then can optimum utilization of talent be achieved and ensured and purpose behind the provision of sending the citizens of eminence to the COC be realized.

It is also true that advertising may leave out some high-caliber candidates who would have accepted a direct appointment but would prefer not to join an open competition. It was possible that "citizens of eminence" may not themselves come forward to apply for these honorary positions, rather, the Government itself needs to spot such individuals through a process of headhunt.

Supreme Court directed that alongside the process initiated with the advertisement of the places available on the COC, the Government may carry out its own search of finding the best possible candidates for the job; that any suitable candidates identified in this executive search may be approached with the prospective offer of serving on the COC; that consent of such candidates to such offer may be treated as their application for the available positions, and such candidatures shall be added to the group of applications received in response to the public advertisement; that all candidates, whether identified in Government search or those who themselves choose to apply in response to advertisement, shall be assessed against an objective criteria which may relate to conduct, reputation, credibility, integrity, professional excellence etc., and that the most eligible candidates shall be selected out of the consolidated pool.

Moinuddin v. State of Uttar Pradesh AIR 1960 All 484; Danielle Wood, Kate Griffiths and Anika Stobart, 'New politics: A better process for public appointments' (Report No. 2022-09, Grattan Institute 2022) 16 ref.

Haroon Dugal, Advocate Supreme Court (video-link Lahore) along with Mohsin Hameed Dohar, Dir. PEMRA and Jalal Haider, Law Officer for Petitioners.

Ayan Mustafa Memon, Advocate Supreme Court for Respondents.

2022 P L C (C.S.) 1603

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah, Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

HADAYAT ULLAH and others

Versus

FEDERATION OF PAKISTAN and others

Civil Review Petitions Nos. 292 to 302, 351 to 432, 442 to 456 of 2021 along with C.M.As. Nos. 11812 to 11814, 11837, 11862 to 11864, 11902-11903, 11982-11983, 11987, 11679, 12017, 12019, 12020, 12024, 12025, 12028, 12029, 12031-12033, 12035, 12075, 11993, 12103-12104, 12161-12162, 12172-12173, 12403, 12372-12373 of 2021 along with Civil Misc. Appeals Nos. 168, 158 and 175 of 2021, decided on 17th December, 2021.

(For review of the judgment dated 17.08.2021 passed in C.A. No.491 of 2012 and others)

Per Umar Ata Bandial, J; Sajjad Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ agreeing; Syed Mansoor Ali Shah, J dissenting. (Majority view)

(a) Constitution of Pakistan---

----Art. 188---Review jurisdiction of the Supreme Court---Scope---Review jurisdiction of the Court operates in a limited area---Review does not succeed merely because a material error has crept into the disputed judgment---Instead, a review is only allowed when the material error alters the outcome of the case thereby rendering the disputed judgment bad law.

Mukhtar Mai v. Abdul Khaliq 2019 SCMR 1302 ref.

(b) Constitution of Pakistan---

----Arts. 240 & 260(1)---Civil Servants Act (LXXI of 1973), S. 2(1)(b)---Terms "Service of Pakistan" and "Civil Servant"---Said terms were not synonymous, in fact, the phrase 'service of Pakistan' appeared to be of wider import---Although the terms 'civil service' and 'service of Pakistan' are not identical they do overlap in that the former is a sub-category of the latter.

Registrar, Supreme Court of Pakistan v. Wali Muhammad 1997 SCMR 141 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

(c) Constitution of Pakistan---

----Art. 260(1)---Term "Service of Pakistan"---Test for determining whether a person is in the 'service of Pakistan'---Test whether a person is in the service of Pakistan is whether he is performing functions in connection with the affairs of the Federation---For an entity (where a person is employed) to qualify as being in the service of Pakistan, it must fulfill three criteria; first, it must exercise public or sovereign power in some form; second, the government must retain effective/substantial control over its functioning; and third its activities must be mainly financed by the government.

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 and Aitchison College v. Muhammad Zubair PLD 2002 SC 326 ref.

(d) Constitution of Pakistan---

----Art. 240---Appointments to service of Pakistan---Principles of merit, non-discrimination, transparency and fairness---Article 240 of the Constitution is simply the bedrock on which appointments to the service of Pakistan are to be made; it is then the responsibility of the appointing authorities to ensure that appointments are made strictly in accordance with the relevant laws (including the applicable rules and regulations) that incorporate the principles of merit (selection through a competitive process), non-discrimination, transparency and fairness---Same principles apply to appointments on any post in public service since an organisation can only best serve the people when all its employees are qualified individuals who are selected through a fair and transparent process---In the absence of dedicated supporting staff, no senior officer sitting at the helm of affairs can succeed in guiding the nation towards prosperity---However, it is significant that said principles are not merely fruit of judge made law but they also emanate from the fundamental rights enshrined in the Constitution, especially Article 18 (freedom of trade, business or profession) for which reason they occupy an immutable character.

Mubashir Raza Jaffri v. Employees Old-Age Benefits Institutions 2014 SCMR 949; Mushtaq Ahmad Mohal v. Honourable Lahore High Court 1997 SCMR 1043; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287 and Abdul Jabbar Memon: In re 1996 SCMR 1349 ref.

