PLCCS 2023 Judgments - Pakistan Legal Archive

Courts in this Volume

Gilgit Baltistan Chief Court
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Punjab Subordinate Judicial Service Tribunal
Quetta High Court Balochistan
Supreme Court
Supreme Court Azad Kashmir

Gilgit Baltistan Chief Court

PLCCS 2023 Gilgit Baltistan Chief Court 1154 #

2023 P L C (C.S.) 1154

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ and Johar Ali, J

SHABBAR HUSSAIN and 2 others

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 8 others

Writ Petition No.70 of 2021, decided on 15th December, 2021.

Civil service---

----Regularization of services---Scope---Petitioners and 15 other persons were appointed as Mali BPS-1 and Chowkidar BPS-1 at State nurseries---Department terminated the services of 15 colleagues of petitioners---Colleagues approached the Chief Court and ultimately the Supreme Appellate Court for redressal of their grievance---Supreme Appellate Court regularized the services of petitioners' colleagues---Department regularized the services of colleagues but did not extend the same benefit to the petitioners---Validity---Petitioners were also entitled for regularization of their services in accordance with the judgment of Supreme Appellate Court in colleagues' case---Writ petition was accepted and the department was directed by the Chief Court to regularize the services of petitioners.

Wazir Mazhar Hussain for Petitioners.

D.A.G for Respondents.

Aurangzeb Khan for Respondents Nos.7 to 9.

PLCCS 2023 Gilgit Baltistan Chief Court 1308 #

2023 P L C (C.S.) 1308

[Chief Court Gilgit-Baltistan]

Before Malik Haq Nawaz C.J. and Ali Baig, J

TARIQ JAMAL and others

Versus

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

Writ Petitions Nos.264 and 265 of 2019, decided on 29th September, 2020.

Civil service---

----Official accommodation---Vested right---Scope---Petitioners were government employees who were aggrieved of notices issued by government to vacate government accommodations---Validity---Allotment of government accommodation was not fundamental / vested right of government servant / employee and could not claim to get government accommodation as a right---All government employees were getting house rent allowance in accordance with their pay scale along with monthly salary---Chief Court declined to interfere in the matter as authorities did not infringe any fundamental right of petitioners---Writ petition was dismissed, in circumstances.

Kamal Hussain for Petitioner (in W.P. No.264 of 2019).

Saleem Khan for Petitioners (in W.P. No.265 of 2019).

Assistant Advocate General for Respondents.

PLCCS 2023 Gilgit Baltistan Chief Court 1504 #

2023 P L C (C.S.) 1504

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ and Javed Ahmed, J

MUHAMMAD JAMIL, AIG OPS GILGIT-BALTISTAN, GILGIT

Versus

PROVINCIAL GOVERNMENT through Chief Secretary G.B. and 3 others

Writ Petition No.169 of 2022 along with Civil Miscellaneous No.368 of 2022, decided on 6th March, 2023.

Civil service---

----Date of birth of civil servant, alteration of---Scope---Petitioner, serving as Additional Inspector General in Police, sought directions for correction of his date of birth in the computerized pay system maintained by Accountant General Gilgit-Baltistan Pakistan Revenue ('AGPR')---Contention of the petitioner was that while converting the manual pay system into computerized system of the respondent /

AGPR, the date of birth of the petitioner mentioned in service book as 13-12-1963 had been wrongly mentioned 13-05-1963---Validity---Record revealed that the actual date of birth of the petitioner in accordance with his service book, medical certificate and CNIC, was 13-12-1963---Said fact had even not been denied by the respondents in their para-wise comments furnished in the Chief Court for present writ petition---Petitioner had been performing his duty in accordance with service book, but abruptly, respondent / AGPR disclosed his date of birth as 13-05-1962 in monthly salary statement for the month of March, 2021---Moreover, the Secretary Home Principal Accounting Officer (respondent),vide official letter addressed to the respondent /AGPR, had stated that as per record (service book, CNIC, Birth Certificate and Medical Certificate) the date of birth of the petitioner was 13-12-1963 whereas in computerized pay slip it was 13-05-1962, therefore, his (petitioner's) date of birth be corrected in computerized pay slip as per service book record---As per para 12-A of ESTA CODE, the date of birth once recorded at the time of joining Government Services shall be final and thereafter no alteration in the date of birth of a Civil Servant shall be permissible---In existence of the said mandatory provisions of ESTA Code, the respondent/AGPR could not change the date of birth of the petitioner in computerized salary slip---Date of birth once entered in the service record will not be altered and if any alteration is to be sought the same has to be done within a period of two years of joining of service and not thereafter---Chief Court directed the respondent / AGPR to correct date of birth of the petitioner in his computerized pay slip---Writ petition was allowed, in circumstances.

Inspector General of Police Balochistan and others v. Mohibullah 2022 SCMR 9 ref.

Mir Zeeshan Akhlaque for Petitioner.

Muhammad Qadir, DAG assisted by Shafqat, L.A. for Respondents.

Islam ud Din for Respondent No.4.

PLCCS 2023 Gilgit Baltistan Chief Court 1515 #

2023 P L C (C.S.) 1515

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ and Javed Ahmed, J

NOSHAD ALI

Versus

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

Writ Petition No.652 of 2022, decided on 3rd April, 2023.

Civil service---

----Appointment on the basis of Prime Minister's Assistance Package---Petitioner being son of deceased permanent employee had sought directions for his appointment on the basis of said Package after about 12 years of demise of his father---Contention of the petitioner was that he was minor at the time of death of his father (permanent employee in Education Department)---Validity---Father of the petitioner passed away in the year 2010 as evident from the relevant Death Certificate, however, record revealed that, in the very next year, the daughter of the deceased was appointed by the respondents (Education Department) against vacant post of BPS-01 under the Prime Minister's Assistance Package---Said fact had been concealed by the petitioner while filing present writ petition before the Chief Court---Since the employment admissible under Prime Minister's Assistance Package had already been availed by the daughter of the deceased employee, therefore, the petitioner was not entitled for appointment against any post under the Prime Minister Assistance Package---Writ petition moved by the petitioner under Art. 86(2) of the Government of Gilgit-Baltistan Order 2018, being devoid of merit, was dismissed, in circumstances.

Israr Hussain for Petitioner.

Muhammad Qadir assisted by L.A. Tufail Ahmed for Respondents.

High Court Azad Kashmir

PLCCS 2023 HIGH COURT AZAD KASHMIR 54 #

2023 P L C (C.S.) 54

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

MUHAMMAD YASEEN ASSISTANT SUB-INSPECTOR (ASI) and 48 others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary / Secretary Home and 11 others

Writ Petition No.1793 of 2020, decided on 28th April, 2022.

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

----Art.44---Police Rules, 1934, R.12.3---Writ petition---Appointment of Inspectors, Sub-Inspectors and Assistant Sub-Inspectors---Scope---Petitioners sought direction to the authorities to promote the Inspectors and Assistant Sub-Inspectors against 50% reserved quota to all the categories i.e. Executive, Regular, Reserve, Rangers, Traffic Police, Crimes Branch and Special Branch and also fill the vacant posts through direct recruitment---Validity---Petitioners were seeking share from the quota fixed for direct recruitment---Remedy of writ was an extraordinary relief and litmus test for the petitioner asking for issuance of writ was that he should come with clean hands---Power in that regard was to be exercised in an extraordinary circumstances within the ambit and yardstick of the jurisdictional arena---Petitioners could take their grievance before the tribunal of exclusive jurisdiction i.e. Service Tribunal against adverse order or for that matter statutory rules detrimental to their service rights---Writ petition was dismissed.

(b) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----S.23---Rules---Scope---Government/Competent Authority has right to frame rules and amend the same whenever required.

2005 SCR 259 and 2010 SCR 156+201 ref.

Sardar Jahandad Khan Mughal, Nasir Masood Mughal and Salma Tariq Sadozai for Petitioners.

Raja Zulqarnain Khan for Official Respondents Nos.1, 2, 4 and 7.

Raja Nasir Latif Khan and Raja Shujat Ali Khan for Respondents Nos.9 to 12.

Ch. Shoukat Aziz, Noshaba Iqbal on behalf of interveners Sidheer Ahmed and 654 others.

PLCCS 2023 HIGH COURT AZAD KASHMIR 75 #

2023 P L C (C.S.) 75

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

MUHAMMAD AZAD JUNIOR LECTURER DEPARTMENT OF MECHANICAL ENGINEERING (MUST) UNIVERSITY, MIRPUR, AZAD KASHMIR

Versus

VICE-CHANCELLOR MIRPUR UNIVERSITY OF SCIENCE AND TECHNOLOGY (MUST) MIRPUR, AZAD KASHMIR and 5 others

Writ Petition No.1680 of 2016, decided on 9th February, 2022.

Civil service---

----Protection against harassment/arrest before completion of inquiry---Petitioner serving as Junior Lecturer was given suspension order on allegations of breach of trust, violation of the regulations for the personal conduct of the teachers, abuse of authority to fulfil his personal desires/ill wishes; violation of examination rules, harassment of female students through calls/text messages, and moral turpitude---Petitioner contented that the suspension order had been issued without providing an opportunity of hearing; that application was sent to police without any information whereupon the concerned police was harassing the petitioner and his parents; that he submitted a detailed reply; that all the proceedings have been initiated with mala fide intention; that he was being forced by the police to resign from his assignment otherwise an FIR would be chalked out against him---Petitioner filed an application for seeking amendment in writ petition on certain grounds---Held, that if such application was allowed even then the result would remain the same; and the proceedings would be prolonged, hence the application was rejected---Female students submitted an application to concerned authority along-with plethora of massages against her teacher/petitioner---Vice Chancellor of the University had constituted the inquiry committee---Said committee invited reply of the petitioner and had given its findings against the petitioner---Proceedings initiated by the University authorities were in accordance with Chaper-1 of Employees (Efficiently and Discipline) Statutes, 2009 of the concerned University holding the field, hence, the argument to such extent was repelled---Inquiry report had been submitted to the authority and the final order had not yet been passed due to pendency of present petition---Authority of the petitioner could not go bound to pass any appropriate order in the light of the relevant provisions of law---University in view of its Calendar was wholly entitled to constitute inquiry committee/officer to remove anomalies and it was an administrative matter falling within the exclusive domain and policy decision of the Government/competent authority---Creating obstacle in such like matters by the High Court in exercise of writ jurisdiction was not warranted by law---Inquiry committee had no powers to pass final order, except to send the recommendations collected during the inquiry to the competent authority---University had the prerogative to pass any appropriate order---Petitioner was neither an aggrieved party within the meaning of Art.44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 nor had locus standi to invoke the writ jurisdiction of the High Court by way of writ petition---Writ petition was dismissed accordingly.

Azad Government and 4 others v. Arshad Khan and 3 others 2019 SCR 226; Syed Khalid Mehmood Bukhari v. G.M. (HRO) PTCL and others 2012 PLC (C.S.) 1366; Muhammad Rauf Patwari v. District Collector/DCO, Toba Tek Singh and 6 others 2014 PLC (C.S.) 386 rel.

Mian Sultan Mehmood for Petitioner.

PLCCS 2023 HIGH COURT AZAD KASHMIR 223 #

2023 P L C (C.S.) 223

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

ADNAN SHAZIB

Versus

AZAD JAMMU AND KASHMIR PUBLIC SERVICE COMMISSION through Chairman, Muzaffarabad and 4 others

Writ Petition No.1455 of 2019, decided on 9th June, 2022.

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

----Art.44---Fundamental Rules, Rr. 9(13) & 12---Lien---Scope---Petitioner was placed at top of the waiting merit list---Petitioner invoked writ jurisdiction of the High Court claiming therein that the department withheld two posts which were available at the time of issuance of advertisement and that he was serving on the post of Lecturer on ad hoc basis which was also a proof of the fact that the department had withheld the posts---Contention of department was that a post had fallen vacant due to transfer of a lecturer to another university but his appointment in the university had not been confirmed and that he was on probation for a period of two years, therefore, it could not be said that post left by him was permanently vacant---Validity---Notification regarding permanent appointment of said lecturer in the university depicted that no condition regarding passing of prescribed examination, test, course or successful completion of any training was attached to his appointment, therefore, from the date of his appointment the post was vacant for appointment---Lien could not be indefinitely held as a person could not be placed in two departments at the same time---Lien terminated when a person was appointed on permanent basis to the new post---Writ petition was accepted and the department was directed to issue appointment order of the petitioner against the vacant post.

2014 PLC (C.S.) 1334 and 2019 SCR 926 ref.

PLJ 2000 Tr.C (Services) 494 foll.

(b) Fundamental Rules---

----R.12---Lien---Scope---If the appointment/ promotion/transfer of a civil servant is subject to passing any examination, test, course or completion of training then during probation the post cannot be termed as completely vacant and in other case the same shall be deemed as vacant.

Chaudhary Amjad Ali for Petitioner.

Syed Atif Mushtaq Gillani, Alia Abdul Rehman and Sajjad Pirzada, A.A.G. for Respondents.

PLCCS 2023 HIGH COURT AZAD KASHMIR 248 #

2023 P L C (C.S.) 248

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

ZAKIA BIBI COMPUTER LAB ASSISTANT

Versus

AZAD GOVERNMENT through Chief Secretary and 3 others

Writ Petition No.4026 of 2021, decided on 17th January, 2022.

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

----Arts.47 & 44---Writ jurisdiction---Administrative Courts and Tribunals---Scope---As per Art.47, the jurisdiction of High Court under Art.44 is totally ousted to adjudicate upon the service matters relating to terms and conditions of the civil servants.

Muhammad Ishfaq Khan v. Muhammad Rashid Minhas and 08 others 2019 SCR 318 rel.

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

----Arts.47 & 44---Writ jurisdiction---Administrative Courts and Tribunals---Scope---Even if any illegal or void ab initio order is passed against a civil servant, the same can be challenged before the Service Tribunal and jurisdiction of High Court is totally ousted due to bar contained in Art.47 of the Azad Jammu and Kashmir Interim Constitution, 1974.

Qazi Zaheer Ahmed for Petitioner.

Nemo for Official Respondents.

PLCCS 2023 HIGH COURT AZAD KASHMIR 289 #

2023 P L C (C.S.) 289

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

ABRAR AHMED JUNIOR DRAWING TEACHER

Versus

SECRETARY ELEMENTARY AND SECONDARY EDUCATION AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 7 others

Writ Petition No.1028 of 2022, decided on 17th March, 2022.

(a) Civil service---

----Promotion---Production of photostat copies---Scope---Petitioner sought direction to the respondents to promote him against the post of Senior Drawing Teacher which became vacant due to retirement of its incumbent---Validity---Name of petitioner was placed at serial no. 9 of the seniority list and the petitioner had not arrayed other teachers as party in the memo of writ petition---Date of issuance of seniority list was nowhere mentioned, which was an unattested photostat copy---Retirement order was also not brought on record---Determination of seniority of employees was an administrative matter falling within the exclusive domain and a policy decision of the Government or the competent authority, which could not be determined through writ jurisdiction---Writ petition, having no statutory backing, was dismissed.

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

----Art.44---Writ jurisdiction---Factual controversy---Scope---Questions of fact cannot be determined by the High Court while exercising powers under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974.

Sarfraz Ahmed Khan v. Azad Government and others 2012 PLC (C.S.) 755 rel.

----Art.44---Writ jurisdiction---Scope---Writ can be issued where any violation of rules or departure of law has been made.

Mehtab Ahmed Khan for Petitioner.

PLCCS 2023 HIGH COURT AZAD KASHMIR 678 #

2023 P L C (C.S.) 678

[High Court (AJ&K)]

Before Muhammad Habib Zia and Muhammad Ejaz Khan, JJ

CH. KHALID YOUSAF, CUSTODIAN OF EVACUEE PROPERTY AZAD JAMMU AND KASHMIR CUSTODIAN BUILDING MUZAFFARABAD

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary New Civil Secretariat Muzaffarabad and 4 others

Writ Petition No.3060 of 2022, decided on 19th January, 2023.

Per Muhammad Habib Zia, J.

(a) Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2021---

----R.3(3)---Azad Jammu and Kashmir Administration of Evacuee Property Act (XII of 1957), S.47---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art.47---Term of service, pay, allowances and privileges of Custodian of Evacuee Property---Petitioner was former Judge of the High Court and after retirement his appointment to the post of Custodian of Evacuee Property was made after consultation with Chief Justice of Azad Jammu and Kashmir and Chief Justice, High Court of Azad Jammu and Kashmir, which was a judicial post, vide Notification dated 07.03.2022---Claim of the petitioner was that the Government while determining the terms and conditions of service of the petitioner vide notification dated 03.08.2022 had violated the judgment of High Court dated 18.02.2021 and the judgment of Supreme Court dated 21.12.2021----Post of Custodian of Evacuee Property was created in Azad Jammu and Kashmir as per the Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957, whereby the additional charge of the post remained with the Judges of High Court---Some advocates also remained appointed on the said post with the terms and conditions of a Judge of High Court---Petitioner submitted two representations for compliance of the judgments of the Supreme Court and High Court---As a result, the Government determined the terms and conditions of petitioner to the effect that the petitioner shall be entitled to draw pay, allowances and privileges equivalent to an officer of scale BS-20 and that the term of the office of petitioner shall be on the discretion of Government---Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 1992, were promulgated on 18th June 1992 and as per R.23 of the aforesaid Rules, the Government might appoint any person who was qualified to be the Judge of High Court on the post of Custodian---Thereafter, Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 2017, were promulgated, whereby, status of Custodian of Evacuee Property was downgraded, which rules were challenged and vide judgment dated 18.02.2021, the High Court set aside the Rules to the extent of R.4 which provided the method of appointment and removal of Custodian with direction to the Government to introduce a fresh amendment in the Rules keeping in view the status and job of Custodian for which eligibility criteria should not be less than a person eligible to be appointed as judge of High Court--- Said matter was sub judice before the Hon'ble Supreme Court, meanwhile the Service Rules, 2021 were promulgated on 30.11.2021, whereby Custodian was to be eligible for appointment as Judge of High Court---In the light of the previous history, Court had reached the conclusion that all the aforesaid appointments against the post of Custodian of Evacuee Property were made by the Government in which pay and other emoluments were fixed equal to the Judge of High Court---Service Rules of 1992 were also framed which were later on repealed in 2017---According to Rr.3(3) of Service Rules, 2021, term and conditions of salary, allowances etc. for appointment of Custodian were to be determined by the government at the time of appointment but the Government had determined the pay and allowances of the petitioner vide the impugned notification dated 03.08.2022, equal to an officer of scale BS-20, which were in violation of the judgment of High Court dated 18.02.2021---Writ petition was accepted, the Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 2021, to the extent of sub-rule (3) of R.3 was struck down along with the impugned notification dated 03.08.2022 and the Government was directed to insert the term and condition of Custodian of Evacuee Property for pay and other emoluments in Rules, 2021, as provided in Rules, 1992 and thereafter notification for term and condition of service, salary and other emoluments of the petitioner shall be issued with effect from the date of joining of the petitioner.

Per Sardar Muhammad Ejaz Khan, J.

(b) Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2021---

----Art. 42(B)---Judgment of the Supreme Court (AJ&K)---Said judgment is binding on executive as well as judicial functionaries of the State by virtue of Art. 42(B) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

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

----Art.44---Government post---Discretion vested with authorities---Such discretion should be exercised with reasonableness and nobody can be left unbridled to tinker with the future of citizens and such authorities cannot be allowed to pay havoc with the fate of the masses especially with those who have exceptional academic record and have the ability to serve the nation in a better way---High Court has to ensure the constitutional guarantees of the citizens of the State as enshrined by the Azad Jammu and Kashmir Interim Constitution, 1974, and should be least concerned about the consequences in giving right to a deserving person.

Raja Muhammad Hanif Khan for Petitioner.

PLCCS 2023 HIGH COURT AZAD KASHMIR 718 #

2023 P L C (C.S.) 718

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

SHABRAZ SHABIR

Versus

DISTRICT EDUCATION OFFICER (MALE) ELEMENTARY AND SECONDARY EDUCATION, MUZAFFARABAD and 5 others

Writ Petition No.4293 of 2021, decided on 8th June, 2022.

(a) Civil service---

----Appointment to advertised post---Enhancement of posts---Scope---Petitioner challenged order through which two candidates were appointed while only one post was advertised---Validity---Perusal of advertisement revealed that the number of posts could be enhanced, thus, after availability of other post the second appointment was made, while the petitioner had not challenged the condition---Proper course in the appointments of the (private) respondents had been adopted---Petitioner had failed to prove his case regarding illegal appointments of (private) respondents---Writ petition was dismissed.

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

----Art.44---Writ petition---Extraordinary jurisdiction---Clean hands---Bona fides of petitioner---Scope---Remedy of writ is not akin to civil suit, it is an extraordinary constitutional jurisdiction provided to an aggrieved person in extraordinary circumstances, where, no alternate or adequate remedy is provided under law---Petitioner has to come forward purely with clean hands and in attire of bona fide---Mere stale and bald claim is not entertainable in extraordinary writ jurisdiction---Conduct of the petitioner is always to be filtered through lens of bona fide.

----Art.44---Writ petition---Equitable jurisdiction---Extraordinary jurisdiction---Scope---Relief in extraordinary jurisdiction is equitable in nature and equity demands that one who asks for equity must come with clean hands, meaning thereby that a person who chooses to come forward and invokes extraordinary jurisdiction of High Court must prove at the outset that he is the bona fide claimant---Remedy of writ is two edged weapon in the hands of the petitioner as it can cut both ways.

(d) Locus poenitentiae, principle of---

----Beneficiaries of the orders passed by the departmental authorities cannot be penalized for loopholes, inaction or procedural irregularity of the authorities.

M. Maqsood Ahmed Sulehria for Petitioner.

PLCCS 2023 HIGH COURT AZAD KASHMIR 735 #

2023 P L C (C.S.) 735

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

MOHAMMAD SAJJAD

Versus

SECRETARY HIGHER EDUCATION AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR MUZAFFARABAD and 4 others

Writ Petition No.1777 of 2021, decided on 10th May, 2022.

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

----Art. 44---Civil Service Regulations, Regln. 31---Writ petition---Appointment to advertised posts---Withholding of posts---Lien on appointment---Scope---Public Service Commission advertised 13 posts of Lecturer Political Science; petitioner applied for the post and after qualifying the written testhe was placed at Serial No. 1 of the waiting list---Petitioner claimed that the department had withheld 10 posts of Lecturer Political Science at the time of issuance of advertisement, as such, Public Service Commission may be directed to appoint the petitioner---Validity---Petitioner in order to prove his claim regarding withheld posts had relied upon a notification which showed that the service of different ad hoc appointees had been extended for further six months but it related to those ad hoc appointees who had been adjusted against the lien---Contention of the petitioner was misconceived and misconstrued---Writ petition was dismissed.

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

----Art.44---Writ petition---Equitable remedy---Scope---Remedy of writ is equitable relief and equity demand that he who seeks equity must come with clean hands.

----Art.129---Court may presume existence of certain facts---Scope---Presumption of correctness is attached to the official record unless contrary proved.

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

----S. 11---Res judicata---Scope---Doctrine of res judicata is built upon the consideration of public policy that there must be an end to the litigation and finality be given to the adjudication at some stage.

2013 SCR 172 ref.

Mushtaq Ahmed Janjua for Petitioner.

PLCCS 2023 HIGH COURT AZAD KASHMIR 844 #

2023 P L C (C.S.) 844

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Malik ZAFFAR ALI AWAN, DSP CRIME BRANCH MUZAFFARABAD AZAD KASHMIR

Versus

AZAD GOVERNMENT OF THE STATE OF THE JAMMU AND KASHMIR through Chief Secretary Muzaffarabad and 8 others

Writ Petition No.2497 of 2016, decided on 30th May, 2022.

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

----Art. 44---Writ petition---Scope---Petitioner sought implementation of an order passed by the Prime Minister---Case of petitioner was that while performing his duties tooth and nail, he showed extraordinary performance and got injured due to a stray bullet from the protesting crowd; that he was recommended by Senior Superintendent of Police for "Quaid-e-Azam Police Medal"; that Deputy Inspector General of Police constituted a committee for awarding the medal to the petitioner but the committee reported that no extraordinary deed was performed by the petitioner; that against such recommendations, petitioner preferred an appeal before the Prime Minister; that the Prime Minister appointed Secretary Elementary and Secondary Education as hearing officer, who admitted the petitioner's claim; that thereafter the petitioner's appeal was dismissed by the Deputy Secretary to the Prime Minister Secretariat; that the petitioner filed a review application before the Prime Minister and this time the application was accepted---Held; order passed by the Prime Minister upon review application had attained finality---Respondents could not sleep over the matter by making an inordinate delay---Respondents were directed to implement the order of the Prime Minister.

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

----Art. 44---Writ petition---Violation of fundamental rights---Scope---Whenever and wherever, it seems that administrative justice is not being done by the authorities to an aggrieved person who comes forward and knocks the door of the High Court, resultantly, High Court is zealous to provide aid to aggrieved person qua enforcement of his constitutionally guaranteed fundamental rights as in such like eventuality people cannot be left on mere mercy of authorities.

----Art.4(4)(15)---Equality of State Subjects---Scope---Equal treatment is the demand of law and no one should be discriminated on the basis of favouritism and nepotism.

(d) Maxim---

----Fiat justitia ruat caelum---Meaning---Let justice be done though the heavens fall.

Waheed Bashir Awan for Petitioner.

Raja Zulqarnain Khan, Legal Advisor for the Police Department.

PLCCS 2023 HIGH COURT AZAD KASHMIR 1010 #

2023 P L C (C.S.) 1010

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

OWAIS QURESHI

Versus

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

Writ Petition No.223 of 2022, decided on 9th May, 2022.

(a) Civil service---

----Appointment to advertised post---Calculation of quota---Scope---Case of petitioner was that 12 posts of Range Officer were advertised against the quota of different units by the Forest Department for appointment on ad hoc basis whereas requisition of the posts was sent by the department to Public Service Commission without calculation of quota of district 'J'---Case of the department was that due to adjustment of a Range Officer quota of district 'J' had already been exhausted---Petitioner produced an appointment notification of the said Range Officer whereby the post of Range Officer was filled in on the recommendations of Public Service Commission against the quota of district 'M'---High Court observed that concealment of facts by the department had to direct the department to recalculate correct quota and send the requisition of the said posts to Public Service Commission afresh in accordance with law and rules---Writ petition was allowed by setting aside the impugned advertisement.

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

----Art.44---Writ petition---Scope---Cases, in writ jurisdiction, are decided on the strength of available convincing documents.

Anwar-ul-Haq for Petitioner.

PLCCS 2023 HIGH COURT AZAD KASHMIR 1023 #

2023 P L C (C.S.) 1023

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

NAVEED KHURSHEED

Versus

DPI E&S EDUCATION (M) AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD and 2 others

Writ Petition No.4011 of 2021, decided on 25th July, 2022.

(a) Civil service---

----Appointment to advertised post---Temporary appointment as against the advertised permanent appointment---Scope---Petitioner along with others applied for six posts of Junior Clerk---Petitioner was placed at Serial No. 11 of the merit list wherein it was mentioned that the list was effective for six months---Candidates falling at Serial Nos. 1 and 10 were appointed as teachers; the candidates at Serial Nos. 6 and 8 were initially appointed but on indication of fake degrees they resigned from the job whereas candidates falling at Serial Nos. 2, 5, 7 and 9 of the merit list were appointed---Respondents adjusted the petitioner on temporary basis of which petitioner was aggrieved and sought direction for his permanent adjustment---Contention of department was that the petitioner had failed to bring his grievance before the competent authority within prescribed period of his permanent appointment in the light of merit, therefore, his claim at belated stage could not be entertained---Validity---Petitioner could not be blamed for procrastination on the part of official respondents---Department was duty bound to redress the grievance of the petitioner when the posts had fallen vacant due to indication of fake degrees---When the petitioner had applied for open competition against a vacant post and had come up to the mark thus a valuable right had created in his favour which could not be snatched by way of procrastination---Constitutional petition was accepted and the respondents were directed to appoint the petitioner against the post of Junior Clerk in the light of his meritorious position.

(b) Administration of justice---

----Thing which is required to be done in a particular manner can only be performed accordingly as indicated by law otherwise performance of the same is nullity in the eyes of law.

Raja Muhammad Arif Rathore for Petitioner.

PLCCS 2023 HIGH COURT AZAD KASHMIR 1315 #

2023 P L C (C.S.) 1315

[High Court (AJ&K)]

Before Azhar Saleem Babar, ACJ

ABDUL KHALIQ QURESHI and another

Versus

AZAD JAMMU AND KASHMIR BOARD OF TRUSTEES (NON-GAZETTED) EMPLOYEES BENEVOLENT FUND AND GROUP INSURANCE through Chairman/Additional Chief Secretary (General) Muzaffarabad and others

Writ Petition No.1088-L of 2020, decided on 10th February, 2021.

Azad Jammu and Kashmir Employees Benevolent Fund and Group Insurance Act (XVI of 1971)---

----S.4---"Family"---"Wholly dependent members"---"Earning members of the family"---Scope---Bone of contention between the parties, parents and minor daughter (in custody of her mother, who was divorced by the deceased employee) was amount payable in relation to the benevolent fund and group insurance---Validity---Section 4 of the Azad Jammu and Kashmir Employees Benevolent Fund and Group Insurance Act, 1971, had defined the term "family"---Children, parents, minor brothers, etc. wholly dependent upon deceased employee fell within the meaning of the term "family" for the purpose of grant of benevolent fund and group insurance---Petitioners had misconceived the meaning of the term "family" by considering themselves to be members of family of deceased for the purpose of grant of benevolent fund and group insurance---Father of deceased was a self-employed businessman, as such, he could not be termed as dependent---Minor was only member of the family of deceased who was entitled to receive the grant under the head of benevolent fund and group insurance---Writ petition was dismissed, in circumstances.

PLD 1991 SC 731 rel.

Syed Asim Masood Gillani for Petitioners.

Raja Muhammad Abbas for Respondents Nos.1 to 4.

Islamabad

PLCCS 2023 ISLAMABAD 32 #

2023 P L C (C.S.) 32

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

GHULAM NABI SHEIKH and another

Versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN and another

Writ Petition No.3954 of 2018, decided on 18th February, 2019.

(a) Civil service---

----Deputation---Scope---Deputationist cannot necessarily complete tenure for which he/she was sent on deputation---Power is vested with competent authority to repatriate a deputationist without assigning any reason---In case of transfer on deputation, no vested right accrues to a deputationist to continue for period of deputation--- Competent authority is empowered to repatriate a deputationist as and when exigencies of service require.

Pakistan v. Fazal Rehman Khundkar PLD 1959 SC (Pak.) 82; Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad 2010 SCMR 378; Mst. Robia Ayub v. Federation of Pakistan 2013 PLC (C.S.) 915; Abdul Majeed v. Chief Secretary, Punjab 2015 PLC (C.S.) 1381 and Lal Khan v. Employees Old Age Benefit Institution 2010 PLC (C.S.) 1377 rel.

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

----S.25(1)---Deputationist, absorption of---No. vested right---Framing of rules for induction/absorption of deputationsist---Petitioners were aggrieved of their repatriation to parent departments from where they were sent on deputation---Held, that petitioners were not absorbed in borrowing departments---Even issuance of "no objection" by petitioners' parent departments could not give petitioners a vested right for absorption in borrowing departments or in Office Management Group---Petitioners served as deputationists for a period far more than the permissible period---No compelling reasons existed on record to show that services of petitioners were indispensable to borrowing department---Deputationist had no vested right to continue serving in borrowing department until he/she was considered for absorption/induction in Office Management Group---High Court directed that Establishment Division instead of churning out office memoranda every now and then on the criteria for absorption/induction of deputationists serving in Federal Government, should propose framing of Rules under S.25(1) of Civil Servants Act, 1973, on the subject; that appointment of civil servants belonging to other occupational groups, services and cadres and Provincial Governments as Section Officers in the Federal Government were to be regulated by Rules; that this would bring certainty and clarity in the process and criteria for absorption/induction of deputationists in Federal Government or Office Management Group---Constitutional petition was dismissed, in circumstances.

Dr. Shafi-ur-Rehman Afridi v. CDA, Islamabad 2010 SCMR 378 rel.

Muhammad Shoaib Shaheen, Mirza Waqas Qayyum and Raja Khalid Ismail Abbasi for Petitioners.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General, Nouman Munir Paracha and Saadia Noreen Malik, for respondent/NUML.

Syed Gulzar Shah, Joint Secretary, Establishment Division.

Rashid Ahmed, Section Officer, Establishment Division.

Muhammad Khan Lakho, Section Officer (Lit-V), Establishment Division.

PLCCS 2023 ISLAMABAD 103 #

2023 P L C (C.S.) 103

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

SAIRA RUBAB NASIR and 110 others

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice and 10 others

Writ Petition No.153 of 2021 (and other connected petitions), decided on 13th April, 2022.

(a) Constitution of Pakistan---

----Arts. 7 & 8---Fundamental Rights State---Scope---State is prohibited under Art.8 of the Constitution from enacting a law which takes away fundamental right conferred upon a citizen---State defined in Art.7 of the Constitution includes the Parliament i.e. Legislature, as part of the State.

(b) Interpretation of statutes---

----Deeming clause---Scope---Deeming clause is known as a legal fiction, which is not an actual reality but law recognizes the same and Court accepts it as a reality---In case of a legal fiction, Court believes something to exist which in reality does not exist; it is nothing but presumption of existence of state of affairs which in actuality is non-existent---Fact of such legal fiction is that a position which otherwise would not be obtained is deemed to be obtained under the circumstances---Purpose of importing deeming clause is to place artificial construction upon a word / phrase that would not otherwise prevail and sometimes it is to make the construction certain---Deeming clause is a fiction and cannot be extended beyond language of the section by which it is created or by importing another fiction.

Gajraj Singh and others v. The State (1997) 1 SC 650; All Pakistan Newspaper Society v. Federation of Pakistan PLD 2012 SC 1 and Muhammad Mubin us Salam v. Federation of Pakistan PLD 2006 SC 602 rel.

----Legal right---Essential elements of a legal right stated:

i. It is vested in a person who may be distinguished as owner of the right, the subject of it, the person entitled;

ii. A person against whom the right avails and upon whom correlative duties lie, he may be distinguished as the person bound or as the subject of duty;

iii. An act or omission which is obligatory on a person in favour of the person entitled. This may be termed the content of the right;

iv. Something to which the act or omission relates and which may be termed the object or subject matter of the right; and

v. A title that is to say, certain facts or events by reason of which the right has become vested in its owner.

Black's Law Dictionary rel.

(d) Jurisprudence---

----Vested right---Scope---Right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent is known to be a vested right---Such right is absolute, complete and unconditional to exercise of which no obstacle exists and which is immediate and perfect in itself and not dependent upon a contingency.

Nabi Ahmed v. Home Secretary, Government of West Pakistan, Lahore PLD 1969 SC 599 and Government of Punjab v. Muhammad Kamran Bashir 2022 PLC (C.S.) 6 rel.

(e) Interpretation of statutes---

----Legislative intent---Court, function of---Scope---Function of Court is to discover true legislative intent while interpreting a statute---Words have to be given a clear, plain, unambiguous and reasonable meaning irrespective of the consequences---Words used by Legislature in any enactment or provision must be expounded in their natural or ordinary sense---When language is unambiguous and reflects only one meaning, no question of construction of statute arises, as the Act speaks for itself---Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used---If words used are capable of one construction only then it would not be open to Court to adopt any other hypothetical construction on the ground that such construction is more consistent with alleged object and policy of the Act---In considering whether there is ambiguity, the Court must look at the statute as a whole and consider appropriateness of meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional.

Shahid Pervaiz v. Ejaz Ahmad 2017 SCMR 206; Muhammad Afzal v. Secretary Establishment Division, Islamabad 2021 SCMR 1569; Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956; Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 870; Sh. Riaz ul Haq v. Federation of Pakistan PLD 2013 SC 501; All Pakistan Newspaper Society v. Federation of Pakistan PLD 2012 Sindh 129; Muhammad Mubeen us Salam and others v. Federation of Pakistan PLD 2006 SC 602; Messrs Master Foam (Pvt.) Ltd. and others v. Government of Pakistan through Secretary PLD 2005 SC 373; National Bank of Pakistan v. Saf Textile Mills Ltd. PLD 2014 SC 283 and Lahore Development Authority v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

(f) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Policy making---Scope---Framing of government policy is to be undertaken by the Executive, which is in a better position to decide on account of its mandate, experience, wisdom and sagacity, which are acquired through diverse skills.

Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd. PLD 2014 SC 1 and Institute of Chartered Accountant of Pakistan v. Federation of Pakistan 1998 SCMR 2679 rel.

(g) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Writ of quo warranto---Object, purpose and scope---Writ of quo warranto is in nature of laying information before Court, against the person who claims and usurps an office, franchise or liberty, requesting for holding an inquiry to enable him to show the authority under which he supported his claim to office, franchise or liberty---Object of writ of quo warranto is to determine the illegality of holder of statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorized in occupying the public office.

Hafiz Hamdullah v. Saifullah Khan PLD 2007 SC 52 and Dr. Farzana Bari v. Ministry of Law, Justice and Human Rights PLD 2018 Isl. 127 rel.

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

----O.XXXIX, Rr.1 & 2---Injunctive order---Effect---When an injunctive order is passed the same is to be considered after application of mind while considering facts and circumstances of case--- Such order remains in field till final adjudication or till its recalling or vacating order has been passed by Court.

Smt. Sangeeta Bansal v. State of MP and others AIR 2015 M.P. 51; Vishnu Dutt Sharma and others v. Regional Joint Director of Education Agra and others AIR 2001 Allahabad 165; Bakhtawar v. Amin 1980 SCMR 89; Chaudhry Sugar Mills Ltd. v. Province of Punjab PLD 2017 Lah. 848 and Iftikhar Ali v. Javed Dastgir PLD 1975 Lah. 126 rel.

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

----Ss.8(2)(a) & 49---Appointments of Members (Council and Board) Rules, 2021, R.8---Contractual employment---Regularization of service---Non-statutory rules---Effect---Pakistan Medical Commission Act, 2020, vires of---Appointments of members of Council and Board, legality of---Petitioners were employees of erstwhile Pakistan Medical and Dental Council (PMDC) and after creation of Pakistan Medical Commission (PMC) they sought their regularization---Appointments of members of PMDC and Board was also assailed on the plea that the same were non-transparent---Held, that all employees of erstwhile PMDC or PMC whether contractual, adhoc, temporary or permanent, were governed under non-statutory rules and regulations since inception of erstwhile PMDC---All employees including petitioners had no right to challenge legislative intent of Parliament in Pakistan Medical Commission Act, 2020, where Parliament had settled terms and conditions of employment of all employees of erstwhile PMDC or PMC in terms of Ss.8(2) & 49 of Pakistan Medical Commission Act, 2020---Petitioners had no vested right in any manner to claim continuation of their service till age of superannuation---Provisions of Pakistan Medical Commission Act, 2020 were intra vires and were not in violation or against Fundamental rights of petitioners in any manner or employees of erstwhile PMDC---Appointments of respondents as members of PMDC through notification dated 25-09-2020 were illegal, non-transparent, without any selection process and against merits promoting favoritism and nepotism---As such protection given to respondents in terms of R.8 of Appointment of Members (Council and Board) Rules, 2021 was illegal as it was person specific and contrary to the parent statute, principles of fairness, ultra vires and against the concept and wisdom referred to in the Constitution and law--- Contractual employees of erstwhile PMDC seeking regularization after termination or expiry of their contract was a closed and past transaction and it could not be reagitated, even before new PMC like cases of other petitioners---Constitutional petition was disposed of accordingly.