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

----Ss. 2(d), 2(f)(vi), 4, 10, 11, 12 & 13 & Preamble---Constitution of Pakistan, Arts. 4, 9, 14, 18, 25, 184(3), 187, 188, 240 & 242---Supreme Court Rules, 1980, O. XXXIII, R. 6---[Per Umar Ata Bandial, J. (Majority view): Initial appointment of majority of the reinstated employees ('the beneficiary employees') was made without following the principles of merit, non-discrimination, transparency and fairness---Through operation of section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service---Furthermore the 2010 Act discriminated against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999---Such classification of the time period was neither reasonable nor based on any intelligible differentia---By giving leeway to the beneficiary employees and by placing them at the same (or in some cases better) footing in the organisational structure of the employers the fundamental rights of the regular employees were breached --- Act of 2010 was violative of the different provisions of the Constitution, specifically Articles 4, 9, 18, 25, 240 & 242, therefore the same was declared to be void with retrospective effect---Review petitions were dismissed with certain directions regarding services rendered by the re-instated employees of the "employers" [as defined in section 2(d) of the Sacked Employees (Re-instatement) Act, 2010]---[Per Syed Mansoor Ali Shah, J. (Minority view): Vires of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') enacted by the Parliament could not be examined and declared ultra vires, on the touchstone of Articles 4, 240 & 242 of the Constitution, as said Articles did not provide any criterion to test the vires of a law---Parliamentary debates relating to the objects and reasons of the enactment of the 2010 Act showed that the persons to be reinstated in service had suffered "political victimization" in the matter of their dismissal, removal or termination from service, at the hands of the Government during that period, and the object of the 2010 Act was to provide relief to such persons---Hence, persons reinstated formed a distinct class, and their classification was based on intelligible differentia, distinguishing them from those who had been left out, and it had a rational nexus to the object sought to be achieved by the 2010 Act, therefore, only their reinstatement and regularization under the 2010 Act as such did not offend the fundamental right to equal treatment under Article 25(1) of the Constitution---However, the issue of seniority that affected the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments, had arisen only in cases of employees reinstated and regularized on "one scale higher", under sections 4(a) & 10 of the 2010 Act---Such reinstatement and regularization was violative of the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments at the time of promulgation of the 2010 Act, and it was also violative of the 'right to dignity' and 'right to equality before law' as it gave an undue advantage to the reinstated employees to the disadvantage of the rights of the already working regular employees---Proper course, in such circumstances, was for the Court to declare (as ultra vires) only that part of the provisions of sections 4(a) & 10 of the 2010 Act that had the said offending effect, i.e., the reinstatement and regularization on "one scale higher" and this could have easily been done by reading out (severing) the words "one scale higher to" from the provisions of section 4(f) and the words "one scale higher than" from the provisions of section 10 of the 2010 Act---Furthermore sections 2(f)(vi), 11, 12 & 13, of the 2010 Act which dealt with and provided for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness had attained finality by being unchallenged or unsuccessfully challenged, were also ultra vires the Constitution].

Per Umar Ata Bandial, J. (Majority view):

The material on record in the present case, furnished by the relevant Ministries/Divisions, establishes that these principles of merit, non-discrimination, transparency and fairness were not followed in the vast majority of the initial appointments (from 01.11.1993 to 30.11.1996). Therefore, such defective appointments suffered from illegality and were void.

For the initial appointments of reinstated employees ('the beneficiary employees') that were illegal from the outset, it was not within the competence of Parliament to enact laws that firstly, bypassed the settled requirements enshrined in the Constitution for joining public employment and secondly, protected these unlawful appointments without curing their respective defects. Such contravention can be seen in section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') where all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service.

State and public functionaries act as fiduciaries for and are responsible/accountable to the people of the country. They are duty bound to act in the furtherance of public interest. However, how the public interest was promoted by reinstating the beneficiary employees in question who had been inducted without complying with the duly prescribed procedure for appointment is neither determinable nor defensible.

In re: Suo Motu 2010 SCMR 885 ref.

The 2010 Act was enacted to achieve a specific object and purpose, namely, the reinstatement of those employees who had been initially appointed during tenure of a political party. The 2010 Act discriminates against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999. The Preamble of the 2010 Act coupled with its substantive provisions do not disclose the reason for reinstatement of only those employees who had been dismissed, removed or terminated from service during the specific period of 01-11-1996 till 12-10-1999. Clearly then the Act's classification of the time period is neither reasonable nor based on any intelligible differentia. There is also no rational nexus with the object being sought to be achieved because if the intent of Parliament was to assist people who had been dismissed, removed or terminated from service on account of political victimisation then there is no rhyme or reason as to why only the persons dismissed, removed or terminated between 01-11-1996 and 12-10-1999 were granted this relief. Surely such a classification ought to have been preceded by some study, data collection and analysis, however, the same are lacking. There must exist a plethora of people since independence of the country (till date) who have been unfairly removed from service on account of political victimisation yet no favour is extended to them by the 2010 Act.

Mobashir Hassan v. Federation of Pakistan PLD 2010SC 265 ref.

The reinstatements under the 2010 Act were carried out without following any proper procedure and without having regard to the nature of the posts occupied by the beneficiary employees during their initial appointments. On the other hand, the regular employees were inducted into service after fulfilling all the codal formalities. Therefore, by giving leeway to the beneficiary employees and by placing them at the same (or in some cases better) footing in the organisational structure of the employers the fundamental rights of the regular employees were breached, in particular Articles 4, 9 and 18 of the Constitution. Said three constitutional provisions envisage a State in which all aspects of a citizen's life, including his/her right to enter a profession, will be regulated by law. Nevertheless, the 2010 Act by reinstating the beneficiary employees whilst ignoring the applicable laws, rules and regulations, which detailed the process to be followed in making appointments, has flouted these guarantees of the Constitution. Therefore, the 2010 Act has directly impinged upon the fundamental rights of regular employees.

Argument that the judgment under review should have read down section 4 of the 2010 Act and preserved its watered-down version along with the other provisions of the Act that were not inconsistent with fundamental rights, fails to recognise two important aspects of section 4; firstly, section 4 as it stands does not suffer from just a singular defect. Instead, it is fundamentally flawed. It not only provides one-step higher regularisation in subsection (a) [which could potentially have been read down] but it also regularises all beneficiary employees regardless of the post they were occupying before their initial termination. This defect is so central to section 4 that to read it down would essentially require the Court to rewrite it which is not permissible as such an exercise would enter into the realm of legislation. Secondly, section 4 is the governing/primary provision of the 2010 Act. Therefore, once it is declared unconstitutional no substance is left in the 2010 Act as all other provisions are secondary to section 4 and cannot control the operation of the 2010 Act on their own. As a result, no purpose will be achieved in retaining the 2010 Act on the statute book when its effect will have been destroyed by the deletion of section 4.

Zahid Iqbal v. Muhammad Adnan 2016 SCMR 430 ref.

Since the 2010 Act has been adjudged to be violative of the different provisions of the Constitution, specifically Articles 4, 9, 18, 25, 240 and 242, the judgment under review would have retrospective effect.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Shahid Pervaiz v. Ejaz Ahmad 2017 SCMR 206 ref.

Supreme Court considered that having rendered a service of 10 years or more since their reinstatement under the 2010 Act (and Ordinances before that), the beneficiary employees, most of whom are nearing retirement and have minimal future job prospects, have dedicated a considerable period of their life to their employers and so deserve to be treated with leniency. More so, when through no fault of their own, the beneficiary employees were inducted and subsequently reinstated into the service of their employers without the fulfilment of the necessary codal formalities. Therefore, in exercise of its inherent power conferred under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 and in reliance of its power to do ex debito justitiae, the Supreme Court converted present review proceedings filed under Article 188 of the Constitution into proceedings under Article 184(3) read with Article 187 to grant the following relief to the beneficiary employees:

(i) The beneficiary employees who were holding posts for which no aptitude, scholastic or skill test was required at the time of initial termination (01-11-1996 to 12-10-1999) shall be restored to the same posts they were holding when they were terminated by the judgment under review;

(ii) All other beneficiary employees who were holding posts on their initial termination (01-11-1996 to 12-10-1999) which required the passing of an aptitude, scholastic or skill test shall be restored to the posts, on the same terms and conditions, they were occupying on the date of their initial termination. However, to remain appointed on these posts and to uphold the principles of merit, non-discrimination, transparency and fairness expected in the process of appointment to public institutions these beneficiary employees shall have to undergo the relevant test, applicable to their posts, conducted by the Federal Public Service Commission within 3 months from the date of receipt of this judgment;

(iii) The improvement in the terms and conditions of service of all the beneficiary employees shall be granted strictly in accordance with the applicable laws, rules and regulations;

(iv) The relief granted in sub-paragraphs (i) and (ii) above shall not be granted to those beneficiary employees whose initial termination of service (01-11-1996 to 12-10-1999) was on grounds of absence from duty, misconduct, corruption, misappropriation of money/stock or unfitness on medical grounds if such termination was not set aside finally by a court of law.

Sher Alam Khan v. Abdul Munim PLD 2018 SC 449; Muhammad Akram v. Registrar, Islamabad High Court PLD 2016 SC 961 and Gul Taiz Khan Marwat v. Registrar, Peshawar High Court PLD 2021 SC 391 ref.

All review petitions were dismissed and all applications/appeals were disposed accordingly.

Per Syed Mansoor Ali Shah, J. (Minority view):

The vires of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') enacted by the Parliament (Legislature) cannot be examined and declared ultra vires, on the touchstone of Articles 240 and 242 of the Constitution as both these Articles only command for dealing with the matters specified therein by an Act of the Parliament, and provide for nothing more. Article 240 does not provide any criterion for judging the constitutionality of an Act of the Parliament, except that the Act of Parliament must relate to the appointments to and the conditions of service of persons in the service of Pakistan concerning the Federation, not concerning any Province other than All-Pakistan Service which is a service common to the Federation and the Provinces. Likewise, the constitutional limitation on the power of the Parliament to enact a law under Article 242 is that it can enact a law for the establishment of a Public Service Commission and prescribing its functions, in relation to the affairs of the Federation, not of any Province. Said aspect of the provisions of Articles 240 and 242 of the Constitution was not presented by the parties before the Court, and the same thus escaped notice of the Court in applying the said Articles of the Constitution to judge the constitutional vires of the 2010 Act, in the judgment under review.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 and LDA v. Imrana Tiwana 2015 SCMR 1739 ref.

Similarly, Article 4 of the Constitution, which provides for a right to be dealt with in accordance with law, does not provide any criterion, and thus cannot be a touchstone, to test the vires of a law such as the 2010 Act.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 and LDA v. Imrana Tiwana 2015 SCMR 1739 ref.

Parts from the parliamentary debates relating to the objects and reasons of the enactment of the 2010 Act, made by the parliamentarians who were member(s) of the Standing Committee that had considered and approved the Bill as well as by the other parliamentarians who had supported the same, showed that the reason for choosing the persons appointed in and dismissed from service during the specified period, for the beneficial treatment of reinstatement and regularization in service notwithstanding any other law on the subject, was that they had suffered "political victimization" in the matter of their dismissal, removal or termination from service, at the hands of the Government (Executive) during that period, and the object of the enactment of the 2010 Act was that the Parliament (Legislature) intended to provide relief to such persons. Nobody disputed before the Supreme Court, the correctness of the factual statement regarding political victimization made by the parliamentarians, nor does such statement of fact appear to be inherently improbable; it is, rather, supported by the circumstance that a large number of employees, not a few, were sacked during the specified period. Therefore, the Court is to proceed on assuming that undisputed statement of fact to be correct.

After accepting the undisputed statement of fact that the persons going to be reinstated under the 2010 Act had suffered "political victimization", in the matter of their dismissal, removal or termination from service, there remains no difficulty to hold that they formed a distinct class, and their classification was based on intelligible differentia, distinguishing them from those who had been left out, and had a rational nexus to the object sought to be achieved by the 2010 Act. Therefore, only their reinstatement and regularization under the 2010 Act as such did not offend the fundamental right to equal treatment, guaranteed by Article 25(1) of the Constitution, of other employees sacked in other durations as well as of regular employees appointed under the general laws relating to the appointments to and terms of conditions of the service concerned.

Prabodh Verma v. State of U.P. AIR 1985 SC 167 and Amarendra Kumar v. State of Orissa AIR 2014 SC 1716 ref.