PLD 2020 Isl. 130; Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; Syed Mubashar Raza Jafri v. EOBI 2014 SCMR 949; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; (in the matter of HRC No.11827-S/2018 regarding Selling of National Assets including PIA at Throwaway Price) 2019 SCMR 1952; Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343; Dr. Basharat Hussain Bashir v. Federation of Pakistan 2020 PLC (C.S.) 1331 and The Chief Secretary, Government of Balochistan, Quetta and others v. Hidayat Ullah Khan 2022 SCMR 39 ref.

Zainab Janjua, Sana Taha Gondal, Muhammad Salman Ajaib, Abdul Rehman Khan, Rana Umer Iqbal, Haris Azmat, Barrister Faiza Asad, Syed Ahmad Hassan Shah and Badar Iqbal Ch. for petitioners (in their respective writ petitions and contempt petitions).

Barrister Muhammad Mumtaz Ali and Raja Muhammad Aftab Ahmad, A.A.G.

Taimoor Aslam Khan, Mudassar Abbas, Haris Azmat, Barrister Faiza Asad, Sohaib Shahid for Respondents (in their respective writ petitions and contempt petitions).

PLCCS 2023 ISLAMABAD 158 #

2023 P L C (C.S.) 158

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

WASEEM KHURSHID

Versus

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

Writ Petition No.3208 of 2019, decided on 16th July, 2021.

Civil service---

----Appointment, eligibility criteria---Scope---Petitioner, after failing to meet the eligibility criteria for the post of Director (Finance) (BPS-19), assailed eligibility criteria for promotion to the post on the ground that no Deputy Secretary or Deputy Director in the department had post- qualification experience of 12 year in BPS-17 or above including 5 years in BPS-18---Held; non-availability of candidate did not mean that appointment to the post of Director (Finance) (BPS-19) could not be made---Impugned notification clearly mentioned that if no suitable person was available for promotion, the post shall be filled by transfer from amongst persons possessing matching qualifications and experience as prescribed in Schedule IV and failing that by initial appointment---Nothing prevented the department from initiating the process of filling the post of Director (Finance) (BPS-19) by transfer if there was no Deputy Secretary or Deputy Director in the department who fulfilled the prescribed eligibility criteria for promotion to the post---Department could not be prevented from exercising its statutory power to change an eligibility criteria for appointment or promotion to any of the posts---Employee had no vested right for the prescribed eligibility criteria to remain constant and unaltered for all times to come---Constitutional petition was dismissed.

Government of Khyber Pakhtunkhwa v. Hayat Khan 2016 SCMR 1021; Imtiaz Ahmad v. Punjab Public Service Commission PLD 2006 SC 472; Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143; Mumtaz Ali Bohio v. Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division PLD 1995 SC 701; Government of N.-W.F.P., Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal 1990 SCMR 1524; Muhammad Insha Ullah v. Chief Conservator of Forests PLD 1988 SC 155 and Government of Punjab v. Muhammad Javed 2013 PLC (C.S.) 459 rel.

Muhammad Umair Baloch for Petitioner.

Abdul Rahim Bhatti and Qaiser Rahim Bhatti for Respondents.

Raja Saad Sultan, Assistant Attorney General.

Mahmood-ul-Hassan, Superintendent (Legal), F.B.I.S.E.

PLCCS 2023 ISLAMABAD 205 #

2023 P L C (C.S.) 205

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD SHAFEEQ

Versus

FEDERATION OF PAKISTAN, through Secretary, Ministry of Petroleum and Natural Resources and 5 others

Writ Petition No.4202 of 2018, decided on 7th March, 2019.

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

----S.8---Constitution of Pakistan, Art. 199---Constitutional petition---Substitution of findings---Director General, appointment and salary package---Selection criteria---Petitioner assailed appointment of respondent as Director General of Hydrocarbon Development Institute of Pakistan and claimed himself to be a better candidate---Petitioner also assailed that salary package given to respondent was exorbitant and not approved by Federal Government---Validity---High Court in exercise of its powers of judicial review could not substitute its findings with those of a tribunal or a selection authority that had carried out a comparative analysis of credentials of candidates for appointment against an advertised post---Petitioner and respondent were not even in close contest---Evaluation committee awarded more marks to respondent who was on top in merit list, whereas petitioner was awarded less marks and was low in the merit list---Petitioner was not among the three candidates who had fared the best out of the contestants---Claim of petitioner that he was the most suitable candidate for the post of Director General was not tenable---Salary package for respondent determined by Board of Governors of Hydrocarbon Institute of Pakistan was to be subject to approval of Federal Government in terms of S.8(1) of Hydrocarbon Development Institute of Pakistan Act, 2006---High Court directed that if Federal Government would not approve salary package determined by Board of Directors or was less beneficial for respondent, the salary and other privileges already drawn by him should be accordingly adjusted---Constitutional petition was disposed of accordingly.

PLD 2018 SC 114; 2008 SCMR 960; 2005 SCMR 1829; 2018 CLC 1910; 2017 PLC (C.S.) 1327; 2015 PLC (C.S.) 793; 2014 PLC (C.S.) 853; 2014 CLC 639 and PLD 2011 Pesh. 164 ref.

Usmat Batool v. Bahauddin Zakariya University, Multan 2013 PLC (C.S.) 484; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Dr. Farzana Bari v. Ministry of Law, Justice and Human Rights PLD 2018 Isl. 127; Sardar Husssain v. Mst. Parveen Umer PLD 2004 SC 357; General Manager, Pearl Continental Hotel, the Mall, Lahore/Rawalpindi v. Farhat Iqbal PLD 2003 SC 952; Export Promotion Bureau v. Qaiser Shafiullah 1994 SCMR 859; Muhammad Younis Khan v. Government of N.W.F.P. 1993 SCMR 618; Umer Din v. Additional District Judge, Lahore PLD 2005 Lah. 86 and Malik Jahangir Ahmed v. Judge Special Court No.I, Anti-Terrorism, Rawalpindi PLD 2005 Lah. 328 rel.

Ms. Zainab Samantash for Petitioner.

For Respondents:

Rehan-ud-Din Khan Golra for H.D.I.P. for Respondent.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General.

Ahmed Ali, Law Officer, H.D.I.P.

Maqsood Ahmed, Deputy Secretary, Ministry of Petroleum.

PLCCS 2023 ISLAMABAD 251 #

2023 P L C (C.S.) 251

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ZAHHID RASHID

Versus

FEDERATION OF PAKISTAN through Secretary to the Prime Ministry and 3 others

Writ Petition No.1466 of 2021, decided on 16th September, 2022.

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

----Sched. IV---Constitution of Pakistan, Art.199---Promotion of Civil servant---Fitness, determination of---Petitioner/civil servant was aggrieved of decision of authorities to supersede him on the recommendations of Central Selection Board (C.S.B.)---Validity---Where C.S.B. wanted to take a view about an officer under consideration for promotion which was contrary to what was stated about that officer in his Performance Evaluation Reports (P.E.Rs.) or any other official record, such view must be supported by credible information / documents on record---In the process of judicial review undertaken by High Court under Art. 199 of the Constitution, authorities must not shy away from bringing such record to the fore so that High Court found that no procedural impropriety or illegality was committed by C.S.B. in process of considering the officer for promotion---Matter concerned was not petitioner's eligibility for promotion but was his fitness---C.S.B. was required to carry out an objective assessment of petitioner when under consideration for promotion in accordance with the parameters set out in schedule-IV to Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019---High Court was vested with jurisdiction under Art.199 of the Constitution to judicially review process and manner in which discretion was exercised by C.S.B. in recommending supersession of an officer under consideration of promotion---High Court set aside the letter in question and treated petitioner's supersession as deferment---High Court desired that petitioner would be considered for promotion to BS-20 by the C.S.B. in its next meeting---Constitutional petition was allowed accordingly.

Ziaul Hassan v. Naseem Chaudhary 2000 SCMR 645; Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd. PLD 2002 SC 1060; Muhammad Hanif v. Province of Sindh 2011 PLC (C.S.) 534; Salahuddin Mughal v. Province of Sindh 2012 PLC (C.S.) 1018; Nazeer-ud-Din v. Government of Pakistan through Secretary, Passport and Immigration Department 2017 PLC (C.S.) 578; Muhammad Riaz v. Government of the Punjab 2003 PLC (C.S.) 1496; Javed Iqbal Nasir v. Managing Director, PEPCO 2012 PLC (C.S.) 1043; Shama Khan Zafar v. District Coordination Officer, Lodhran 2014 PLC (C.S.) 948; Muhammad Amin v. Managing Director, House Building Finance Corporation 2016 PLC (C.S.) 569; Federation of Pakistan v. Dr. Muhammad Arif 2018 PLC (C.S.) 907 and Federation of Pakistan v. Dr. Muhammad Arif 2017 SCMR 969 ref.

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

----S.4---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Promotion---Fitness and suitability---Service Tribunal, jurisdiction of---Scope---Jurisdiction to resolve questions regarding fitness and suitability of a civil servant to be considered for promotion does not vest in Service Tribunal---High Court is the proper forum to adjudicate upon such matters in exercise of its Constitutional jurisdiction.

Tahir Mahmood v. Inspector General of Police Punjab, Lahore 1993 PLC (C.S.) 576; Abdul Malik v. Sabir Zameer Siddiquui 1991 SCMR 1129 and Tasleem Jan v. Muhammad Zaman 2005 SCMR 695 rel.

Taimoor Aslam Khan and Mudassar Abbas for Petitioner.

Arshad Mehmood Kiani, Deputy Attorney-General for Respondents.

S.M. Munawar Naqvi, A.A.G. (Legal), A.G.P.

PLCCS 2023 ISLAMABAD 328 #

2023 P L C (C.S.) 328

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Mst. SHAHNAZ GUL

Versus

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

Writ Petition No.2296 of 2017, decided on 21st November, 2022.

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

----R.20A---Constitution of Pakistan, Art.199---Constitutional petition---Deputation---Effect---Petitioner was civil servant working in Islamabad Capital Territory on deputation from Khyber Pakhtunkhwa---Petitioner was aggrieved of order passed by authorities repatriating her to her parent department in Khyber Pakhtunkhwa---Validity---Ever since year 2016, when petitioner came on deputation to borrowing department, she had a lien over her post in her parent department---Consequences of her deputation was that neither could the post occupied by her as a deputationist be filled by borrowing department in accordance with applicable recruitment rules, nor did her post in her parent department became vacant, so that the same could be filled in accordance with the recruitment rules of the parent department---As per notification, SRO 872(I)/88 dated 01-10-1998, issued by Ministry of Interior, method of appointment to post of LHV (BPS-09) in health department Islamabad Capital Territory was by transfer and failing that by initial appointment---Appointment by deputationist could not be equated with appointment of transfer---Sanctioned posts could not be kept vacant and ought to be filled only in accordance with the method of appointment prescribed in applicable recruitment rules---High Court deprecated practice of appointing a deputationist or a contract employee against a permanent / sanctioned post without resorting to method of appointment envisaged by recruitment rules---High Court declined to interfere in the order passed by authorities---Constitutional petition was dismissed in circumstances.

2013 SCMR 1752; Nusrat Rasheed v. Federation of Pakistan 2021 PLC (C.S.) 777; Pakistan v. Fazal Rahman Khundkar PLD 1959 SC 82; Lal Khan v. Employees Old Age Benefits Institution 2010 PLC (C.S.) 1377; S. Masood Abbas Rizvi v. Federation of Pakistan 2014 SCMR 799; Abdul Majeed v. Chief Secretary, Punjab 2015 PLC (C.S.) 1381; Nemat Ullah v. Chairman Governing Body, Worker Welfare Board / Secretary to the Government of Khyber Pakhtunkhwa 2017 PLC 1; Sudhir Ahmed v. Speaker, Balochistan Provincial Assembly 2017 SCMR 2051; All Pakistan ZTBL Workers Union (CBA) v. Federation of Pakistan 2021 PLC 1; Rizwan Ullah v. Government of Khyber Pakhtunkhwa 2019 PLC (C.S.) 1443 and Safdar Ali Sathio v. Province of Sindh 2011 PLC (C.S.) 956 rel.

Abid Mehmood for Petitioner.

Mian Faisal Irfan, Deputy Attorney-General for Respondents.

Rehan Shahid Rao, Assistant, Office of the District Health Officer, Islamabad.

PLCCS 2023 ISLAMABAD 374 #

2023 P L C (C.S.) 374

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. TAHIR KALEEM SIDDIQUI

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.575 of 2019, decided on 5th December, 2022.

Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S.8---Workers' Welfare Fund (Employees Service) Rules, 1997,Rr. 23 & 25(1)(iv)---Civil service---Deputationist---Scope---Absorption in service---Selection by Governing Body--- Selection Committee absence of--- Petitioner was appointed by Governing Body but authorities after 19 years had set aside his appointment as the same was not done by Selection Committee and he was repatriated to his parent department---Validity---Held, there was no permanent employee in Workers' Welfare Fund (WWF) in year 1998, who could have been made member of Selection Committee to consider petitioner for absorption---Such was ample justification to petitioner's case for absorption to be placed before the Governing Body of WWF which was superior to Selection Committee---Absorption of petitioner as Assistant Director (BS-17) in WWF without recommendation of any Selection Committee was no fault of the petitioner---It was not for the petitioner to have constituted Selection Committee but the senior management of WWF---Without constitution of Selection Committee, case of petitioner for absorption should not have been placed before Governing Body but it was done by the management of WWF---Omission to comply with the requirement of R.25(1)(iv)Workers' Welfare Fund (Employees Service) Rules, 1997, in the process for absorption of petitioner was entirely attributable to the management of WWF and not the petitioner---High Court set aside order passed by authorities and remanded the matter to Federal Government for decision afresh---Constitutional petition was allowed accordingly.

2013 SCMR 1752; 2015 SCMR 456; District Coordination Officer v. Rozi Khan 2009 SCMR 663; Muhammad Shoaib v. Government of N.-W.F.P. 2005 PLC (C.S.) 1056; Muhammad Akhtar Sherani v. Punjab Textbook Board 2004 SCMR 1077; Collector of Customs and Central Excise, Peshawar v. Abdul Waheed 2004 SCMR 303; Aziz-ur-Rehman Akbar v. Secretary, Health Department, Government of the Punjab 2013 PLC (C.S.) 289; Muhammad Sajjad v. Chief Secretary, Government of Punjab 2013 PLC (C.S.) 200 and Muhammad Zahid Iqbal v. DEO Mardan 2006 PLC (C.S.) 1216 ref.

Hafiz Arfat Ahmad Ch., Tariq Zaman Ch. and Izrar Ali for Petitioners.

Mian Faisal Irfan, Deputy Attorney-General and Ch. Muhammad Tahir Mehmood, Assistant Attorney-General for Respondents.

Tahir Mehmood Abbasi and Qassim Duggal for W.W.F. and Faisal Tariq, Director, W.W.F.

Rai Akbar, Deputy Director, Muhammad Bashir, Assistant Director, D.W.E., and Muhammad Arfan, Section Officer (Lit-V), Establishment Division.

PLCCS 2023 ISLAMABAD 435 #

2023 P L C (C.S.) 435

[Islamabad High Court]

Before Arbab Muhammad Tahir, J

MUHAMMAD SAMI ULLAH

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and 3 others

Writ Petition No.886 of 2022, decided on 13th June, 2022.

(a) Civil service---

----Promotion---Scope---Case of petitioner was that the Authorities had not considered his case for promotion in accordance with the commitment made on their behalf in an earlier writ petition---Respondents, in the earlier constitutional petition, had submitted that the petitioner would be considered for promotion in the next meeting of Central Selection Board in compliance with directions of the Supreme Court issued in Federation of Pakistan and others v. Dr. Muhammad Arif and others reported as 2017 SCMR 969 and that the petitioner's seniority would be determined in accordance with law---Validity---Case of the petitioner was not covered under the directions of the Supreme Court as the petitioner lacked requisite threshold of marks---So far as second limb of the direction was concerned, the same had been complied with as the petitioner was considered in the meeting of Central Selection Board---Reasons for deferment of petitioner warranted no deliberations being out of the ambit of the instant petition---Question of fitness or suitability for promotion had always been considered to fall exclusively within the jurisdiction of competent authority not shared with the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification---No case for exercise of jurisdiction in terms of Art. 199 of the Constitution as prayed for was made out---Constitutional petition was dismissed.

Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others 2016 SCMR 1021; Dr. Alyas Qadeer Tahir v. Secretary Ministry of Education Islamabad and others 2014 SCMR 997; Muhammad Iqbal v. Executive District Officer Revenue Lordhran and others 2007 SCMR 682; Muhammad Ishaque and others v. Government of Punjab and others 2005 SCMR 980 and Islamabad Sikandar Hayat Maken v. Federation of Pakistan and others 2021 PLC (C.S.) 1450 ref.

(b) Civil service---

----Promotion, eligibility criteria of---Scope---Question of fitness or suitability for promotion have always been considered to fall exclusively within the jurisdiction of competent authority not shared with the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification.

Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others 2016 SCMR 1021; Dr. Alyas Qadeer Tahir v. Secretary Ministry of Education Islamabad and others 2014 SCMR 997; Muhammad Iqbal v. Executive District Officer Revenue Lodhran and others 2007 SCMR 682; Muhammad Ishaque and others v. Government of Punjab and others 2005 SCMR 980 and Islamabad Sikandar Hayat Maken v. Federation of Pakistan and others 2021 PLC (C.S.) 1450 ref.

Syed Hasnain Ibrahim Kazmi for Petitioner.

Syed Nazar Hussain Shah, A.A.G. and Abdur Rehman, S.O., Est. Division for Respondents.

PLCCS 2023 ISLAMABAD 469 #

2023 P L C (C.S.) 469

[Islamabad High Court]

Before Arbab Muhammad Tahir, J

Malik DAD SUPERINTENDENT and others

Versus

MINISTRY OF INFORMATION, BROADCASTING AND NATIONAL HERITAGE and others

Writ Petition No.2076 of 2015, decided on 2nd June, 2022.

Constitution of Pakistan---

----Arts.25 & 199---Constitutional petition---Equality of citizens---Discrimination in granting allowance---Reasonable differentia---Scope---Petitioners prayed for a direction to be issued to the respondents to grant them 20% Secretariat Allowance in the similar manner as various other Federal Government employees were being granted---Validity---Petitioners had not annexed any document, Office Memorandum, instructions issued by the Finance Division or judgment to explore that any of their counterparts from their department was extended the benefit of the allowance while they had been discriminated---Article 25 of the Constitution could only be pressed into service when not only the designation of the employees should be identical but their nature of job should also be alike---In absence of the latter pre-requisite, the ground of discrimination could not be pressed into service being hit by the principle of reasonable differentia---Petitioners had not tendered any document to show that their job status on all scores including their nature of duties had been equal with the ones who were extended the benefit of the allowance---Constitutional petition was dismissed.

1996 SCMR 115; 2005 SCMR 199 and 2009 SCMR 01 ref.

I.C.A. No.1102 of 2013 rel.

Mian Saif Ullah for Appellants.

Syed Nazar Hussain Shah, A.A.G. for Respondents.

PLCCS 2023 ISLAMABAD 517 #

2023 P L C (C.S.) 517

[Islamabad High Court]

Before Arbab Muhammad Tahir, J

MUHAMMAD SAEED

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through President PTCL and another

Writ Petition No.1883 of 2012, decided on 22nd February, 2022.

(a) Constitution of Pakistan---

----Arts. 199 & 10-A---Master and servant relationship---Right to fair trial---Termination from service---Non-issuance of show cause notice---Effect---Petitioner assailed order passed by respondent (employer) whereby he was removed from service on account of unauthorized absence from duty---Held, that petitioner, at the relevant time, had more than 20 years' service to his credit---Respondent had not placed on record a single document to show that whether any disciplinary proceedings under the relevant rules were initiated against him---It was not the case of respondent that they had ever served the petitioner with a show cause notice, not a single document was annexed with the written comments to show that the petitioner was proceeded against on account of unauthorized absence in due course of law in accordance with rules---Entire stress had been on the point that the petitioner admitted his willful absence at the time of personal hearing afforded to him pursuant to an order passed in the present writ petition---Treatment afforded to the petitioner for throwing him out of service after rendering 20 years' service as being regular employee in no way could be termed justified and in accordance with the canons of law---Treatment under due process was right of every employee while principle of fair trial was also a fundamental right in terms of Art. 10-A of the Constitution---Termination notice was set aside and the writ petition was allowed.

Masood Ahmad Bhatti's case 2016 SCMR 1362; order dated 29.11.2016 passed in Civil Appeal No.230-L of 2015; judgment dated 21.12.2017 passed in W.P. No.2985/2014; PLD 2011 SC 365; 2015 SCMR 795; 1998 SCMR 1890; 2021 SCMR 144; 2020 SCMR 1154 and judgment dated 02.11.2021 passed by this Court in I.C.A. No. 82/2020 ref.

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

----Ss. 35 & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9 [since repealed]---Constitution of Pakistan, Art.199---Constitutional jurisdiction of the High Court---"Master and servant" relationship---Ad hoc or temporary employees employed by the Pakistan Telecommunication Corporation (the Corporation) or the Pakistan Telecommunication Company Limited (the Company)---Non-statutory terms and conditions of service---Scope---Petitioner assailed order passed by respondent (employer) whereby he was removed from service on account of unauthorized absence from duty---Contention of the respondent was that the present constitutional petition was not maintainable against it and that the status of the petitioner was that of a workman---Validity---Case of petitioner fell under the category of services of the erstwhile T&T department whose services were protected by the Pakistan Telecommunication (Re-organization) Act, 1996, whereas those employed by the respondent on contract basis, or work charge basis, whose terms and conditions of service were governed by the rules of the Company were clearly non-statutory---So far as contention that respondent was not a 'person' performing functions in connection with the affairs of the Federation within the contemplation of Art. 199(5) of the Constitution was concerned, the employees of the erstwhile T&T Department transferred to the Pakistan Telecommunications Corporation under the relevant provisions of the Pakistan Telecommunications Corporation Act 1991 and later/on succeeded by the respondent, discharging their functions and duties in the International Gateway Exchange as Operators were inducted permanently or regularized subsequently under the rules necessarily related to one of the affairs of the Federation within the purview of provisions of Art.199 of the Constitution---Telecommunication undisputedly was the subject which pertained to one of the important affairs of the Federation dischargeable now through the respondent; hence such entity involved in the same exercise of the sovereign powers, essentially fell within the connotations of the word 'person' as defined in cl. (5) of the Art.199 of the Constitution---Objections with regard to the status of the petitioner and maintainability of the petition were repelled and the petition was decided on merits.

1998 SCMR 1890; 2021 SCMR 144; 2020 SCMR 1154 and judgment dated 02.11.2021 passed by this Court in I.C.A. No. 82/2020 ref.

Pakistan Telecommunication Company Limited v. Muhammad Samiullah 2021 SCMR 998 foll.

Pakistan Telecommunication Company Limited v. Muhammad Samiullah 2021 SCMR 998 rel.

(d) Constitution of Pakistan---

----Arts. 4 & 10-A---Right to fair trial---Right of individuals to be dealt in accordance with law---Right of access to justice---Scope---Right of access to justice is a well-recognized sacrosanct right under Art. 4 of the Constitution---Said right is equally found in the doctrine of due process of law---Said right includes the right to be treated according to law, to have a fair and proper trial and an impartial Court or Tribunal---Term "due process" includes issuance of proper show-cause notice in respect of proceedings initiated against an employee that may affect his rights and he shall also be given a reasonable opportunity to defend himself before imparting any pervasive order towards his rights guaranteed under any law of the land.

Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Allah Rakhi v. Irshad Bibi 1994 SCMR 2244 and Muhammad Nawaz v. Abdus Salam and another PLD 1997 SC 563 ref.

(e) Constitution of Pakistan---

----Art.5---General Clauses Act (X of 1897), S. 24-A---Loyalty to State and obedience to Constitution and law---Reasons for decision---Scope---Every public functionary is under obligation to act within the four corners of mandate of the Constitution and the law---Dispensation of cases should be with due application of mind with cogent reasons within reasonable time---Departure from the course would definitely be considered offensive to S. 24-A of the General Clauses Act, 1897.

Ch. Zahur Illahi's case PLD 1975 SC 383; Messrs Airport Support Services' case 1998 SCMR 2268 and The Government of Pakistan through Director General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2009 PLC (C.S.) 996 ref.

(f) Civil service---

----Termination from service---Audi alteram partem---Show cause notice---Scope---Principle contained in maxim "audi alteram partem" has to be applied in all judicial and non-judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statue governing the proceedings---Issuance of show cause notice to an employee before termination of his services is indispensable.

Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934; Mrs. Aneesa Rehman v. PIAC and others 1994 SCMR 2232 and Abdul Hafeez Abbasi and others v. Managing Director Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 ref.

(g) Constitution of Pakistan---

----Art. 9---Civil service---Right of livelihood---Scope---In case of statutory employment within the public domain, procedural fairness and due process is indispensable---Removal of an employee without due process also offends Article 9 of the Constitution because right to life includes right to a lawful and meaningful livelihood---It is the duty of public functionary to act reasonably, fairly, justly and in accordance with law---There is no room for arbitrary and unreason orders by a public functionary.

Muhammad Asif Gujjar for Petitioner.

Habib Ahmed Bhatti with Raheel Zafar, Senior Manager (Legal) PTCL for Respondents.

PLCCS 2023 ISLAMABAD 553 #

2023 P L C (C.S.) 553

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

IMRAN AMIR and another

Versus

Mst. ISMAT BIBI and another

Writ Petition No.3900 of 2020, decided on 17th March, 2022.

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

----Ss.8, 4, 10 & 12---Constitution of Pakistan, Art.13---Constitutional petition---Ombudsperson to enquire into complaint---Procedure for holding inquiry---Provisions of the Act in addition to and not in derogation of any other law---Protection against double punishment and self-incrimination---Scope---Petitioners sought dismissal of complaint filed by respondent before the Ombudsperson for Protection against Harassment of Women at the Workplace on the ground that an FIR on similar allegations had already been filed against them---Validity---Ombudsperson while making a decision on a complaint could impose any of the minor or major penalties specified in S. 4(4) of the Protection against Harassment of Women at the Workplace Act, 2010---In the event the charge against the petitioners was proved in the trial pending before the Additional Sessions Judge, the Trial Court could convict the petitioners for offences under Ss.376, 509 and 511, P.P.C.---Sentences which the criminal court could award to the petitioners were dissimilar to the minor or major penalties that the Ombudsperson could impose on the petitioners if the allegations made by respondent against them were established---Moreover, S. 12 of the Protection against Harassment of Women at the Workplace Act, 2010, had made it clear that the provisions of the Act would be "in addition to" and not in derogation of any other law for the time being in force---Constitutional petition was dismissed.

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

----Ss.8, 4 & 10---Ombudsperson to enquire into complaint---Procedure for holding inquiry---Powers of the Ombudsperson---Scope---Object behind the enactment of Protection against Harassment of Women at the Workplace Act, 2010, is to protect a woman from being harassed at the workplace---Inquiry proceedings conducted by the Ombudsperson pursuant to a complaint filed by an employee under S.8(1) are not criminal proceedings---Section 8(3) of the Act provides that the Ombudsperson shall conduct an inquiry into the matter according to the rules made under the Act and conduct proceedings as the Ombudsperson deems proper---Under S.10(2), the Ombudsperson, while making a decision on a complaint, can impose any of the minor or major penalties specified in S. 4(4) of the Act.

----Concurrent civil and criminal proceedings---Permissibility---Where an act or omission constitutes a criminal offence as well as a civil wrong, the mere fact that an accused has been acquitted from a criminal charge does not ipso facto mean that he stands absolved from civil liability---Criminal and departmental proceedings against an employee can go side by side and may even end in varying results---Departmental and criminal proceedings can be taken simultaneously and are independent of each other---Acquittal in a criminal case would not constitute a bar for the initiation of the disciplinary proceedings---Criminal proceedings and departmental proceedings against a civil servant are entirely different as one relates to the enforcement of criminal liability and the other is concerned with service discipline.

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

(d) Administration of justice---

----Concurrent civil and criminal proceedings---Permissibility---There is no bar on the institution of civil proceedings on a cause which is also the subject matter of criminal proceedings because not only the object of proceedings is different but also the standard and onus of proof is different in the civil and criminal proceedings.

Seema Fareed v. State 2008 SCMR 839 rel.

Tufail Shahzad for Petitioner.

Muhammad Sadiq Khan for Respondent No.1.

PLCCS 2023 ISLAMABAD 640 #

2023 P L C (C.S.) 640

[Islamabad High Court]

Before Arbab Muhammad Tahir, J

SARFRAZ ALI

Versus

FEDERATION OF THE PAKISTAN, through Secretary Information and Broadcasting, Government of the Pakistan, Islamabad and 10 others

Writ Petition No.735 of 2022, decided on 13th September, 2022.

(a) Jurisdiction---

----Determination---Court, duty of---Court before dilating upon merits of case, should first decide question regarding exercise of its jurisdiction and then should consider merits of the case.

Shabbir Jan Sarhandi v. Province of Sindh through Chief Secretary and 3 others 2006 PLC (C.S) 955 and Aamir Khurshid Mirza v. The State 2006 CLD 568 rel.

(b) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----S.4(3)---Pakistan Electronic Media Regulatory Authority (Employees Service) Regulations, 2011, Reglns. 21 & 22(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Non-statutory rules---Master and servant, principle of---Petitioner sought direction to respondent Authority to promote him with effect from the date when his juniors were promoted---Validity---Pakistan Electronic Media Regulatory Authority was an autonomous and independent entity and Pakistan Electronic Media Regulatory Authority (Employees Service) Regulations, 2021, were framed by Pakistan Electronic Media Regulatory Authority itself and not by Federal Government---Role of Federal Government in Pakistan Electronic Media Regulatory Authority was only to the extent of appointing its Chairman and Members---Pakistan Electronic Media Regulatory Authority (Employees Service) Regulations, 2021, were neither approved by Federal Government, nor were framed by it--- Such Regulations had no statutory force---Any rules / regulations which were not approved / framed by Federal Government could not be termed as statutory rules / regulations---Relationship between Pakistan Electronic Media Regulatory Authority and its employees was that of a master and servant---High Court declined to interfere in the matter as Pakistan Electronic Media Regulatory Authority (Employees Service) Regulations, 2021 governing employment of petitioner at Pakistan Electronic Media Regulatory Authority had no statutory backing---Petitioner could not invoke Constitutional jurisdiction of High Court under Art. 199 of the Constitution for redressal of his grievance relating to terms and conditions of his service---Constitutional petition was dismissed, in circumstances.

PLD 2002 SC 667; 2010 SCMR 1301; 2013 PLC (C.S.) 223; 2015 PTD 1207; 2021 SCMR 1281; PLD 2010 SC 676; 2021 SCMR 128; 2021 PLC (C.S.) 140; 2021 SCMR 998; Sumsam Ahmed v. Federation of Pakistan and 5 others (W.P. No.10534/2014); Sajjad Ahmed v. Federation of Pakistan through its Secretary, Ministry of Information and Broadcasting, Islamabad and 04 others (W.P. No.1476/2019); I.C.A. No.78/2020; W.P. No.4425/2021; Syed Nazir Gillani v. Pakistan Red Crescent Society 2014 SCMR 982; Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707 and Abdul Rashid Khan v. Registrar Baha ud Din Zikrya University 2011 SCMR 944 ref.

Ch. Muhammad Asad Raan for Petitioner.

Syed Nazar Hussain Shah, Assistant Attorney-General for Federation of Pakistan.

Barrister Ahmed Pervez for Respondents Nos.2 to 4/PEMRA.

Hafiz Arfat Ahmed, Auf Abdur Rehman and Muhammad Jalal Haider for Respondents Nos.5 to 11.

Sheikh Sahibzada Ahmed, Director (Legal), PEMRA

PLCCS 2023 ISLAMABAD 837 #

2023 P L C (C.S.) 837

[Islamabad High Court]

Before Babar Sattar, J

AFNAN FARID and others

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.1764 of 2021, decided on 29th September, 2021.

(a) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Administrative Courts and Tribunals---Terms and conditions of service---Scope---Where matter before the High Court was whether or not the impugned notification which had been issued by a functionary of the Federal Government was backed by legal authority or otherwise, High Court observed that such matter did not relate to terms and conditions of any particular person who was aggrieved by the impugned notification or any person who was claiming a right on the basis of such notification---Article 199(1)(a)(ii) of the Constitution provided that in the absence of any adequate remedy provided by law on the application of an aggrieved party, High Court could make an order---High Court was vested with jurisdiction to adjudicate the matter.

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

----R.3---Rules of Business, 1973, R. 11---Terms and conditions of service, amendment in---Consultation with Establishment Division---Scope---Secretary of a department is vested with no legal authority to approve any changes to the terms and conditions that apply to civil servants---Such changes can only be introduced by the competent authority under the Civil Servants Act, 1973 and the rules and regulations framed thereunder.

----Art.199---Constitutional jurisdiction---Scope---Courts in their constitutional jurisdiction while exercising judicial review powers ought to determine the legality or lack thereof of legal instruments on the narrowest grounds.

Lahore Development Authority v. Imrana Tiwana 2015 SCMR 1739 rel.

Ali Nawaz Kharal for Petitioner.

Umar Ijaz Gillani and Ch. Fayyaz Hussain Dhariwal, A.A.G

Muhammad Irfan, S.O., (Lit) Establishment Division.

PLCCS 2023 ISLAMABAD 863 #

2023 P L C (C.S.) 863

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

TASLIM MUMTAZ, ASSISTANT VICE-PRESIDENT

Versus

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

Writ Petition No.356 of 2021, decided on 11th March, 2022.

Civil service---

----Contractual employment---Regularization of service---Relationship of Master and Servant---Scope---Petitioner sought regularization of her services and setting aside of an order whereby her contract was not renewed---Validity---No legal cover or protection was available to the petitioner to claim her service to be converted from contractual to permanent nature under any statutory instrument rather terms of contract clearly stipulated as Master and Servant---Constitutional petition was dismissed.

2005 SCMR 100; Abdul Ghafoor v. NBP 2018 SCMR 157; 2020 SCMR 1664; 2020 SCMR 1425; 2019 PLC (C.S.) Note 19; 2019 PLC (C.S.) 928; 1999 SCMR 467; 2013 SCMR 1707; 2020 PLC (C.S.) 1; 2020 PLC (C.S.) 86; Sui Southern Gas Company Ltd. v. Zeeshan Usman 2021 SCMR 609; Miss Naureen Naz Butt v. PIA through Chairman, PIA 2020 SCMR 1625; Province of Punjab through Secretary Agriculture Department, Lahore v. Muhammad Arif 2020 SCMR 507; Major (Retd.) Syed Muhammad Tanveer Abbas v. Federation of Pakistan through Secretary Ministry of Interior 2019 SCMR 984; Raja Iviz Mehmood v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication 2018 SCMR 162 ref.

Abdul Ghafoor v. NBP 2018 SCMR 157 distinguished.

Mirza Waqas Qayyum for Petitioner.

Raja M. Aftab Ahmed, A.A.G. for Federation.

Faisal Mehmood Ghani, NBP.

PLCCS 2023 ISLAMABAD 886 #

2023 P L C (C.S.) 886

[Islamabad High Court]

Before Aamer Farooq, J

Captain (R) MUHAMMAD ALI ZULQARNAIN KIANI

Versus

ISLAMABAD ELECTRIC SUPPLY COMPANY (IESCO) through Chief Executive Officer, Islamabad and another

Writ Petition No.1787 of 2021, decided on 6th July, 2021.

Civil service---

----Transfer and withdrawal of promotion order---Employee of Electric Supply Company (Company)---Non-statutory rules---Constitutional jurisdiction of the High Court---Scope---Constitutional petition was filed by an employee of Company who was demoted/transferred---Held, that Company was an entity incorporated under the laws of the country---Distribution Companies, which included the respondent/Company, were juridical persons against whom constitutional petition under Art. 199 of the Constitution was not maintainable---Company was not a statutory body ---Transfer was exigency of service and no employee could claim as a fundamental right to be posted at a particular station---Demotion in the present case was made after inquiry and no violation of any law whatsoever could be discerned from the record---Constitutional petition, being not maintainable, was dismissed, in circumstances.

Chief Executive Officer PESCO, Peshawar v. Muhammad Aftab ur Rehman and others (Civil Petition No.1591-2011); Miss Mehwish Zaheer v. The Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and others (I.C.A. No.501-2016); Jamal Shah and others v. The Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and others (Civil Petitions Nos.1016 and others of 2017); Sardar Liaqat Ashraf and 7 others v. Federation of Pakistan through Secretary, Ministry of Water and Power, Islamabad and 4 others (W.P. No.2167-2015); Syed Mohsin Raza Gillani and 3 others v. Federation of Pakistan through Secretary, Ministry of Water and Power, Islamabad and 4 others (W.P. No.2216-2012) and Manzoor Ahmed v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan and others (W.P. No.2346-2017) ref.

Pakistan Olympic Association through President and others v. Nadeem Aftab Sindhu and others 2019 SCMR 221; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507; Tahir Atique Siddiqui v. Federation of Pakistan through Secretary, Ministry of Information and Technology, Islamabad and another (I.C.A. No.445-2019) and Pakistan Television Corporation Ltd. and others v. Hafeez ur Rehman and others (I.C.A. No.337 of 2014) distinguished.

PLCCS 2023 ISLAMABAD 1091 #

2023 P L C (C.S.) 1091

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

ZAHID ALI

Versus

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

Writ Petition No.4738 of 2016, decided on 1st June, 2023.

(a) Constitution of Pakistan---

----Art.199---Workers' Welfare Fund (Employees Service) Rules, 1997, Rr. 12, 13 & 14---Constitutional petition---Writ of quo warranto---Appointment without written test---Scope---Petitioner assailed appointments of several respondents on the ground that no written test was conducted before their appointment---Validity---Although R.13(6) of the Workers' Welfare Fund (Employees Service) Rules, 1997, requires the Workers' Welfare Fund ('WWF') to make appointment(s) to posts in Workers' Welfare Fund after inviting applications from eligible candidates through an advertisement and R.12(2) requires that appointment to a post in Workers' Welfare Fund is to be made on the recommendations of the Selection Committee, however, the Rules do not require the candidates to participate in a written test---High Court cannot read such a requirement in the Rules---It is difficult to accept the omnibus contention that selection on the basis of interview only is arbitrary and illegal or that selections solely based on interview are a fortiori illegal---Rule 14(1) of the Workers' Welfare Fund (Employees Service) Rules, 1997, requires all vacancies in WWF that are reserved for initial appointment to be filled on all-Pakistan basis "in accordance with merit" and provincial or regional quota prescribed by the Federal Government---Merit of a candidate can be adequately gauged not just through a process of interview but also through a written test---Requirement of a written test is implicit in R.14(1), which mandates appointments to be made in accordance with merit---Given the virtues of a written test in competitive process for appointment to posts in government-controlled bodies, it is expected that henceforth WWF would make recruitments/ appointments through a process which must include a written test---Writ petition was dismissed with costs.