The issue of seniority that affected the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments, had arisen only in cases of employees reinstated and regularized on "one scale higher", under sections 4(a) and 10 of the 2010 Act. Their reinstatement and regularization on "one scale higher" had made them senior to those regular employees who were senior to them even as per their date of initial appointments and were serving in the same grade and post in which they had been appointed prior to the initial appointment of the reinstated employees, because of the slow channel of promotion. Therefore, to the extent of reinstatement and regularization of some sacked employees, under Sections 4(a) and 10, on "one scale higher", such reinstatement and regularization was violative of the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments at the time of promulgation of the 2010 Act, and it was also violative of the fundamental 'right to dignity' guaranteed under Article 14 and fundamental 'right to equality before law' guaranteed by Article 25 of the Constitution as it gave an undue advantage to the reinstated employees to the disadvantage of the rights of the already working regular employees. The proper course, in such circumstances, was that the Court should have declared (as ultra vires) only that part of the provisions of sections 4(a) and 10 of the 2010 Act that had the said offending effect, i.e., the reinstatement and regularization on "one scale higher". And this could have easily been done by reading out (severing) the words "one scale higher to" from the provisions of section 4(f) and the words "one scale higher than" from the provisions of section 10 of the 2010 Act, and reading down those provisions to mean that the sacked employees mentioned in those Sections were to be reinstated and regularized in the same or restructured, as the case may be, scale, grade, cadre, group, post or designation from which they had been dismissed, removed or terminated from service, for the purpose of saving the constitutional validity of those provisions and construing them as constitution compliant.

Sections 2(f)(vi), 11, 12 and 13, of the 2010 Act which deal with and provide for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness had attained finality by being unchallenged or unsuccessfully challenged, had the effect of nullifying, or giving the power to the Executive to nullify, the judicial orders passed on charge of misconduct, inefficiency or unfitness that had attained finality. Such employees, even, do not fall within the class of the sacked employees who had suffered "political victimization," envisaged by the 2010 Act for a beneficial treatment. The said Sections of the 2010 are, therefore, ultra vires the Constitution. All the employees terminated from service on the basis of the judgment under review, stand restored in the service with effect from the date they were so terminated, and shall be paid the pay of the intervening period treating the said period as an extraordinary leave with pay. The cases decided by the judgment under review, which now stands recalled, shall be deemed pending and decided on their own merits by the regular Bench(es) of the Supreme Court in accordance with the provisions of the 2010 Act, subject to the above declarations regarding vires of certain provisions of the 2010 Act.

Per Umar Ata Bandial, J (Majority view):

(f) Constitution of Pakistan---

----Art. 25---Equality of citizens---Reasonable classification---Scope---Although Article 25 of the Constitution envisages equality amongst citizens, it also allows for differential treatment of persons who are not similarly placed under a reasonable classification---However, to justify this difference in treatment the reasonable classification needs to be based on intelligible differentia that has a rational nexus with the object being sought to be achieved'---Only if this test is satisfied can the distinct treatment meted out to a class of persons be sustained under Article 25 of the Constitution.

Commissioner Inland Revenue v. Tariq Mehmood 2021 SCMR 440 ref.

(g) Interpretation of statutes---

----Reference to legislative history---Scope---Reference to legislative history is permissible only as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity i.e. from the text of a statute, the court is unable to decipher the real intent of the Legislature.

Gulshan Bibi v. Muhammad Sadiq PLD 2016 SC 769 ref.

(h) Constitution of Pakistan---

----Arts. 184 & 185--- Judgments/orders of the Supreme Court---Academic exercise---Ordinarily the Supreme Court does not enter into purely academic exercises. Munawar Iqbal Gondal v. Nasira Iqbal 2014 SCMR 860 ref.

(i) Constitution of Pakistan---

----Arts. 184 & 185--- Judgments of the Supreme Court---Prospective/retrospective effect---Scope---Judgments of the Supreme Court operate prospectively, however, they could operate retrospectively if so declared---Consequently, there is no binding rule that all judgments issued by the Court take effect only from the date of pronouncement.

Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 ref.

(j) Locus poenitentiae, principle of---

----Applicability---Principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law which was violative of the provisions of the Constitution.

Azam Shah v. Federation of Pakistan 2022 SCMR 201 ref.

Per Syed Mansoor Ali Shah, J; dissenting with Umar Ata Bandial, J.

(k) Separation of powers, doctrine of---

----Scope of the doctrine of Separation of powers in a constitutional democracy stated.

Separation of powers is the backbone of a constitutional system. The legislature, the executive and the judiciary have no authority beyond that granted to them under the Constitution. None of them is omnipotent.

Cooper v. Canada [1996] 3 S.C.R 854, 867 ref.

Separation of powers means reciprocal checks and balances between the different branches. It does not mean walls between the branches but rather bridges which balance and check. The concept of separation of powers is not to maximize efficiency but rather to maximize freedom. The principle of separation of powers has double meaning: First, it means distinguishing among different branches of government, giving each branch a central and primary function. Second, it means that different branches have reciprocal relationship in which each checks and balances over the other branches. Thus, for example, the legislature can change the rules of the game by amending the existing law or by enacting new law, but it must do so within the framework of the Constitution. On the other hand, the judiciary is authorized to interpret the Constitution and law but it is not authorized to create, amend or rewrite the Constitution or to enact a new law. Judiciary, like the other branches of the government, is also not invincible but is to function under the supreme law of the land i.e., the Constitution.

Myers v. United States 272 US 52, 293 (1926) and Responding to Imperfection: The Theory and Practice of Constitutional Amendments (Stanford Levison ed., 1995) and Aharon Barak, The Judge in Democracy ref.

The primary and central function of the legislative branch is to create laws and the courts must give weight to the purpose of the law remembering that legislation promotes social policy and is a tool for achieving a societal goal. This subjective purpose of the statute becomes a key factor in interpreting the statute. Therefore, in the first instance, the role of the courts is to safeguard and actualize these laws in the public interest. Judges should therefore give statutes a meaning that bridges the gap between the law and the social reality. Next is the objective purpose of the statute, where it honours and protects the constitutional values, and the fundamental rights of the people. It is only when the subjective or the objective purpose of the legislature outsteps the constitutional boundary that the courts interfere and set the course right by enforcing the constitutional limits. Even in that case when the courts rule that a statute is unconstitutional and invalidates it, it does not undermine the legislature or violate the separation of powers because it is the principle of separation of powers that informs us that legislative authority does not include the authority to pass unconstitutional laws. Hence, the principle of separation of powers is the very source of judicial review.

(l) Judicial review---

----Scope---Legislation is the manifestation of the will of the people and the collective wisdom of their chosen representatives in the Parliament---Courts must therefore tread carefully to judicially review the act of the legislature---First, efforts should be made by the Court to save the constitutionality of the legislation by exhausting the interpretative tools e.g. of "reading down" or "reading out" to make the legislation constitution compliant---Only when the legislation happens to be opposed to the constitutional values and the fundamental rights and allowing such a statute to remain on the statute book would be unconstitutional, should the courts interfere---Such freedom and respect is enjoyed by the branches of the government under a prosperous and a progressive constitutional democracy.

(m) Constitution of Pakistan---

----Arts. 184(3) & 188---Constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Scope---Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution cannot be exercised as a parallel review jurisdiction, and a judgment or an order of the Supreme Court can never be challenged by virtue of filing independent proceedings under Article 184(3) of the Constitution---Such course is absolutely impermissible.

Shabbar Raza's case 2018 SCMR 514 ref.

(n) Supreme Court Rules, 1980---

----O. XI, R. 1, Second proviso---Semper praesumitur pro negante, rule of---Scope---When the Judges of an appellate Court are equally divided in their opinion, the judgment of the Court below is affirmed and maintained, and the decision given pro negante is authoritative and binding as any other decision of the appellate Court---However, the said rule is not applicable to the final decision of a case by the Supreme Court in view of the second proviso to Rule 1 of Order XI of the Supreme Court Rules, 1980, which provides that "if the Judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be, shall, in the discretion of the Chief Justice, be placed for hearing and disposal either before another Judge or before a larger Bench to be nominated by the Chief Justice." Hence, the application of the rule of pro negante decision is restricted to the division of opinion on a point of law decided in the judgment of the Supreme Court, notwithstanding of which there is a majority of opinion on the final decision of the case.

Inland Revenue v. Scottish General Electric Power Co. (1931) UKHL 15 TC 761 ref.

(o) Judgment---

----Judgment in rem---Neither necessary nor the requirement of law that Court should issue a separate notice and offer an opportunity of hearing to each and every person who is likely to be affected, and bound, by judgment in rem---Meaning and scope of a judgment in rem stated.

A judgment in rem binds the parties and the nonparties alike. A judgment in rem settles the fate of the res by determining its status and thus operates directly on the res itself; it binds all persons claiming a right or interest in or under the res, even though pronounced in their absence.

Federation v. Qamar Hussain PLD 2004 SC 77 ref.

In actions in rem it is neither practicable nor is it the requirement of law that the Court should issue a separate notice and offer an opportunity of hearing to each and every person who is likely to be affected, and bound, by the judgment. However, for complying with the constitutional command of fair trial and due process to a possible extent in such cases, the Court may order, as it is usually done by the civil courts dealing with actions in rem, for service of the public notice of the case through its publication in the press or any other mode deemed appropriate, for the knowledge of the persons likely to be affected by the judgment, who may then appear before the Court and seek permission to intervene and argue in the proceedings.

Surinder Kumar v. Gian Chand 1958 SCR 548; SHCBA v. Federation PLD 2009 SC 879 and Justice Bhinder v. Federation PLD 2010 SC 483 ref.

(p) Interpretation of statutes---

----Aid to statutory interpretation---Parliamentary debates---Scope---Parliamentary debates, especially the speech made by the mover of the Bill or by the chairman or member(s) of the Standing Committee that considered the Bill, explaining the reason for introducing the Bill can be referred to for ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation was enacted.

Mubeen-Us-Salam v. Federation PLD 2006 SC 602; Benazir Bhutto v. Federation PLD 1988 SC 416; Pepper v. Hart (UKHL) 1993 SCMR 1019 and K. P. Varghese v. ITO, Ernakulam AIR 1981 SC 1922 ref.

(q) Constitution of Pakistan---

----Art. 25---Equality of citizens---Reasonable classification---Scope of reasonable classification stated.

Article 25(1) of the Constitution which declares, and guarantees as a fundamental right, that all citizens are equal before law and are entitled to equal protection of law, does not prohibit reasonable classification for equal treatment, that is, "equality among equals", which is based on intelligible differentia, distinguishing persons or things that are grouped together from those who are left out, and has a rational nexus to the object sought to be achieved by law. And a classification having a reasonable basis does not offend against fundamental right to equality, merely because it is not made with mathematical nicety or because in practice it results in some inequality. Further, when the classification made by a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed, and the one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary.

Jibendra Kishore v. East Pakistan PLD 1957 SC 9; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Schwartz, Constitution of the United States, Vol. II, p. 501 and Willis, Constitutional Law of the United States, pp. 579-580 approvingly cited in Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.

(r) Vires of statute---

----Courts lean in favour of upholding the constitutionality of laws and are reluctant to strike them down---Cardinal principles of construction of statutes stated.

Two cardinal principles of construction of statutes are, (i) that there is always a presumption in favour of the constitutionality of a legislative enactment (a law); and (ii) that a law enacted by a competent legislature is to be construed in such a manner that its constitutional validity may be saved rather than destroyed. It is because of these principles that the courts lean in favour of upholding the constitutionality of laws and are reluctant to strike them down by declaring them as unconstitutional. The one who challenges the constitutionality of a law bears the burden to show that the law is violative of any of the constitutional provisions, and when two opinions as to the construction of a law are possible, the courts prefer to adopt that which upholds the constitutionality of the law, over that which does not. The courts, therefore, construe a law in such a manner that saves the law than destroys it, and declare it unconstitutional only when it clearly contravenes any constitutional provision and cannot be read as constitution compliant by applying any of the methods, techniques or tools of rule of constitution complaint construction, e.g., reading out or reading down. The primary purpose of applying these techniques, methods or tools, is to endeavor for saving the constitutional validity of the statute, to a possible extent, and the main reason for applying them in preference to declaring the law unconstitutional is that their application makes the process of judicial review of legislative actions less intrusive than invalidating the whole law, as the court should not strive officiously to kill a law to any extent greater than it is compelled to do. Declaring the law unconstitutional is thus one of the last resorts taken by the courts.