Imran Ahmed v. Federation of Pakistan 2019 PLC (C.S.) Note 19 rel.

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

----R. 14---Procedure for initial appointment---Observance of merit and provincial quota---Written test, significance of---Workers' Welfare Fund (Employees Service) Rules, 1997, do not prevent Workers' Welfare Fund (WWF) from conducting a written test of a candidate participating in a competitive process for appointment to any post in WWF---Indeed, it is desirable for a written test to be conducted for such purpose---Process of selection consists of various steps like inviting applications through advertisement or public notice, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting an examination, calling for interview or viva voce, and preparation of a list of successful candidates for appointment---In this process, the written examination test is of significant importance---Written test carried out in a fair and transparent manner has multifarious virtues in a selection process---It provides an objective and standardized way to evaluate candidates' knowledge, skills and abilities related to the job requirements---This helps to reduce bias and subjectivity in the selection process---Written test creates transparency in the selection process as all candidates are evaluated based on the same criteria, and the results are visible to all stakeholders---It helps ensure that the candidates appointed to public offices are competent and capable, which is crucial for maintaining the quality and integrity of public services---Written test can increase public trust and confidence in the appointment process as it demonstrates that the selection of candidates is based on merit and objective criteria---It can help to promote meritocracy in the appointment process by ensuring that the most qualified candidates are selected based on their performance in the test---This can help in reducing nepotism and favouritism in the selection process---Written test can promote accountability in the appointment process by providing a clear record of the selection criteria and the performance of each candidate---This can help in reducing the risk of corruption or malpractice in the selection process.

Ehsan Ullafi v. Inspector General Punjab 2006 PLC (C.S.) 964 and Muhammad Azam v. Senior Superintendent of Police 2002 PLC (C.S.) 712 rel.

----Art.199---Constitutional jurisdiction---Quo warranto---Scope---Writ of quo warranto can be issued inter alia when the appointment is contrary to the statutory rules.

Muhammad Ali v. Province of Khyber Pakhtunkhwa 2012 SCMR 673; Mubashir Raza Jaffari v. Employees Old-Age Benefits Institution 2014 SCMR 949 and Faisal Rasheed v. SESSI 2023 PLC (C.S.) Note 3 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Quo warranto---Scope---Writ of quo warranto should be refused where it is not bona fide or it is an outcome of malice or ill will or is vitiated by malice and vendetta---Moreover, the issuance of a writ of quo warranto is discretionary, and in such proceedings the conduct of the petitioner is of vital importance---High Court must not allow its process to be abused for oblique considerations.

Dr. Kamal Hussain v. Muhammad Sirajul Islam PLD 1969 SC 42 and Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166 rel.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Quo warranto---Delay in filing petition---Scope---Objection regarding delay in filing a petition seeking the issuance of a writ of quo warranto cannot be sustained where it would result in legitimizing usurpation of office or continuance in office of a person whose appointment clearly suffers from manifest illegality---Exercise of discretion by the High Court, even where such a petition is filed with a delay, is to be governed by the objective of promoting public interest and good administration---On this basis, it cannot be said that discretion would not be exercised to interfere where it is necessary to prevent the perpetuation of illegality.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Quo warranto---Suitability or otherwise of a candidate for appointment to a post is the function of the selection authority and not that of the Court unless the appointment is contrary to the statutory provisions/rules---Selection authority is required to evolve criteria for the relative fitness and merit of the candidates and then select candidates in accordance with the evaluation carried out on the basis of such criteria---High Court has no instrument to measure thought process of the interviewing body unless some material is brought on record to demonstrate the arbitrary and unfair action of such body.

Nisar Ahmed Shah and Ch. Muhammad Nisar Ali for Petitioners.

Arshad Mehmood Kiani, Deputy Attorney-General.

Hafiz Arfat Ahmed Ch., Tariq Zaman Ch. and Kashifa Niaz Awan for Respondent No.2.

Zaheer Bashir Ansari for Respondent 3.

Muhammad Kamal Hassan for Respondent No.4.

Abid Mehmood for Respondent No.5.

Khawaja Azhar Rashid and Komal Malik Joyia for W.W.F.

Respondent No.6 in person.

PLCCS 2023 ISLAMABAD 1143 #

2023 P L C (C.S.) 1143

[Islamabad High Court]

Before Arbab Muhammad Tahir, J

MUHAMMAD RAFIQ

Versus

VICE-CHANCELLOR, ALLAMA IQBAL OPEN UNIVERSITY and 3 others

Writ Petition No.1079 of 2021, decided on 21st November, 2022.

(a) Constitution of Pakistan---

----Art. 9---Civil service---Release of pensionary benefits---Scope---Petitioner sought direction to the department to release additional pensionary benefits---Claim of additional pensionary benefits was based on an Office Memorandum issued by the Finance Department according to which an additional benefit to the extent of 2% of gross pension for each extra year of service beyond 30 years of qualifying service subject to maximum 10% of pension shall be paid---Petitioner had claimed that the department had received pension contribution from his previous department but had not released the same to him---Validity---Department despite having received the amount (proportionate share) from the previous department had not yet cleared the issue either by making payment to the petitioner or to return the same, as the case might be, by following the rules on the subject---Question of payment of pension, being related to right of life under Article 9 of the Constitution could not be overlooked irrespective of the fact whether the service rules of an autonomous body were statutory or otherwise---Provision of pensionary benefits could not be kept in lurch for an indefinite period, under the law and even under the rules of the Allama Iqbal Open University, it had to be decided expeditiously in accordance with rules---Writ petition was disposed of with direction to the department to decide the issue expeditiously.

Nasir Kamal v. Federation of Pakistan and others 2021 PLC (C.S.) 1226 rel.

2010 SCMR 1484; Abdul Shakoor v. AIOU through Vice-Chancellor" 2020 PLC (C.S.) 1050; PLD 1984 SC 170; 2021 SCMR 730; 2018 SCMR 736; PLD 2007 SC 35 and 2005 SCMR 292 ref.

(b) Constitution of Pakistan---

----Art.199---Civil service---Constitutional jurisdiction of High Court---Scope---Where action of a statutory authority in a service matter is in disregard of procedural requirements and is violative of principles of natural justice, such action can be interfered with in writ jurisdiction.

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

----Art.199---Civil service---Constitutional jurisdiction of High Court---Scope---Aggrieved person can invoke constitutional jurisdiction of High Court against a public authority if the act of such authority is violative of service regulations even if those are non-statutory.

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

Petitioner in person.

Muhammad Zahid Tanveer for Respondent.

Khalid Mehmood Dhoon, A.A.G.

Fazal-e-Rabbi, Deputy Registrar (Legal) AIOU.

PLCCS 2023 ISLAMABAD 1188 #

2023 P L C (C.S.) 1188

[Islamabad High Court]

Before Babar Sattar, J

GHULAM MURTAZA

Versus

FEDERATION OF PAKISTAN, through Secretary Establishment, Government of Pakistan and 10 others

Writ Petition No.1483 of 2022, decided on 24th March, 2023.

Special Technology Zones Authority Act (XVII of 2021)---

----Ss.3(3) & 3(4)---Constitution of Pakistan, Arts. 4 & 199 (1)(b)(ii)--- Civil Procedure Code (V of 1908), S. 35 (1)(i)---Quo-warranto, writ of---Mala fide---Effect---Cost of litigation, awarding of---To be dealt in accordance with law---Petitioner assailed appointments of respondent made by Federal Government---Plea of petitioner was that the appointments were not made in transparent manner---Validity---Purpose of a writ of quo warranto under Art. 199(1)(b)(ii) of the Constitution is to ensure that no person continues to wield authority in the name of state when there is no power vested in such person by law to wield such authority---Paramount purpose is to give effect to Art. 4 of the Constitution, which guarantees that individuals are to be dealt with in accordance with law--- Public office holder can exercise only such authority as is vested in him or her by law---No citizen can be prevented from doing something by a public office holder which is not prohibited by law or compelled to do anything which is not required by law--- Court must at the outset satisfy itself that a petition of quo warranto has not been filed for any collateral purpose with an oblique motive---No one, who is seeking either to besmirch character of a public official or to pursue any other insidious purpose by abusing process of Court, is allowed to avail constitutional remedy of quo warranto and embarrass Court proceedings in the process---In the present case there was lack of bona-fide on part of the petitioner and petition was not maintainable against two respondents who were no longer holding any office with the Authority--- High Court declined to indulge in exercise of legality or lack thereof of appointments of other respondents after finding that the petition was not maintainable---High Court imposed cost of litigation of respondents upon petitioner---Constitutional petition was dismissed accordingly.

Hafiz Hamdullah v. Saifullah Khan PLD 2007 SC 52; Messrs Gadoon Textile Mills v. WAPDA and others 1997 SCMR 641; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Jawad Ahmad Mir v. Prof. Dr. Imtiaz Ali Khan 2023 SCMR 162; Ayaz Ahmed Khan v. Federation of Pakistan through Secretary Ministry of Interior 2021 PLC (C.S.) 1394; Nisar Khan Khattak Haji Adam v. Director General (Admin), PEMRA Headquarter, 2021 PLC (C.S.) 140; Muhammad Hanif Abbasi v. Jahangir Khan Tareen PLD 2018 SC 114; Ghulam Shabbir v. Muhammad Munir Abbasi PLD 2011 SC 516; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh 2004 SCMR 1299; Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan v. General Pervez Musharraf PLD 2002 SC 853 and Dr. Kamal Hussain v. Muhammad Sirajul Islam PLD 1969 SC 42 rel.

Sher Afzal Khan Marwat, Naila Noreen and Ch. Usama Tahir for Petitioner.

Barrister Asghar Khan, Ali Roshan Gillani and Syed Buland Sohail for Respondent No.2.

Haider Waheed, ASC and Barrister Syed Shehroz Bakhtiar for Respondents Nos.2 and 4 to 10.

Aqeel Akhtar Raja, Assistant A.-G.

PLCCS 2023 ISLAMABAD 1246 #

2023 P L C (C.S.) 1246

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

SAJJAD RASHEED MIRZA and others

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.2385 of 2020, decided on 24th March, 2023.

Civil service---

----Promotion policy---Eligibility for promotion---Promotion Policy, change of---Powers of Board of Directors---Petitioners were employees of erstwhile House Building Finance Corporation which was converted into House Building Finance Company Limited---Plea raised by petitioners was that they were entitled to be considered for promotion under Promotion Policy approved in the meeting dated 19-12-2005---Validity---Board of Directors of a company could change promotion policies---Change in promotion policy through a resolution of Board of Directors of a company would entail no violation of law---Employees of House Building Finance Corporation were entitled to be considered for promotion in accordance with Promotion Policy which was applicable at the stage of effective date--- Promotion Policy which was in vogue on effective date was the Promotion Policy, 2005 and petitioner ought to have been considered under that Policy and not under the Policy which was subsequently made by House Building Finance Company Limited---Constitutional petition was allowed accordingly.

Zarai Taraqiati Bank Limited v. Said Rehman 2013 SCMR 642; Ahmed Hassaan v. Government of Punjab 2005 SCMR 186; Ubedullah Khan v. Muhammad Ayoob 2003 YLR 1555; Muhammad Ishaque v. Government of Punjab 2005 SCMR 980; Dr. Muhammad Hussain v. Principal Ayub Medical College PLD 2003 SC 143; Masood Ahmed Bhatti v. Federation of Pakistan 2012 SCMR 152; Pakistan Telecommunication Employees Trust v. Muhammad Arif 2015 SCMR 1472 and Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783 and (C.A. No.26-K/2012) rel.

Abdul Rahim Bhatti and Faisal Rahim Bhatti for Petitioners.

Arshid Mehmood Kiani, Deputy Attorney General for Respondent.

Barrister Adeel Aftab for Respondents Nos.2 to 4.

PLCCS 2023 ISLAMABAD 1330 #

2023 P L C (C.S.) 1330

[Islamabad High Court]

Before Tariq Mehmood Jahangiri, J

NAVEED NAZEER

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA) through Chairman NADRA, Islamabad and 3 others

Writ Petition No.2857 of 2022, decided on 14th June, 2023.

Civil Servants (Efficiency and Discipline) Rules, 2020---

----Rr. 2(k), 4 & 16---National Database and Registration Authority Employees' (Service) Regulations, 2002, Regln. 23---Government Servants (Efficiency and Discipline) Rules, 1973, Preamble---Constitution of Pakistan, Art. 199---Misconduct---Major penalty---Dismissal from service---Constitutional petition filed by employee of NADRA---Maintainability---Allegation against employee (Data Entry Operator) of National Database and Registration Authority ('NADRA') was that he was involved in illegal processing of CNICs of non-nationals---On rejection of departmental appeal, the employee invoked constitutional jurisdiction of the High Court---Contention of the petitioner (employee) was that competent authority could not enhance the quantum of punishment from reduction to a lower post for a period of two years, as recommended by the inquiry committee to dismissal from service---Validity---Record revealed that confessional statement was made by the petitioner which was in his own writing; he affixed his thumb impressions and signatures on it; and while admitting receiving Rs. 15,000/= as bribe for the illegal processing of CNIC form each person, he had stated that he had processed about 40 forms, meaning thereby that as per his own confession he had taken bribe amounting to Rs. 600,000/=---All the legal and codal formalities had been completed, in the present case, by the respondents/department---Even otherwise, the employees of National Database and Registration Authority ('NADRA') were to be proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, as the same were adopted by NADRA under the non-statutory Regln. 23 of the National Database and Registration Authority Employees' (Service) Regulations, 2002 ('the Regulations 2002')---Constitutional petition filed against the NADRA was not maintainable, the terms and conditions of the services of employees of NADRA are governed under master and servant rules, as the Regulations 2002 are non-statutory---Petitioner failed to point any violation of Rules and Regulations---Constitutional petition, being not maintainable, was dismissed, in circumstances.

Major (Retd.) Syed Muhammad Tanveer Abbas v. Federation of Pakistan 2019 SCMR 984; Fateh Muhammad v. Federation of Pakistan and others (W.P.No.2483 of 2020); Syed Muntazim Rizvi v. Federation of Pakistan and others (Intra Court Appeal No. 66/2020); Muhammad Mateen Khan v. Federation of Pakistan 2020 PLC (C.S.) 1; Government of Khyber Pakhtunkhwa through Chief Secretary Khyber Pakhtunkhwa Peshawar and others v. Nargis Jamal, Ex-DEO (Female) Karak 2020 SCMR 2114; Tasawar Hussain v. Deputy Commissioner District Jhelum and others 2021 SCMR 1367; Mehmood Ahmed v. District Police Officer, Bahawalpur and others 2020 SCMR 653; Abid Hussain v. Chairman, Nescom, Islamabad and another 2009 SCMR 1025; Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another 2020 SCMR 1041 and N.W.F.P Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 ref.

Muhammad Asif Gujjar for Petitioner.

Syed Junaid Jaffar for Respondents.

PLCCS 2023 ISLAMABAD 1421 #

2023 P L C (C.S.) 1421

[Islamabad High Court]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

The FEDERATION OF PAKISTAN

Versus

IMTIAZ ALI QURESHI and others

I.C.As. Nos.323 and 325 of 2022, decided on 27th March, 2023.

(a) Interpretation of statutes---

----Rules---Retrospective effect---Scope---Rules made in exercise of statutory powers cannot be given retrospective effect so as to adversely affect vested rights acquired by persons prior to framing of the Rules.

Senior Member, BOR v. Sardar Bakhsh Bhutta 2012 SCMR 864; Water and Power Development Authority v. Haji Abdul Aziz 2012 SCMR 965; Controller General of Accounts v. Abdul Waheed 2023 SCMR 111 and Government of Pakistan v. Village Development Organization Landrwan 2005 SCMR 492 rel.

(b) Islamabad Capital Territory Private Educational Institutions (Regulation and Promotion) Ordinance (IV of 2007)---

----S. 7---Islamabad Capital Territory Private Educational Institutions Chairman and Member (Academic) and Member (Registration) (Appointment and Qualifications) Rules, 2015, Rr. 1 (3) & 7---Constitution of Pakistan, Art. 264 (b) & (c)---Chairman, appointment of---Retrospective effect of Rules---Appointment of respondent as Chairman under S.7 of Islamabad Capital Territory Private Educational Institutions (Regulation and Promotion) Ordinance, 2007, was set aside on the basis of decision made by Federal Cabinet and he was restored as Chairman---Authorities assailed appointment under Islamabad Capital Territory Private Educational Institutions Chairman and Member (Academic) and Member (Registration) (Appointment and Qualifications) Rules, 2015---Validity---Right was acquired by respondent on his appointment during the validity period of Islamabad Capital Territory Private Educational Institutions (Regulation and Promotion) Ordinance, 2007---Such appointment was protected in terms of Art. 264(b) and (c) of the Constitution, which had protected "anything duly done" or "any right, privilege, obligation or liability acquired, accrued or incurred" under the repealed law---Earlier in another Constitutional petition, writ of quo warranto was sought regarding appointment of respondent as Member (Academics) on permanent basis---In that other petition, appellant authorities zealously contested that petition and had defended appointment of respondent---Authorities failed to present any explanation for the volte-face for taking contradictory positions regarding respondent's appointment in the proceedings in other Constitutional petition---Division Bench of High Court declined to interfere in the judgment passed by Judge in Chambers of High Court and restrained authorities from placing any obstacle before respondent in resuming his duties---Intra Court Appeal was dismissed accordingly.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; All Pakistan ZTBL Workers Union v. Federation of Pakistan 2021 PLC 1; Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Tariq Aziz-ud-Din's case 2010 SCMR 1301; Pakistan Sugar Mills Association v. Federation of Pakistan PLD 2021 Isl. 55; Senator Taj Haider v. Government of Pakistan 2018 CLC 1910; Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah. 343; Amin Jan v. Director-General, T&T PLD 1985 Lah. 81; Shaikh Zayed Hospital v. Dr. Muhammad Saeed 2010 PLC (C.S. 967; Munir Ahmed v. Federation of Pakistan 2018 PLC (C.S.) 746 and Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

Mir Ahmad Nawaz Khan Bughti v. Superintendent, District Jail, Layallpur PLD 1966 SC 367 and Mahmood Hassan Harvi v. Federation of Pakistan PLD 1999 Lah. 320 rel.

Malik Shaukat Nawaz Awan, Assistant Attorney General for Appellant (in I.C.A. No.323/2022).

Zulfikar Khalid Maluka and Shafqat Ghafar Khan Joyia for the Appellant (in I.C.A. No.325/2022).

Imtiaz Ali Qureshi / respondent No.1 in person

PLCCS 2023 ISLAMABAD 1467 #

2023 P L C (C.S.) 1467

[Islamabad High Court]

Before Mohsin Akhtar Kayani, J

Syed MOHSIN SHAH

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad

and 3 others

Writ Petitions Nos. 1355, 2489 and 1809 of 2020, decided on 15th June, 2021.

(a) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Legislation touching the vested rights of an individual cannot be given retrospective effect---However, civil servants cannot claim their vested right to continue serving after completing 20 years of service until the age of superannuation, as it is already a part of their terms and conditions under S.13(1)(i) of the Civil Servants Act, 1973---Said provision ensures that they are protected and allowed to continue their service until the 20th year, unless they have been affected by the concept of misconduct---Therefore, the terms and conditions of service stipulated in the Civil Servants (Directory Retirement from Service) Rules, 2020, do not create any other rights, as interpreted by the petitioners, except those provided in the statute---Constitutional petitions were dismissed.

(b) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R.5---Civil Servants Act (LXXI of 1973), Ss. 13 & 25---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Section 25 of the Civil Servants Act, 1973, extends the authority to the President to make rules for carrying out the purpose of the Act---President has delegated its authority to the Prime Minister of Pakistan in exercise of powers conferred by subsection (1) of S. 25 of the Civil Servants Act, 1973, vide SRO No.120(I)/98, dated 27-02-1998, to make rules under the Act---In this case the Prime Minister of Pakistan had promulgated the impugned Rules, hence the salient characteristics qua the rulemaking authority are the powers conferred in the statute---Second characteristic is the approval of the Government or statutory sanction which has clearly been observed as the rules have been notified through SRO No.230(I)/2020, therefore, the minimum requirements of law have been fulfilled---Constitutional petitions were dismissed.

----R. 5---Civil Servants Act (LXXI of 1973), Ss. 13 & 3---Retirement---Grounds for retirement---Terms and conditions of service, variation of---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Contention of petitioners was that under S. 3 of the Civil Servants Act, 1973, the terms and conditions of their service could not be varied to their disadvantage---Validity---Section 3 though confirmed the rights of the civil servants but the same had to be regulated under the law and it was settled that no adverse action could be taken against the civil servant, except in accordance with law---Even the impugned rules were within the framework of the Civil Servants Act, 1973 and the same did not create a disadvantageous position for a civil servant in any manner---Constitutional petitions were dismissed.

(d) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Qanun-e-Shahadat (10 of 1984), Art. 114---Retirement---Grounds for retirement---Estoppel---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---When a civil servant acknowledges his offer letter and joins the service, he is bound by the terms and conditions highlighted in the Civil Servants Act, 1973 and the rules framed thereunder, therefore, law of estoppel applies, which precludes the civil servant to challenge the provisions of law, especially when S. 13 has already been considered on the touchstone of Holy Quran and Sunnah by the Shariat Appellate Bench of the Supreme Court in the judgment reported as "Pakistan and others v. Public-at-Large" [PLD 1987 Supreme Court 304].

Abdul Majeed v. Government of Pakistan 2006 SCMR 1415; Muhammad Qadeer v. Secretary Defence Production 2003 PLC (C.S.) 1389 and Chairman Censor Board v. Muhammad Ali Shah 2004 PLC (C.S.) 707 ref.

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

----S. 13---Civil Servants (Directory Retirement from Service) Rules, 2020, Rr. 3, 4 & 5---Constitution of Pakistan, Art. 14---Inviolability of dignity of man---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Competent authority of a civil servant is the best judge to determine the factors to be given preference and to what extent, per se, after due consideration of the powers highlighted in S. 13(1)(i) and Civil Servants (Directory Retirement from Service) Rules, 2020---Test, criteria, qualifications, eligibility, and methodology provided in the Civil Servants (Directory Retirement from Service) Rules, 2020, is based on the subjective evaluation of each case, as conducted by a committee under R. 4 (for the retirement of civil servants in BPS-16 & BPS-17 to 19) and a Retirement Board constituted under Rule 3 (for the retirement of civil servants in BPS-20 or above)---These bodies are the best judges to assess each case and determine whether a civil servant has demonstrated average performance or has obtained adverse remarks regarding his efficiency---If a civil servant has been recommended for supersession by the CSB (Central Selection Board) on two occasions, despite having some time to serve till the age of superannuation and the higher position requires a high standard on the administrative side where an inefficient civil servant is not desirable; in such cases, if the civil servant continues to serve, he would not be considered an asset but rather a burden to the exchequer---Therefore, these individuals need to be granted a secure exit through a directory retirement concept, especially when they do not fall within the purview of compulsory retirement due to misconduct---Hence, the challenged Rules were formulated while considering the dignity of civil servants, as outlined in Art. 14 of the Constitution---Constitutional petitions were dismissed.

(f) Civil Servants (Directory Retirement from Service) Rules, 2020---

----Rr. 5 & 8---Constitution of Pakistan, Arts. 4 & 10-A---Right to fair trial---Retirement---Grounds for retirement---Right of appeal or review---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Right of appeal or review as enshrined in R. 8 of the Civil Servants (Directory Retirement from Service) Rules, 2020, fulfills the constitutional requirements, which expand the principle of natural justice, well defined in our jurisprudence and the same are treated as inherent rights with underline element of fairness, both in terms of hearing as well as impartiality of the forums---Hence, the minimum requirement of Art. 10-A of the Constitution, has also been adhered to in the impugned Rules by the rulemaking authority---Such preconditions fulfill the minimum conditions of due process, fair trial and other fundamental rights protected by the Constitution---Constitutional petitions were dismissed.

New Jubilee Insurance Co. Ltd. v. National Bank of Pakistan PLD 1999 SC 1126 and (Suo Motu Case No.4 of 2020) PLD 2012 SC 553 ref.

(g) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---National Accountability Ordinance (XVIII of 1999), Ss. 2(n), 25 & 15---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Voluntary return and plea bargain---Disqualification to hold public office---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Petitioners contended that, after accepting the voluntary return under S. 25 of the National Accountability Ordinance, 1999, the department could not punish the civil servant by enforcing directory retirement---Validity---Plain reading of the words used by the legislature in National Accountability Ordinance, 1999, revealed that it does not preclude a civil servant to be dealt with on its departmental side, though he has gained the status of discharged from the criminal liability---Legislative intent clearly spells out from the language used whereby only a criminal liability has been avoided but, it does not mean that a person who is involved in such type of practices has been given a premium for his wrong doing so that he might continue with his services, though the effect of discharge means discharge of all liabilities--- Such an argument is misplaced on the ground that when any civil servant who has voluntarily returned the proceeds of corruption, though considered as discharged from a criminal liability but, his act falls within the ambit of misconduct, against which he can be proceeded on departmental side---There is no bar for parallel proceedings against a civil servant on departmental side---Constitutional petitions were dismissed.

Ishtiaq Ahmad v. Hon'ble Competent Authority 2016 SCMR 943 rel.

Dan Gunnar Bjarne Anderson v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2019 Isl. 566; Muhammad Islam Khan v. ZTBL 2013 PLC (C.S.) 795; State v. Hanif Haider 2016 SCMR 2031 and Habib Bank Limited v. Shahid Masou Malik 2001 SCMR 2018 ref.

PTVC v. Inland Revenue (LTU), Islamabad 2019 SCMR 282 and Secretary Housing and Physical Environmental Planning and PHE v. Muhammad Ramzan 2018 SCMR 301 distinguished.

(h) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Prospective application---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---One of the arguments put forth by the petitioners pertained to the prospective application of the challenged Rules---Validity---Rules have to be applied prospectively but, the argument advanced by the learned counsel qua prospective application with the view that the Rules have to be applied after the year 2020 upon those civil servants who have been appointed after the said year is misplaced, rather it applies to all those who have completed 20 years of their service as the pre-condition of S. 13(1)(i) of the Civil Servants Act, 1973, is completion of 20 years of service by a civil servant and, as such, the Rules are made applicable to those civil servants only---Constitutional petitions were dismissed.

Muhammad Ramiz Ullah v. Secretary Establishment Division, Rawalpindi and others 1987 PLC (C.S.) 531 and Secretary Housing and Environmental and PHE Department, Government of Punjab v. Muhammad Ramzan and others 2018 SCMR 301 ref.

(i) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Civil Servants (Directory Retirement from Service) Rules, 2020, cannot be challenged by the civil servants as same are not contrary to their fundamental rights and under the Constitution no vested right is available to the civil servants to challenge this policy matter where Rules have been framed within the scope of law---Even otherwise, it is settled proposition that the competent authority i.e. the Federal Government is in a better position to settle their requirements to engage the services of a civil servant, whose services are required or otherwise in the public interest---This executive discretion cannot be interfered with---Constitutional petitions were dismissed.

Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Dr. Akhtar Hussain Khan v. Federation of Pakistan 2012 SCMR 455; Ellahi Cotton Ltd. v. Federation of Pakistan PLD 1997 SC 582 and Power Construction Corporation of China v. WAPDA PLD 2017 SC 83 ref.

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

----S. 13---Retirement---Scope---Plain language of S. 13(1) of the Civil Servants Act, 1973 explicitly states that a civil servant has the right to serve up to the 20th year of his service, except in cases of misconduct---Afterward, the concept of vested right is replaced with the discretion of the competent authority in the public interest---In this context, a civil servant cannot claim to continue his service beyond the 20-year period until the age of superannuation as it is subject to conditions that require evaluation by the competent authority---Similarly, in cases of promotion, the determination of eligibility criteria is an essential administrative matter falling within the exclusive domain and policy-making of the government---Courts cannot interfere in these matters, as no vested right is granted to a government employee regarding promotion or the rules that determine his eligibility or fitness---Constitutional petition was dismissed.

Dr. Muhammad Hussain v. Principal, Ayub Medical College PLD 2003 SC 143; Government of Khyber Pakhtunkhwa v. Hayat Hussain 2016 SCMR 1021 and The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan PLD 1960 SC 81 ref.

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

----S. 13---Retirement---Scope---Paramount consideration for retiring a civil servant after completion of his 20 years of service is the will and choice of the competent authority as to whether it is interested to allow the civil servant to continue his service or otherwise but, the predominant factor is the public interest, which can only be evaluated by the competent authority, hence the exclusive domain of the competent authority cannot be questioned if it is based on the concept of fitness i.e. whether the particular post and position necessitate a qualified person amongst his peers having eligibility to tackle the highest skill position in the larger public interest.

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

----Ss. 4 & 13---Tenure of office of civil servants---Pleasure doctrine---Scope---Retirement---Scope---Pleasure doctrine is not based on any special prerogative of the Government but is rooted in public policy and serves the public interest---Underlying principle of the pleasure doctrine is that the public has a significant stake in the efficiency and integrity of the civil servants---Therefore, public policy necessitates that the public can demand that a civil servant who is inefficient, dishonest, corrupt, or has become a security risk should not be allowed to continue in service.

Malik Muhammad Bashir Lakhesar, Assistant Advocate General Punjab v. Government of Punjab 2019 PLC (C.S.) 266 ref.

(m) Civil Servants (Directory Retirement from Service) Rules, 2020---

----Rr. 2(1)(c) & 5(1)(e)---Government Servants (Efficiency and Discipline) Rules, 1973, R. 2(4)---Civil Servants Act (LXXI of 1973), S. 13---Retirement---"Conduct unbecoming" as distinguished from "misconduct"---Scope---Inclusion of term unbecoming of civil servant in terms of Rule 5(1)(e), though a negative phrase but an exception has been created from the definition of misconduct provided in Government Servants (Efficiency and Discipline) Rules, 1973, in order to protect a civil servant from a stigma and to give him a way out from the civil service with his pensionary benefits without declaring him guilty under the concept of misconduct.

Krushnakant B. Parmar v. Union of India (2012) 3 SCC 178; Muhammad Asad Ullah Sheikh v. Government of Pakistan 2003 SCMR 392 and Wazir Zada v. Chief of Air Staff, Pakistan Air Force 1998 SCMR 1579 rel.

(n) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Scope---Directory retirement is not a punishment or stigma upon the civil servant, rather the absolute authority vests with the Federal Government to consider a person to continue with his job after 20 years of his service based on certain objective criteria as laid down in the Civil Servants (Directory Retirement from Service) Rules, 2020 and it is not a choice of the civil servant to claim exemption from the rules, which have been made by the competent authority after due consideration and subject to a transparent process including but not limited to right of hearing, evaluation, show cause notice, etc.

(o) Civil Servants (Directory Retirement from Service) Rules, 2020---

----Rr. 5 & 6---Constitution of Pakistan, Art. 10-A---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Right to fair trial---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Absolute authority given under S. 13 of the Civil Servants Act, 1973, has been regulated through the Civil Servants (Directory Retirement from Service) Rules, 2020, as such, the Rules have provided a separate remedy of appeal and review to retired servant if he is aggrieved by the decision of the competent authority---Due protection of Art. 10-A of the Constitution has been envisaged in the Rules, hence it is not justified to declare them ultra vires to the Constitution as the test laid down in different pronouncements of the Supreme Court has fully been observed while making the Rules more effective which are also need of the hour to save the Country from all those officials whose services are no more required in the public interest---Moreover, under Rule 6(6) of the Rules a complete procedure, including issuing show cause notice and affording opportunity of personal hearing, is provided, as such, a civil servant, who has been proposed for directory retirement would have full opportunity to explain his position and he cannot claim that he has been condemned unheard.

Muhammad Qadeer v. The Secretary, Defence Production Division 2003 PLC (C.S.) 1389; Chairman, Central Board of Film Censors, Islamabad v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707 and Abdul Majeed v. Government of Pakistan through Secretary, Establishment Division 2006 SCMR 1415 ref.

(p) Interpretation of statutes---

----Prospective application---Scope---Legislation that touches the vested rights of individual cannot be given retrospective effect unless clearly indicated by the legislature.

The Collector of Sales Tax and Federal Excise v. Agro Chemical (Pvt.) Ltd. 2020 PTD 679 ref.

(q) Interpretation of statutes---

----Delegated legislation---Scope---Delegated legislation cannot override the statute either by exceeding authority or by making provision inconsistent with parent statute---General power to make rules or legislation for carrying out or giving effect to statute is strictly ancillary to its nature and cannot enable the authority on which the power is conferred to extend the scope of general operation of the statute---Similarly, the authority cannot extend the purpose of statute or add new or different meaning of carrying it out or depart from or vary its terms---Any rule/regulation which the authority has power to make is liable to be declared invalid if powers entrusted for one purpose are deliberately used with design of achieving another or if it shows on its face misconstruction of law or failure to comply with conditions prescribed under the parent statute for the exercise of the powers or if it is not capable of being related to any purpose mentioned in the parent statute.

Ahmad Mehmood v. Government of Punjab PLD 2019 Lah. 206 ref.

(r) Interpretation of statutes---

----Delegated legislation---Scope---Criteria to consider the subordinate/delegated legislation to be given protection or to declare it otherwise is to be settled by way of a test, whether the same surpasses the parent statute, per se.

Khawaja Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Pakistan through Secretary Finance v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar 2003 SCMR 370 and ZTBL v. Said Rehman 2013 SCMR 642 ref.

(s) Words and phrases---

----Public interest---Definition.

The general welfare of public that warrants recognition and protection or something in which the public as a whole has a stake, especially an interest that justified governmental regulation.

Black's Law Dictionary (8th Edition) rel.

Something in which public at large had some interest or by which their rights or liabilities were affected, but would not mean interest of a particular person.

English Biscuits Manufacturers (Pvt.) Ltd. v. Monopoly Control Authority and another 2005 CLD 264 and Janata Dal v. H.S. Chowdhary and others AIR 1993 SC 892 rel.

(t) Constitution of Pakistan---

----Arts. 10-A & 4---Right to fair trial---Rights of individuals to be dealt in accordance with law---Scope---Article 10-A of the Constitution provides a right to fair trial and due process at all forums, which is the fundamental right, as such, any deviation from such principle conclusively vitiates the proceedings, if any---Similarly, Art. 4 acknowledges the right of due process where a person shall have a notice of proceedings which affected his right; such person must be given a reasonable opportunity to defend himself; the adjudicatory tribunal or forum must be so constituted as to convey a reasonable assurance of its impartiality and that such tribunal or forum must possess composite jurisdiction.

New Jubilee Insurance Co. Ltd. v. National Bank of Pakistan PLD 1999 SC 1126 ref.

(u) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Right of fair trial means grant of proper hearing to an accused person by an unbiased competent forum and that justice should not only be done but be seen to be done---Adjudicatory tribunal or forum is duty bound to treat a person in accordance with law, to grant him a fair hearing, and for itself to be an impartial and fair tribunal.

(Suo Motu Case No.4/2020) PLD 2012 SC 553 ref.

(v) Constitution of Pakistan---

----Art. 199---Public interest litigation---Scope---Pro bono publico can only be applied in those cases where public interest is the primary factor and secondly for the public good or welfare of general public.

Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Premium Battery Industries Limited v. Karachi Water Sewerage Board 2018 SCMR 365 and Muhammad Ahmad Pansota and others v. Federation of Pakistan PLD 2020 Lah. 229 rel.

(w) Civil service---

----Termination from service---Scope---Powers of the Government to terminate the service of an employee in public interest , though not unqualified or unrestricted, are to be regulated in the manner and in the interest of efficiency of public bodies, however the Government should have the authority to terminate the employment of inefficient, corrupt, indolent character and disobedient employee---However, said authority must be exercised fairly, objectively and independently, and the occasions for exercise must be delimited with precision and clarity---Further, there should be adequate reasons for the use of such power, and the decision in this regard has to be taken in a manner showing fairness, that avoids arbitrariness and evokes credibility.

Delhi Transport Corporation v. DTC Mazdoor Congress AIR 1991 SC 101 rel.

(x) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Policy decision---Scope---High Court cannot sit as a court of appeal over the policy decision and substitute its own decision with the decision of the Government unless it is proved that the decision has been made in excess of jurisdiction or same is arbitrary or devoid of any justification.

Institute of Chartered Accountants of Pakistan, Karachi v. Federation of Pakistan 1998 SCMR 2679 ref.

(y) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Legislative enactment, vires of---Judicial review---Scope---Courts are guided by certain set of rules in discharging their solemn duty to declare laws passed by legislature unconstitutional or otherwise in which the foremost principle applied is when a law is enacted by the Parliament, the presumption is that the Parliament had competently enacted it (law) and if the vires of the same (law) are challenged, the burden is always upon the person making such challenge to show that the same (law) is violative of any of the fundamental rights or provision of the Constitution---In a case where two opinions with regard to the constitutionality of the enactment are possible, the one in favour of validity of enactment is to be adopted---It is also cardinal principle of interpretation that law should be interpreted in such a manner that it should be saved rather than destroyed---Courts should lean in favour of upholding the constitutionality of a legislation and it is thus incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional.

Messrs Sui Sothern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

Petitioners by:

Omar Farouk Adam and Ms. Ghanwa Ejaz Khan for Petitioner (in W.P. No.1355 of 2020).

Muhammad Shaoib Shaheen, Mirza Waqas Qayoom and Saif-ur-Rehman Shah Bukhari for Petitioner (in W.P. No.1809 of 2020).

Barrister Zafarullah Khan for Petitioner (in W.P. No.2489 of 2020).

Respondents by:

Barrister Muhammad Mumtaz Ali, A.A.G.

Anita Turab, Joint Secretary (CP-II), Ayesha Bashir Wani, J.S. Litigation, Muhammad Saleem Khattak, D.S. (CP-IV), Ms. Nisha, Deputy Secretary (CP-I), Mehmood Khan Lakho, S.O. Lit.VI, Nadeem Arshad, S.O. Lit.V, Abdul Qayoom Kakar, S.O. (CP-VI), for Establishment Division, Islamabad.

Karachi High Court Sindh

PLCCS 2023 KARACHI HIGH COURT SINDH 19 #

2023 P L C (C.S.) 19

[Sindh High Court]

Before Naimatullah Phulpoto and Adnan-ul-Karim Memon, JJ

FAISAL MANZOOR ANSARI and others

Versus

FEDERATION OF PAKISTAN through Secretary and 2 others

Constitutional Petitions Nos.D-3531, 3739 and 4184 of 2020, decided on 16th May, 2022.

Civil service---

----Factual controversy---Departmental proceedings---Issuance of fake licenses to pilots---Petitioners were employees of Pakistan Civil Aviation Authority, who were being proceeded departmentally on the allegations of issuing fake licenses to pilots---Validity---Discretionary jurisdiction under Art.199 of the Constitution, could not be exercised in a vacuum and had to be grounded on valid basis showing violation of specific enforceable legal or Constitutional rights---Such discretion was to be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as by the superior courts---Necessary factors were lacking and High Court in exercise of Constitutional jurisdiction vested under Art.199 of the Constitution could neither enter into factual controversy nor decide disputed questions of fact---High Court declined to interfere in the matter, as the same pertained to disputed questions of fact---Constitutional petition was dismissed, in circumstances.