SSGCL v. Federation 2018 SCMR 802 and Dunkley v. Evans [1981] 1 W.L.R. 1522 ref.

(s) Vires of statute---

----'Reading out' (severance) and 'reading down' parts of a statute---Principles stated.

Courts apply the methods of "reading out" (severance) and "reading down", with certain conditions, for the purpose of construing the provisions of a law as constitution compliant and to save it, as much as possible, from being declared ultra vires the Constitution. The primary condition for applying these methods for a constitution compliant construction is to see whether the Legislature would have enacted the law in the form that remains or turns out to be after application of any of the said methods. Further, in case of applying the method of reading out (severance) the court is to see whether after reading out (severing) the invalid part, the remaining provisions of law would remain operative within the scope of the object of the law. Therefore, when confronting a constitutional flaw in a statute, court should try to limit the solution to the problem - severing the flawed portion while leaving the remainder intact. Because the unconstitutionality of a part of a statute does not necessarily defeat or affect the validity of its remaining provisions. If after severing the flawed part, the remaining provisions of law would remain fully operative, court must sustain those provisions unless it is evident that the Legislature would not have enacted those provisions independently of that which is invalid.

Haroon-Ur-Rashid v. LDA 2016 SCMR 931; Baz Muhammad Kakar v. Federation PLD 2012 SC 923; Province of Sindh v. M.Q.M. PLD 2014 SC 531 and Free Enterprise Fund v. Public Co. Accounting Oversight Board, (2010) 561 U.S. 477 ref.

In attendance:

Kh. Muhammad Arif, Advocate Supreme Court (in C.R.Ps. 292, 388 of 2021), Muhammad Yousaf Khan (in C.R.P. 293 of 2021), Muhammad Tariq Asad, Advocate Supreme Court (in C.R.P. 294 and C.M.A. 12033 of 2021), Khalid Javed Khan, Attorney General for Pakistan, Ayaz Shoukat, D.A.G. along with Ms. Maryam Rasheed and Usman Paracha, Advocates (in C.R.P. 295 of 2021), Muhammad Nawaz Abbasi (in person) (in C.R.Ps. 296 and 446 of 2021), S.A. Mehmood Khan Sadozai, Advocate Supreme Court (in C.R.Ps. 297-300 and 416 of 2021), Muhammad Ilyas Siddiqui, Advocate Supreme Court (in C.R.P. 301 of 2021), Hazrat Said (in C.R.P. 302 of 2021), S. Iftikhar Hussain Gillani, Senior Advocate Supreme Court (in C.R.Ps. 351 and 392 of 2021), Ms. Shireen Imran, Advocate Supreme Court (in C.R.Ps. 252, 393, 394, 448 and C.M.A. 12104 of 2021), M. Safdar Shaheen Pirzada, Advocate Supreme Court (in C.R.Ps. 253, 372 and 375 of 2021), Nisar A. Mujahid, Advocate Supreme Court (in C.R.P. 354 of 2021), Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. 355, 374, C.M.As. 11982 and 12029 of 2021), Ch. Afrasiab Khan, Advocate Supreme Court (in C.R.P. 356 of 2021), Mian Raza Rabbani, Senior Advocate Supreme Court, Saalim Salam Ansari, Advocate Supreme Court assisted by Zeeshan Abdullan (in C.R.P. 357, C.M.As. 175, 12172 and 12173 of 2021), Shah Khawar, Advocate Supreme Court, Hassan Rashid Qamar, Advocate Supreme Court (in C.R.Ps. 355, 378-381, 442, 455, 456, C.M.As. 12028 and 12162 of 2021), Zubair Hussain, Advocate Supreme Court (in C.R.P. 359 and C.M.A. 11983 of 2021), Syed M. Iqbal Hashmi, Advocate Supreme Court (in C.R.Ps. 360-363 of 2021), Mazullah Khan (in-person) (in C.R.P. 364 of 2021), Zulfikar Khalid Maluka, Advocate Supreme Court (in C.R.Ps. 365 and 428 of 2021), Ghulam Sajjad Gopang, Advocate Supreme Court (in C.R.P. 366 of 2021), Omer Farouk Adam, Advocate Supreme Court (in C.R.P. 367 of 2021), Tariq Mehmood Mughal, Advocate Supreme Court (in C.R.P. 368 of 2021), Syed Rifaqat Hussain Shah, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. 369, 385, 420, C.M.As. 168, 12032 and 12035 of 2021), Muhammad Sharif Janjua, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. 370, 386, 399, 400 and 423 of 2021), Saleem Ullah Ranazai, Advocate Supreme Court (in C.R.P. 371 of 2021), Kamran Murtaza, Senior Advocate Supreme Court (in C.R.Ps. 373 and 377 of 2021), Waseem Sajjad, Senior Advocate Supreme Court (in C.R.Ps. 376 and 383 of 2021), Dr. Saeed Ahmed (in person) (in C.R.P. 382 of 2021), Aftab Alam Yasir, Advocate Supreme Court (in C.R.P. 384 and C.M.A. 12020 of 2021), Abdul Razzaq Shar, Advocate Supreme Court (in C.R.Ps. 387, 454 and C.M.A. 12024 of 2021), Jam Khursheed Ahmed, Advocate Supreme Court (in C.R.P. 389 of 2021), Muhammad Sajid Khan, Advocate Supreme Court (in C.R.P. 390, C.M.As. 12031 and 12161 of 2021), Hamid Khan, Senior Advocate Supreme Court, M. Waqar Rana, Advocate Supreme Court (in C.R.P. 391 of 2021), Liauqat Ali Karim, Advocate Supreme Court (in C.R.P. 395 of 2021), Abid A. Zuberi, Advocate Supreme Court (in C.R.P. 396 of 2021), Azhar Navid Shah, Advocate Supreme Court (in C.R.P. 397 of 2021), Malik Faiz Rasool Rajwana, Advocate Supreme Court (in C.R.P. 398 of 2021), Muhammad Umair Baloch, Advocate Supreme Court, Shoaib Shaheen, Advocate Supreme Court (in C.R.Ps. 401-415, 418, 419 and C.M.A. 12372 of 2021), Muhammad Haseeb Jamali, Advocate Supreme Court (in C.R.P. 417 of 2021), Malik Mansoor Hussain, Advocate Supreme Court (in C.R.P. 421 of 2021), Ch. Aitzaz Ahsan, Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court (in C.R.P. 422 of 2021), Shakirullah (in-person) (in C.R.P. 424 of 2021), Muhammad Nawaz Rai, Advocate Supreme Court (in C.R.P. 425 of 2021), Muddasar Khalid Abbasi, Advocate Supreme Court (in C.R.P. 426 of 2021), Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court (in C.R.P. 427 of 2021), Khalid Javed (in-person) (in C.R.P. 429 of 2021), Abdul Latif Afridi, Senior Advocate Supreme Court (in C.R.Ps. 430-431 of 2021), S. Asghar Hussain Sabzwari, Senior Advocate Supreme Court, S. Qamar Hussain Shah Sabzwari, Advocate Supreme Court, S. Nayyar Hussain Bukhari, Advocate Supreme Court (in C.R.P. 432 of 2021), Sh. Mehmood Ahmed, Advocate-on-Record (in C.M.A. 11812 of 2021), Sikandar Javed, Advocate Supreme Court (in C.M.As. 11813 and 11993 of 2021), Ms. Attiya Khanam (in-person) (in C.M.A. 11814 of 2021), Fazal e Rabbi (in-person) (in C.M.A. 11837 of 2021), Malik Muhammad Riaz, (in-person) (in C.M.A. 11862 of 2021), Arshad Ali Makhdoom, Advocate Supreme Court (in C.M.A. 11863 of 2021), Muhammad Ibrahim (in-person) (in C.M.A. 11864 of 2021), Faisal Siddiqui, Advocate Supreme Court (in C.M.A. 11902 of 2021), Anees M. Shahzad, Advocate-on-Record/Advocate Supreme Court (in C.M.A. 11903 of 2021), Mir Aurangzeb, Advocate-on-Record/Advocate Supreme Court (in C.M.A. 11987 of 2021), Jawaid Masood Tahir Bhatti, Advocate Supreme Court (in C.M.A. 11679 and C.M.A. 158 of 2021), Mir Shahzad Khan Talpur (in-person) (in C.M.A. 12017 of 2021), Malik Muhammad Munsif Awan, Advocate Supreme Court (in C.M.A. 12019 of 2021), Muhammad Afzal Khan (in C.M.A. 12025 of 2021), Tassawar Abbas Tanvir (in-person) (in C.R.P. 443 of 2021), Dr. Umar Farooq Siddiqui (in-person) (in C.R.P. 444 of 2021), Sardar M. Latif Khosa, Senior Advocate Supreme Court, Sardar M. Shahbaz Khosa, Advocate Supreme Court (in C.R.Ps. 445 and 447 of 2021), Pervez Rauf, Advocate Supreme Court (in C.R.Ps. 449 and 452 of 2021), Mir Afzal Malik, Advocate Supreme Court (in C.R.P. 450 of 2021), Malik Saleem Iqbal Awan, Advocate Supreme Court (in C.R.P. 453 of 2021), Raja Farakh Arif Bhatti, Advocate Supreme Court (in C.M.A. 12075 of 2021), Rai M. Nawaz Kharal, Advocate Supreme Court (in C.M.A. 12103 of 2021), Ch. M. Younas, Advocate Supreme Court (in C.M.A. 12403 of 2021), Shahid Anwar Bajwa, Advocate Supreme Court (in C.M.A. 12373 of 2021) and Niazullah Niazi, AG ICT.

Barrister Umer Aslam for SSGPL.

Syed Waqar Naqvi, Advocate Supreme Court for State Life.

Aftab Alam Yasir, Advocate Supreme Court for OPF.

Asad Jan, Advocate Supreme Court for SNGPL.

2022 P L C (C.S.) 375

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, CJ and Raza Ali Khan, J

KAMRAN ALI, SUPERINTENDENT OF POLICE, DEPUTY DIRECTOR FIA, LAHORE and 3 others

Versus

ABDUL QUDOOS, SUPERINTENDENT OF POLICE, ASSISTANT INSPECTOR GENERAL POLICE CRIMES BRANCH, MUZAFFARABAD and 10 others

Civil Review No.2 of 2021, decided on 20th October, 2021.

(In the matter of review of judgment of this Court dated 24-12-2020 in Civil Appeals Nos.52, 53, 54 and 122 of 2020).

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R.8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 42-A---Review of Supreme Court Judgment---Scope---Case of petitioners was that the proviso to R.8(1)(b) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, provided that if the date of continuous appointment in the case of two or more persons appointed to the grade was the same, the older, if not junior to the younger in the next below grade, shall rank senior to the younger person---According to petitioners, the word "grade" had been used and not the "cadre", hence, Supreme Court had erred while recording findings---Validity---Petitioners were not allowed to argue the case like an appeal in the review petition---In the next below rank the seniority of the contesting parties were not common, hence, the question of seniority in the next below grade did not arise---Supreme Court after detailed discussion held that the criteria provided in R. 8 that in case of continuous appointment of two or more persons in the same grade the older shall rank senior to the younger---No error or mistake apparent on the fact of record was pointed out by the parties---Review petition was dismissed.