Muhammad Safdar Anjum and 4 others v. Pakistan International Airline Corporation through Managing Director 2016 PLC (C.S.) 1219; Muhammad Naeem Akhtar v. Managing Director Water and Sanitation Agency LDA Lahore and others 2017 SCMR 356; Tariq Maqsood v. Government of Pakistan and others 2018 PLC (C.S.) 997; Khawaja Muhammad Azeem's case C.P.No.D-3739/2020; Suo Motu case No.1 of 2020; 2021 SCMR 1080; Messrs Sui Southern Gas Company Ltd. v. Zeeshan Usmani and others 2021 SCMR 609; Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278 and V.C Bacha Khan University Charsadda, Khyber Pakhtunkhwa and others v. Tanveer Ahmad and others 2021 SCMR 1995 ref.

Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others 2022 SCMR 406 rel.

Ali Lakhani for Petitioner (in C.Ps. Nos.D-3531 and 4184 of 2020).

Khawaja Muhammad Azeem for Petitioner (in C.P. No.D-3739 of 2020).

Dr. Shahnawaz Memon for Respondent No.2 (in all petitions).

Muhammad Nishat Warsi, D.A.G.

PLCCS 2023 KARACHI HIGH COURT SINDH 194 #

2023 P L C (C.S.) 194

[Sindh High Court]

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

GHULAM HUSSAIN

Versus

PROVINCE OF SINDH through Secretary Education and Literacy Department and 2 others

C.P. No.D-4462 of 2020, decided on 31st March, 2021.

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

----R.16---Constitution of Pakistan, Arts. 5, 25 & 199---Naib Qasid, appointment of--- Qualification of candidates---Petitioner applied for the post of Naib Qasid and after passing the written test, he was called by the Selection Committee for interview---Petitioner grievance was that despite successful completion of all the codal formalities by him, his case has not been processed, although, he was the most qualified candidate for the subject post amongst all the candidates, who appeared in the written test and interview---Held, that the post of Naib Qasid was in BPS-01 as disclosed in the advertisement and the rule position was that the initial appointment to the posts in basic scales 3 to 10 could be made on the recommendations of the Departmental Selection Committee after the vacancies in these basic scales had been advertised in the newspapers and the candidate for the appointment by initial recruitment must possess the educational qualification and experience and be within the age limit as laid down for that appointment---Posts in BPS 1 and 2 could ordinarily be filled on the local basis as per R.16 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Said Rule did not envisage the procedure adopted by the respondents to fill the subject post , which prima facie, has been done in a cursory manner---Only requirement to fill the subject post was that a candidate must possess the educational qualification and experience and be within the age limit as laid down under the recruitment rules, which the petitioner fulfilled and the respondents (appointing authority) ought not to have rejected his candidature on the analogy put forward by them---In response to the post advertisement, 135 applications were received against two vacant posts of Naib Qasid and all 134 applicants including the petitioner were issued admit card for the screening test---Screening test was conducted and based on the same, 10 candidates were shortlisted for the interview by the respondents----All candidates appeared for an interview before the interview committee---Reason for non suiting the petitioner was that the suitable candidates were appointed against the vacant post on the recommendation of the respondents---Representative of the respondent department did not show any successful candidate, more qualified than the petitioner for the subject post---Only reason put forward by respondents was that a more qualified candidate could not preform the duty of Naib Qasid as such petitioner was not considered for the subject post---Such ground was hardly a ground to non suit the petitioner and the same was based on a mere presumption which had no basis under the law----Constitutional petition was allowed and the decision taken by the respondents for the appointment of Naib Qasid was declared to be erroneous and of no legal effect---Matter was remanded to the competent authority of respondents for afresh decision on the issue of appointment of Naib Qasid under law and to consider the case of the petitioner for the subject post within two months from the date of receipt of the present order and submit compliance report.

(b) Constitution of Pakistan---

----Art.25---Civil service---Over-qualified candidate---Discrimination---Petitioner applied for the subject post voluntarily and succeeded in the written test as well as in the interview---Petitioner's candidature was not considered based on the presumption that he would not work as Naib Qasid, being highly qualified---Objection raised by respondents (appointing authority) was of no legal effect as it would be hit by the prohibition contained in Art.25 of the Constitution---High Court declared that the impugned action/ order of the respondents was in violation of the strict and prohibitory command contained in Art. 25 of the Constitution, because petitioner had been treated with sheer discrimination, which could not be approved on any premises whatsoever---Constitutional petition was allowed, in circumstances.

----Art.5---Obligations of the State Functionaries---Scope---Imperative obligation of the functionaries of the State is to abide by the Constitution and the law.

I.A. Sherwani and 14 others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 rel.

Majid Ali Khichi for Petitioner.

Sibtain Mehmood, Addl. A.G. along with Shahmir Khan Bhutto, Director General, Monitoring and Evolution, Government of Sindh.

PLCCS 2023 KARACHI HIGH COURT SINDH 202 #

2023 P L C (C.S.) 202

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

TUFAIL AHMED SHAIKH

Versus

FEDERATION OF PAKISTAN through Secretary Communication and 4 others

Suit No.2679 and C.M.A. No.19791 of 2021, decided on 17th January, 2022.

National Highway Authority Employees Services Rules, 1995---

----R.30---Postings and transfers---Scope---Plaintiff assailed the order of his posting and transfer---Validity---Appointment letter of plaintiff provided that he could be posted or transferred to the head office or to the Directorate General, National Highway or sub office anywhere in Pakistan---No question of violation of any fundamental right existed and it was not established at all by the plaintiff that it was a colourable exercise of power as he himself had placed an itinerary of his transfer and posting which showed that for almost all, he had never had remained at any post for a period of three years approximately---Employee with such rules as called National Highway Authority Employees Service Rules, 1995 or the terms and conditions of service, either statutory or accepted ones, could not object to such transfers and postings being part and parcel of service terms---Application seeking injunctive orders was dismissed.

Ahmed Ali Hussain and Syed Zaeem Hyder for Plaintiff.

Khursheed Jawad, Deputy Attorney General for Defendant No.1.

Abdul Rashid Rajpar for Defendants Nos.2, 3 and 4.

Yasir Ahmed Shah and S. Abrar Ahmed Bukhari for Defendant No.5.

PLCCS 2023 KARACHI HIGH COURT SINDH 228 #

2023 P L C (C.S.) 228

[Sindh High Court]

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

ASIF ALI MEMON

Versus

PROVINCE OF SINDH through Chief Secretary Government of Sindh and another

Constitutional Petition No.D-6221 of 2021, decided on 9th February, 2022.

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

----S.10---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Posting of choice---Tenure post---Petitioner was civil servant who called in question his transfer and posting orders---Plea raised by petitioner was that duty on which he was working was assigned to him by Supreme Court---Validity---Civil servant could not insist under S. 10 of Sindh Civil Servants Act, 1973, to be posted or transferred to a particular post---Civil servant could not be humiliated by replacing him through officer junior to him---Minimum period during which a civil servant must serve at his post was not prescribed under S.10 of Sindh Civil Servants Act, 1973---Government without assigning any reason could not move a civil servant from the place he was posted to after a month or subject the civil servant to repeated postings in a short period because such would amount to punishing him--- Such postings also adversely affected public interest and could result in wastage of rare resources and constitute bad governance---Rules and regulations of Karachi Development Authority (KDA) designated certain posts as 'tenure posts' and prescribed certain tenure for an incumbent to serve on such posts---Prescribed tenure could be categorized as ideal duration for which a civil servant should serve at a particular post---Post of Director General KDA though was not a tenure post in its terms, however, principle of serving for a particular duration at post in question should be followed---Petitioner was posted for a little over a month when he was again posted---Any civil servant posted to a particular post required some time to familiarize himself with workings of office and requirements of post whereafter he would be best placed to acquit himself of responsibilities of the post---One month posting of petitioner could not serve interest of public at large---Matter was not maintainable under Constitutional command as provided under Art. 212(2) of the Constitution---Constitutional petition was dismissed accordingly.

Syed Mehmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Aneeta Turab's case PLD 2013 SC 195; Karamat Ali and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2018 Sindh 8; Zahid Akhtar v. Government of Punjab through Secretary, Local Government, and Rural Development, Lahore and 2 others PLD 1995 SC 530; Asif Ali Memon v. The Province of Sindh through Chief Secretary and 2 others 2019 PLC (C.S.) 492; Asadullah Rashid v. Muhammad Muneer 1998 PLC (C.S.) 1371; 2021 SCMR 1168; 2020 PLC (C.S.) 297; 2016 PLC (C.S.) 518; 2014 PLC (C.S.) 797; 2012 PLC (C.S.) 489; 2009 PLC 735; 1992 SCMR 1843; 1997 SCMR 167; Syed Liaqat Shah v. Vice Chancellor University of Engineering and Technology Peshawar and others 2019 PLC (C.S.) 74 and Province of Sindh v. Ghulam Fareed 2014 SCMR 1189 ref.

Khalilullah Kakar v. Provincial Police Officer 2021 SCMR 1171; Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Khan Muhammad v. Chief Secretary Government of Balochistan and others 2018 SCMR 1411 rel.

Khawaja Shams-ul-Islam along with Petitioner assisted by Shahzad Mahmood, Imran Taj, Vaqas Nadim Khan, Khalid Iqbal and R.B. Qureshi for Petitioners.

Salman Talibuddin, Advocate General Sindh along with Sheheryar Mehar, Additional A.G. and Ali Safdar Depar, Assistant A.G.

Zia-ul-Haq Makhdoom for Applicants/interveners along with Abdullah Nizamani and Faisal Aziz for Respondents.

PLCCS 2023 KARACHI HIGH COURT SINDH 269 #

2023 P L C (C.S.) 269

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

SHAHZAD SHER ALI

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Commerce and Textile, Islamabad and 2 others

Constitutional Petition No.1928 of 2020 along with Constitutional Petitions Nos.D-1929, D-1930, D-1931, D-1932 and D-1933 of 2020, decided on 11th August, 2022.

Constitution of Pakistan---

----Art.199---Constitutional petition---Civil Service---Non-statutory rules---Relationship of master and servant---Petitioners were employees of National Insurance Company who assailed their dismissal from service---Plea raised by petitioners was that they had sought enforcement of fundamental rights and principles of natural justice---Validity---If Constitutional petition was filed for enforcement of any fundamental right against a Limited Company owned by Government and engaged in discharge of any public duty, then it could be maintained and High Court in given facts and circumstances of a particular case could exercise its jurisdiction in terms of Art. 199 of the Constitution--- Such function test was limited to a petition filed under Art. 199 of the Constitution by an employee against companies owned and operated by Government in respect of its terms and conditions of service---In absence of any statutory rules of employment, principle of master and servant was to apply---No statutory rules were available of insurance company regulating employment, therefore, petition was not maintainable before High Court under Art.199 of the Constitution---Petitioners were at liberty to seek any other appropriate remedy as could be available to them in accordance with law---Constitutional petition was dismissed, in circumstances.

Muhammad Aslam v Federation of Pakistan and others (C.P No.D-5833 of 2021) and Sui Southern Gas Company Limited v. Saeed Ahmed Khoso and another (Civil Appeal No. 1477 of 2021) ref.

Principal Cadet College, Kohat and another v. Mohammad Shoaib Qureshi PLD 1984 SC 170; Pakistan International Airline Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676; Pakistan Telecommunication Co. Ltd., v. Iqbal Nasir PLD 2011 SC 132 and Pakistan Electric Power Company v. Syed Salahuddin 2022 SCMR 991 rel.

Altamash Arab for Petitioners.

Syed Khurram Niazam and Hasan Khurshid Hashmi for Respondents.

Muhammad Nishat Warsi, D.A.G for Federation of Pakistan.

PLCCS 2023 KARACHI HIGH COURT SINDH 341 #

2023 P L C (C.S.) 341

[Sindh High Court]

Before Naimatullah Phulpoto and Adnan-ul-Karim Memon, JJ

Professor Dr. MUHAMMAD ARSHAD AAZMI

Versus

PROVINCE OF SINDH through Chief Secretary Sindh and 2 others

Constitution Petition No.D-3077 of 2021, decided on 31st May, 2022.

(a) Constitution of Pakistan---

----Arts.4, 10-A & 199---Constitutional petition---Intelligence reports---Due process of law, principle of---Applicability---Petitioner was aggrieved of non-issuance of appointment letter on the basis of intelligence reports---Validity---Without disclosure of adverse materials and affording opportunity of defense, petitioner was deprived of his appointment order, which act of respondents was not only unfair but also against principles of natural justice and spirit of Arts. 4 & 10-A of the Constitution---Principle audi alteram partem was always considered to be embedded in statue, even if there was no implied or express provision--- No adverse action could be taken against anyone without providing an opportunity of defense to rebut the material---High Court directed competent authority to call for character and antecedent reports of petitioner afresh from concerned agencies, as it was brought on record that petitioner was involved in immoral activities and did not enjoy good reputation---High Court further directed that in case intelligence reports regarding character and antecedents of petitioner were adverse, then petitioner would be confronted with the material sought to be used against him, who was entitled to an opportunity of defense to rebut the material, to satisfy requirements of principles of natural justice and to obey command of Art. 4 of the Constitution---High Court also directed that in case character and antecedent reports of petitioner were found satisfactory the competent authority, would issue appointment order to the petitioner---Constitutional petition was disposed of accordingly.

Constitution Petition No.D-6604 of 2020 rel.

Sameen Asghar v. Federation of Pakistan through Principal Secretary to the Prime Minister and 12 others 2010 PLC (C.S) 725; Ahmed Saeed Siddiqui and others v. Pakistan through Secretary Establishment and others 2015 PLC (C.S) 923; Muhammad Zafeer Abbasi Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Islamabad v. Government of Pakistan through its Secretary, Establishment Division Islamabad and 4 others 2003 PLC (C.S.) 503; Tanvir Ashraf v. Ch. Riasat Ali and 5 others 2004 YLR 659; Muhammad Akbar Khan Hoti v. Federation of Pakistan 2006 PLC (C.S) 619; Secretary Establishment Division Government of Pakistan v. Dr. Muhammad Arif and others 2017 PLC (C.S.) 907 and Muhammad Zubair and others v. National Command Authority and others 2018 PLC (C.S) 519 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Vested Right---Scope---While exercising Constitutional jurisdiction, if vested right has been created in favour of any party, denial thereof justify issuance of direction by High Court in Constitutional jurisdiction to set right the wrong---Constitutional Court under Art. 199 of the Constitution, has ample jurisdiction to give directions to public functionaries to act strictly in accordance with law in view of Art. 4 of the Constitution---Purpose of Constitutional jurisdiction is to do justice and no one should be allowed to get away with ill-gotten gains---High Court, in exercise of Constitutional jurisdiction, acts as conscious keeper of the Constitution and ultimate protector of rights of the citizens---High Court cannot shut its eyes to misuse of powers of state functionaries---No legal embargo existed for filing of Constitutional petition for availing immediate relief by aggrieved persons against state functionaries if misusing their legal authority.

Obaid-ur-Rehman for Petitioner.

Ali Safdar Depar Assistant Advocate General along with Bhuromal Focal person Universities and Board Department, Government of Sindh for Respondents.

PLCCS 2023 KARACHI HIGH COURT SINDH 418 #

2023 P L C (C.S.) 418

[Sindh High Court (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

Qazi SATTAR AHMED alias Abdul Sattar

Versus

MANAGING DIRECTOR (POWER), WAPDA HOUSE, LAHORE and 4 others

Constitution Petition No. D-383 of 2011, decided on 13th January, 2022.

Civil service---

----Move over---Scope---Petitioner sought move over from BPS-17 to BPS- 18---Validity---Petitioner was appointed vide appointment letter dated: 11-05-1974---His services were placed in BPS-16 with effect from 11-10-1983---Move over was granted to the petitioner vide office order dated 17-02-1998 with effect from 01-12-1993---Regular promotion was allowed to the petitioner vide office order dated: 16-01-1997 and his name was placed at Sr. No. 3 and the name of another employee was available at Sr. No. 12, who thereafter was granted move over from BPS-17 to 18---Cases of the employees who were already eligible were to be decided as per rules already being followed---Since the petitioner was granted move over from BPS-16 to 17 vide office order dated 17-02-1998 with effect from 01-12-1993, therefore, he was entitled to the next move over as per the guidelines dated: 06-07-1986---Petition was allowed and the respondents were directed to consider the case of petitioner afresh.

Sarfraz A. Akhund for Petitioner.

Sohail Ahmed Khoso for Respondent No.2.

Qurban Ali Malano for Respondent No.5.

Muhammad Hamzo Buriro, D.A.G. for the State.

PLCCS 2023 KARACHI HIGH COURT SINDH 447 #

2023 P L C (C.S.) 447

[Sindh High Court]

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

SHAHNAWAZ and 36 others

Versus

PROVINCE OF SINDH through Chief Secretary and others

C.P. (D) No.7528 of 2018 in C.M.As. Nos.8679, 32957 of 2021 and C.P. (D) 4291 in C.M.A. No. 18053 of 2020, decided on 22nd February, 2022.

(a) Civil service---

----Contractual employees---Regularization of services---Scope---Petitioners sought regularization of their contractual service---Validity--Petitioners had cleared the written examination, which was a pre-condition before they could be appointed to the posts applied for but the written test could not gauge the personality of the candidate or his communication skills, or his leadership or decision-making abilities which were left to be examined at the time of the interview---Interview was a subjective test and a Court of law could not substitute its own opinion for that of the interviewing board---Summary was sent to the Competent Authority with the proposal that the services of the petitioners be retained in the public interest for successful implementation of computerization of land records in the province---However, Competent Authority had proposed that the services of petitioners be regularized through a competitive process through public notice afresh---Constitutional petitions were allowed while holding that the appointments of petitioners in the department were based on the process that was substantially and tangibly fair and within the parameters of its applicable rules and regulations through the competitive process on merits.

Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157 and Federation of Pakistan through Secretary Establishment Division v. Ghulam Shabbir Jiskani 2011 SCMR 1198 ref.

(b) Civil service---

----Appointment of civil servant---Contractual appointment---Scope---Posts are of two kinds one is called temporary post which is always a time-bound post, and the post which is not time-bound is always treated as a permanent post and there is no concept of any contract post in service jurisprudence; and, in the service regulations there is no post which can be termed as contract post as a separate cadre; and, there is no procedure whatsoever which provides appointment by way of contract, therefore, the provincial government is bound to ensure that every appointment in the basic scales is to be made, in their departments, under the regular mode of appointment/service and not otherwise.

Government of Balochistan v. Dr. Zahida Kakar and 43 others 2005 SCMR 642; Dr. Mubashir Ahmed v. PTCL through Chairman, Islamabad, and another 2007 PLC (C.S.) 737; Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore, and others PLD 2010 SC 841; Federation of Pakistan v. Muhammad Azam Chattha 2013 SCMR 120; Muzafar Khan and others v. Government of Pakistan and others 2013 SCMR 304; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Chairman NADRA, Islamabad through Chairman, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Raja Iviz Mehmood and another v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others 2018 SCMR 162; Maj. (R) Syed Muhammad Tanveer Abbas and other connected Appeals 2019 SCMR 984; Unreported order dated 13.03.2019 passed by the Hon'ble Supreme Court in C.P. No.2792/2018 and other connected petitions, Province of Punjab through Secretary Agriculture Department, Lahore, and others v. Muhammad Arif and others 2020 SCMR 507; Miss Naureen Naz Butt v. Pakistan International Airlines and others 2020 SCMR 1625; Water and Power Development Authority v. Irtiqa Rasool Hashmi and another 1987 SCMR 359 and Secretary, Ministry of Defence, Rawalpindi and others v. Muhammad Miskeen 1999 SCMR 1296 ref.

----Appointment of civil servant---Scope---Appointment in public office can only be made through the competitive process on merit as provided under the recruitment rules and not otherwise.

Government of Khyber Pakhtunkhwa v. Adnanullah 2016 SCMR 1375; Government of N.W.F.P. (Now KPK) through its Chief Secretary v. Kaleem Shah 2011 SCMR 1004; Ghulam Mustafa v. Omaid Ali 1984 SCMR 1126; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350; Chairman, Minimum Wage Board, Peshawar v. Fayyaz Khan Khattak 1999 SCMR 1004; Muhammad Akhtar Shirani v. Punjab Textbook Board 2004 SCMR 1077; Federation of Pakistan v. Gohar Riaz 2004 SCMR 1662; Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159; Government of N.W.F.P. through Secretary, Education Department, Peshawar v. Qasim Shah 2009 SCMR 382; Sumara Umar Awan v. Chancellor Gomal University, D.I. Khan, 2014 PLC (C.S.) 526; Rafaqat Ali v. Executive District Officer (Health), 2011 PLC (C.S.) 1615; Shabana Akhtar v. District Coordination Officer, Bhakkar 2012 PLC (C.S.) 366; Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Ziaullah Khan v. Government of Pakistan through Secretary, Law, Justice and Human Rights Islamabad and 3 others 2011 PLC (C.S.) 7; Ejaz Akbar Kasi v. Ministry of Information and Boradcasting and others 2011 PLC (C.S.) 367; Shahid Habib v. Government of Khyber Pakhtunkhwa 2019 PLC (C.S.) 1426; Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission and others 2017 SCMR 637; Inspector General of Police and others v. Ali Abbas and others 1985 SCMR 946; Professor Abdul Qayyum Qureshi v. Government of Punjab and others 1975 SCMR 457; Secretary Schools Government of Punjab Education Department and others v. Yasmeen Bano 2010 SCMR 739; Chairman Pakistan Railways and others v. Arif Hussain and others 2008 PLC (C.S.) 240; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Board of Intermediate and Secondary Education, Multan through Chairman and others v. Muhammad Sajid and others 2019 PLC (C.S.) 539; Province of Punjab through Secretary Communication and Works Department and others v. Ahmad 2013 SCMR 1547; Secretary to Government of Pakistan, Ministry of Finance and others v. Muhammad Hussain Shah and others 2005 SCMR 675 ref.

(d) Civil service---

----Appointment of civil servant---Scope---Appointments in public office are to be made strictly under applicable rules and regulations without any discrimination and in a transparent manner---All appointments in the public institution must be based on a process that is substantially and tangibly fair and within the parameters of its applicable rules, regulations and bylaws.

Muhammad Yaseen v. Federation of Pakistan PLD 2012 SC 132; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159; Tariq Azizuddin: in re, 2010 SCMR 1301; Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; Contempt Proceedings against Chief Secretary Sindh and others 2013 SCMR 1752 and Syed Mubashir Raza Jafri and others v. Employees Old-age Benefits Institution (EOBI), 2014 SCMR 949 ref.

M.M. Aqil Awan and Danish Rashid Khan for Petitioners.

Ali Safdar Depar, A.A.G. along with Ghulam Ali Birhmani, Additional Secretary (Services-I), SGA&CD, Karachi, Abdul Sami, Deputy Director, Live Stock Department and Abdul Wajid Shaikh, Secretary-cum-Director, Board of Revenue, Karachi for Respondents.

PLCCS 2023 KARACHI HIGH COURT SINDH 527 #

2023 P L C (C.S.) 527

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

SULTAN AHMED HASHMANI

Versus

Messrs THATTA CEMENT COMPANY LIMITED through Chief Executive and another

Suit No.51 of 2017 and C.M.A. No.5665 of 2018, decided on 22nd February, 2022.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Dismissal from service---Suit for damages---Rejection of plaint---Lack of cause of action---Scope---Suit for recovery of damages---Plaintiff was dismissed from service---Plaintiff filed a petition against his dismissal, which was dismissed because the plaintiff's remedy was available before Service Tribunal and jurisdiction of the High Court was barred under Art. 212 of the Constitution---Plaintiff filed appeal before the Federal Service Tribunal, which was dismissed---Petitions for leave to appeal before Supreme Court were filed but the leave was refused---Plaintiff again after exhausting the remedy upto the Supreme Court filed a constitutional petition before the High Court, which too was dismissed---Dismissal of petition was then followed yet again by a suit before the Civil Court wherein the plaint was rejected under O.VII, R.11, C.P.C.---Plaintiff preferred appeal, which met the same fate---Plaintiff did not lose hope and filed second appeal, however, that too was dismissed---Matter was taken to the Supreme Court wherein after arguing the matter at length, permission was granted to withdraw the petition, however, it was for the purpose of availing appropriate remedy---Appropriate remedy as discovered by the plaintiff was in the suit for recovery of damages---Cause of action to claim damages had ceased when the plaintiff's dismissal was held lawful and confirmed---Damages could only follow on the count of unlawful dismissal in terms of pleadings of plaintiff---High Court rejected the plaint under O.VII, R.11, C.P.C. on the basis of the averments raised in the plaint itself.

Afaq Yousuf for Plaintiff.

Ch. Muhammad Ashraf Khan and Amir Latif for Defendant No.1.

PLCCS 2023 KARACHI HIGH COURT SINDH 566 #

2023 P L C (C.S.) 566

[Sindh High Court (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

SIKANDAR ALI and others

Versus

PROVINCE OF SINDH through Secretary Education and Literacy Department, Sindh Sect: Karachi and 4 others

C.P. No.D-89 and C.M.A. No.396 of 2022, decided on 14th April, 2022.

(a) Civil service---

----Promotion, right of---Policy decision by Government, challenge to---Scope---For the post of Junior School Teachers (BPS-14) 50% quota was reserved by promotion from amongst Primary School Teachers (BPS-09) having other qualifications including seniority-cum-fitness; however, the policy was changed by the Government through approval from the Cabinet whereby it was now available only through initial appointment subject to various other conditions---Petitioners (Primary School Teachers) challenged such abrupt change in policy on the premise that a vested right had accrued to them prior to the change in policy and such right could not be taken away by retrospective application of the later notification---Validity---Promotion itself was not a right, and therefore, concept of having a vested right in such circumstances did not arise---Government was well within its rights to alter the policy---No case for indulgence was made out---Constitutional petition was dismissed.

Government of N.W.F.P. v. Buner Khan 1985 SCMR 1158; Izhar Hussain v. Secretary Ministry of Industries 993 SCMR 2258; Tariq Ahmed Pathan v. FBR 2020 PLC (C.S.) 1041; WAPDA v. Haji Abdul Aziz 2012 SCMR 965; Dr. Muhammad Amjad v. Dr. Israr Ahmed 2010 SCMR 1466 and Indus Music Group SMC (Pvt.) Limited v. Federation of Pakistan PLD 2011 Kar.494 distinguished.

WAPDA v. Haji Abdul Aziz 2012 SCMR 965 not considered.

C.E.O Multan Electric Power Company Limited v. Muhammad Ilyas 2021 SCMR 775; Khalilullah Kakar v. Provincial Police Officer, Balochistan 2021 SCMR 1168; Muhammad Sammi Abro v. Province of Sindh 2017 PLC (C.S.) 419; Government of Khyber Pakhtunkhwa v. Saeed-ul-Hasan 2022 PLC (C.S.) 164 and Government of Khyber Pakhtunkhwa v. Hayat Hussain 2016 SCMR 1021 ref.

The Central Board of Revenue v. Mr. Asad Ahmed Khan PLD 1960 SC 81; Zafar Iqbal v. Director Secondary Education 2006 SCMR 1427; Ahmed Ali and another v. Secretary, Establishment Division, Government of Pakistan, Islamabad and others 1999 SCMR 1947; Akhtar Khan Khattak and 3 others v. Province of Sindh through Chief Secretary and others 2013 PLC (C.S.) 440; Ahsan Ali Shah and 10 others v. Province of Sindh through Chief Secretary and 3 others 2019 PLC (C.S.) 1050 and Ahmed Ali and another v. Secretary, Establishment Davison, Government of Pakistan and others 2000 PLC (C.S.) 328 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Civil service---Right to promotion---Scope---Promotion is neither a right nor there is any concept of vested right in the promotion policy and therefore, the employees cannot seek a writ in their favour for such purpose.

Government of Khyber Pakhtunkhwa v Hayat Hussain 2016 SCMR 1021 ref.

The Central Board of Revenue v. Mr. Asad Ahmed Khan PLD 1960 SC 81; Zafar Iqbal v Director Secondary Education 2006 SCMR 1427; Ahmed Ali and another v. Secretary, Establishment Division, Government of Pakistan, Islamabad and others 1999 SCMR 1947; Akhtar Khan Khattak and 3 others v. Province of Sindh through Chief Secretary and others 2013 PLC (C.S.) 440; Ahsan Ali Shah and 10 others v. Province of Sindh through Chief Secretary and 3 others 2019 PLC (C.S.) 1050 and Ahmed Ali and another v. Secretary, Establishment Davison, Government of Pakistan and others 2000 PLC (C.S.) 328 rel.

----Art. 199---Constitutional jurisdiction---Civil service---Policy decision by Government, challenge to---Scope---Executive policy making is not the domain of Court in the scheme of the Constitution; rather, is the prerogative of the executive to ascertain it on the basis of its need, requirement, available resources and fiscal space.

Government of Khyber Pakhtunkhwa v. Saeed-ul-Hasan 2022 PLC (C.S.) 164 ref.

Sohail Ahmed Khoso for Petitioners.

Ali Raza Balouch, A.A.G. for Respondents.

PLCCS 2023 KARACHI HIGH COURT SINDH 605 #

2023 P L C (C.S.) 605

[Sindh High Court]

Before Zulfiqar Ahmad Khan, J

RASHEED AHMED

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through President and another

Suit No.1031 of 2010, decided on 20th July, 2022.

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

----O.II, R.2---"Cause of action"---Connotation---Expression "cause of action" means a bundle of facts which if traversed, a suitor claiming relief was required to prove for obtaining judgment.

(b) Administration of justice---

----"Abuse of process"---Connotation---Term "abuse of process" is the intentional use of legal process for an improper purpose incompatible with lawful function of process by someone with ulterior motive--- Term "abuse of process" is defined as misuse or perversion of regularly issued legal process for a purpose not justified by nature of process---Abuse of process is in fact a tort comprised of two elements: (1) an ulterior purpose and (2) a willful act in the use of process not proper in regular conduct of proceeding.

----Ss.42 & 54---Pakistan Telecommunication Company Limited Service Regulations, 1996, Reglns. 7.01 & 7.02---Suit for declaration, injunction and recovery of damages--- Special and general damages---Scope---Quantum of damages---Determining factors--- Plaintiff was employee of defendant company who was dismissed from service---Plea raised by plaintiff was that Inquiry Committee was not properly constituted and had also sought recovery of special as well as general damages---Validity---Documents exhibited by plaintiff during his evidence did not bear signature of competent authority--- Services of plaintiff was terminated by Inquiry Committee without any legal authority or legislative competency---First Enquiry Report exonerated plaintiff from charges leveled against him---No charge of misconduct remained against plaintiff unless there was something to add on---Re-opening a closed legal event attracted double jeopardy---Damages were always divided into two categories, first were Special damages to be specifically pleaded and proved, which were what plaintiff had claimed regarding loss of earning and out of pocket expenses--- Such special damages were generally capable of exact calculation--- Second kind of damages were general damages which in law were implied upon happening of certain event and so also in case of a favourable decision for a party--- General damages could not be specifically pleaded and were not capable of exact proof strictly, though such damages were not specifically pleaded and proved but any shortcoming or deficiency in plaint or in the evidence would not come in the way of Court to grant any such damages once plaintiff was entitled for such relief---Plaintiff was entitled for some appropriate compensation payable by defendant company---High Court considered quantum of salary which plaintiff was earning, his future economic loss which he suffered due to his wrongful dismissal (including pension prospects, gratuity, medical and other service benefits available to such employees) and fixed an amount of Rs. 25,105,197 (Rupees two crore fifty-one lac five thousand one hundred and ninety-seven only) in lieu thereof as damages/compensation with simple mark-up at the rate of 6% per annum from the date of decree till its realization--- Suit was decreed accordingly.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 PLC (C.S.) 574; Qazi Dost Muhammad v. Malik Dost Muhammad 1997 CLC 546; Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991; Azizullah Sheikh v. Standard Chartered Bank Ltd. 2009 SCMR 276; Mrs. Alia Tareen v. Amanullah Khan PLD 2009 SC 99; National Bank of Pakistan v. Ghulam Muhammad Sagarwala PLD 1988 Kar. 489; Mehboob Rabbani v. Habib Bank Limited 2006 PLC (C.S.) 272; Sufi Muhammad Ishaque v. Metropolitan Corporation Lahore PLD 1996 SC 737 and Gohar Ali and another v. Hoechst Pakistan Limited 2009 PLC (C.S.) 464 rel.

M.M. Aqil Awan, Danish Rashid Khan and Ghulam Akbar Lashari for Plaintiff.

Faisal Mahmood Ghani for Defendants.

PLCCS 2023 KARACHI HIGH COURT SINDH 700 #

2023 P L C (C.S.) 700

[Sindh High Court]

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

MUHAMMAD IQBAL NASEEM

Versus

PROVINCE OF SINDH through Home Secretary and another

Constitutional Petition D-63 of 2021, decided on 23rd February, 2021.

Constitution of Pakistan---

----Art.199---Sindh Shaheed Recognition and Compensation Act (XVI of 2014), S.2(f)---Constitutional petition---Declaration of person as shaheed---Scope---Petitioner's son during his service as a police constable was hit by an unknown driver of a vehicle resulting in his death---Petitioner sought direction to the department to sanction/grant shaheed compensation, other allowances and benefits to the petitioner as admissible under the law as his son had embraced shahadat during service---Validity---Prima facie the case of petitioner's son did not fall within the ambit of Cl. (f) of S. 2 of Sindh Shaheed Recognition and Compensation Act, 2014, which provided the definition of shaheed---Incident of accident was being demonstrated as an act of terrorism---If it was disclosed as an accident, it could not be stretched down as an act of terrorism and if it was terrorism it could not be termed as an accident---No element of terrorism was found to treat the petitioner as shaheed---Committee had rightly rejected the claim of petitioner---Constitutional petition was dismissed.

Jam Shahid Iqbal for Petitioner.

Ali Safdar Depar, A.A.G. for Respondents.

PLCCS 2023 KARACHI HIGH COURT SINDH 711 #

2023 P L C (C.S.) 711

[Sindh High Court]

Before Irfan Saadat Khan and Agha Faisal, JJ

MUHAMMAD ASIF HASHIM MUGHAL

Versus

DAWOOD UNIVERSITY OF ENGINEERING AND TECHNOLOGY through Vice-Chancellor and 3 others

Constitutional Petition No.D-5506 and C.M.A. No.23484 of 2020, decided on 9th December, 2021.

(a) Civil service---

----Deputation---Scope---Petitioner assailed the order whereby he was relieved from service upon belated consideration of being on deputation---Validity---Services of the petitioner were transferred from one university to another, in respect whereof the later had duly executed a No Objection Certificate---Transfer notification was also issued---Former university had relieved the petitioner and the later had accepted the transfer---Record demonstrated that the respective parent statutes of the universities contemplated transfer, as employed in the case of petitioner---Relationship between the petitioner and the later university was governed by their terms of such employment and there was no suggestion therein of the relationship ever having been that of deputation---Petitioner had always been treated as a regular employee and no unilateral interpretation of third party correspondence, five years later, could be demonstrated to deprive the petitioner of any right accrued thereto---Impugned order was set aside and the petitioner was restored to service at the later university, along with all back benefits accrued thereto---Constitutional petition was allowed.

Farooq Hussain v. Shaikh Aftab Ahmed (CRP 104-L of 2019 and connected matters) ref.

(b) Civil service---

----Deputation---Scope---Deputation involves appointment/transfer to a department or service different from the one to which a person originally belongs.

2013 SCMR 1752 ref.

----Absorption---Scope---Non-civil servant cannot be absorbed into posts meant to be filed through the competitive process and no person of a non-cadre post can be transferred and absorbed out of cadre.

2013 SCMR 1752 ref.

M. Arshad Khan Tanoli for Petitioner.

Ali Safdar Depar, Assistant Advocate General Sindh for Respondents.

Kamaluddin for Respondent No.3.

Blosch Ahmed Junejo for Respondents Nos.1 and 2.

PLCCS 2023 KARACHI HIGH COURT SINDH 767 #

2023 P L C (C.S.) 767

[Sindh High Court]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD SALAHUDDIN

Versus

FEDERATION OF PAKISTAN through Secretary Production and Industries and 2 others

Suit No. 1729 of 2010, decided on 31st October, 2022.

Limitation Act (IX of 1908)---

----Art.64---Qanun-e-Shahadat (10 of 1984), Art.133---Civil service---Suit for recovery of outstanding service dues and damages---Limitation---Continuous cause of action---Extent of damages---Fact not cross-examined---Effect---Plaintiff served defendant organization and got release under Voluntary Separation Scheme---Plaintiff sought recovery of his outstanding service dues and damages accrued due to nonpayment of such dues---Plea raised by defendant organization was that the suit was barred by time---Validity---Amount earlier payable to plaintiff was withheld by defendant organization---Grievance of plaintiff was a continuous one, therefore suit was neither barred by law nor was time barred---Non-payment of service dues did not only cause monetary losses to plaintiff but was coupled with metal agony---Plaintiff in order to get his legitimate service dues, had to undergo a protracted litigation---Specific assertion of plaintiff about suffering mental agony was not challenged in cross-examination, meaning it was accepted---There could be no yardstick or definite principle for assessing damages in cases which were meant to compensate a party who had suffered an injury---Plaintiff was entitled for a money decree to the extent of amount proved on record and in addition also entitled to damages of Rupees 1,000,000---Suit was decreed accordingly.

PIAC v. Tanvir-ur-Rehman and others PLD 2010 SC 676 ref.

Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737 and Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 rel.

Plaintiff in person.

Ghulam Mohiuddin, Assistant Attorney General for Defendant No. 1.

Nemo for Defendant No. 2.

Ikhtiar Ali Channa for Defendant No. 3.

PLCCS 2023 KARACHI HIGH COURT SINDH 796 #

2023 P L C (C.S.) 796

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

ALTAF HUSSAIN KHUHRO and 3 others

Versus

FEDERATION OF PAKISTAN and 6 others

Constitutional Petitions Nos.D-1357, D-1275, D-1356 and D-1612 of 2022, decided on 23rd November, 2022.

Civil Servants Act (LXXI of 1973)---

----S.10---Income Tax Ordinance (XLIX of 2001), S.207---Sales Tax Act (VII of 1990), S.30---Federal Excise Act (VII of 2005), S. 29---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Terms and conditions of service--- Postings and transfers--- Petitioners were officers of Audit department and were aggrieved of notification imposing restriction on their postings as Unit incharge in field formations---Validity---Petitioners were civil servants and under S.10 of Civil Servants Act, 1973, they were liable to serve anywhere within or outside the Province to any post under Federal Government or any Provincial Government or local authority---There was no concept of vested right in posting of a civil servant who could be posted anywhere and could not demand or seek posting or transfer at a place of his choice---It was not their right to seek a specific posting or assignment of assessment or field formation---Petitioners could also be posted as Officers on Special Duty without any assignment---This without any other plausible cause, did not by itself give a cause of action to seek enforcement of any constitutional right--- Petitioners as civil servants were bound to obey order of Federal Board of Revenue and postings so assigned for which while entering into service they had agreed---Seeking a person specific relief for some special posting or assignment was not per-se a right, which could be enforced through High Court---Petitioners were officers of Inland Revenue, even if they were not assigned any field formation or assessment related duties---Petitioners claimed to be auditors and it was better if they would remain as auditors, instead of seeking any assessment related assignments---High Court declined to interfere in the matter as the petition was incompetent---Constitutional petition was dismissed, in circumstances.

Umar Baz Khan through L.Rs. v. Syed Jehanzeb and others PLD 2013 SC 268; Ali Raza and 2 others v. Government of Pakistan through Secretary Ministry of Kashmir Affairs and 4 others 2018 PLC (C.S.) 574; Messrs Hudabiya Paper Mills Ltd. v. National Accountability Bureau PLD 2012 Lah. 515; Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066; Pakistan Tobacco Company Ltd. and another v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others 1999 SCMR 382; Moazam Mian and 3 others v. Secretary, Environmental Protection Department, Punjab, Civil Secretariat, Lahore and 2 others 2005 PLC (C.S.) 303; Abdul Hameed Anjum and others v. Federation of Pakistan and others PLD 2010 SC 857; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Limited, Lahore and others 1999 SCMR 1442; The Commissioner Inland Revenue Zone-III, RTO-II, Lahore v. Messrs Hamza Nasir Wire and others 2020 SCMR 1822; Nazir Hussain v. N.W.F.P. 1992 SCMR 1843; Miss Rukhsana Ijaz v. Secretary Education Punjab 1997 SCMR 167 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

Abdul Sattar Pirzada along with Inzimam Sharif for Petitioners (in C.P. No.D-1612 of 2022).

Syeda Abida Bukhari for Petitioners (in C.P. No.D-1357 of 2022).

Syeda Abida Bukhari for Petitioner (in C.P. No.D-1275 of 2022).

Chaudhry Khalid, Rana Azamul Hasan Azeem and Hasan Azeem Rana for Petitioners (in C.P. No.D-1356 of 2022).

S. Yasir Ahmed Shah, Assistant Attorney General for Respondent No.1.

Zafar Imam for Respondent/FBR.

Sadiqullah Kakar holding brief Imran Ali Mithani for Respondent/FBR.

PLCCS 2023 KARACHI HIGH COURT SINDH 889 #

2023 P L C (C.S.) 889

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD ASLAM

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Commerce and 3 others

Suit No.Nil. (-3416) and C.M.A. No.22666 of 2021, decided on 20th January, 2022.

Contract Act (IX of 1872)---

----S.73---Civil service---Termination from service---Master and servant---Compensation for loss or damage caused by breach of contract---Scope---Plaintiff filed a suit against his termination from the defendant company---Validity---Plaintiff was appointed by the company when it acquired corporate status, and their relationship was governed by the master and servant rule---Plaintiff had relied on the Human Resource Manual, which suggested that termination could be done without assigning any reason or as a retrenchment measure, provided a notice of three months or payment in lieu thereof was given---Defendant had offered final settlement to the plaintiff after completing the required formalities---Employee could not force his employer to continue his services as it would disrupt the entire internal mechanism and workings of the corporate sector---Therefore, the suit could, at most, be considered a claim for the recovery of damages due to the alleged unlawful termination and nothing more.

Muhammad Umar Malik v. Muslim Commercial Bank Ltd. 1995 SCMR 453 rel.

Syed Ashique Raza for Plaintiff.

M. Zahid F. Ebrahim for Defendant No.3.

PLCCS 2023 KARACHI HIGH COURT SINDH 961 #

2023 P L C (C.S.) 961

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

MUHAMMAD ARIF and 196 others

Versus

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

Constitutional Petition No.875 of 2020 (and others connected petitions) decided on 26th August, 2022.

| | | | | --- | --- | --- | | 1. | Const. P. 875/2020 | Muhammad Arif and others v. Federation of Pakistan and others | | 2. | Const. P. 5332/2018 | Fahad Arshad and others v. Federation of Pakistan and others | | 3. | Const. P. 6047/2018 | Asif Mehmood and others v. Federation of Pakistan and others | | 4. | Const. P. 6676/2018 | Attaullah Sirohi and others v. G.M Human Resources SSGC and others | | 5. | Const. P. 1087/2020 | Muhammad Qaiser Alam and others v. Federation of Pakistan and others | | 6. | Const. P. 1253/2020 | Sadam Hussain and others v. Federation of Pakistan and others | | 7. | Const. P. 1355/2020 | Syed Yasir Shabbir and others v. Federation of Pakistan and others | | 8. | Const. P. 1441/2020 | Rashid Azeem and others v. Federation of Pakistan and others | | 9. | Const. P. 1863/2020 | Muhammad Bashir and others v. Federation of Pakistan and others | | 10. | Const. P. 1923/2020 | Rao Muhammad Kamran and others v. Federation of Pakistan and others | | 11. | Const. P. 3428/2020 | Hakim Ali Khokhar and others v. Federation of Pakistan and others | | 12. | Const. P. 3429/2020 | Allah Wasayo and others Federation of Pakistan and others | | 13. | Const. P. 4015/2020 | Asif Soomro v. Federation of Pakistan and others | | 14. | Const. P. 4361/2020 | Syed Samar Abbas v. Federation of Pakistan and others | | 15. | Const. P. 4577/2020 | Syed Muhammad Younus and others v. Federation of Pakistan and others. | | 16. | Const. P. 5027/2020 | Mushk Mona Ayaz v. Federation of Pakistan and others | | 17. | Const. P. 5073/2020 | Sartaj Ahmed and others v. Federation of Pakistan and others | | 18. | Const. P. 5273/2020 | Asia Kausar Ali v. Federation of Pakistan and others | | 19. | Const. P. 5420/2020 | Wahid Bux Bhutto and others v. Federation of Pakistan and others | | 20. | Const. P. 5999/2020 | Muhammad Arif and others v. Federation of Pakistan and others | | 21. | Const. P. 6182/2020 | Ahsan Nisar Siddiqui v. Federation of Pakistan and others | | 22. | Const. P. 645/2020 | Imran and others v. Federation of Pakistan and others | | 23. | Const. P. 6526/2020 | Aftab Mahmood and others v. Federation of Pakistan and others | | 24. | Const. P. 1366/2021 | Naeem Faisal Saleem and others v. Federation of Pakistan and others | | 25. | Const. P. 1604/2021 | Qayyum and others v. Federation of Pakistan and others | | 26. | Const. P. 1892/2021 | Muhammad Akhtar and others v. Federation of Pakistan and others | | 27. | Const. P. 317/2021 | Iftikhar Ahmed and others v. Federation of Pakistan and others | | 28. | Const. P. 3451/2021 | Muhammad Khan and others v. SBCA | | 29. | Const. P. 1349/2022 | Rizwan and others v. Federation of Pakistan and others | | 30. | Const. P. 8200/2019 | Muhammad Sumair Gul v. Federation of Pakistan and others | | 31. | Const. P. 1573/2020 | Usama Mir and others v. Federation of Pakistan and others | | 32. | Const. P. 4431/2020 | Ashraf Ali Khan and others v. Federation of Pakistan and others | | 33. | Const. P. 6378/2020 | Muhammad Zafar and others v. Federation of Pakistan and others | | 34. | Const. P. 3943/2021 | Saddam Hussain and others v. Federation of Pakistan and others | | 35. | Const. P. 4340/2021 | Ayub Khan and others v. Province of Sindh and others | | 36. | Const. P. 2051/2022 | Naseem A and others v. Federation of Pakistan and others |

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Employees of Sui Southern Gas Company Limited (SSGCL)---Regularization in service---Non-statutory service rules---Petitioners were employees of respondent company and sought their regularization in service---Validity---Where employment rules were non-statutory and relationship between an employee and employer was to be governed under the principle of master and servant, then in such case no writ could lie against the employer under Article 199 of the Constitution---Merely for the fact that the petitioners sought regularization as against any dismissal or termination from service would not ipso facto make a petition competent---Petitioners were either contract employees or temporary employees who were seeking regularization of their services on one pretext or the other--- Contract employee could not seek enforcement of a contract in Constitutional jurisdiction nor even otherwise a writ by contract employee was competent against a company duly incorporated under Companies Act, 2017---High Court declined to interfere in the matter, as it was a matter of regularization of service of employees who were governed by principle of master and servant--- Constitutional petition was dismissed in circumstances.

Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Messs Sui Southern Gas Company Limited v. Saeed Ahmed Khoso 2022 SCMR 1256; Raja IVIZ Mehmood v. Federation of Pakistan through Secretary Information and Technology and Telecommunication 2018 SCMR 162; Pir Imran Sajid v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257; Sui Southern Gas Company Limited v. Zeshan Usman 2022 PLC (C.S.) 424; Khushhal Khan Khattak University v. Jabran Ali Khan 2021 SCMR 977; Pakistan International Airlines v. Sindh Labour Court No.5 PLD 1980 SC 323; Sui Southern Gas Company Limited v. Muhammad Arif and others (Civil Appeal No.1376 of 2021); Sui Southern Gas Company Limited v. Zeeshan Usmani 2021 SCMR 609; Principal Cadet College, Kohat and another v Mohammad Shoaib Qureshi PLD 1984 SC 170; Pakistan International Airline Corporation v. Tanveer-ur-Rehman PLD 2010 SC 676 and Pakistan Telecommunication Co. Ltd., v. Iqbal Nasir PLD 2011 SC 132 and Pakistan Electric Power Company v. Syed Salahuddin 2022 SCMR 991 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Fundamental rights---Enforcement---State owned corporation---For enforcement of fundamental right against a Limited Company owned and managed by Government and engaged in discharge of any public duty, Constitutional petition can be maintained and High Court can exercise its jurisdiction in terms of Art. 199 of the Constitution.

Malik Naeem Iqbal, Faizan Hussain Memon, Muhammad Saleem Khaskheli, Syed Noa-un-Nabi, Shazia Zafar, Tariq Ahmed Memon, Mamoon Sherwani, Choudhry Azhar Illahi, Nabi Bux Leghari, Samiullah Soomro and Shahryar Ahmed for Petitioners.

Ijaz Ahmed Zahid, Mukesh Kumar G. Karara, Asim Iqbal, Farmanullah Khan, Syeda Khizra Fatima, Bilal Farooq Alvi, Senior Legal Counsel Legal Department, SSGC and Ghazi Khan, Ameer Nosherwan and Kashif Hanif for Respondents.

Muhammad Nishat Warsi, D.A.G. for Federation of Pakistan.

PLCCS 2023 KARACHI HIGH COURT SINDH 1133 #

2023 P L C (C.S.) 1133

[Sindh High Court]

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

NADEEM ZUBERI

Versus

CIVIL AVIATION AUTHORITY through Director General

Constitutional Petition No.D-139 of 2017, decided on 1st February, 2021.

(a) Constitution of Pakistan---

----Arts. 9 & 199---Constitutional petition---Maintainability---Terms and conditions of service---Release of pensionary benefits---Scope---Department in response to a constitutional petition filed by its employee contended that the terms and conditions of employment, which were not governed by any statutory provisions, were amenable to rule of "master and servant"---Held; the subject of the petition was a claim of post-retirement pensionary benefits, which had triggered Art. 9 of the Constitution as the petitioner for his livelihood was dependent solely on the post-retirement/pensionary benefits---Therefore, the constitutional petition was maintainable.

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

(b) Civil service---

----Departmental proceedings after the retirement of civil servant cannot be continued.

----FR. 54-A---Civil service---Disciplinary proceedings, abatement of---Scope---Fundamental Rule 54-A is clear in its terms that the disciplinary proceedings against an officer abate if the latter attains the age of superannuation---Said rule entitles such an officer to retire with full pensionary benefits and the period of suspension is bound to be treated as a period spent on duty.

(d) Fundamental Rules---

----FR. 54-A---Civil service---Disciplinary proceedings, abatement of---Scope---Fundamental Rule 54-A shows that if disciplinary action is initiated against the civil servant and such action remains inconclusive during his service and he retires on attaining the age of superannuation in the meanwhile, not only the un-concluded disciplinary action shall abate against such a civil servant but he shall also be entitled to full pensionary benefits---Time limit has also been fixed for such departmental proceedings and no such inquiry can be held after one year of the retirement.

(e) Civil service---

----Pensionary benefits---Scope---Under the pension rules the competent authority reserves the right of recovery from the pension of Government pensioner on account of losses sustained in judicial or departmental proceedings to have been caused to Government by the negligence, or fraud of such Government pensioner during his service, provided that such departmental proceedings shall not be instituted after more than a year from the date of his retirement.

Muhammad Ali Lakhani and Ghulam Mujtaba Sohail Rana for Petitioner.

Khalid Mehmood Siddiqui for Respondent.

PLCCS 2023 KARACHI HIGH COURT SINDH 1168 #

2023 P L C (C.S.) 1168

[Sindh High Court]

Before Salahuddin Panhwar, J

S.M. KHALID

Versus

PAKISTAN STEEL MILLS CORPORATION (PVT.) LIMITED through Chairman and another

Civil Suit No.1287 of 2006, decided on 24th September, 2014.

(a) Civil service---

----Pensionary benefit---Release of pensionary benefits---Pendency of inquiry---Scope---Plaintiff filed a suit for a direction to the department to release his pension---Contention of department was that investigation in respect of the irregularities committed by plaintiff was underway, as such, his final liability could not be determined---Validity---Department had not brought anything on record to justify withholding or delaying service benefits to the plaintiff---Nothing had come on record which could be taken as sufficient cause to delay or keep a legitimate and legal right pending for an indefinite period, except that of pendency of an inquiry---Department had admitted the claim of the plaintiff to a certain extent---Suit of the plaintiff was decreed to the extent of the claim which was admitted by the department.

(b) Evidence---

----Plaintiff has to prove his own case hence mere absence of the defendant's evidence shall not absolve the plaintiff from his duty to prove his case.

----Pensionary benefits---Scope---Legitimate and legal right of a person cannot be withheld or denied except under exceptional circumstances where the authority would be required to justify withholding such legitimate and legal right of an individual---Service benefits are the legal and legitimate entitlement of an outgoing servant.

(e) Constitution of Pakistan---

----Art.9---Civil service---Pensionary benefits---Right to life---Scope---Service benefit(s) is not merely an award but is given with an objective to help an old aged person to stand well with his obligations in rest of his days because on having attained age of superannuation it is believed that such person is not fit to undertake hard jobs---It is always the duty and obligation of the department to ensure prompt payment of all service benefit(s) to such a person as the dignity of a pensioner mostly depend upon such benefits or use thereof---Word 'life' is of wider meaning---Right to life with human dignity encompasses within its fold, some of the finer facets of human civilization which make life worth-living.

(f) Civil service---

----Inquiry---Scope---To conduct an inquiry or have an inquiry into any allegation of corruption or corrupt practice is not the prerogative of the authority but is a legal obligation---However, the authority is always required to follow the procedure while performing any act---Such authority shall continue to stick with legal position that even, in matters of inquiry, there should be no deviation from normal course or discrimination.

Shehensha Hussain for Plaintiff.

Akhtar Ali Mehmud for Defendants.

PLCCS 2023 KARACHI HIGH COURT SINDH 1198 #

2023 P L C (C.S.) 1198

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

Syed QADIR DAD SHAH

Versus

PAKISTAN INTERNATIONAL AIRLINE COMPANY LIMITED (PIACL) through President/Chief Executive Officer and others

Suit No. 1027 of 2022, decided on 15th December, 2022.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration---Interim injunction, refusal of---Scope---Plaintiff challenged the amendment brought to "Job Description Manual" that concerned the qualification of Chief Flight Surgeon and through instant application under O. XXXIX, Rr.1 & 2, C.P.C. sought its suspension---Validity---Chief Flight Surgeon of Aircrew Medical Center has a special privilege of being an Airline Aviation Medical Officer/Designated Medical Examiner---For the post of Airline Aviation Medical Officer/Designated Medical Examiner one year on job training from Pakistan Civil Aviation Authority at the airline's Crew Medical Center is mandatory; which is then followed by a formal application and pre-requisites such as passing of examination---Necessary formal training is required for being an Airline Aviation Medical Officer/Designated Medical Examiner and it is inevitable for effective monitoring of aircrew staff---It was not too late for the plaintiff to apply and if he so chooses that may be dealt strictly in accordance with law---However, for the purposes of injunction application, the plaintiff had not been able to make out a prima facie case, nor balance of inconvenience was in his favour and no loss would be caused in case injunction was refused---Application being misconceived was dismissed.

Muhammad Saad Siddiqui for Plaintiff.

Jawad A. Sarwana for Defendants Nos.1 to 4.

Abdul Qayoom Abbasi for Defendants Nos.2, 6, 8 and 9.

Qazi Ayazuddin, Assistant Attorney General for Defendant No.10.

PLCCS 2023 KARACHI HIGH COURT SINDH 1232 #

2023 P L C (C.S.) 1232

[Sindh High Court]

Before Salahuddin Panhwar, J

MOULA BUX KHATIAN

Versus

The SUI SOUTHERN GAS COMPANY LIMITED and others

Civil Suit No.247 of 2010, decided on 24th September, 2014.

Civil service---

----Service benefits---Deputation and service benefits---Lien on service---Laches---Scope---Plaintiff sought service benefits from the defendant company for the period he had worked there, i.e., 26 years---Defendant company filed an application to reject the plaint, citing it as time-barred and barred by res judicata---Validity---Plaintiff was initially appointed as a Trainee Officer in the company, but later, he joined the Federal Government on deputation and subsequently the Government of Sindh; he then filed a Constitutional petition for permanent induction into the service of the Government of Sindh with all consequential benefits, which was allowed by the court---After the High Court's decision, the defendant company terminated the plaintiff's lien from service after keeping him on its active roll for 12 years on deputation---Plaintiff was not legally justified in claiming service benefits from the defendant company because the company's service rules had no provision for it---Additionally, the plaintiff resisted the order to report back to the defendant company and had already been permanently inducted into the service of the Government of Sindh with all related benefits---Decision of the High Court qualified the meaning of phrase 'finally decided' as used in S. 11 of the C.P.C---Plaintiff had previously challenged the order of reporting to his parent department without claiming any dues against the defendant company---Instead, he sought permanent induction in the Government of Sindh with reference to summary(ies) of the Chief Minister---However, after such a long period, he was not justified in claiming such relief---Plaint was rejected in circumstances.

Muhammad Mazhar Iqbal and others v. VIth Additional District Judge and others 2011 S.L.J 746 rel.

Rakhshinda Habib v. Federation of Pakistan 2014 PLC (C.S.) 247; 1999 SCMR 2455 and 2002 PLC (C.S.) 1388 ref.

PLJ 2003 Tr.C. 1000; 2000 CLC 633; PLD 1992 SC 825; Muhammad Ahmed v. Government of Sindh 1999 SCMR 255 and Rakhshinda Habib v. Federation of Pakistan 2014 PLC (C.S) 247 distinguished.

Kazi Wali Muhammad for Plaintiff.

Asim Iqbal for Defendants.

PLCCS 2023 KARACHI HIGH COURT SINDH 1291 #

2023 P L C (C.S.) 1291

[Sindh High Court (Sukkur Bench)]

Before Aftab Ahmed Gorar and Muhammad Faisal Kamal Alam, JJ

HAKIM ALI and another

Versus

SECRETARY EDUCATION AND LITERACY DEPARTMENT, GOVERNMENT OF SINDH, KARACHI and 3 others

Constitutions Petition No.D-2508 of 2011 along with C.Ps. Nos.D-2526, 2612, 2613, 2648, 2653, 2676, 2689, 2828, 2989, 3098 of 2011, 963 and 1280 of 2012, decided on 11th March, 2021.

(a) Civil service---

----Appointment to advertised post---Scope---Eligibility for appointment---Scope---Petitioners, in response to advertisement for recruitment of Primary School Teachers on contract basis, applied for the same and appeared in Written Examination, whereafter being purportedly successful candidates, they appeared in interview, whereafter they were issued Offer Letters subject to their Medical Fitness being certified by an authorized Medical Officer---Contention of petitioners was that the doctor refused to take Medical Test and addressed a letter to the department for issuance of fresh letters on the ground that time mentioned in the Offer Letters had already lapsed---Argument of department was that the petitioners had failed to pass the written test with minimum 60% marks, hence, none of them were eligible for the post they had applied for---Validity---None of the petitioners had secured 60% or more marks and thus, did not fulfill the criteria as laid down in the Recruitment Policy---Constitutional petitions were dismissed, in circumstances.

Amanullah and others v. Province of Sindh and others (C.P. No.D-1051 of 2007) and Muhammad Arif and others v. Province of Sindh through Chief Secretary and others (Civil Petition No.186-K of 2013) distinguished.

(b) Constitution of Pakistan---

----Art. 201---Decision of High Court binding on subordinate Courts---Scope---Decision of one Division Bench is binding on the other Division Bench on the same point and if a contrary view had to be taken, then request for constitution of a Larger Bench should be made; but, this principle of judicial precedent or stare decisis is not extended to consent orders, but only those decisions in which question of law is decided.

Murad Ali v. Collector of Central Excise and Land Customs PLD 1963 (W.P.) Kar. 280; Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 SC 84; Fazal-ur-Rehman v. Khurshid Ali and another 2012 SCMR 635 and Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23 ref.

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

----Art.189---Decisions of Supreme Court binding on other Courts---Scope---Disposal of a case as a result of compromise between the parties, without adverting to the legal issues, cannot be treated as enunciation of law in terms of Art. 189 of the Constitution; only that judgment has a binding force which has been rendered after considering all the conceivable aspects of the relevant law.

Ali Gul Abbasi for Petitioners (in C.Ps. Nos.D-2508, 2526, 2653 of 2011 and 1280 of 2012).

Humayoun Shaikh for Petitioners (in C.Ps. Nos.D-2612, 2648, 2676, 2828, 3098 of 2011 and 963 of 2012).

Nemo for Petitioners (in C.Ps. Nos.D-2613, 2689 and 2989 of 2011).

Zulfiqar Ali Naich, Assistant Advocate General Sindh along with Faiz Ali Jiskani, District Education Officer (Elementary, Secondary and Higher Secondary), Khairpur for Respondents.

PLCCS 2023 KARACHI HIGH COURT SINDH 1310 #

2023 P L C (C.S.) 1310

[Sindh High Court]

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

WADHU MAL

Versus

PROVINCE OF SINDH through Principal Secretary Chief Minister and 3 others

C.P. No.D-3678 and C.M.A. No.5364 of 2020, decided on 7th March, 2022.

(a) Civil service---

----Promotion---Pro forma promotion---Promotion after retirement---Scope---Where service benefits have accrued to an employee but for one reason or the other such benefits could not be awarded to such an employee, then, irrespective of the fact of his/her having retired from service, the department concerned shall still have to further consider his/her case for such a promotion and to allow him/her benefits of such a promotion, even after retirement from service.

(b) Civil service---

----Promotion---Pro forma promotion---Scope---Promotion is generally advancement in rank, which is granted based on acquiring extra qualifications or enhancement of skills or awarded in lieu of longstanding services of the employees as a token of satisfaction or appreciation over services rendered by him---Concept of proforma promotion is to remedy the loss sustained by an employee/civil servant on account of denial of promotion upon his legitimate turn due to any reason but not a fault of his own and in cases where a temporary embargo was created against his right for such promotion or a legal restraint was posed against his claim owing to any departmental proceedings, inquiry etc. against him and the said obstacle is done away with ultimately then in such a situation, his monetary loss and loss of rank is remedied through proforma promotion.

----Promotion---Scope---Promotion is not a vested right of a civil servant but where he is fully qualified for the promotion and there is no tangible clog in his service record, he has a right to expect that his case will be considered for promotion under law, rules, regulations and eligibility criteria/policy formulated for regulating promotion by the Government---Any breach or deviation therefrom for mala fide reasons or due to arbitrary act of his superiors or peers or the competent authority is not warranted in law.

Secretary Schools of Education and others v. Rana Arshad Khan and others 2012 SCMR 126 and Regarding Putting of Two Government Officers Namely Hasan Waseem Afzal and his Wife Farkhanda Waseem Afzal as OSD 2013 SCMR 1150 rel.

(d) Civil service---

----Promotion---Pro forma promotion---Scope---Civil servant has a fundamental right to be promoted even after his retirement through awarding pro forma promotion provided his right of promotion accrued during his service and his case for promotion could not be considered for promotion for no fault of his own and he is retired on attaining the age of superannuation without any shortcoming on his part of deficiency in the length of service or the form of inquiry and departmental action was so taken against his right of promotion.

(e) Administration of justice---

----When the law requires an act to be done in a particular manner, it ought to be done in that manner alone, and such a dictate of law cannot be termed as a technicality.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.

Ahmed Ali Ghumro for Petitioner.

Ali Safdar Depar, A.A.G. for Respondent.

PLCCS 2023 KARACHI HIGH COURT SINDH 1346 #

2023 P L C (C.S.) 1346

[Sindh High Court (Hyderabad Bench)]

Before Nadeem Akhtar, J

Mst. NAZ BIBI through L.Rs. and others

Versus

WAHID BUX through L.Rs. and others

Second Appeal No. 85 of 2019, decided on 2nd August, 2021.

(a) Islamic Law---

----Inheritance---Tarkah---Scope---Legal heirs of a deceased person can inherit only from the estate/tarkah of the deceased---Any property, right or benefit that does not form part of the estate/tarkah, is not inheritable.

(b) Islamic Law---

----Inheritance---Tarkah---Scope---Only such property of the deceased person is inheritable and shall form part of his estate/tarkah that was in his ownership at the time of his death, or he had acquired an absolute right in law to claim it during his lifetime.

Wafaqi Hakumut Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731 rel.

----Inheritance---Tarkah---Nominee, entitlement of---Scope---Nominee is not entitled to exclusively claim or receive any property or benefit falling in the category of tarkah of the deceased; nomination does not confer any title in favour of the nominee; and, a nominee is merely a trustee and does not become the owner.

Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 and Lt. Muhammad Sohail Anjum Khan and others v. Abdul Rasheed Khan and others 2003 MLD 1095 ref.

(d) Islamic Law---

----Inheritance---Tarkah---Service benefits---Scope---Benevolent fund does not fall within the definition of such property of a deceased employee that could be deemed to have been owned by him at the time of his death nor could he claim the same during his lifetime as a matter of right; such grant or donation is payable to the employee after his retirement from service or to his legal heirs upon his death---Forced deduction of certain amount from the salary of the employee as contribution/donation for such fund shall not change the above position as after contributing/donating the fund, such amount does not remain the property of the employee; thus, benevolent fund cannot be treated as tarkah---Said principle shall also apply to group insurance---Family pension and death gratuity, payable by the employer to the family members of its deceased employee as per the applicable service rules and regulations, are considered as grants/donations, and thus are not inheritable nor do they fall within the definition of tarkah.

Wafaqi Hakumut Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731 rel.

(e) Islamic Law---

----Inheritance---Tarkah---Service benefits---Scope---Any service benefit that an employee is legally entitled to claim from his employer in his lifetime, or has become due and payable to him in his lifetime but has remained unpaid for any reason, shall be treated as his absolute right and thus shall form part of his tarkah and shall be inheritable, according to the personal law of the deceased employee, by all his legal heirs according to their respective shares---Whereas, a service benefit, that had not fallen due to the deceased employee in his lifetime, or is a kind of grant, donation, bounty, concession and/or compensation by the employer, the amount thereof payable after the death of the employee shall be distributed only to those members of his family who are entitled for the same as per the prevailing rules and regulations of service or under the relevant and applicable provision(s) of law---Discretion to make rules and regulations for payment of any grant, donation, bounty, concession or compensation to any particular member or class of members of the family of the deceased employee, vests solely with the employer, provided such rules and regulations must not be inconsistent with or contrary to Shariah or any law for the time being in force.

Wafaqi Hakumut Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731 rel.

(f) Islamic Law---

----Inheritance---Tarkah---Service benefits---Scope---Service benefit falling under any of the categories of grant, donation, bounty, concession or compensation, payable after the death of the employee, shall not form part of his tarkah---Only such beneficiary(ies) or nominee(s) shall be entitled to receive the same who were made beneficiary(ies) or nominee(s) under the prevailing rules and regulations of service or under the relevant and applicable provision(s) of law; and, other legal heir(s) of the deceased employee, not being beneficiary(ies) or nominee(s) of such service benefits, shall not be entitled to claim any share therein.

Wafaqi Hakumut Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731 rel.

Arif Ali Bhatti for Appellants.

Muhammad Asif Zai for Respondent No.1.

Muhammad Ilyas Dars for Respondent No.2.

Muhammad Humayoon Khan, D.A.G. for Respondents Nos. 3 and 4.

Lahore High Court Lahore

PLCCS 2023 LAHORE HIGH COURT LAHORE 8 #

2023 P L C (C.S.) 8

[Lahore High Court]

Before Muzamil Akhtar Shabir, J

EHTISHAM BASHARAT

Versus

DEPUTY INSPECTOR GENERAL OF POLICE and 2 others

Writ Petition No.63174 of 2021, decided on 14th April, 2022.

Civil service---

----Recruitment---Legitimate expectation, principle of---Applicability---Waiting list---Selection process, delay in---Petitioner was candidate for post of constable in police, who was not recruited despite the fact that he was on waiting list and a vacancy occurred---Validity---Purpose of preparing waiting list at the time of affixing list of selected candidate was to have a contingency reserve i.e. a pool of successful candidates who could immediately fill vacancies as they arose instead of initiating recruitment process afresh for a limited number of posts that could become available due to non-joining or vacancy of post after joining by selected candidates---Candidates on waiting list were to be considered for appointment (i) if selected candidate did not join at all or (ii) after joining left the post before expiry period of waiting list---Authorities were required to complete initial appointment process by appointing selected candidates within stipulated time period i.e. for which waiting list was kept valid and not to delay the same unnecessarily beyond that period---Initial appointment process was not completed within 90 days, therefore, delay could not be attributed to petitioner, who had developed a legitimate expectation to be considered for appointment in case selected candidate did not join---Order passed by authorities rejecting application of petitioner on account of delay in filing his application was not sustainable due to lapse on part of the department in completing recruitment process within time---High Court directed the authorities to process case of petitioner for appointment against vacant posts subject to his being otherwise qualified for post in question and set aside the order passed by authorities---Constitutional petition was allowed accordingly.

Muhammad Ramzan and others v. Chief Executive Officer and others 2022 PLC (C.S.) 759; Rafaqat Ali v. Executive District Officer (Health) and others 2011 PLC (C.S.) 1615; Government of N.W.F.P. through Secretary, Education Department, Peshawar and others v. Qasim Shah 2009 SCMR 382; Dr. Sumera Tabassum v. F.P.S.C. and others 2016 SCMR 196; Province of Sindh and others v. Ghulam Hassan Bughio 2014 SCMR 643; Government of Punjab through Secretary Cooperative Societies Department, Lahore and others v. Asad Abbas 2022 SCMR 739 and Muhammad Saeed Zafar v. District Coordination Officer, Mianwali and 2 others 2017 PLC (C.S.) Note 5 rel.

Sardar Muhammad Ramzan for Petitioner.

Barrister Hassan Khalid Ranjha A.A.G. along with Rafaqat Ali, Inspector, Legal Branch, DPO Office, Gujrat.

Dr. Muhammad Azeem Raja, Shehryar Farhan Baig, Nasrullah Khan Babar, Uzma Razzaq Khan, Ch. Muhammad Shahid Iqbal, Syed Imran Ehsan, Ch. Muhammad Naseer, Salman Farooq and Mateen-ul-Haq Chaudhry.

PLCCS 2023 LAHORE HIGH COURT LAHORE 81 #

2023 P L C (C.S.) 81

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

NISAR SARWAR

Versus

FEDERATION OF PAKISTAN through Secretary to the Government of Pakistan, Ministry of Energy Power Division), Islamabad and others

Writ Petition No.56601 of 2022, decided on 27th October, 2022.

(a) Administration of justice---

----Good governance---Discretion, exercise of---Discretion, even if vested in authorities, has to be exercised strictly in accordance with law and in an independent, transparent and unbiased manner---All administrative authorities are under an obligation to act fairly and on reasonable basis---Object of good governance cannot be achieved by exercising discretionary power unreasonably, arbitrarily and without application of mind.

Tariq Aziz-ud-Din and others: in re: Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009, decided on 28th April, 2010, 2010 SCMR 1301 and Human Rights Case No. 11827-S of 2018, decided on 3rd September, 2018: In the matter regarding Selling of National Assets including PIA at Throwaway Price 2019 SCMR 1952 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Seniority, question of---Non statutory rules---Current charge bases---Petitioner was civil servant who was aggrieved of office order passed by authorities, whereby instead of appointing petitioner on post in question an official junior to him was posted on current charge---Plea raised by authorities was that Lahore Electric Supply Company did not have statutory rules, therefore Constitutional petition was not maintainable---Validity---Matter was of serious nature involving questions of seniority and eligibility in terms of memorandum in question issued by Federal Government and other correspondence, regarding appointment of officers on current charge against higher posts---In case of non-compliance of directions and non-observance of guidelines mentioned therein, possibility of mala fide could not be ruled out, especially when seat in question was not vacant---High Court transmitted copy of petition along with annexures to Federal Government to look into the matter---High Court directed Federal Government to ensure that rules, regulations, and applicable law / policy would be strictly followed in matters involving transfers and postings---Constitutional petition was disposed of accordingly.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Pakistan Defence Officers, Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Pakistan International Airlines Corporation through Managing Director v. Amna Fraz and others 2022 SCMR 1852; Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573 and Dr. Tahir Masud v. Amjad Ali Khan and 4 others 2019 PLC (C.S.) 1167 ref.

Muhammad Shahzad Shaukat for Petitioner.

Muhammad Zain Qazi, Assistant Attorney General.

Mian Muhammad Javaid, Advocate/Legal Advisor for Respondent-LESCO.

PLCCS 2023 LAHORE HIGH COURT LAHORE 150 #

2023 P L C (C.S.) 150

[Lahore High Court (Rawalpindi Bench)]

Before Jawad Hassan, J

MRS. NAVEEDA NISA

Versus

PROVINCE OF THE PUNJAB and others

Writ Petition No.3871 of 2021, decided on 19th September, 2022.

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

----S.12---Punjab Civil Servants (Amendment) Ordinance (XXII of 2021), Preamble---Retirement from service---Scope---Petitioner sought direction to the District Accounts Officer for preparing her pension papers and a declaration that amendment made in S. 12 of the Punjab Civil Servants Act, 1974, was ultra vires the Constitution---Validity---Petitioner had voluntarily retired from service after completing 25 years of qualifying service---Legislature brought an amendment in S. 12 of the Punjab Civil Servants Act, 1974, according to which voluntary retirement was subject to fulfillment of condition of 25 years of service or 55 years of age, which ever was later---Retirement order was issued on 24-08-2021 while firstly, the Punjab Civil Servants (Amendment) Ordinance, 2021, was promulgated on 03-05-2021 and had been extended before its expiry period i.e. 90 days without any break till promulgation of the Punjab Civil Servants (Amendment) Act, 2021, on 29-10-2021---Constitutional petition, having no merit, was dismissed.

Muhammad Faheem Zafar v. Government of the Punjab and 3 others 2022 PLC (C.S.) 1156; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Colonial Sugar Refining Company Limited v. Irving 1905 A C 369; Muhammad Mansha v. Industrial Development Bank of Pakistan and others 2020 SCMR 1069 and Muhammad Khalid Khan v. Inspector General of Prisons, Khyber Pakhtunkhwa and another 2021 MLD 232 ref.

Sh. Zamir Hussain, Advocate Supreme Court for Petitioner.

PLCCS 2023 LAHORE HIGH COURT LAHORE 186 #

2023 P L C (C.S.) 186

[Lahore High Court (Multan Bench)]

Before Abid Hussain Chattha and Muhammad Raza Qureshi, JJ

ABDUL GHAFOOR

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and 2 others

I.C.A. No.187 of 2020 in W.P. No.3042 of 2018, heard on 21st March, 2022.

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

----Preamble---Constitution of Pakistan, Art. 199---Promotion criteria, non-determination of---Effect---No provision existed regarding promotion in the State Life Employees (Service) Regulations, 1973, which may vest a right in the employees of the Corporation to be enforced in the constitutional jurisdiction of the High Court---State Life Insurance Corporation is a professional and commercial organization which has devised its own eligibility-cum-fitness criteria regarding promotion of its employees, which is based on length of service and achievements or completion of business targets---State Life Insurance Corporation is the best judge for promotion of its officials and the Court cannot give its own findings to substitute with the findings of any specialized institution.

Mehboob Alam v. State Life Insurance Corporation of Pakistan and others (Writ Petition No.5136 of 2006) and Abdul Waheed v. Chairman, State Life Insurance Corporation of Pakistan (I.C.A. No.146 of 2001) ref.

Mazullah Khan v. Zonal Head, State Life Insurance Corporation, Peshawar and others 2008 SCMR 617 and State Life Insurance Corporation of Pakistan and others v. Syed Hassan Ali Shah and others 2010 SCMR 1381 rel.

(b) Civil service---

----Promotion criteria---Scope---Promotion standards devised by a commercial institution are distinctly and conspicuously different than those applicable to the civil servants.

----Rule of laches is applied in accordance with the facts and circumstances of each case keeping in view the equitable principles---Normally, reasonable time to approach the Court is held to be three months.

Mian Aurangzeb Noor v. Rent Controller, Lahore and another 2012 CLC 1729 ref.

Muhammad Yafis Naveed Hashmi for Appellant.

Malik Muhammad Tariq Rajwana and Malik Asif Rafique Rajwana for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 245 #

2023 P L C (C.S.) 245

[Lahore High Court (Multan Bench)]

Before Raheel Kamran, J

SABA SARWAR

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.9234 of 2022, decided on 21st June, 2022.

Constitution of Pakistan---

----Art.199---Constitutional petition---Civil service---Appointment to advertised post---Erroneous appointment---Scope---District Education Authority advertised the posts of Elementary School Educators but erroneously mentioned the name of wrong Union Council---Petitioner was resident of the Union Council mentioned in the advertisement---District Recruitment Committee awarded twelve additional marks of local residence to the petitioner and generated letter of agreement against the post, however, later on vide impugned order the Committee revised the award of additional marks of local residence---Validity---Petitioner had not challenged the impugned order on the ground of her entitlement under the Recruitment Policy 2016-17, therefore, the impugned order was not questionable in so far as lack of entitlement of the petitioner to additional marks for local residence was concerned---Contention of petitioner that the appointment, even if made on the basis of an erroneous merit list prepared pursuant to an erroneous advertisement in violation of the Government Policy, could not be disturbed when the mistake was attributable to someone else was untenable---Petitioner undisputedly was beneficiary of the errors in recruitment process, therefore, it was improper on the part of the High Court to exercise extraordinary jurisdiction under Art. 199 of the Constitution---Constitutional petition was dismissed.

Punjab Public Service Commission v. Husnain Abbas and others 2021 SCMR 1017 rel.

Raja Naveed Azam for Petitioner.

PLCCS 2023 LAHORE HIGH COURT LAHORE 314 #

2023 P L C (C.S.) 314

[Lahore High Court]

Before Shujaat Ali Khan, J

Dr. IMRAN FAREED KHAN and others

Versus

UNIVERSITY OF THE PUNJAB, LAHORE and others

Writ Petition No.31629 of 2014, decided on 29th October, 2021.