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

----Art. 42-A---Azad Jammu and Kashmir Supreme Court (Powers of Review) Act, 1980, S.2---Civil Procedure Code (V of 1908), O.XLVII, R. 1---Review---Scope---Supreme Court may review its judgment or order in a civil review petition on grounds akin to the grounds as mentioned in O.XLVII, R.1 of the Code of Civil Procedure, 1908 and in a criminal review petition on the ground of an error apparent on the face of the record.

(c) Review---

----Interpretation of law and elucidation of facts would not be deemed to be wrong simply for the reason that a view contrary to it could also be taken or it was possible to be taken.

Muhammad Riaz and others v. Pervaiz Mehandi and others PLD 2006 SC (AJ&K) 5; Muhammad Saleem Khan v. Mst. Muqarab Jan and others 2013 MLD 1435; State through Advocate General v. Hakam Deen and 15 others PLD 2006 SC (AJ&K) 28; Malik Zafar Ali Awan and 3 others v. Muhammad Riaz Khan and 7 others 2011 SCR 96 and Syeda Tasneem Kazmi v. Education Department and 8 others 2011 SCR 155 rel.

(d) Review---

----Review is not permissible on the ground that a party interprets the law in a different manner or a party is not satisfied from the judgment of the Court or a different view is possible.

Syed Nazir Hussain Shah Kazmi, Advocate for Petitioners.

Raja M. Waseem Younas, Addl. Advocate General, Asghar Ali Mallik, Sardar M. R. Khan and Raja Gul Majeed Khan for Respondents.

2022 P L C (C.S.) 538

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, CJ

Syed TUFAIL SHAH, INSPECTOR ENCROACHMENT, MUZAFFARABAD

Versus

DEVELOPMENT AUTHORITY, MUZAFFARABAD through Chairman and 8 others

Civil PLA No.698 and Civil Miscellaneous No.336 of 2019, decided on 3rd October, 2019.

(On appeal from the judgment of the High Court dated 12-9-2019 in Writ Petition No.744 of 2019).

Civil service---

----Appointment---Non-impleadment of necessary party in writ petition---Effect---High Court dismissed writ petition due to non-impleadment of necessary parties---Validity---Petitioner had prayed for declaring the advertisement issued under the enforced Service Rules as illegal---Petitioner had neither challenged the vires of the enforced Rules nor arrayed the Rules Making Committee as party in the writ petition---Relief prayed in the writ petition could not be granted in absence of necessary party---No effective writ could be issued in absence of necessary parties---High Court had rightly passed the impugned judgment---Petition for leave to appeal was dismissed by the Supreme Court.

Ch. Shoukat Aziz, Advocate for Petitioner.

Yaqoob Khan Mughal, Advocate for Respondents.

2022 P L C (C.S.) 557

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

Dr. NAEEM AHMED, CHILD SPECIALIST, SHEIKH KHALIFA BIN ZAID AL-NEHAN HOSPITAL/CMH, MUZAFFARABAD and 5 others

Versus

MUHAMMAD AYAZ KHAN, ACCOUNTANT GENERAL, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 5 others

Criminal Appeal No.23 of 2018, decided on 10th October, 2019.

(On appeal from the judgment of the High Court dated 11-9-2018 in Application No.107 of 2018).

Civil service---

----Contempt proceedings---Claim of discrimination---Scope--- Appellants assailed order of High Court whereby their application for initiation of contempt proceedings was dismissed---High Court had issued direction for sanction of qualification allowance at the rate of Rs.5000/- in favour of appellants---Nowhere in the application was alleged that authorities had violated the direction of High Court or had not sanctioned the qualification allowance at the rate of Rs.5000/- rather the appellants had approached the court for issuance of direction to sanction the qualification allowance at the rate of Rs.10,000/-, as sanctioned in favour of some others---Claim of discrimination could not be resolved in contempt proceedings rather if the appellants had any grievance, they could approach the proper forum---High Court had rightly declined to entertain the contempt application---Appeal was dismissed.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Asghar Ali Malik, Advocate for Respondents.

2022 P L C (C.S.) 935

[Supreme Court (AJ&K)]

Before Khawaja Muhammad Nasim and Raza Ali Khan, JJ

MUHAMMAD QADIR KHAN and others

Versus

MUHAMMAD AMJAD KHAN and others

Civil Appeals Nos.163 and 166 of 2019, decided on 2nd July, 2021.

(On appeal from the judgment of the High Court dated 23-11-2018 in Writ Petition No.2255 of 2012)

Civil Procedure Code (V of 1908)---

----O.I, R.3---Civil service---Who may be joined as defendants---Necessary party, non-impleading of---Effect---Appellant assailed order passed by High Court whereby appointment order issued in favour of appellant was set aside and the official respondents were directed to appoint the respondent---Validity---Careful examination of record showed that the appellant had categorically stated in his written statement that his appointment was made on the recommendations of the respective selection committee but the selection committee was not arrayed as party in the line of respondents---Without arraying the selection committee as party the (writ) petition was not properly filed and in absence of the necessary party no effective order cold be issued---Writ petition before the High Court was not maintainable---Appeal was accepted and the impugned judgment was set aside.

Shafqat Hayyat v. Muhammad Shahid Ashraf and 18 others 2005 SCR 57 and Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161 rel.

Raeesa Mustafa v. Azad Jammu and Kashmir Government and 6 others 2014 SCR 165 and Inspector General of Police and 17 others v. Muhammad Fareed and 62 others 2019 SCR 351 ref.

Ch. Shoukat Aziz for Appellant (in Civil Appeal No.163 of 2019).

Mir Abdul Latif for Respondent No.1 (in Civil Appeal No.163 of 2019).

Raja Ayyaz Ahmed, Assistant Advocate-General for Appellants (in Civil Appeal No.166 of 2019).

Mir Abdul Latif for Respondent No.1 (in Civil Appeal No.166 of 2019).