(a) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Quo Warranto, writ of---Scope---Writ of quo-warranto is not maintainable in collateral proceedings.

Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others PLD 2002 SC 853 rel.

(b) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Constitutional petition---Quo Warranto, writ of---Personal vendetta---Foreign scholarship---Change in seniority list---No live issue---Petitioners were aggrieved of grant of benefit of Scholarship Programme to respondents which resulted into change in seniority list placing respondents senior to petitioners---Petitioners assailed appointment of respondent as Assistant Professors on the ground that when they were not entitled for Scholarship Programme then they could not take premium of any achievement on the basis thereof---Validity---Petitioners had their personal vendetta with respondents on account of relegation of their seniority---High Court declined interference in the proceedings---Petitioners were no more in service of the University, thus, their grievance regarding disturbance of seniority due to appointment of respondents was no more live---Respondents already joined posts of Professors against direct quota and question as to whether they were eligible to hold the post of Assistant Professor had become irrelevant---Respondents were not appointed against the posts of Professors on account of seniority-cum-fitness from amongst the Assistant Professors---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Muhammad Hanif Abbasi v. Jahangir Khan Tareen PLD 2018 SC 114 and Nisar Khan Khattak v. Haji Adam, Director General (Admn) PEMRA Headquarter, Islamabad 2021 PLC (C.S.) 140 rel.

Shahzad Shaukat for Petitioners.

Rana Shamshad Khan, Additional Advocate General.

Malik Muhammad Awais Khalid for Respondent-University.

Adeel Hussain, vice counsel for Respondent No.4.

Khurram Saeed with Respondent No.5.

Asif Nazir Awan for Respondent No.6.

PLCCS 2023 LAHORE HIGH COURT LAHORE 371 #

2023 P L C (C.S.) 371

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

ARSHAD ALI

Versus

FEDERATION OF PAKISTAN through Secretary I.T. and Telecom, Islamabad and 4 others

Writ Petition No.59143 of 2019, decided on 25th October, 2022.

General Clauses Act (X of 1897)---

----S.24-A---Constitution of Pakistan, Art.199---Constitutional petition---Speaking order---Applicability---Voluntary Separation Scheme---Eligibility, determination of---Petitioner was aggrieved of refusal of authorities to grant him pension in terms of Voluntary Separation Scheme---Validity---Petitioner's qualifying length of service, under employees' eligibility criteria was mentioned as 20 years---Such pivotal aspect of matter was not appreciated by respondent authority in view of available record---Respondent authority did not properly exercise jurisdiction as no finding to such effect was rendered by him---Order in question was passed without appreciating the facts which did not fulfill requirements of speaking order within the contemplation of S.24-A of General Clauses Act, 1897, which was binding upon public functionaries to dilate upon all aspects of matters presented before them while determining rights of parties---Respondent authority was to decide the matter after application of mind, with assigning cogent reasons and had to pass speaking order---High Court directed respondent authority to decide question of eligibility afresh and had set aside order in question---Constitutional petition was allowed accordingly.

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; Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1; Messrs United Bank Ltd. v. Federation of Pakistan and others 2014 SCMR 856; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630 and Khalid Humayun v. The NAB through D.G. Quetta and others PLD 2017 SC 194 rel.

Muhammad Imran Inayat Chohan for Petitioner.

Umer Abdullah and Barrister Hamza Najeeb, Advocate/Legal Advisor for Respondent-PTCL.

PLCCS 2023 LAHORE HIGH COURT LAHORE 415 #

2023 P L C (C.S.) 415

[Lahore High Court]

Before Jawad Hassan, J

SHOAIB ASGHAR GUJJAR

Versus

COMMISSIONER SARGODHA DIVISION and others

Writ Petition No.51077 of 2017, heard on 16th November, 2020.

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

----R.17-A---Deceased quota---Appointment in dying cadre---Scope---Petitioner assailed the refusal of authorities to appoint him as Computer Operator (BS-12) under R.17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, on the ground that the post was declared as dying cadre---Validity---Creation or abolishment of seats as per the exigency of the work/service was sole prerogative of the Government---Declaring the post as dying cadre due to changing requirement of government was purely a public policy matter and the Courts could not interfere into the policy matters of the Government, particularly when it was in the public interest---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Policy matter---Scope---Courts could not embark upon an inquiry as to whether a particular policy is wise and acceptable or whether better policy could be evolved---Court could only interfere if the policy framed was absolutely capricious and without reasons, or totally arbitrary, offending the basic requirement of the Constitution---Government 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.

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.

Muhammad Mushtaq Ch. and Ch. Muhammad Boota for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate General for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 431 #

2023 P L C (C.S.) 431

[Lahore High Court]

Before Jawad Hassan, J

IJAZ AKHTAR

Versus

SECRETARY TO GOVERNMENT OF PUNJAB and others

Writ Petition No.7102 of 2011, heard on 15th November, 2020.

(a) Administration of justice---

----Where the law requires an act to be done in a particular manner, it ought to be done in that manner only, and such a dictate of law cannot be termed as a technicality.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.

(b) Civil service---

----Proforma promotion---Meaning and scope of proforma promotion stated.

The concept of proforma promotion is to remedy the loss sustained by an employee/civil servant on account of denial of promotion upon his legitimate turn due to any reason but not a fault of his own and in cases where a temporary embargo was created against his right for such promotion or a legal restraint was posed against his claim owing to any departmental proceedings inquiry etc. against him and the said obstacle is done away with ultimately then in such a situation, his monetary loss and loss of rank is remedied through proforma promotion.

A civil servant has a fundamental right to be promoted even after his retirement through awarding pro forma promotion provided his right of promotion accrued during his service and his case for promotion could not be considered for promotion for no fault of his own and he is retired on attaining the age of superannuation without any shortcoming on his part pertaining to deficiency in the length of service or in the form of inquiry and departmental action taken against his right of promotion.

It is fundamental right of a civil servant to be promoted even after his retirement by awarding pro forma promotion provided such right accrued during his service and his case could not be considered for no fault of his own and that he should not be penalized for lapses and negligence on part of the department.

Arshad Ali v. WAPDA and others 2020 PLC (C.S.) 1226 ref.

----Promotion---Promotion cannot be claimed as matter of right.

Secretary School of Education and others v. Rana Arshad Khan and others 2012 SCMR 126 ref.

Muhammad Boota for Petitioner.

Ms. Maria Farooq, Assistant Advocate General along with Zafar Zia, Secretary Local Government Board and Muhammad Ahmad, Admin Officer (Regulations) for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 444 #

2023 P L C (C.S.) 444

[Lahore High Court (Rawalpindi Bench)]

Before Jawad Hassan, J

MUHAMMAD YUNAS

Versus

PROVINCE OF THE PUNJAB and others

Writ Petition No.463 of 2022, decided on 19th September, 2022.

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

----S.12---Retirement from service---Amendment in law---Retrospective effect---Scope---Petitioner assailed order passed by respondent whereby his retirement order was recalled with the direction to rejoin his official duty in terms of amendment made in S.12 of the Punjab Civil Servants Act, 1974, through the Punjab Civil Servants (Amendment) Act, 2021---Validity---Retirement order of the petitioner had been issued prior to promulgation of the Punjab Civil Servants (Amendment) Act, 2021---Punjab Civil Servants (Amendment) Act, 2021, did not apply retrospectively to the case of the petitioner---When the Legislature through an enactment altered the rights of parties by taking away or conferring any right of action, such amendment did not affect pending actions, unless provided in express terms within the enactment---General rule of common law was that the statute changing the law ought not to affect past events, unless the intention appeared with reasonable certainty to be understood as applying to facts or events that had already occurred in such a way so as to confer or impose or otherwise effect rights or liabilities which the law had defined with reference to the past events---Constitutional petition was allowed and the impugned order was set aside.

Muhammad Faheem Zafar v. Government of the Punjab and 3 others 2022 PLC (C.S.) 1156 rel.

Muhammad Mansha v. Industrial Development Bank of Pakistan and others 2020 SCMR 1069 foll.

Malik Latif Khokhar for Petitioner.

PLCCS 2023 LAHORE HIGH COURT LAHORE 484 #

2023 P L C (C.S.) 484

[Lahore High Court]

Before Jawad Hassan, J

WAQAS RASOOL and others

Versus

SECRETARY SCHOOL EDUCATION and others

Writ Petition No.31205 of 2020, heard on 16th November, 2022.

(a) Civil service ---

----Appointment---Suitability of candidate---Policy matter---In assessment of suitability of a particular nature of job and its scope in the context of particular employer the Courts cannot prescribe the eligibility or experience qualifications and work experience as these are matters of policy and best is to leave them to the department.

(b) Civil service---

----Upgrading of post---Policy matter---Not the domain of the Courts to 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 has to decide 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 ref.

Ch. Wasim Ahmad for Petitioners.

Ms. Maria Farooq, Assistant Advocate General with Mrs. Naseem Mushtaq, Law Officer, Finance Department for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 530 #

2023 P L C (C.S.) 530

[Lahore High Court]

Before Shahid Jamil Khan, J

CHAND IQBAL and others

Versus

PROVINCE OF THE PUNJAB and others

Writ Petition No.26883 of 2021, decided on 14th July, 2021.

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

----S.4(1)(b)---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---High Court, jurisdiction of---Petitioners were terminated for a fault on the part of Punjab Public Service Commission (PPSC) during conduct of recruitment examination, which was prior to the issuance of appointment letter---Effect---Such termination could not be construed to have any relation with terms and conditions of petitioners' service---Fault or consequent withdrawal by PPSC did not accrue during service after appointment letter---Such disciplinary matter had no nexus with service---Appeal under S.4(1)(b) of Punjab Service Tribunals Act, 1974, against termination order in question did not lie before Service Tribunal---Termination on withdrawal of recommendation by PPSC, squarely fell within the phrase "fitness or otherwise of a person"---Termination in question did not involve terms and conditions of service after appointment nor disciplinary proceeding during service was in question---Bar of jurisdiction, under Art. 212 of the Constitution, was not attracted merely because petitioners were civil servants---Constitutional petition was maintainable in circumstances.

Dr. Ahmad Salman Waris, Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 and Abdul Khaliq Mandokhel and 2 others v. Chairman, Balochistan Public Service Commission and another 2016 PLC (C.S.) 1184 rel.

(b) Punjab Public Service Commission Regulations, 2016---

----Reglns. 25, 26 & 63---General Clauses Act (X of 1897), S. 21---Constitution of Pakistan Art. 199---Constitutional petition---Restoration in service---Withdrawal of recommendation by Service Commission---Locus poenitentiae, principle of---Applicability---Petitioners were terminated from service as recommendations for their appointment by Punjab Public Service Commission (PPSC) were withdrawn on the allegation of use of unfair means during written test---Validity---Reason for withdrawal was neither an error or omission, but was an apprehension of using unfair means, which were not probed or inquired by PPSC, under Regln. 25 of Punjab Public Service Commission Regulations, 2016, to hold candidates guilty--- Review by the Commission (PPSC) could not be a substitute for probe or inquiry, as required under Regln. 25 of Punjab Public Service Commission Regulations, 2016, to hold a candidate guilty of using unfair means under its clause--- Commission while passing order after review did not give any finding of fact about use of unfair means but simply endorsed recommendation by Anti-Corruption Establishment without identifying mistake or error requiring rectification---Commission (PPSC) did not become functus officio, after sending recommendations for appointment, as Reglns. 26 and 63 of Punjab Public Service Commission Regulations, 2016, allowed withdrawal of recommendations--- Both the regulations were neither read down nor held ultra vires in any of the judgments passed by superior Courts---After decisive step of appointment on the recommendations, a right was created---Right so created was not absolute and principle of locus poenitentiae was found embedded in section 21 of General Clauses Act, 1897---High Court declared that PPSC's letter for withdrawal of recommendations and consequent termination orders were issued/passed without lawful authority having no legal effect on the appointments of petitioners---Constitutional petition was allowed, in circumstances.

Nadeem Asghar Nadeem and others v. Province of the Punjab and others 2016 PLC (C.S.) 155; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2004 SCMR 44; Syed Tahir Hussain Shirazi v. The Governor of the Punjab and others 1990 SCMR 1510; Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Dr. Iftikhar Ahmed Baig v. Province of Punjab 2001 YLR 1368; Raja Muhammad Ashraf v. Punjab Public Service Commission 2009 PLC (C.S.) 471; Muhammad Ismail v. Government of Khyber Pakhtunkhwa and others 2017 PLC (C.S.) Note 82 and Kashif Mustafa's case 2015 PLC (C.S.) 980 rel.

----S.21---Locus poenitentiae, principle of---Decisive step---Scope---Decisive step in view of locus poenitentiae principle, does not allow to retain the benefit, if order, notification or recommendation, so passed, was illegal, void or without lawful authority.

Higher Education, Punjab Civil Secretariat Lahore and others v. Muhammad Imran and others 2019 SCMR 643 rel.

Abid Saqi, Ahmad Yar Chawli and Muhammad Rameez Akhtar for Petitioners.

Sh. Usman Karim-ud-Din, M. A. Ghaffar-ul-Haq, Rashid Imran Chohan, Muhammad Ahsan Farooq, Ch. Muhammad Younas, Farman Ahmad Bhatti, Ghulam Abbas, Qasim Raza Chadhar, Rizwan Afzal Tarrar, Falak Sher Khan and Allah Dad Kashif Awan, Advocates for the Petitioners in connected writ petitions and contempt petition.

Barrister Zargham Lukhesar, Assistant Advocate General Punjab.

Aamir Zahoor, Senior Law Officer/DS (Legal), Nasir Mahmood, Law Officer, Afzal Pervaiz, Inspector of Treasury and Accounts and Aitzaz Rasool, Deputy Treasury Officer for Finance Department.

Raja Naeem Ahmad, Deputy Secretary, Punjab Public Service Commission.

PLCCS 2023 LAHORE HIGH COURT LAHORE 580 #

2023 P L C (C.S.) 580

[Lahore High Court (Multan Bench)]

Before Muhammad Shan Gul, J

Mrs. TANVEER RAFIQUE

Versus

GOVERNMENT OF THE PUNJAB through Secretary S&GAD and 11 others

Writ Petition No.12316 of 2013, heard on 14th September, 2021.

(a) Civil service---

----Monetary benefits---Implementation of judgment of the Supreme Court---Scope---Petitioner, a Senior Headmistress, filed applications to the Secretary, School Education Department for the grant of monetary benefits admissible to scales occupied by her counterparts in the General Cadre in view of judgment passed by Supreme Court in "Director, Public Instructions (Schools), Punjab and others v. Mrs. Neelum Amar and others" [1997 SCMR 1445]---Departmental Promotion Committee (DPC) regretted her case because antedated promotion could not be allowed to a retired civil servant---Validity---Case of grant of benefits filed within time on the basis of an unequivocal judgment of the Supreme Court was treated as a case of retrospective antedated promotion---Much before petitioner's retirement, her case had been brought under consideration of the department and it was only on account of the department's failure to muster necessary documents in their own possession that the case of petitioner was unnecessarily delayed and finally wrongly rejected---DPC had incorrectly and erroneously treated the case of the petitioner as that of antedated promotion---Order of the DPC was declared to be of no legal effect and was set aside---Case of the petitioner was sent to the secretary concerned to ensure that judgment passed by Supreme Court was implemented in letter and spirit---Constitutional petition was disposed of accordingly.

Abdul Rehman Chaudhry v. Deputy District Officer (Revenue), Lahore Cantt. and 2 others 2005 YLR 264 and Sharafat Ali v. Government of Punjab through Chief Secretary and 3 others 2005 YLR 1844 ref.

Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and others PLD 2016 Lah. 699 rel.

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

----S. 6---Effect of repeal---Scope---Provision of S. 6 requires a pending lis to be decided in accordance with applicable law in vogue at the time of the initiation of the said lis.

Manzoor Ali and 39 others v. United Bank Ltd. through President 2005 SCMR 1785; Mubarak Hussain and others v. Government of Pakistan through Secretary, Rehabilitation and Works Division, Islamabad and others 1997 SCMR 190 and Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 ref.

----S. 8---Promotion---Scope---Section 8(5) does not indicate either expressly or by way of necessary intendment that it operates retrospectively---Since it does not, it cannot be allowed to operate retrospectively.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Judicial review---Scope---Judges, in judicial review proceedings, traditionally are cautious in entertaining fact-based challenges since factual questions are primarily the domain of the public body concerned---However, the Court can certainly interfere in a case involving unsupported or unsubstantiated factual conclusions or where the ignorance or disregard of an established and material fact leads to unfairness.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Judicial review---Scope---Mistake as to a fact can also vitiate a decision where the fact is a condition precedent to exercise of jurisdiction, or where the fact is the only evidential basis for a decision or where the fact was about a matter which expressly or impliedly have to be taken into account---Likewise, at times, an error of fact can lead to unfairness---Hence, where there has been a mistake as to an existing fact and where such fact is uncontentious and objectively verifiable and such mistake had played a material even though not decisive part in the decision-makers reasoning, then High Court has the jurisdiction to intervene and remedy the defect---Taking into account a mistaken fact or misunderstanding or ignoring an established and relevant fact leads to judicial review of the decision so reached---Such head of review known as error of fact is now sufficiently well established for High Court to rely on it.

R v. London Residuary Body ex p Inner London Education Authority [1998] JR 238, 240; E v. Secretary of State for the Home Department [2004] EWCA Civ 49 [2004] QB 1044; R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 344-G-345C; Begum v. Tower Hamlets London Borough Council [2003] UKHL 5[2003] 2 AC 430 and R (Meredith) v. Merthyr Tydfil County Borough Council [2002] EWHC 634 (Admin.) ref.

Javed Ahmad Khan for Petitioner.

Azhar Saleem Kamlana, A.A.G for Respondents.

Dr. Arshad, CO/Education, Sahiwal.

Sohaib Imran, CO/Education Vehari.

Asif Mahmood, Law Officer, Education Department.

PLCCS 2023 LAHORE HIGH COURT LAHORE 620 #

2023 P L C (C.S.) 620

[Lahore High Court (Multan Bench)]

Before Muhammad Shan Gul, J

Mst. AMNA MAJEED

Versus

GOVERNMENT OF THE PUNJAB through Secretary Primary and Secondary Healthcare Punjab, Lahore and 7 others

Writ Petition No.12244 of 2021, heard on 10th August, 2021.

(a) Constitution of Pakistan---

----Art. 212---Administrative Courts and Tribunals---Scope---Even if a question of fundamental rights including discrimination is involved in the matter, even if a challenge is laid to statutory rules adversely affecting civil servants; the order has been passed by an incompetent authority; or an order suffers from malice and has been passed in bad faith; and an authority not recognized by the governing law has passed an order affecting the terms and conditions of a civil servant, the only forum available in all such instances (listed above) as also in other instances except when a person is seeking appointment or up-gradation in civil service or when question of fitness as opposed to eligibility of a civil servant to be promoted to a particular post is involved, is that of the Service Tribunal constituted under Art.212 of the Constitution.

Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Khalid Mahmood Wattoo v. Government of Punjab 1998 SCMR 2280 and Muzaffar Hussain v. The Superintendent of Police, District Sialkot 2002 PLC (C.S.) 442 ref.

(b) Constitution of Pakistan---

----Art. 212---Administrative Courts and Tribunals---Scope---No particular shape or form of an order exists that can be challenged before the Service Tribunal and even parawise comments controverting the stance of a petitioner civil servant suffice to be treated as a final order.

Sabir Zameer Siddiqui v. Abdul Malik PLD 1991 SC 226; Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; Khalil ur Rehman v. Government of Pakistan PLD 1981 Kar. 750 and Dr. Ghazanffarullah and 2 others v. Secretary Health, Government of the Punjab, Lahore and 6 others 2010 PLC (C.S.) 51 ref.

----Art. 212---Administrative Courts and Tribunals---Scope---While most of the other ouster clauses contained in the Constitution of Pakistan, have been judicially pierced and read down the ouster contemplated by Art. 212 of the Constitution has ordinarily never been read down by the Superior Judiciary so as to allow civil servants to have recourse to Constitutional jurisdiction in the matter of terms and conditions of their service.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 and Azhar Ahmad Khan and 8 others v. Chief Secretary Government of the Punjab, Lahore and 12 others 2010 PLC (C.S.) 374 ref.

(d) Constitution of Pakistan---

----Art.212---Administrative Courts and Tribunals---Scope---Judicially acknowledged grounds to read down an ouster clause are not applicable in the case of Art. 212 of the Constitution.

Syed Arshad Ali and others v. Pakistan Telecommunication Company Ltd. and others 2008 SCMR 314 rel.

(e) Constitution of Pakistan---

----Art.212---Administrative Courts and Tribunals---Scope---Bar contained in Art. 212 of the Constitution ousts jurisdiction of all other Courts even if the order under challenge is without jurisdiction or mala fide---Conventional and acknowledged grounds generally and ordinarily accepted to read down and penetrate constitutional and statutory ousters stood eclipsed when confronted with the ouster contained in Art. 212 of the Constitution.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 ref.

(f) Constitution of Pakistan---

----Art. 212---Administrative Courts and Tribunals---Scope---While in the case of a sub-constitutional ouster, a Superior Court zealously guards its jurisdiction and is, therefore, willing to exercise judicial power quite readily, but in the case of such Constitutional ouster there is little or no room for sweeping it aside---Where such an ouster is spelt out from the Constitution itself, very strict rules for crossing such an ouster, if at all, probably exist---Once jurisdiction is barred by a constitutional ouster, it would become absolute and any departure or deviation therefrom is not permissible under the law and the Constitution, ceteris paribus.

Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290 ref.

(g) Constitution of Pakistan---

----Art.212---Administrative Courts and Tribunals---Scope---Article 212 of the Constitution opening with a non-obstante clause expressly bars all Courts including a High Court to entertain or take cognizance of matters that eminently fall within the jurisdiction of the Administrative Tribunal.

Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290 and Mian Amanul Mulk v. N.W.F.P. through Chief Secretary PLD 1981 Pesh. 1 ref.

(h) Constitution of Pakistan---

----Arts. 212 & 199---Administrative Courts and Tribunals---Constitutional jurisdiction---Bar of jurisdiction---Scope---Rationale exists behind not reading down the ouster contemplated by Art. 212 of the Constitution---Article 199 of the Constitution of Pakistan, is subject to many conditions and riders---Article itself acknowledges that it is subject to the Constitution---All Articles of the Constitution appearing before and after Art. 199 have a bearing on the remedies afforded by Art. 199---On the other hand, Art. 212 starts with a non-obstante clause and, therefore, takes precedence over Art. 199 and similarly phrased other Articles of the Constitution, and therefore, has to be construed accordingly---Complete remedial mechanism before a forum i.e. the Tribunal, which is a Court for all intents and purposes has been provided by Art. 212 of the Constitution---Article itself mandates for setting up of a Tribunal which attributes of a Court to hear appeals---Perhaps, this is the reason why the ouster contemplated by Art. 212 remains impregnable and which ouster cannot be pierced come what may.

Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 ref.

(i) Constitution of Pakistan---

----Arts.212 & 199---Administrative Courts and Tribunals---Constitutional jurisdiction---Bar of jurisdiction---Scope---Article 212 of the Constitution being a non-obstante article prevails over Art. 199 since no Court has the jurisdiction to exercise judicial power to grant an injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends---High Court has no jurisdiction to even entertain a matter that stands barred under Art. 212---In fact, the remedy afforded by Art. 199 cannot be triggered owing to this jurisdictional bar---Words 'jurisdiction to entertain' clearly mean that since there is no jurisdiction to even entertain, no question of exercise of the consequent judicial power arises.

(j) Constitution of Pakistan---

----Arts.212 & 199---Administrative Courts and Tribunals---Constitutional jurisdiction---Bar of jurisdiction---Scope---Exclusionary provisions of Article 212 take within their sweep all preceding provisions of the Constitution and which include Art. 199 of the Constitution---In fact, the non-obstante clause indicates clearly that Art. 212 stands on a higher constitutional pedestal than Art. 199 and that its provisions are not subject to or conditioned upon those of Art.199 of the Constitution---Intention of the legislature in granting primacy to Art. 212 is manifest.

Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545 ref.

Shakeel Javed Chaudhary for Petitioner.

Azhar Saleem Kamlana, A.A.G. for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 662 #

2023 P L C (C.S.) 662

[Lahore High Court]

Before Tariq Saleem Sheikh, J

MUHAMMAD TAHIR NAWAZ CHEEMA and others

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.5801 of 2022, decided on 12th May, 2022.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Statutory body---Non-statutory service rules---Effect---Principle of 'Master and Servant'---Exceptions---Employees of a statutory body whose conditions of service are not regulated by rules/regulations framed under the Statute but only by Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through Constitutional jurisdiction (of High Court)---Such employees are governed by the principle of 'Master and Servant'; however there are exceptions to such canon: first, the statutory body has violated service rules or regulations framed by it under the powers derived from the statute and there is no adequate or efficacious remedy; second, the body has disregarded procedural requirements and principles of natural justice while taking action in a service matter; third, there is a statutory intervention---Rule of 'Master and Servant' is not applicable to those cases also where there is violation of any law holding the field and such is an independent ground for judicial review but it may be considered an extension of the third exception---Expression "violation of law" does not confine to violation of any specific provision of a statute.

Pakistan Defence Officers' Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; M.H. Mirza v. Federation of Pakistan and 2 others 1994 SCMR 1024; The Principal, Cadet College, Kohat, and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan and others PLD 2006 SC 602; Azizullah Memon v. Province of Sindh and another 2007 SCMR 229; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; 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; Muhammad Zaman and others v. Government of Pakistan and others 2017 SCMR 571; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Civil Aviation Authority v. Javed Ahmad and another 2009 SCMR 956; Government of Pakistan through Director General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1; Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Faisal Sultan v. E.D.O. (Education) and others 2011 PLC (C.S.) 419 and Dr. Tahir Masud v. Amjad Ali Khan and 4 others 2019 PLC (C.S.) 1167 rel.

(b) Corporate Governance Rules, 2013---

----Rr. 2(1)(g), 5, 12 & 25---Constitution of Pakistan, Art. 199---Constitutional petition---Termination of service---Public Sector Company---Petitioners were employees of NESPAK which was a Public Sector Company and their services were terminated in violation of their terms of service---Validity---Respondent company sent the petitioners home under a plan which was neither prepared nor approved in accordance with Corporate Governance Rules, 2013---Plan lacked transparency and fairness and completely disregarded principle of procedural due process---Termination letters in question did not meet standards of good governance developed over the years in respect of public sector employments---Action of respondent company against petitioners could not be approved, as rights of petitioners must be balanced with interests of State---Public institutions should not be allowed to become a breeding ground for parasites, they should have freedom to manage their affairs in appropriate manner so that they may deliver and come up to expectations of the nation---If respondent company needed any restructuring or new policies to improve its working, including those relating to human resource, it could go ahead subject to the condition that it was to comply with Corporate Governance Rules, 2013 and ensured transparency and non-discrimination---High Court set aside Termination Letters issued to petitioners---Constitutional petition allowed, in circumstances.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. and 10 others PLD 1975 SC 244; 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 Telephone Industries of Pakistan and others 2015 SCMR 1257; Human Rights Case No.3564 of 2018 - In the matter regarding appointment of Managing Director, Pakistan Television Corporation 2019 SCMR 1; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; Province of the Punjab and others v. Javed Iqbal 2021 SCMR 328; Mst. Ubaida Manzoor v. Government of the Punjab through Secretary Education (Schools), Lahore and 4 others 2012 PLC (C.S.) 101; State of Haryana and another v. Raghubir Dayal (1995) 1 SCC 133; Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another 2021 SCMR 305; Ghulam Rasool Tahir v. IVTH Sindh Labour Court, Karachi through Presiding Officer and another 2007 PLC 83; M.D. Escorts Pakistan Ltd. v. Munawar Khaliq 2009 PLC 50 and Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 rel.

Shahid Anwar Bajwa, Ijaz Ahmad Awan, Kh. Mohsin Abbas, Adnan Qamar Malik, Sultan Ali Awan, Rana Muhammad Nafees and Abdul Rehman Bajwa for Petitioners.

Syed Muhammad Haider Kazmi, Assistant Attorney General for Respondents Nos.1 and 2.

Hafiz Tariq Nasim for Respondents Nos.3 to 5.

PLCCS 2023 LAHORE HIGH COURT LAHORE 727 #

2023 P L C (C.S.) 727

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi and Jawad Hassan, JJ

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad

Versus

KHALID MAHMOOD and another

I.C.A. No.431 of 2016, heard on 6th April, 2023.

(a) Rules of Business, 1973---

----Rr.2(xviii), 4 & Scheds. I & II---Constitution of Pakistan, Art.25---Discrimination---Allotment of plot---Entitlement---Dispute was with regard to allotment of additional plot to Secretaries and respondent claimed that he had been discriminated as four other officials similarly placed had been allotted plots---Judge in Chambers of High Court directed Federal Government to allot an additional plot to respondent---Plea raised by authorities was that though respondent was promoted as Secretary but his services were placed on the disposal of Provincial Government and he did not hold office of Federal Secretary, therefore, he was not entitled to allotment of such plot---Validity---Respondent was promoted as Secretary to the Government of Pakistan and retired as such therefore he had one year service at his credit, as a Secretary---For holding of an office as a Federal Secretary it was the prerogative of Prime Minister who could place services of a Secretary, BS-22, where he wanted or had thought appropriate--- Postings of respondent at different provincial departments could not snatch rank and status of a Secretary, BS-22, because it had been awarded to him by Government of Pakistan---Every Division, under R.4 of Rules of Business, 1973, consisted of a Secretary to the Government and such other officials subordinate to him as the Government could determine and the Secretary was the official head of such Division---Amongst the other four allottees who after having been promoted as Secretaries Government of Pakistan were re-employed after their superannuation and were allowed the package but respondent was refused---According to Schedule I read with Schedule II of Rules of Business, 1973, National Security Council was not listed as a Division where one of the four allottees served and then retired, yet he was allotted an additional plot---Similarly, other three allottees though had been working as Secretaries but whether they served as head of the Divisions had not been disclosed---Allotments made to the said four officials was discrimination with respondent---Respondent after having been promoted and posted as Secretary (BS-22) under the order of competent authority had become eligible for allotment of an additional plot as were granted to other four Secretaries, whose cases were at par with that of the respondent---It was not justifiable to deprive respondent from a facility/benefit which had been awarded to those standing on the same footings---Division Bench of High Court declined to interfere in judgment passed by Judge in Chambers as there was no illegality in it---Intra Court Appeal was dismissed, in circumstances.

Maqsood Ahmad Toor and 4 others v. Federation of Pakistan Ministry of Housing and Works, Islamabad and others 2000 SCMR 928 ref.

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; Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another 1997 SCMR 1026; Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Syed Sadiq Shah and others 2021 SCMR 747 and Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad PLD 2009 SC 107 rel.

(b) Constitution of Pakistan---

----Art.25---Discrimination---Differential treatment---Scope---Differential treatment under Art. 25 of the Constitution is allowed in respect of persons who are not similarly placed under a reasonable classification---In order to justify difference in treatment reasonable classification must be based on intelligible differentia that has a rational nexus with the object being sought to be achieved---Any distinct treatment meted out to a class of persons can only be sustained under Art. 25 if such test is satisfied.

Hadayat Ullah and others v. Federation of Pakistan and others 2022 SCMR 1691 rel.

----Art.25---Discrimination---Intelligible differentia, principle of---Scope---In order to establish reasonable classification based on intelligible differentia, differentiation must have been understood logically and there should not be any artificial grouping for specific purpose causing injustice to other similarly placed individuals.

Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another 2022 SCMR 201 and Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 rel.

Muhammad Zain Qazi, Assistant Attorney General along with Mehmood Khan Lakho, Section Officer for Appellant.

Barrister Munawar-us-Salam, Advocate Supreme Court along with Barrister Waleed Khalid, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

PLCCS 2023 LAHORE HIGH COURT LAHORE 749 #

2023 P L C (C.S.) 749

[Lahore High Court (Rawalpindi Bench)]

Before Sadaqat Ali Khan, Mirza Viqas Rauf and Jawad Hassan, JJ

MIRZA SHAHZEB

Versus

CITY POLICE OFFICER, POLICE LINE, RAWALPINDI and 4 others

Writ Petition No.1891 of 2020, heard on16th December, 2022.

(a) Precedent---

----Conflicting views---Effect---If a view is formed by a Bench of the Court, it is binding for the Bench comprising of same number of Judge/Judges---If some Bench of similar nomenclature is desirous to form another view then latter has to send the matter to Chief Justice for constituting of larger Bench.

Messrs WAK Limited Multan Road, Lahore v. Collector Central Excise and Sales Tax, Lahore (Now Commissioner Inland Revenue, LTU, Lahore) and others 2018 SCMR 1474; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 284; Chairman, State Life Insurance Corporation and others. v. Hamayun Irfan and 2 others 2010 SCMR 1495; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446 and Messrs Al-Mahmudia (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others PLD 2007 SC 79 rel.

(b) Words and phrases---

----Concealment---Meaning.

Black's Law Dictioanry Tenth Edition; The Chamber Dictionary 12th Edition; Merriam-Webster's Collegiate Dictionary Eleventh Edition and Oxford Advanced Learner's Dictionary International Student's Edition rel.

----Misstatement---Meaning.

The Chamber Dictionary 12th Edition and Merriam-Webster's Collegiate Dictionary Eleventh Edition rel.

(d) Constitution of Pakistan---

----Art.199---Constitutional petition---Concealment of facts---Advertised posts---Rejection of candidature---Petitioners applied for posts in question and their candidature was rejected for concealing material facts---Validity---At the time of submission of their application forms, petitioners concealed their previous involvement in criminal cases---Disclosure of involvement in some offence was a material fact and it was not expected from petitioners, who were to join police department to hide such material fact---Police official should always be honest and law abiding---It was not expected from a police man to get himself recruited in the department through misrepresentation, misstatement or false statement--- High Court declined to interfere in decision made by the authorities---Constitutional petition was dismissed, in circumstances

Civil Petitions Nos.1668-L and 1852-L of 2012 fol.

Mirza Saqib Siddiqui for Petitioner.

Malik Abdul Aziz Awan, Addl. Advocate General, Mushtaq Ahmad Mohal, Addl. Advocate General, Tallat Mehmood Khan, Assistant Advocate General and Amna Ali, Assistant Advocate General for Punjab with Shazia, DSP (Legal), Hassan Askari, Inspector and Anjum Ramzan, ASI/OSI for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 785 #

2023 P L C (C.S.) 785

[Lahore High Court]

Before Abid Aziz Sheikh and Sultan Tanvir Ahmad, JJ

NATIONAL ENGINEERING SERVICES PAKISTAN (NESPAK) and 2 others

Versus

MUHAMMAD NAWAZ CHEEMA and 13 others

I.C.A. No.32860 of 2022, heard on 15th December, 2022.

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

----Rr.2(1)(g) & 25---Constitution of Pakistan, Art.199---Termination from service---Non-statutory rules of service---Constitutional jurisdiction---Scope---Respondents assailed their termination orders through various constitutional petitions, which were allowed by the Single Judge of High Court vide impugned orders---Contention of appellant-employer was that its' employees did not have statutory rules of service and that the alleged violation of terms and conditions of service did not attract the constitutional jurisdiction of High Court---Respondents defended the judgment by placing reliance on the judgment reported as "Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed" [2013 SCMR 1707] ('the cited case') and contended that in view of non-adherence of Public Sector Companies (Corporate Governance) Rules, 2013, even in absence of statutory rules of service, the constitutional petition was maintainable---Validity---Supreme Court in the 'cited case' and others case had clearly observed that in order to maintain constitutional petition, it was incumbent upon the petitioner to show statutory intervention---Service rules in the instant case were prepared by Board of Directors of private limited company, having no statutory authority, the case did not meet the criteria and yardstick laid down in paragraph No. 50 of the 'cited case' and others case---Even otherwise, consequences of violation of Public Sector Companies (Corporate Governance) Rules, 2013, were given in R.25 of the same, in the form of fine besides other consequences provided in the Companies Act, 2017---Impugned judgment was set aside and the intra court appeals were allowed.

Sui Southern Gas Company Limited and others v. Saeed Ahmed Khoso and another 2022 SCMR 1256 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Termination from service---Non-statutory rules of service---Scope---Respondents assailed their termination orders through various constitutional petitions, which were allowed by the Single Judge of High Court vide impugned orders---Validity---Appellant was a private limited company, which was incorporated under the provisions of erstwhile Companies Act, 1913---Terms and conditions of employment of appellant were governed by National Engineering Services Pakistan (Pvt.) Limited Employees Service Rules, which were framed by the Board of Directors in pursuance of powers conferred by the Memorandum and Articles of Association---Employee of appellant could not maintain petition in constitutional jurisdiction of High Court---Petitions filed by respondents were not maintainable---Impugned judgment was set aside and the intra court appeals were allowed.

The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Pakistan Electric Power Company v. Syed Slahuddin and others 2022 SCMR 991 and Ali Mehtab v. Government of the Pakistan through its Secretary, Ministry of Energy (Power Division), Islamabad and others (W.P. No. 249942 of 2018) ref.

Umer Atta-ur-Rehman Khan v. Ministry of Energy Through Secretary / Chairman, NESPAK and 5 others 2021 PLC (C.S.) 1126 and Shakeel Ahmed and others v. Federation of Pakistan and others (I.C.A. No.26 of 2022) rel.

----Art.199---Constitutional petition---Maintainability---Termination from service---Non-statutory rules of service---'Master-Servant relationship'---Scope---Where conditions of service of employees are not regulated by a statutory provision(s), the service/employment of employees is to be governed by the principle of "Master and Servant" and the employees of such entity cannot invoke Art.199 of the Constitution, for any violation of terms and conditions of service.

Pakistan Airline Pilots Association and others v. Pakistan International Airline and another 2019 SCMR 278; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 ref.

Hafiz Tariq Nasim, Jawad Nasim Tariq, Usman Yaqoob Butt, Zubdatul Hassan and Saleem Ullah Khan for Petitioners.

Shahid Anwar Bajwa, Abdul Rehman Bajwa, Saad Chohan, Muhammad Mubashar Aslam, M. Hassan Latif, Adnan Ahmad Chaudhary, Ejaz Ahmad Awan, Adnan Qamar Malik, Miss Sadia Zain Iftikhar, Rustam Nawab Lak, Shami Akhtar, Sultan Ali Awan, Anmol Ali Awan, Nawaz Cheema, Mazhar Hussain Haji and M. Taqi Hasnain Kazmi for Respondents.

Miss Sufia Masood, Assistant Attorney General for Federation.

PLCCS 2023 LAHORE HIGH COURT LAHORE 804 #

2023 P L C (C.S.) 804

[Lahore High Court]

Before Shams Mehmood Mirza, J

ABDUL HASEEB KHAN

Versus

RAVI URBAN DEVELOPMENT AUTHORITY and others

Writ Petition No.433 and C.M. No.5 of 2023, decided on 14th March, 2023.

(a) Ravi Urban Development Authority Act (XVII of 2020)---

----Ss. 9, 11 & 12---Powers of Chief Executive Officer---Appointment of employees---Termination from service---Scope---Petitioner assailed the termination of his contract of employment---Contention of petitioner was that the Chief Executive Officer had no authority to terminate his service; that the Board, under S.9(6) of Ravi Urban Development Authority Act, 2020, had not delegated its power to Chief Executive Officer and that under S.12, only the Authority could remove him from service---Validity---Employment contract of the petitioner was signed by the Chief Executive Officer---Power for appointment of petitioner was also exercised by the Chief Executive Officer under S.11 by virtue of the delegation of powers and functions conferred on him under subsection (6) of S.9---By the same token, Chief Executive Officer by recourse to subsection (6) of S.9 was empowered to pass the order for termination of the services of the petitioner---Ravi Urban Development Authority Act, 2020, had assigned the powers and functions of the Authority and its Board to the Chief Executive Officer who in exercise of that power had terminated the service contract of the petitioner---Said power under the scheme of the Act was validly exercised by the Chief Executive Officer to which no exception could be taken---Writ petition was dismissed.

Pakistan Electric Power Company v. Syed Salahuddin and others 2022 SCMR 1991 and Sui Southern Gas Company Limited and others v. Saeed Ahmad Khoso and another 2022 SCMR 1256 ref.

House Building Finance Corporation v. Inayatullah Shaikh 1999 SCMR 311 distinguished.

(b) Ravi Urban Development Authority Act (XVII of 2020)---

----S.9---Powers of Chief Executive Officer---Scope---Subsection (6) of S.9 contemplates delegation of all powers and functions of the Authority and the Board onto the Chief Executive Officer---Said provision confers on the Chief Executive Officer the legal capacity to exercise the powers and functions of the Authority and its Board without there being the need for any formal instrument of delegation---Subsection (6) of S.9 is an express provision establishing the existence of a power to delegate---It is important to keep in consideration the distinction between the authorization by the corporation to its officials to do certain acts and delegation of power under the terms of the statute.

----Ss. 9, 11 & 12---Powers of Chief Executive Officer---Appointment of employees---Termination from service---Scope---Words appearing in subsection (6) of S.9 "subject to this Act and general supervision and control of the Board" do not in any manner whatsoever hamper or curtail the powers of the Chief Executive Officer and/or make the approval of the Authority or Board, as the case may be, a condition precedent for the decisions taken by the Chief Executive Officer---Chief Executive Officercan perform all powers and functions of the Authority for the purposes of the appointment and termination from service of the employees of the Authority.

(d) Ravi Urban Development Authority Act (XVII of 2020)---

----S.11---Appointment of employees---Scope---Section 11 makes provision for the appointment of the employees of the Authority on such terms and conditions as may be prescribed by the regulations---Ravi Urban Development Authority Act, 2020 however, does not make any distinction between the regular employees of the Authority and employees recruited on contract.

(e) Interpretation of statutes---

----Statutory delegation---Scope---In the case of a statutory corporation the power and authority to do any particular thing is to be found in the language of the statute, what it expressly provides and what it inferentially provides as a matter of necessary implication.

Kathleen Investments (Australia) Ltd. v. Australian Atomic Energy Commission [1977] HCA 55 ref.

(f) Interpretation of statutes---

----Statutory delegation and agency---Distinction---In the case of statutory delegation, the delegate exercises the powers and performs the functions delegated to him by acting in his own name as the delegation involves an authorization to act personally rather than as an agent.

B (A Solicitor) v. Victorian Lawyers RPA Ltd. (2002) 6 VR 642 rel.

(g) Interpretation of statutes---

----Statutory delegation---Scope---Where a delegate is exercising the power delegated to him under a statute, he may validly exercise that power in his own name---When a power is so delegated, the delegate must exercise his own independent discretion in the exercise of the delegated power---However, this principle is not absolute as it yields to any contrary indicator found in the language, scope or object of the statute.

Owendale (Pvt.) Ltd. v. Anthony (1967) 117 CLR 539 and Northern Land Council v. Quall [2020] HCA 33 ref.

(h) Civil service---

----Master and servant---Scope---Absent the statutory underpinning, the rule of master and servant would govern the employment contract of an employee.

Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 rel.

(i) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Mala fide, allegation of---Scope---Mala fide being a question of fact cannot be adjudicated by High Court in exercise of its constitutional jurisdiction.

Adnan Ahmad Khawaja for Petitioner.

Haris Azmat for Respondent.

PLCCS 2023 LAHORE HIGH COURT LAHORE 823 #

2023 P L C (C.S.) 823

[Lahore High Court]

Before Jawad Hassan, J

MUHAMMAD AMJAD

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education and another

Writ Petition No.86112 of 2017, decided on 16th January, 2023.

(a) Constitution of Pakistan---

----Art. 199---Civil service---Contractual employment---Petitioner was employed as an Elementary School Educator on a contract basis, which was extended periodically---However, during the course of his employment, he got involved in a criminal case and was subsequently convicted and sentenced to life imprisonment---Petitioner filed an appeal before the High Court, which was accepted, and he was acquitted of the charges---While the criminal trial was ongoing, the respondent terminated the petitioner's contract of employment---After his acquittal, the petitioner sought reinstatement, but his request was denied---Validity---Petitioner was treated in accordance with the terms and conditions of his contract of employment, which he had accepted at the time of his appointment---As such, he could not deviate from those terms at present stage---Additionally, the issue pertained to government policy matters, which the High Court could not interfere with---It was the government's prerogative to determine the manner in which appointments should be made, and such policy decisions were typically not subject to legal challenge unless they failed the test of reasonableness---Constitutional petition was dismissed.

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; Superintending Engineer GEPCO Sialkot v. Muhammad Yousaf 2007 SCMR 537 and Director General, Intelligence Bureau, Islamabad v. Muhammad Javed and others 2012 SCMR 165 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Policy matter---Scope---Not in the domain of the Courts to embark upon an inquiry as to whether a particular merit policy is wise and acceptable or whether better policy could 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.

Muhammad Younas Bhullar for Petitioner.

PLCCS 2023 LAHORE HIGH COURT LAHORE 836 #

2023 P L C (C.S.) 836

[Lahore High Court (Multan Bench)]

Before Sohail Nasir, J

CH. MUHAMMAD HANIF

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and 2 others

Writ Petition No.15633 of 2017, decided on 25th January, 2022.

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

----Pt.III---Employee of State Life Insurance Corporation---Criteria for promotion not given in rules of service---Effect---Petitioner, holding the post of Area Manager in the respondent-Corporation, claimed that despite the fact that his juniors were promoted to Manager Marketing, he was being denied such right---Contention of respondent-Corporation was that State Life Employees (Service) Regulations, 1973 although were statutory but as these were silent about the promotion criteria, therefore, to that extent these were non-statutory and could not govern promotion of the petitioner---Validity---When the statutory rules were completely silent, it was impossible for the High Court to find out that how petitioner could meet the relevant merit for the purpose of promotion, so the jurisdiction exercised by the respondents while refusing the relief could not be interfered with---No case in favour of petitioner was made out---Constitutional petition was dismissed.

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

Yafis Naveed Hashmi for Petitioner.

PLCCS 2023 LAHORE HIGH COURT LAHORE 849 #

2023 P L C (C.S.) 849

[Lahore High Court (Multan Bench)]

Before Abid Hussain Chattha and Anwaar Hussain, JJ

MUHAMMAD SAEED and 2 others

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and 2 others

Intra Court Appeal No.36 of 2021 in Writ Petition No.17733 of 2018, heard on 28th September, 2022.

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

----Regln.4 (ii)(c)(1) & (2)---Incentive Bonus and Additional Incentive Bonus---Operational Cost, deduction of---Petitioners were employees of respondent company and were aggrieved of recovery of amount in excess of 10% of their Operational Cost from their Incentive Bonus or Additional Incentive Bonus---Validity---Appellants were required to fulfill their annual FYP quota to ensure that their Persistency Ratio was not lower than ratio as prescribed---Failure to achieve all or any of such requirements would necessitate curtailments or taking any or all such measures---Incentive Bonus and Additional Incentive Bonus were granted to appellants in terms of their appointment letters and the same could not curtailed or withdrawn in terms of Reglns. No.4(ii)(c)(1) & (2) of State Life Employees (Service) Regulations, 1973, by Board of respondent company---High Court declared the act of respondent company regarding deduction of Incentive Bonus and Addition Incentive Bonus from Operational Cost of appellants to be illegal and without lawful authority and the same was set aside---High Court directed respondent company to refund the amount deducted out of Incentive Bonus and Additional Incentive Bonus from Operational Cost of appellants---Intra Court Appeal was allowed accordingly.

State Life Insurance Corporation of Pakistan and others v. Syed Hassan Ali Shah and others 2010 SCMR 1381; Mazullah Khan v. Zonal Head, State Life Insurance Corporation, Peshawar and others 2008 SCMR 617; Chairman State Life Insurance Corporation of Pakistan v. Mian Khalid Ahmad Tahir (Ex-Area Manager) and C.Ps. Nos. 247-L, 249-L, 250-L, 428, 429 and 431 to 437 of 2011; State Life Insurance Corporation of Pakistan through its Chairperson and others v. Asmat Ullah and another C.P. No. 340 of 2017; Muhammad Khan v. State Life Insurance Corporation of Pakistan and others I.C.A. No. 21 of 2021; Naeem Akhtar Anser and another v. State Life Insurance Corporation of Pakistan and others I.C.A. No. 29469 of 2019; Shabbir Hussain Shahid and 2 others v. State Life Insurance Corporation of Pakistan and 3 others I.C.A. No. 15422 of 2021; Muhammad Khan v. State Life Insurance Corporation of Pakistan and others I.C.A. No. 39 of 2021; Bilal Ahmed v. Chairman, State Life Insurance Corporation of Pakistan and others I.C.A. No. 393 of 2020; Naeem Akhtar Ansar and others v. State Life Insurance Corporation of Pakistan through its Chairman and others W.P. No. 230298 of 2018; Muhammad Ilyas Bhatti v. State Life Insurance Corporation of Pakistan and others W.P. No.69609 of 2019; Ashfaq Hussain v. State Life Insurance Corporation and others W.P. No. 58816 of 2019; Chairman State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495 and Nazar Muhammad Waraich and 7 others v. Zonal Head, State Life Insurance Corporation of Pakistan, Sialkot and another 2017 PLC (C.S.) 685 ref.

(b) Interpretation of document---

----Contract---Redundancy, principle of---Applicability---Plain and general words are given their literal meaning---Express mention or inclusion of one thing excludes the other---Redundancy cannot be attributed to express words of contract and any other interpretation would lead to absurd result.

M. Yafis Naveed Hashmi for Appellants.

Malik M. Tariq Rajwana for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 876 #

2023 P L C (C.S.) 876

[Lahore High Court]

Before Muzamil Akhtar Shabbir, J

Ms. FOZIA NASEEM

Versus

HIGHER EDUCATION COMMISSION, ISLAMABAD through Secretary and 2 others

Writ Petitio No.75487 of 2022, decided on 1st December, 2022.

Civil service---

----Educational institution---Associate Professor, post of---Appointment---Laches, principle of---Maxim "vigilantibus non dormientibus aequitas subvenit"---Applicability--- Petitioner sought direction to University authorities to accept her application for the post of Associate Professor and also assailed criteria fixed for the post---Validity---Principle of laches is based on maxim "vigilantibus non dormientibus aequitas subvenit", which means equity helps wakeful and not the slumbering---Equity aids the vigilante and not those who sleep over their rights---Laches signifies laziness in pursuing a legal remedy, which results in estoppel against petitioner seeking remedy otherwise available under the law---Law is to favor the vigilante and not the indolent---In the present case there was delay of 22 months in filing petition for assailing criteria fixed for the post through advertisement dated 10-01-2021, after the last date for filing applications had already expired on 26-02-2022---High Court declined to interfere in the matter as the petition was not only barred by laches but the petitioner was also estopped by her conduct to challenge the process at such stage---Constitutional petition was dismissed, in circumstances.

Masooda Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 SC 90; Zaheer Ahmad Chaudhry and others v. City District Government Karachi and others 2006 YLR 2537; Abdul Rehman Janjua v. Punjab Bar Council and 3 others PLD 1983 Lah. 47; Syed Asif Majeed and 5 others v. A.D.C.(C)/ASC(L), Lahore and 15 others 2000 SCMR 998; Mirza Maqbool Elahi through Legal Heirs and 8 others v. Capital Development Authority, Islamabad and 3 others 1998 SCMR 1074; Soofi Muhammad Din and others v. Settlement and Rehabilitation Commissioner and others 1991 SCMR 905; Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others PLD 1993 Kar. 237; M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563 and Ahmed and 25 others v. Ghama and 5 others 2005 SCMR 119 ref.

Ghulam Abbas Haral for Petitioner.

Ch. Muhammad Jahanzaib, A.A.G. for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 953 #

2023 P L C (C.S.) 953

[Lahore High Court]

Before Jawad Hassan, J

SAJJAD RABBANI

Versus

PAKISTAN TELECOMMUNICATION CORPORATION LIMITED and others

Writ Petition No.15193 of 2012, heard on 20th February, 2023.

Civil service---

----Voluntary Separation Scheme---Terms and conditions, alteration in---Scope---Petitioner sought direction to the respondents to grant him full pensionary benefits and the separation bonus of the Voluntary Separation Scheme (VSS)---Contention of the petitioner was that his acceptance of the VSS was subject to the condition of receiving pensionary benefits and the separation bonus---Validity---Before signing the VSS, the petitioner was advised through a circular to understand the terms and conditions incorporated in the VSS---It was also suggested that he might discuss any concerns with his family, friends, and colleagues before making a decision---Additionally, the respondents had established a VSS Support Centre to provide assistance---Despite having and availing these ample opportunities, the petitioner chose to opt for the VSS and was fully aware of a clause of the terms and conditions, which clearly stated that 'there can be no conditional acceptance of VSS'---This meant that the VSS was not subject to the petitioner's own wishes or will, but rather had to be accepted or rejected strictly according to the terms and conditions set by the respondents---After accepting the terms and conditions of the VSS, the petitioner willingly opted for it and could not later back out at present late stage---Constitutional petition was dismissed.

Khawaja Tariq Sohail for Petitioner.

Shahid Anwar Bajwa, Abdul Rehman Bajwa, Rana M. Nafees with Faisal Khursheed, Senior Manager, PTCL.

Nasir Javaid Ghumman, Deputy Attorney General for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 979 #

2023 P L C (C.S.) 979

[Lahore High Court]

Before Abid Aziz Sheikh, J

MOZAMMIL IQBAL

Versus

DEPUTY DIRECTOR (HR) PUNJAB EMERGENCY SERVICE, LAHORE and 2 others

Writ Petition No.49994 of 2019, decided on 7th November, 2021.

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

----Ss.4(b)(v) & 5---Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, Rr. 4 & 7---Initiation of proceedings---Regular inquiry, dispensation of---Effect---Petitioner assailed his removal from service---Validity---Show-cause notice revealed that it was not merely confined to unsatisfactory three PERs (Performance Evaluation Reports) in two consecutive years, rather there were serious allegations of misconduct including irresponsible, non-serious, uninterested and negligent attitude towards job, which amounted to misconduct and inefficiency---Petitioner could only be proceeded for misconduct under R.7 of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, read with relevant provisions of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, which contemplated regular inquiry in case of major penalty of removal from service under Section 4(b)(v) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Impugned orders were set aside and the petitioner was reinstated into service---Writ petition was allowed accordingly.

(b) Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007---

----R.4---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S. 5---Initiation of proceedings---Efficiency and performance evaluation---Regular inquiry, requirement of---Scope---In a case where an employee was accused of three unsatisfactory PERs for two consecutive years, along with allegations of misconduct such as irresponsibility, non-seriousness, lack of interest, and negligence towards the job, the High Court observed that it was not a simple order for removal from service under R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007---Instead, the court ruled that a regular inquiry needed to be conducted.

----S.5---Initiation of proceedings---Regular inquiry---Scope---Major penalty like removal from service on the basis of serious allegation of misconduct can only be imposed after regular inquiry---Only in exceptional circumstances, the regular inquiry can be dispensed with and summary procedure may be followed when there was no factual controversy or the allegations are admitted.

Abdul Qayyum v. D.G. Project Management Organization, JS HQ, Rawalpindi and 2 others 2003 SCMR 1110; 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 and Muhammad Sadiq v. Inspector-General of Police Punjab Lahore and others 2017 SCMR 1880 ref.

Writ Petition No.255589 of 2018 and I.C.A. No.71261 of 2019 rel.

(d) Punjab Emergency Service Act (IV of 2006)---

----S.11---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S. 2(h)---Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, R. 7---Terms and conditions of service---"Employee"---Initiation of proceedings---Scope---Under S.11 of the Punjab Emergency Service Act, 2006, though terms and conditions of service of employees can be prescribed by Council, however, there is no specific provision for disciplinary proceedings against them under the Act---On the other hand, the Punjab Emergency Service, Lahore being a statutory body admittedly owned and controlled by Provincial Government, its employees are covered under the definition of "employee" under S.2(h) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 for the purpose of its applicability---As per R.3 of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, the provisions of the Rules are in addition to the Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Similarly under Rule 7 of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, the official shall be liable to be proceeded under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, if he is inter alia guilty of misconduct---For disciplinary proceedings against employees of Punjab Emergency Service, Lahore, the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, will apply and Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, are merely in addition to Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

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

----Ss.2(n), 2(k), 3, 4, 5 & 9---"Misconduct"---"Inefficiency"---Grounds for proceedings and penalty---Initiation of proceedings---Procedure to be followed by competent authority where inquiry is necessary---Scope---Under S.2(n) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, the word "misconduct" has been defined and under S. 2(k), the word "inefficiency" has been defined---Under S.3 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, an employee shall be liable to be proceeded under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, if he is inefficient, guilty of misconduct or guilty of corruption and in such eventuality, the minor and major penalties prescribed under S.4 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, can be imposed, which include removal from service---Sections 5 and 9 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, provide regular inquiry unless he same is dispensed with under S. 5(1)(a) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

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

----Ss. 2(n), 2(k), 5 & 9---Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, Rr.3, 4 & 7---"Misconduct"---"Inefficiency"---Efficiency and performance evaluation---Initiation of proceedings---Regular inquiry---Scope---Definition of "misconduct" in S.2(n) in Punjab Employees Efficiency, Discipline and Accountability Act, 2006 is not exhaustive, however, by applying the rule of ejusdem generis, the allegations of three unsatisfactory PERs for two consecutive years fall in the definition of "inefficiency" under S.2(k) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and not under "misconduct" as defined in S.2(n) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006---However, R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, has introduced this ground as a new ground with major penalty of removal from service---Indeed under R. 3 of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007 are in addition to Punjab Employees Efficiency, Discipline and Accountability Act, 2006, therefore, this new ground could be introduced in the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, considering sensitive nature of the job, however, other provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, including regular inquiry under Ss.5 & 9 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, cannot be dispensed with.

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

----Ss.20, 5 & 9---Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, R.4---Act to override other laws---Initiation of proceedings---Efficiency and performance evaluation---Scope---Section 20 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 gives overriding effect to Punjab Employees Efficiency, Discipline and Accountability Act, 2006, on any other law, hence Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, by mere implication cannot dispense with the provision of regular inquiry under Ss. 5 & 9 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, unless same was dispensed with by recording reasons under S.5(1)(a) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Similarly just because Competent Authority may impose major penalty of removal from service under R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, the other proportionate lesser penalties including minor penalties for inefficiency under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, cannot be excluded.

(h) Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007---

----R. 4---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S. 5---Initiation of proceedings---Efficiency and performance evaluation---Regular inquiry, dispensation of---Effect---In R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, prior to amendment, inquiry was dispensed with as it was merely for termination of a contract employee, however in the amended Rule, the matter is for major penalty of removal from service of a regular employee, who is otherwise entitled for regular inquiry under Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Therefore, the amended R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, intentionally did not dispense with the regular inquiry---Rule 4(5) does not dispense with the regular inquiry under Ss. 5 & 9 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, unless said inquiry is specifically dispensed with by the competent authority under Ss.5(1)(a) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

(i) Interpretation of statutes---

----Amendment in statute---Scope---When the phraseology of the Law/Rule is changed by an amendment, the presumption will be that some change in law is intended by the legislation or rule making authority.

Asif Wazir Awan for Petitioner.

Barrister Zargham Lukhesar, Assistant Advocate General Punjab for Respondent.

Sohail Tufail along with Hafiz Muhammad Adnan, Assistant Law Officer of the Department.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1013 #

2023 P L C (C.S.) 1013

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

ASAD IMRAN and another

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and others

Writ Petition No.63374 of 2020, heard on 20th October, 2021.

(a) Civil service---

----Police official---Death on duty---Incentive for legal heirs---Petitioners challenged the vires of the order passed by District Scrutiny Committee whereby the request for grant of due incentives to family of deceased Assistant Sub-Inspector by declaring him as 'murdered during duty (Shaheed)' was not acceded to---Validity---District Scrutiny Committee had declined the request of the petitioners and had proposed following categories to be considered as "Shaheed" viz. killed in encounters; bomb blast; death in riots; death during watch and ward duty and terrorist activities leading to death of official---Committee without referring to any law/rules/policy had itself proposed that even murder of a police officer while on duty was not covered under the Shaheed Package, if the same had been committed for personal motives and not in consequence of performance of his duty---Ex facie, this finding had been given just to target the case of the petitioners---However, if this was considered to be the threshold, even then the case of the petitioners needed consideration as no personal motive had been found in the murder of the deceased, rather he was murdered while performing his duties in his office---Constitutional petition was allowed and the deceased was declared as "Shaheed", thus, his legal heirs were held entitled to the consequential benefits.

Muhammad Yousaf and 4 others v. Abdul Rashid and others 1996 SCMR 1297 rel.

Federation of Pakistan v. Azam Ali and others 1985 SCMR 386; Muhammad Ismail v. District Coordination Officer and 3 others 2018 PLC (C.S.) Note 49 and Firdous Shafiq v. Inspector General of Police and others 2020 PLC (C.S.) 505 ref.

(b) Civil service---

----If the rules are capable of bearing a reasonable interpretation, favorable to the employee, then that interpretation should be preferred.

----When a law requires a thing to be done in a particular manner, it must be done in that manner alone and not otherwise.

Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148 and Secretary Finance Division, Islamabad v. Muhammad Zaman, Ex-Inspector, I.B., Islamabad and others 2009 SCMR 769 ref.

(d) Constitution of Pakistan---

----Arts. 189 & 201---Decisions of Supreme Court and High Court binding on other courts---Scope---Word "law" is not only confined to the codified law, but the judgments of the superior Courts also fall within the ambit of law.

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

Muhammad Ibrahim Goraya for Petitioners.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General along with Mian Tanveer Ahmad, DSP (Legal), CPO Office, Khuda Yar, Inspector (Legal), I.G.P. Office, Lahore and M. Hassan, S.I./I.O. Police Station Defence-A, Lahore.

Hafiz Tariq Nasim, Amicus Curiae.

Muhammad Imran Sheikh, Additional District Judge / Senior Research Officer and Ahmad Zia Ch., Civil Judge / Research Officer, LHCRC.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1038 #

2023 P L C (C.S.) 1038

[Lahore High Court (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi and Muhammad Raza Qureshi, JJ

MUHAMMAD UZAIR ASLAM and others

Versus

GOVERNMENT OF PAKISTAN through Secretary Water and Power Development Authority, Islamabad and 5 others

I.C.A. No.20 of 2018 in Writ Petition No.2018 of 2017, decided on 6th December, 2022.

Constitution of Pakistan---

----Art.199---Recruitment---Vested right---Devising of policy---Recruitment process, cancelling of---Appellants were aggrieved of cancelling the process of recruitment as they had cleared written test leading to qualify for interview or even had passed the interview---Plea raised by authorities was that the process was abandoned for formulating recruitment policy---Validity---Term "vested right" is an expression that completely and definitely belongs to a person that cannot be impaired or taken away without person's consent and is independent of any contingency and is absolute, complete and unconditional---Mere expectancy of future benefits or contingent interest does not constitute a vested right and once a right matures into enforceable legal right under the law, the same cannot be taken away arbitrarily, capriciously and in a mala fide manner---Direction for formulation of uniform and fair policy for age relaxation before initiation of fresh recruitment process could not be termed as unlawful, rather was to curb a possibility of discrimination---Division Bench of High Court declined to interfere in judgment passed by Judge in Chambers of High Court as the act of authorities was not tainted with any illegality---Intra Court Appeal was dismissed, in circumstances.

Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534 Saifullah v. Inspector General, Punjab Police, Lahore and 21 others 2019 PLC (C.S.) 1345; Government of the Punjab through Secretary Health and 3 others v. Muhammad Kamran Bashir and 6 others 2022 PLC (C.S) 6 and Ms. Saba v. The Province of Sindh through Secretary and 2 others 2020 PLC (C.S.) 113 rel.

Rana Muhammad Asif Saeed and Abdul Samad Ali for Appellants.

Saleem Akhtar Warraich, Aamir Aziz Qazi, Muhammad Riaz Kamlana, Legal Advisor for NTS and Malik Altaf Hussain, Assistant Advocate General for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1059 #

2023 P L C (C.S.) 1059

[Lahore High Court]

Before Tariq Saleem Sheikh, J

BASHIR ALI SHAHZAD

Versus

BANK OF PUNJAB through President and 2 others

Writ Petition No.10403 of 2019, decided on 9th February, 2023.

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

----Ss.2(h)(i), 20, 3 & 1(4)---'Bank of Punjab'---"Employee"---Employees in corporation service---Grounds for proceedings and penalty---Scope---Petitioner assailed his dismissal from service---Held, that, Punjab Employees Efficiency, Discipline and Accountability Act, 2006, ('the Act') was enacted to provide measures for improving employees' efficiency, discipline, and accountability in the provincial government and corporation service and ancillary matters---Section 1(4) of the Act provided that it applied to (i) employees in government service, (ii) employees in corporation service, and (iii) retired employees of the government and corporation service---Section 3 of the Act had set out the grounds on which proceedings could be undertaken against an employee---Section 20 of the Act had given an overriding effect to the Act over all other laws---Provincial Government had controlling shares in the respondent bank, therefore, it was an organization contemplated by Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Petitioner also fell within the definition of "employee" given in S.2(h)(i) of the Act---Respondent should have proceeded against the petitioner under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Therefore, proceedings against the petitioner were void ab initio---Impugned orders were set aside and the petitioner was reinstated in service with back benefits---Constitutional petition was accepted.

Pakistan Defence Officers' Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed 2013 SCMR 1707; Arshad Ahmad Khan v. Chairman, The Bank of Punjab, and others 2000 PLC (C.S.) 1355; A. George v. PIAC PLD 1971 Lah. 748; Muhammad Yusuf Shah v. PIAC PLD 1981 SC 224; Muhammad Ishaq Waheed Butt v. Chairman, The Bank of Punjab, and others 2003 PLC (C.S.) 963; Amir Shahzad Chaudhary v. Chairman, The Bank of Punjab, and others 2015 PLC (C.S.) 423; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Karachi Development Authority and another v. Wali Ahmed Khan and others 1991 SCMR 2434 and Raziuddin v. Chairman, Pakistan International Airlines Corporation and others PLD 1992 SC 531 ref.

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

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---"Person"---Scope---Aggrieved party can invoke the High Court's jurisdiction 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 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---To determine whether an organization is a "person" within the meaning of Art.199, the courts generally apply the "function test".

----Art.199---Constitutional jurisdiction against a statutory body---Maintainability---Non-statutory rules of service---Scope---Employees of only those organizations discharging functions in connection with the affairs of the federation, a province, or a local authority can invoke the constitutional jurisdiction of the High Court in service matters whose employment is governed by statutory rules---In other words, where the conditions of service of an employee of a statutory body are governed by regulations, instructions, or directions issued by that body for its internal use rather than statutory rules, he cannot file a writ petition to challenge a violation---In such a circumstance, the principle of master and servant applies, and an employee's remedy for wrongful termination is a claim for damages; and a constitutional petition is not competent---If, on the other hand, statutory rules govern an employee's service conditions, any action taken against him in contravention of the statute or those rules is subject to judicial review by the High Court, which may overturn it.

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

(d) Civil service---

----Statutory body or organization---Statutory rules of service, determination of---Scope---In a corporation constituted by or under the law, the government might not reserve the power to regulate the terms of service of the employees---Instead, it may leave them to the corporation's discretion and empower it to develop rules or regulations without its intervention---In such a situation, the corporation would be the sole judge in prescribing the terms of service, and the principle of master and servant would apply---However, where a statute or statutory rules regulate the terms and conditions of employment, the corporation's authority is constrained by those provisions---It cannot invoke the principle of master and servant when an employee challenges his termination and seeks reinstatement---Determining factor in evaluating whether a corporation's rules or regulations have statutory force is not their form or name but the source under which they are framed.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 rel.

(e) Civil service---

----Statutory body or organization---Statutory rules of service, determination of---Scope---Source of statutory rules, in general, is legislative rather than executive---Rule-making authority enacts them in the exercise of statutory power with the approval of the federal or provincial government---In actuality, it is the exercise of delegated legislative power by the rule-making authority---Ordinarily, it is also necessary that certain formalities, like publication in the government gazette, should follow the making and promulgation of such rules.

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

(f) Civil service---

----Statutory body/organization---Statutory rules of service, determination of---Scope---Rules do not become statutory merely because a corporation has adopted any rules framed by the Government or has made them applicable by reference.

M.H. Mirza v. Federation of Pakistan and others 1994 SCMR 1024 and Pakistan Electric Power Company v. Syed Salahuddin and others 2022 SCMR 991 ref.

(g) Civil service---

----Statutory body or organization---Statutory rules of service, characteristics of.

Statutory rules have the following three characteristics:

(i) Rules or regulations are framed by a statutory or public body;

(ii) They are framed under the authority or powers conferred in the statute;

(iii) They have statutory governmental approval or statutory sanction.

Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 and Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 rel.

(h) Constitution of Pakistan---

----Art. 4---Right of individuals to be dealt in accordance with law---Scope---Article 4 of the Constitution states that it is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan to enjoy the protection of the law and to be treated in accordance with the law---Article 4 of the Constitution confers a more basic right than the fundamental rights because, unlike the fundamental rights, it cannot be suspended.

(i) Constitution of Pakistan---

----Art. 129---Exercise of executive authority of the province---Scope---Provincial Government consists of the Chief Minister and Provincial Ministers.

Mustafa Impex, Karachi, and others v. Government of Pakistan and others PLD 2016 SC 808 ref.

Junaid Jabbar Khan for Petitioner.

Mian Azhar Saleem with Hamza Khalid Randhawa, Legal Head of the Bank of Punjab for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1111 #

2023 P L C (C.S.) 1111

[Lahore High Court]

Before Abid Aziz Sheikh and Shahid Jamil Khan, JJ

UNITED BANK LIMITED

Versus

MUHAMMAD USMAN ARSHAD and another

Intra Court Appeal No.111 of 2017 in Writ Petition No.39434 of 2016, heard on 27th January, 2022.

Banking Companies Ordinance (LVII of 1962)---

----S.41---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Private bank---Terms and conditions of service---Constitutional jurisdiction of High Court---Scope---Appellant / bank was aggrieved of direction to decide departmental representation of respondent / employee---Validity---State Bank of Pakistan was a regulatory authority for all banks operating in Pakistan---Functions of State Bank of Pakistan were contemplated under Banking Companies Ordinance, 1962, with respect to activation and operation of banks and for carrying out purpose of Banking Companies Ordinance, 1962 and matter ancillary thereto---No statuary duty and obligation of State Bank of Pakistan in Banking Companies Ordinance, 1962 to direct private bank to perform its functions in respect of its employees' terms and conditions of service---Constitutional petition could only be filed for enforcement of fundamental rights---In order to obtain a writ or an order or direction in the nature of mandamus, petitioner was to satisfy the Court that he had a legal right towards performance of a legal duty by the party against whom mandamus was sought---Such order or direction could only be granted subject to provision of relevant law--- Neither appellant / bank was amenable to Constitutional jurisdiction as was a private bank nor State Bank of Pakistan had any statutory role or jurisdiction in respect of terms and conditions of service of employees of private Banks like respondent---Division Bench of High Court set aside direction to decide representation of respondent / employee as it could not be issued by Single Judge of High Court---Intra Court Appeal was allowed, in circumstances.

Noor Badshah v. United Bank Limited through President and 3 others 2015 PLC (C.S) 468; United Bank Limited v. Muhammad Manzoor and others 2019 CLD 595; Abdul Rehman v. President Habib Bank Limited and others 2009 PLC (C.S) 888; United Bank Limited Pensioners Welfare Association of Pakistan through President v. United Bank Limited through President and 5 others 2011 CLC 831 and Abdul Malik v. Habib Bank Ltd. through President Habib Bank, Karachi and 3 others 2008 CLC 339 rel.

Jehanzab Sukhera and Muhammad Mubasher Aslam Zar for Appellant.

Ishrat Ali Javaid and Malik Khalid Shafique, AAG-PK for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1176 #

2023 P L C (C.S.) 1176

[Lahore High Court (Bahawalpur Bench)]

Before Muzamil Akhtar Shabir, J

NAEEM RIZWAN and another

Versus

GOVERNMENT OF PUNJAB and 4 others

Writ Petition No.3688 of 2017/BWP, decided on 28th November, 2019.

(a) Civil service---

----Locus poenitentiae, principle of---Scope---Terms and conditions of contractual employment, withdrawal of---Scope---Petitioners assailed order passed by department whereby it had refused to make payment of salary in accordance with the terms and conditions of the appointment letters---Contention of department was that the petitioners were not entitled to receive the allowances as provisions for protection of pay inserted by vide paragraph (2)(2)(ii) of Contract Appointment Policy, 2004, was omitted before the petitioners were appointed on the basis of contract---Validity---Department was fully aware while entering into contact with the petitioners that earlier notification for pay protection had been withdrawn, still they offered the terms related to pay protection to the petitioners which were accepted by them and they left their regular service to join as contract employees subject to terms and conditions mentioned in the contract---As decisive steps had been taken by the petitioners upon representation of the department by converting their regular appointment to contract appointment, on the basis of locus poenitentiae, the respondents were not justified to unilaterally withdraw the terms of contract offered by them to the petitioners---Withdrawal of pay protection at subsequent stage was without any legal justification and was, therefore, declared to be without lawful authority and of legal effect with the observation that both the parties were bound by terms and conditions of contract settled between them---Impugned order was set aside and the constitutional petition was allowed.

(b) Locus poenitentiae, doctrine of---

----Executive is barred by the rule of locus poenitentiae from unilaterally rescinding and retrieving the benefit availed by its recipients.

Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others v. Nusrat Tahir and others 2018 SCMR 691 rel.

Nadeem Iqbal Chaudhry for Petitioners.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1184 #

2023 P L C (C.S.) 1184

[Lahore High Court (Bahawalpur Bench)]

Before Muhammad Sajid Mehmood Sethi, J

MULAZIM HUSSAIN

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No.3717 of 2019/BWP, heard on 7th April, 2021.

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

----Ss.1(4)(iii) & 21---Punjab Civil Services Pension Rules, 1955, Rr.1.8(a) & 1.8(b), proviso---Retirement---Departmental proceedings, initiation of---Limitation---Show-Cause Notice was issued by the Respondents/Health Department to the employee after a lapse of almost three years and two months from his retirement---Question was whether after lapse of more than one year from the date of petitioner's retirement, SCN/de novo inquiry could be initiated against him or not---Respondents contended that inquiry could be initiated against an employee under R.1.8 of the Punjab Civil Services Pension Rules, 1955, during or after completion of his service---Validity---Sections 1(4)(iii) & 21 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ('PEEDA, 2006') stipulated that proceedings under PEEDA, 2006, could be initiated against a retired employee of government provided the same were (i) initiated against him during his service or within one year of his retirement ; and (ii) finalized not later than two years of his retirement---Time lag inserted in the said provisions of law was manifestly intended to safeguard the interest of the retired employees so that the sword of damocles should not hang upon them for an indefinite period---Proviso to R. 1.8(b) of Punjab Civil Services Pension Rules, 1955, stipulated that no departmental proceedings would be instituted after more than a year from the date of retirement of the government pensioner---Rule of law required that things should be done as they were required to be done or not at all---Every person in execution of law should follow the law strictly as laid down and should not exceed the limit of law for any reasons whatsoever---High Court set aside impugned Show-Cause Notice issued by the respondent/Health Department declaring the same to be illegal and without lawful authority---Constitutional was allowed, in circumstances.

Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal 2021 SCMR 328; Mirza Muhammad Iqbal v. Additional Secretary (General), Government of the Punjab Education Department, (School Wing), Lahore and another 2007 PLC (C.S.) 432; Ehsan-ul-Haque v. Executive Engineer, Ahmadpur Canal Division Ahmadpur East and 2 others 2011 PLC (C.S.) 1523; Muhammad Siddique v. Divisional Forest Officer, Okara 2014 PLC (C.S.) 253 and Syed Raza Mehdi Baqari v. Province of Punjab through Secretary, LG&CD Department and 2 others 2016 PLC (C.S.) 1046 ref.

The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P Communications and Works Departments, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514 distinguished.

Jamshaid Akhtar Khokhar for Petitioner.

Jam Abdul Maalik, A.A.G. along with Muhammad Laeeq, Assistant Officer, District Accountants Office, Bahawalpur for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1209 #

2023 P L C (C.S.) 1209

[Lahore High Court]

Before Shahid Waheed, J

MUHAMMAD KAMRAN KHAN

Versus

GOVERNMENT OF THE PUNJAB through Secretary Special Education and others

Writ Petition No.86343 of 2017, heard on 28th March, 2022.

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

----Ss.3 & 4---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Contract employee---Major penalty---Remedy---Petitioner was employed on contract basis and was dismissed from service on the charges of misconduct---Validity---Petitioner was appointed to the post of lecturer on contract basis for a period of five years and the period had expired, therefore, indulgence in the matter was uncalled for---Contract employee was debarred from approaching High Court in its Constitutional jurisdiction---Only remedy available to contract employee was to file suit for damages alleging breach of contract---Constitutional petition was dismissed, in circumstances.

Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648 fol.

Manzoor Hussain Dogar for Petitioner.

Muhammad Arif Raja, Addl. Advocate General with Abu Bakar Aslam, Law Officer, Special Education Department for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1214 #

2023 P L C (C.S.) 1214

[Lahore High Court (Bahawalpur Bench)]

Before Muhammad Sajid Mehmood Sethi and Ch. Abdul Aziz, JJ

RASHID MEHMOOD GULL

Versus

FEDERATION OF PAKISTAN through Secretariat Establishment Division (Sacked Employees Review Board), Islamabad and others

I.C.A. No.156 of 2017, heard on 30th March, 2021.

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

----Ss. 4(a) & 16 ---Re-instatement of sacked employee into service---Seniority, back benefits and compensation, entitlement to---Scope---Sacked Employees Review Board reinstated the bank employee but refused his claims of seniority and back benefits---Bank employee invoked constitutional jurisdiction of the High Court, however, the Single Bench declined his prayer for grant of seniority and back benefits---Held, that the appellant (bank employee) was reinstated under the provisions of the Sacked Employees(Re-instatement) Act, 2010 ('the Act, 2010'), after almost seventeen years from his discontinuance from services of respondent/bank and as per S. 4(a) of the Act, 2010, he was also entitled to be regularized in regular service of respondent/bank on one scale higher to the substantive scale/grade held by him at the time of his termination from service, and, thus, the same was not a matter of mercy---Section 16(1) of the Act, 2010 stipulated that a sacked employee was entitled to be paid compensation by the employer equal to gross monthly emolument of three years, at the rate of monthly pay and allowances payable at the time of disbursement of installment for the relevant post/grade in which the sacked employee was being re-instated or regularized, if already taken back in service---Appellant was also entitled to compensation in view of methodology stipulated in S. 16 of the Act, 2010---Impugned order passed by the Single Judge was set-aside---Intra-Court Appeal was allowed, in circumstances.

Waqar Alam and others v. Secretary, Establishment Division and others 2013 PLC (C.S.) 12 and Hidayatullah v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunications and 2 others 2011 PLC (C.S.) 1299 ref.

Muhammad Farooq Warind for Appellant.

Syed Zulfiqar Haider Shah Bukhari, Assistant Attorney General for Respondents.

Muhammad Yasin for Respondent-Bank.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1280 #

2023 P L C (C.S.) 1280

[Lahore High Court (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

JAVED KHAN and others

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence, Government of Pakistan and others

Writ Petition No.4069 of 2021, heard on 27th September, 2022.

Civil Service---

----Upgradation of post---Purpose---Discrimination---Scope---Petitioners working as Physical Training Instructors (PTIs) under the Federal Government Educational Institutions (Cantonments and Garrison), Rawalpindi, were denied upgradation of their post from BS-16 to BS-17 on the ground that the status of the petitioners was quite different from the employee of the Federal Directorate of Education, Islamabad, where post was upgraded to BS-17 and that upgradation could not be claimed as a matter of right---Held, that upgradation is not a part of terms and conditions of service, rather it is based on a policy decision of competent authority, the purpose of which is to eliminate the sufferings of employees from stagnation and to avoid them being stuck up in some isolated post without any pathway or probability of promotion despite satisfactory length of service in a particular post---Upgradation cannot thus be claimed as a matter of right by an employee or group of employees, but at the same time once the competent authority decides to redress sufferings of employees, who may remain as dormant in future, and proceeds to upgrade a particular post, such benefit cannot be extended only to single or one set of persons serving at the same post---Article 25 of the "Constitution" ordains that every citizen shall be dealt with equally and there shall be no discrimination---Present petition was resisted by the respondents mainly on the ground that the since petitioners were serving in the Federal Government Educational Institutions (Cantonments and Garrison), they could not claim the upgradation of their post as allowed to the employees of the Federal Directorate of Education---Such contention held no water firstly on the ground that respondent had already recommended the upgradation of the post of Physical Training Instructors ("PTI") in BS-17 to dispel the discrimination in the employees of Federal Government Educational Institutions (Cantonments and Garrison)---Secondly, it was an undeniable fact that in another constitutional petition one of the petitioners was a "PTI" teacher, who was allowed relief of upgradation and said judgment was never challenged by the respondents---Respondents were thus precluded to draw any distinction in the case of the petitioners----Petitioners had been treated discriminately by the respondents, which offended the mandate of Art. 25 of the Constitution---Respondents were directed to upgrade/redesignate the post of PTI BS-16 to BS-17 (SST) accordingly---Petition was allowed, in circumstances.

Fida Muhammad v. Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others 2021 SCMR 1895; Federal PUBLIC Service Commission through Secretary v. Anwar-ul-Haq (Private Secretary) Islamabad and others 2017 SCMR 890 and Regional Commissioner Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali and others 2016 SCMR 859 rel.

Hassan Raza Pasha for Petitioners.

Malik Muhammad Siddique Awan, Additional Attorney General for Pakistan for Respondents.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1375 #

2023 P L C (C.S.) 1375

[Lahore High Court]

Before Anwaar Hussain, J

KHURRAM SHAHZAD

Versus

PROVINCE OF PUNJAB through Deputy Commissioner and 4 others

Civil Revision No.43146 of 2022, heard on 6th July, 2022.

(a) Punjab Government Residences Allotment Policy, 2021---

----Paras. 3, 33 & 34---Punjab Government Residences Allotment Policy, 1997 [since repealed], Paras. 7 & 15---Punjab General Clauses Act, 1956 (III of 1957), S. 20---Specific Relief Act (I of 1877), Ss. 42, 54 & 56(d)---Suit for declaration, permanent and mandatory injunction---Maintainability---Allotment of Government accommodation to Government servant, withdrawal of---Entitlement of Government Servant to official residence---Scope---Alternate remedy, availability of---Petitioner/plaintiff (serving police officer) instituted civil suit against withdrawal of the house allotted to him---Civil Court dismissed the suit, being non-maintainable, by invoking S.56(d) of the Specific Relief Act, 1877, that he (plaintiff/petitioner) had alternate remedy under the law---Findings of the Trial Court were maintained by the appellate Court---Validity---Petitioner, being a serving police officer, was not eligible to allotment of the house in terms of Para. 3 of the Punjab Government Residences Allotment Policy, 2021 ('the Allotment Policy')---Under the Allotment Policy, the Government could place residences at the disposal of other institutions such as City District Government by creating a Pool, to be dealt with at district level in terms of Allotment Policy at District Level, 2002 ('District Level Policy')---House-in-question, primarily concerning cadre strength of Services and General Administration Department ('S&GAD'), was allotted to the petitioner (a police officer) by the respondent (concerned Deputy Commissioner (DC)) in contravention of eligibility criteria ---When the said allotment stood withdrawn by the respondent/DC, the same could not be challenged, as in terms of S. 20 of the General Clauses Act, 1956, an authority vested with the jurisdiction to pass an order could also rescind or recall the same---Even a grace period of two years under Para 33.2 of the Allotment Policy, 2021 as asserted by the petitioner, could not be given to him under (repealed) Punjab Government Residences Allotment Policy, 1997, as not only allotment Policy, 1997 had been repealed by the time-in-question but also because Para. 7 of the Allotment Policy, 1997, stipulated allotment of house-in-question to a government servants borne on the cadre strength of S&GAD---Police officials were not on the cadre strength of S&GAD but were governed under Police Order, 2002---When the basic order was without lawful authority then the superstructure would have to fall on the ground automatically---Even otherwise, under Para. 15 of the Allotment Policy, 1997, or under subsequent Allotment Policy, 2021, no vested rights were given to provide residence to the Government servants , thus when the plaintiff/petitioner was not able to establish his entitlement to any legal character or to any right in property, suit under S. 42 of the Specific Relief Act, 1877 was not maintainable---There was no time period specified in the allotment order, so the petitioner/ plaintiff at the most was an occupant-at-will and was liable to vacate the house as and when asked by the competent authority---No illegality or infirmity was noticed in the impugned orders and judgments passed by both the Courts below in declaring the suit instituted by the petitioner/plaintiff as non-maintainable---Civil revision was dismissed, in circumstances.

Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835; Rehmatullah Khan and others v. Government of Pakistan through Secretary Petroleum and Natural Resources Division, Islamabad and others 2003 SCMR 50 and Estate Officer, Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75 ref.

(b) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908 ), S.115---Conversion of constitutional petition into civil revision or vice versa---Scope---Constitutional petition can be converted into a revision or vice versa if it does not prejudice the right of any party or cause of justice can be advanced instead of frustrating the same.

Pir Muhammad and 4 others v. 1st Senior Civil Judge, Karachi and 5 others 1991 CLC Note 101 ref.

----S.115---Civil revision---Maintainability---Petitioner /plaintiff instituted the suit against respondent (concerned Deputy Commissioner) only and, after dismissal of the suit, he preferred appeal against the very (one) respondent----Petitioner / plaintiff, however, impleaded three other officials also in the civil revision filed before the High Court---Held, that the present civil revision was filed without seeking any appropriate amendment in accordance with the provisions of the Civil Procedure Code, 1908, which fact alone had rendered the present civil revision non-maintainable ---Civil revision was dismissed, in circumstances.

Sardar Akbar Ali Dogar for Petitioner.

Barrister Teyeeb Jan, Assistant Advocate General.

Habibullah, District Law Officer on behalf of Deputy Commissiioner, Lahore.

Awais Sarwer Sandhu, Law Officer, S&GAD on behalf of Respondent No.5.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1403 #

2023 P L C (C.S.) 1403

[Lahore High Court (Bahawalpur Bench)]

Before Muhammad Sajid Mehmood Sethi, J

JALIL AHMED

Versus

GOVERNMENT OF PUNJAB through Secretary Local Government and Community Organization, Punjab, Lahore and others

Writ Petition No.5390 of 2013, decided on 26th January, 2021.

(a) Civil service---

----Employee of Town Municipal Administration---Major penalty---Dismissal from service---Wilful defiance of re-instatement order passed by High Court---Authorities (Department of Local Government and Community Development) did not challenge re-instatement order of the High Court but instead passed fresh dismissal order against the petitioner/employee without holding regular inquiry---Legality---Stance of the petitioner was that not only under the law Tehsil Municipal Officer was the competent authority (and not the Administrator), but he had also denied allegations/charges against him, therefore, regular inquiry could not have been dispensed with---Record revealed that the petitioner was reinstated into service pursuant to order passed by the High Court in earlier round of litigation---Respondents/authorities, however, in order to frustrate said order, instead of challenging the same before higher forum, passed a fresh order (impugned order) of dismissal from service---Mala fide/defiance on the part of the respondents was also floating from the report/para-wise comments submitted by them in the present case---It was a case of deliberate defiance of previous order passed by the High Court on part of respondents/authorities, which amounted to frustrating the fundamental stone of the scheme of administration of justice---Willful, deliberate and contemptuous attempt to frustrate the order of the High Court could attract penal consequences---There was nothing on record to show that the petitioner procured his appointment through fraud or illegal means---Employee should not be made to suffer for action or inaction of the authority who was obliged to follow the law---High Court set aside impugned dismissal order issued by the respondents/ departmental authorities---Constitutional was allowed, in circumstances.

Ahsan Jabbar v. Government of the Punjab and others (C.P. No.51-L of 2014) and Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 ref.

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

----S.12(2)---Civil service---Employee of Town Municipal Administration---Re-instatement of employee---Fraud or misrepresentation, allegation of---Scope---Petitioner (Junior Clerk) was re-instated into service by virtue of order of the High Court---Authorities (Department of Local Government and Community Development) did not challenge re-instatement order of the Court but instead passed fresh dismissal order against the petitioner/employee without holding regular inquiry---Departmental Authorities instituted application under S.12(2) of Civil Procedure Code, 1908, contending that earlier petitioner got re-instatement order in his favour by concealing his previous resignation in connivance with the then Tehsil Municipal Officer---Validity ---Record revealed that applicants under S.12(2) of Civil Procedure Code, 1908, were duly represented in earlier constitutional petition (culminating in re-instatement order) through counsel who contested and argued the matter at length, which (petition) was decided on merit ---Applicants under S.12(2) of C.P.C., 1908, had not challenged the decision rendered in said constitutional petition , which had attained finality---Application under S. 12(2) of C.P.C., 1908, was not substitute to regular appeal, revision or review, nor such provisions could be construed as something over and above the normal modes of questioning a decision by way of appeal, revision or review---Applicants under section 12(2) of C.P.C., 1908 had failed to establish elements of fraud, misrepresentation, hence no interference was warranted---High Court set aside impugned dismissal order issued by the respondents/ departmental authorities---Constitutional was allowed, in circumstances.

Noor Muhammad v. Muhammad Iqbal and 5 others 2014 CLC 1459 and Jubilee General Insurance Company Ltd. v. Ravi Steel Company through Proprietor 2020 CLC 1440 ref.

Ch. Shafi Muhammad Tariq for Petitioner (in W.P. No.7305/2020).

Ch. Shahid Mehmood, A.A.G. along with Muhammad Asif Javed, Office Superintendent.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1507 #

2023 P L C (C.S.) 1507

[Lahore High Court (Rawalpindi Bench)]

Before Jawad Hassan, J

UME JAMEELA

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.2538 of 2021, heard on 19th January, 2022.

(a) Civil service---

----Regularization of service---Policy matter---Appointment criteria---Petitioners were contract employees and aggrieved of not being regularizing in service---Petitioners assailed selection criteria of 2nd Division academic qualification fixed by authorities for selection---Validity---In assessment of suitability of a particular nature of job and its scope in the context of particular employer, Courts cannot prescribe eligibility or experience qualifications and work experience as these are matters of policy and are best left to the authorities---Setting the criteria of 2nd Division of academic qualification in the policy as well as advertisement related to the policy matter of government /department, therefore, Court could not interfere into it---It was not in the domain of the Courts to embark upon an inquiry as to whether a particular Policy was wise and acceptable or whether better policy could be drafted---Court could only interfere, if the policy framed was absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Constitution---It was for the Department to decide 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---Petitioners, in spite of having 3rd Division in academic qualification, were duly appointed for a period of five years who performed their duties and their tenure of further extension of one year had also expired---High Court declined to interfere with order passed by authorities which otherwise had been passed aptly---Constitutional petition was dismissed, in circumstances.

Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 SCMR 1625; Pakistan International Airlines v. Naureen Butt 2017 PLC (C.S.) 923 and Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Syed Sadiq Shah and others 2021 SCMR 747 distinguished.

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.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches, principle of---Applicability---Petitioners called in question the order which was passed on 05-06-2020 but they had challenged the same on 17-08-2021 after lapse of one year two months and twelve days without explaining any convincing reasonable cause of the inordinate delay---Effect---Principle of laches was applicable as three months' time was considered reasonable for a party to assail an adverse order in Constitutional jurisdiction of High Court.

Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another 2016 SCMR 183; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 and Member (S&R)/CHIEF Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 rel.

Muhammad Ahmad Fiaz for Petitioner.

Mujeeb ur Rehman Kiyani, Additional Advocate General for Respondent.

Malik Ihtisham Saleem, Assistant Attorney General for Pakistan.

PLCCS 2023 LAHORE HIGH COURT LAHORE 1552 #

2023 P L C (C.S.) 1552

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

ANAM BIBI

Versus

SECRETARY, PUNJAB PUBLIC SERVICE COMMISSION, LAHORE and 6 others

Writ Petition No.2412 of 2023, heard on 16th February, 2023.

(a) Punjab Public Service Commission Ordinance (II of 1978)---

----S. 10---Punjab Public Service Commission Regulations, 2016, Reglns. 3 & 23(e)---Constitutional petition---Policy Decision in conflict with regulations---Effect---Petitioner applied for the post of Lecturer on the basis of domicile certificate of her husband as the petitioner had not applied for issuance of domicile certificate till the closing date for filing of applications---Petitioner successfully passed the written test and was called for interview---Petitioner appeared along with necessary documents including her husband's domicile certificate in addition to her own, as she had got issued her domicile certificate---Public Service Commission refused to interview the petitioner and rejected her candidature for the post on account of non-issuance/non-submission of her domicile certificate before the closing date of the advertisement---Petitioner in order to advance her case placed reliance on Regln. 23(e) of the Punjab Public Service Commission Regulations, 2016 while the Commission placed reliance on a Policy Decision---Regulation 23(e) provided that a married female candidate could opt for the district of domicile of her husband till she acquired her own and in such case she would have to produce domicile certificate of her husband along with the evidence of her marriage---Policy Decision in question had imposed a further condition of having domicile of the candidate before her marriage for getting benefit of domicile of her husband---While Regln. 23(e) had not required the submission of earlier domicile of any married female candidate or rejection of her candidature in case she did not possess any earlier domicile---Beneficial Regln. 23(e) had been qualified with a restriction leading to ineligibility of a candidate to be considered for appointment if she had no domicile before marriage---It was hard to imagine that the Policy Decision in question was elaborating Regln. 23(e)---Constitutional petition was allowed and the Commission was directed to associate the petitioner in the remaining part of the recruitment process.

Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2011 SCMR 408 ref.

(b) Punjab Public Service Commission Ordinance (II of 1978)---

----S. 10---Punjab Public Service Commission Regulations, 2016, Regln. 3---Policy Decisions---Scope---Punjab Public Service Commission Regulations, 2016 were formulated by taking power from subsection (2) of S. 10 of the Punjab Public Service Commission Ordinance, 1978 and these are subordinate and delegated legislation, deriving authority and legal cover from the provisions of the main statute---Regulation 3 of the Punjab Public Service Commission Regulations, 2016, authorizes the Commission to make Policy Decisions specifying detailed procedures for activities of the selection process and collateral matters---Policy Decisions are meant to deal with details and can neither be a substitute for the fundamentals of the Regulations nor can add to them---To determine the vires of Policy Decisions of the Punjab Public Service Commission, High Court has to examine whether the same are beyond the power granted by the enabling Regulations or consistent therewith.

----Principles of delegated legislation entitle the delegatee to carry out the mandate of the legislature, either by framing rules, or regulations, which translate and apply the substantive principles of law set out in the parent legislation---They can fill in details but not vary the underlying statutory principles.

Khawaja Ahmad Hassan v. Government of Punjab and others PLD 2004 SC 694; Suo Motu Case No. 13 of 2009 PLD 2011 SC 619; Suo Motu Case No. 11 of 2011 PLD 2014 SC 389; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; Dr. Noor Homoeopathic v. National Council 1996 CLC 1687; Independent Newspapers Corporation (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2017 Lah. 289; Ms. Shagufta Hashmat and others v. Federation of Pakistan through Secretary Cabinet Division and others 2018 PLC (C.S.) 619 and Rida Fatima v. Pakistan Medical Commission and others PLD 2022 Lah. 197 ref.

(d) Delegated legislation---

----If a subordinate legislation is in conflict with the primary legislation, then it is void and ultra vires---Similarly, through a policy, a valid subordinate legislation can neither be made redundant nor superseded and no policy can be made in conflict therewith.

Waseem Riaz and 119 others v. Ministry of Capital Administration and Development (CADD) through Secretary and another 2019 PLC (C.S.) 403 rel.

Muhammad Yaqoob and another v. Government of Khyber Pakhtunkhwa through Secretary Land Revenue Department, Peshawar and others 2021 PLC (C.S.) 119 ref.

Mahmood Ahmad Qazi for Petitioner.

Ch. Fiza Ullah, Assistant Advocate General along with Mian Muhammad Iqbal, Law Officer, PPSC for Respondents.

Peshawar High Court

PLCCS 2023 PESHAWAR HIGH COURT 65 #

2023 P L C (C.S.) 65

[Peshawar High Court]

Before Qaiser Rashid Khan, CJ and Shakeel Ahmad, J

SHAUKAT ALI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Establishment Department and 15 others

Writ Petition No.3545-P of 2020 with C.M. No.117-P of 2021, decided on 18th November, 2021.

Khyber Pakhtunkhwa Public Service Commission Regulations, 2017---

----Reglns. 29 & 32---Constitution of Pakistan, Art.199---Constitutional petition---Appointment to advertised post---Tie in marks---Scope---Petitioner sought issuance of writ seeking directions to the respondents to appoint him as an Assistant Information Officer (BS-16) in place of the private respondent---Validity---Marks of the petitioner and private respondent had tied and on the basis of being older in age private respondent was given preference---Petitioner, no doubt, had practical experience but his job was not a full time paid job as required under Regln. 29(a) of Khyber Pakhtunkhwa Public Service Commission Regulations, 2017---Such experience could not be considered for the subject post---Where the aggregate marks and also the marks in interview between two candidates were the same or when there was a tie in marks, then, the Regln. 32(c) of Khyber Pakhtunkhwa Public Service Commission Regulations, 2017, came into play which provided that the candidate who was older in age shall be placed senior to the one who was younger---Private respondent being older in age was given preference---No case was made out for the interference of High Court through the Constitutional petition---Petition was dismissed.

Muhammad Ilyas for Petitioner.

Shumail Ahmad Butt, Advocate General along with Mehtab Gul, Law Officer, Public Service Commission for Respondents.

Respondents No.18 in person.

PLCCS 2023 PESHAWAR HIGH COURT 85 #

2023 P L C (C.S.) 85

[Peshawar High Court]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

ADAM KHAN

Versus

BANK OF PUNJAB through Chairman and others

Writ Petition No.1711-P of 2015, decided on 28th February, 2018.\

(a) Bank of Punjab Act (XII of 1989)---

----Ss.7 & 11---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Government of Punjab under S.7 of Bank of Punjab Act, 1989 holds 51% shares out of 100 % shares---President of the Bank is appointed under S.11 of Bank of Punjab Act, 1989 by Government of Punjab---Bank of Punjab falls under the definition of a "person" as per the provisions of Art.199(1)(a) of the Constitution and as such is amenable to Constitutional jurisdiction of High Court.

(b) Bank of Punjab Act (XII of 1989)---

----Ss.7 & 11---Constitution of Pakistan, Arts. 17 & 199---Constitutional petition---Right of association---Termination from service---Principle of natural justice---Applicability---Territorial jurisdiction of High Court---Principle---Petitioner was employee of Bank of Punjab who was terminated from service for forming an Association of Bank officials---Bank assailed territorial jurisdiction of High Court---Validity---Petitioner was permanent resident of place "M" while the Bank was also based at place "M"---High Court under the provisions of Civil Procedure Code had jurisdiction to entertain constitutional petition even otherwise---Petitioner did not ask for enforcing any right under statutory / non-statutory rules, rather had asked for enforcement of fundamental rights secured and guaranteed under the Constitution---Order of termination of petitioner suffered from patent perversity---Even if allegation made against petitioner was taken as proved, the same did not amount to misconduct so as to attract penalty of termination imposed upon him---Right to form an association was protected under Art.17 of the Constitution---Once the Bank after complying with codal formalities, appointed petitioner, then it could not take a somersault and terminate him on trifling grounds---High Court set aside termination order as the same was in violation of principle of natural justice---Constitutional petition was allowed, in circumstances.

PLD 1975 SC 244; AIR 1989 SC 1607; AIR 2004 SC 3264; 2010 SCMR 253; 2013 SCMR 1707; 2017 SCMR 571; PLD 1999 SC 1106; 2003 PLC (C.S.) 963; PLD 2010 SC 1484 and Shafiq Ahmad Khan and others v. NESCOM and others PLD 2016 SC377 ref.

Zartaj Anwar Khan for Petitioner.

Muazzam Ali for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 236 #

2023 P L C (C.S.) 236

[Peshawar High Court (D.I. Khan Bench)]

Before Abdul Shakoor and Muhammad Naeem Anwar, JJ

Malik SHAH JAHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Provincial Police Officer/IGP, Peshawar

Writ Petition No.10-D of 2021, decided on 13th October, 2021.

(a) Maxim---

----Vigilantibus non dormientius aequitas subvenit: Equity aids vigilant and not the one who sleeps over his rights---Maxim refers to unreasonable delay enforcing a legal claim--- Sleeping over his rights is such a right which is no longer available as it is barred by laches.

Member (S&R) Chief Settlement Commissioner Board of Revenue v. Syed Ashfaque Ali PLD 2003 SC 132 rel.

(b) Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----Ss.4 & 5---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Terms and conditions of service---Restoration in service---Acquittal from criminal charge---Petitioner was removed from service in year 2013, for his involvement in two criminal cases---After acquittal from one criminal case in year 2015 and in other case in year 2019, petitioner sought his reinstatement in year 2021---Validity---Non-obstante clause of Arts. 212(1) & (2) of the Constitution began with 'not withstanding anything hereinbefore contained', which had overriding on Constitutional jurisdiction of High Court under Art.199 of the Constitution which was already 'subject to the Constitution'---Scope of jurisdiction and powers of Service Tribunal were provided in Ss. 4 & 5 of Khyber Pakhtunkhwa Service Tribunals Act, 1974---High Court did not have any jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant, which could be adjudicated by Service Tribunal under Khyber Pakhtunkhwa Service Tribunals Act, 1974---Any transgression to exclusion contained under Art. 212 of the Constitution, would render order of High Court void and illegal---Unless jurisdiction of Service Tribunal was ousted under S.4(1) (b) of Khyber Pakhtunkhwa Service Tribunals Act, 1974, assumption of jurisdiction by High Court in respect of matters of terms and conditions of civil servant was unconstitutional and impermissible--- Constitutional petition was dismissed, in circumstances.

Member (S&R) Chief Settlement Commissioner Board of Revenue v. Syed Ashfaque Ali PLD 2003 SC 132; Khaliq Dad v. Inspector General of Police and 2 others 2004 SCMR 192; Government of N.W.F.-P through Secretary Finance, Excise and Taxation Department Peshawar and 2 others 2003 SCMR 318; Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167; Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR 170; Secretary Education NWFP, Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17 and Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 rel.

Ahmad Ali for Petitioner.

Nemo. for Respondents (Motion case).

PLCCS 2023 PESHAWAR HIGH COURT 277 #

2023 P L C (C.S.) 277

[Peshawar High Court (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MULTAN SHAH and 2 others

Versus

VICE-CHANCELLOR UNIVERSITY OF MALAKAND and 2 others

Writ Petition No.64-M of 2019, decided on 17th November, 2020.

(a) West Pakistan Civil Services Pension Rules, 1963---

----R.2.3---Temporary and officiating service---Scope---Petitioners were aggrieved of non-payment of pension by the University authorities---Contention of respondents was that the regular service of petitioners was short of minimum qualifying service for the grant of pensionary benefits and that the period for which they had rendered services as temporary employees could not be counted towards service---Validity---Rule 5 of the Service Pension Statutes of University of Malakand provided that the West Pakistan Civil Services Pension Rules, 1963, were applicable to the University employees---Language whereby the pension rules were adopted by the University itself showed that it shall apply in those areas which were not regulated by the Service Pension Statutes---Service Pension Statutes had nowhere provided any special rule for defining the qualifying service for the grant of pension, as well as the length of service entitling an employee to maximum allowable pension and the respective ratios thereof---Counsel for the University argued that R.9 of the Service Pension Statutes fulfilled the purpose but the rule revealed that it basically provided authority to the Syndicate or Vice-Chancellor to condone interruptions and deficiencies in counting of the service for the purpose of pension---Rule 2.3 of the West Pakistan Civil Services Pension Rules, 1963, provided for counting of temporary or officiating service for the purpose of pension---Constitutional petition was allowed by directing the respondents to count the temporary service of the petitioners for the purpose of determining their qualification and eligibility for the grant of pension and treat them accordingly.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Hakim and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Ghulam Murtaza v. Abdul Salam Shah and others 2007 SCMR 1062 and State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 SCMR 999 ref.

Mst. Khilafat Jan v. Principal Government Higher Secondary School Nizampur District Nowshera and 5 others PLJ 2014 Pesh. 225 rel.

(b) Interpretation of statutes---

----Headings and sub-headings of a section may be referred to in aid of interpretation.

Maxwell on the Interpretation of Statutes Twelfth Edition; R. v. Hare [1934] 1 K.B. 354, at p. 355; Fisher v. Raven 1964 A.C. 210 and Understanding Statutes at p.814 and 815 by Mr. S.M. Zafar rel.

----Prefix to sections cannot control the plain words of the provisions but where some ambiguity exists it can safely be referred and relied upon in aid of construction of statute.

Fayaz Muhammad Qazi for Petitioner.

Muhammad Yar Malezai for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 297 #

2023 P L C (C.S.) 297

[Peshawar High Court]

Before Musarrat Hilali and Ijaz Anwar, JJ

Dr. JEHANZEB and others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA

Review Petition No. 261 of 2018 in Writ Petition No. 2640-P of 2015, decided on 28th September, 2022.

(a) Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999---

----Rr.3 & 8---Civil Procedure Code (V of 1908), S. 114 & O. XLVII, R. 1---Constitution of Pakistan, Art. 199---Constitutional petition---Preliminary/open enquiries against public servants---Scope---Petitioners sought review of order passed by High Court in writ petition wherein they had challenged a notice issued by Khyber Pakhtunkhwa Anti-Corruption Establishment for deposit of embezzled amount---Validity---Nowhere in the Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, it had been provided that before initiating preliminary inquiry or after completion of the inquiry or registration of a criminal case a notice for deposit of embezzled amount was required to be issued and even otherwise, once it was proved that the offence was committed, then any payment made subsequent thereto, did not absolve the accused of criminal liability and in this respect procedure as to investigation and dropping of the proceedings had been provided under R.8---Issuance of impugned notice to the petitioners to deposit the amount was not in accordance with law---Notice was set aside being illegal, unlawful and without jurisdiction, however, the petitioners could be proceeded against in accordance with law---Review petition was disposed of accordingly.

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

----S. 114---Review---Scope---Right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not mere matter of procedure.

PLD 2007 SC 121 ref.

----S.114 & O. XLVII, R.1---Review---Scope---Section 114, C.P.C., deals with jurisdiction of Court to review its judgments, according to which any person considering himself aggrieved from the decree or order from which an appeal allowed, but no appeal has been preferred or where no such appeal is allowed or by a decision on a reference from a Court of Small Causes may apply for review of the judgment of the Court which passed the decree or order, the Court may make such order thereon as it think fit, while the grounds on which a review can be sought are enumerated under O. XLVII, R. 1, C.P.C.---Power of review can be exercised to correct the errors and the main aim of power to review is to prevent injustice being done by a Court and the key requirement for invoking the review is that an error or mistake which is manifestly floating on the face of record, which is patent and if allowed to remain intact would perpetuate illegality and gross injustice.

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

----S. 114---Review---Scope---Every Court of law is under obligation to apply the correct law and if it is established that same has not been applied by Court, then, a review application in this regard is maintainable and similar is the case whereby some inadvertence an important statutory provision has escaped notice which, if had been noticed, might materially have affected the judgment of the Court.

PLD 1962 SC 355 rel.

(e) Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999---

----Rr.3, 4, 5 & 8---Preliminary/open enquiry against public servant---Registration of cases/arrest of accused---Informing Administrative Department regarding registration of case and arrest---Dropping of the case---Scope---Rule 3 of the Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, reveals that the Anti-Corruption Establishment can investigate offences set forth in the schedule and hold preliminary inquiries for determining whether such offences, which are enumerated in R. 5, shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held and, thereafter, if found that a criminal case under Scheduled Offence is made out, a case is to be registered in the manner as prescribed under Rr. 4 & 5---If, on completion of investigation, allegations are not established then under R. 8, the case shall be dropped.

Muhammad Farooq Afridi for Petitioners.

Malik Akhter Hussain Awan, A.A.G. for Respondent.

PLCCS 2023 PESHAWAR HIGH COURT 358 #

2023 P L C (C.S.) 358

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

ISRAR ALI and 3 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affairs Department and 2 others

Writ Petition No.598-M of 2020, decided on 13th April, 2022.

(a) Civil service---

----"Regularization of service"---Principles detailed.

Contract/ad hoc/fixed pay employees cannot claim regularization of their services unless and until the same is backed by any law/statute.

There is no vested right to seek regularization for employees hired on contractual basis unless there is legal and statutory basis for the same.

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

Contractual employees have no automatic right to be regularized unless the same has specifically been provided for in a law.

Government of Khyber Pakhtunkhwa Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068 foll.

An ad hoc, temporary or contractual appointment does not create any vested right of regularization in favour of the appointee.

Pakistan Telecommunication Company Ltd. v. Muhammad Sami Ullah 2021 SCMR 998 foll.

A person employed on contract basis has no vested right to regularization. By mere efflux of time, an employee cannot claim regularization and knock at the door of the High Court for the same.

Vice Chancellor Bacha Khan University Charsada, Khyber Pakhtunkhwa and others v. Tanveer Ahmad and others 2021 SCMR 1995 foll.

Long or satisfactory contractual service does not confer a vested right for regularization as conversion from contractual to regular appointment requires statutory support.

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

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Legal grievance---Principles.

In a writ jurisdiction what the writ petitioners are required is to first establish that they have suffered a "legal grievance" or they have wrongly been refused something which they were otherwise legally entitled to, and it is only after the establishment of such a right, followed by its violation or refusal by a public functionary, and it would be thereafter that he/they may be held as entitled for the desired writ.

Extraordinary jurisdiction of High Court can only be invoked by a person whose legal right has been denied.

Fazl-e-Haq, Accountant-General, West Pakistan v. The State PLD 1960 SC 295 foll.

Petitioner has to show that he has a personal interest in performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage.

----Doctrine of 'reading in' and 'reading down'---Explained.

Court should make every effort to save the statute and this can be done by invoking the principle of 'reading in' or 'reading down'. However in this context two principles have to be kept in view. First, that the object of 'reading down' is primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, can the statute remain functional. Second, would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before the Court.

Province of Sindh through Chief Secretary and others v. M.Q.M through Deputy Convener and others PLD 2014 SC 531 foll.

Courts have a duty to construe and apply laws to specific fact situations. Sometimes they have to construe a particular law as meaning nothing and sometimes they have to construe the law as meaning something different from the letter of the law passed by the Parliament. Offending provision or part of it is 'read down' to the extent it is necessary to give it legal effect, or will be severed if it cannot be 'read down', and the remaining part and provisions of the statute will remain intact.

Haroon-ur-Rashid v. Lahore Development Authority and others 2016 SCMR 931 foll.

(d) Administration of justice---

----Wrong, illegal or unlawful order/direction practice can neither be approved nor followed nor appreciated on the ground of discrimination as in legal parlance it is settled that two wrongs cannot make one right.

(e) Administration of justice---

----Rights---Fundamental rights---Legal rights---Vested rights---Scope---In a broader sense rights can be categorized in three kinds: Fundamental rights are those rights which are conferred upon a citizen by the Constitution; Legal rights are those which are conferred upon a person by any law or statute other than the Constitution; Vested rights are those rights which are accrued to a person due to an act or omission, action or inaction of another person.

Shams-ul-Hadi for Petitioner.

Haq Nawaz, Assistant A.G. along with Naeem Hussain, DSP Legal, in person for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 408 #

2023 P L C (C.S.) 408

[Peshawar High Court (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ

SALAH-UD-DIN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Revenue and Estate and 4 others

Writ Petition No.463-B of 2015, decided on 20th October, 2021.

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

----R.3(2)---Land Record Manual, Paras. 3.6 & 3.11---Constitution of Pakistan, Art.199---Patwari, appointment of---Patwar course---Petitioner was aggrieved of refusal to grant age relaxation for his appointment as Patwari on the basis of notification issued by Government of Khyber Pakhtunkhwa, Revenue and Estate Department, on 25.11.2016---Validity---Notification in question had only prospective effect---On the basis of notification in question applications were invited for the post of Patwari to be filled in accordance with criteria as provided in service rules for recruitment of Patwari in Khyber Pakhtunkhwa Civil Servant (Appointment, Promotion and Transfer) Rules, 1989---Effect of the notification was never intended by authorities to have retrospective in nature---After issuance of the notification, appointment of Patwari was to be made in accordance with amended rules which were in consonance with paragraph 3.6 of Land Record Manual, the effect was to be given from date of publication of notification in question and not from date of passing of examination of Patwar course---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Muhammad Aamir Khan v. Government of Khyber Pakhtunkhwa through Senior Member Board of Revenue and others 2019 SCMR 1021; Writ Petition No.129/2012; Writ Petition No.278/2012; Writ Petition No.3398 of 2014; Writ Petition No.4785-P of 2016 and Writ Petition No.1894-P of 2017 ref.

Anwar ul Haq for Petitioner.

Qudratullah Khan Gandapur, A.A.G. along with Zulfiqar Khan AC Bannu for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 475 #

2023 P L C (C.S.) 475

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

QAIM ALI SHAH and another

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary at Civil Secretariat, Peshawar and 4 others

Writ Petition No.1083-M of 2020 with Interim Relief, decided on 21st June, 2022.

(a) Interpretation of statutes---

----Reading down, principle of---Object, purpose and scope---Object of reading down is primarily to save statute and in doing so, paramount question would be, whether in the event of reading down can the statute remain functional; Second would the Legislature have enacted the law if that issue had been brought to its notice, which is being agitated before the Court.

Mumtaz Hussain v. Dr. Nisar Khan 2010 SCMR 1254 rel.

(b) Civil service---

----Contract employment---Regularization---Length of service---Petitioners were contract employees who completed their contract period and they were relieved for service---Petitioners sought their regularization in service on the basis of period already served---Validity---Person employed on contract basis had no vested right to regularization---By mere efflux of time, an employee could not be regularized and knock on the door of High Court for the same---Services of an ad hoc / contract / fix pay employee could only be regularized if the same was backed by law / statute / rules / regulations---Contract employee could neither maintain Constitutional petition for enforcement of terms and conditions of his service, nor for renewal of contract or for the extension of contract period of his employment---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Haroon-ur-Rashid v. Lahore Development Authority and others 2016 SCMR 931; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977; Government of Khyber Pakhtunkhwa Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068; Pakistan Telecommunication Company Ltd. v. Muhammad Sami Ullah 2021 SCMR 998; Vice Chancellor Bacha Khan University Charsada, Khyber Pakhtunkhwa and others v. Tanveer Ahmed and others 2021 SCMR 1995 and Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock and others v. Saeed-ul-Hassan and others 2021 SCMR 1376 ref.

----Art.199---Constitutional petition --- Maintainability---Pre-conditions---Rights, categories of---Scope---Rights can be categorized in three kinds i.e. Fundamental rights or those rights which are conferred upon a citizen by Constitution of Pakistan---Legal rights are those rights which are conferred upon a person by any law / statute other than the Constitution---Vested rights accrue to a person due to an act or omission, action or inaction of another person---Petitioners in Constitutional jurisdiction are required is to first establish that they have suffered a legal grievance or they have wrongly been deprived or they have wrongly been refused something which they were otherwise legally entitled to and it is only after establishment of such right, followed by its violation or refusal by public functionaries and it would be thereafter that he/she may be held entitled for the issues of a desired writ---For maintaining Constitutional petition under Art.199 of the Constitution, petitioner has to establish that any of his fundamental rights conferred upon him by the Constitution or legal right conferred by any other law / statute or vested right accrued by an act or omission of another person have been violated.

Fazl-e-Haq, Accountant-General, West Pakistan v. The State PLD 1960 SC (Pak.) 295 and Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 rel.

(d) Interpretation of statutes---

----Court, duty of---Scope---Court of law can neither add nor omit something in a statute, where language of statute is clear, express, specific and unambiguous.

Anwar-ul-Haq (Tirmizi) for Petitioners.

Haq Nawaz, Asstt: A.G. for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 560 #

2023 P L C (C.S.) 560

[Peshawar High Court]

Before Shakeel Ahmad and Fazal Subhan, JJ

Dr. RAFIULLAH, ASSISTANT PROFESSOR, DEPARTMENT OF AGRICULTURE and 21 others

Versus

UNIVERSITY OF SWABI through Vice Chancellor and 5 others

Writ Petition No.2677-P of 2022 with I.R., decided on 26th July, 2022.

General Clauses Act (X of 1897)---

----S.21---Civil service---Locus poenitentiae, principle of---Applicability---Vested right---Scope---Petitioners were aggrieved of cancelling advertisements for appointments on posts concerned---Validity---Authority issuing an order, notification, rule or bylaws was vested with the powers to recall the same before any validly acquired right was accrued---No decisive steps were taken in pursuance to the advertisements and no vested right was created or accrued to petitioners by either rescinding and recalling the earlier advertisements, or by issuing a fresh advertisement for posts so advertised earlier---High Court declined to interfere in the matter as pursuant to the advertisements in question no steps were taken to create any right in favour of petitioners---Constitutional petition was dismissed, in circumstances.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Director-General, Ordnance Services, General Headquarters, Rawalpindi v. Muhammad Abdul Latif, 2003 PLC (C.S) 262 rel.

PLCCS 2023 PESHAWAR HIGH COURT 650 #

2023 P L C (C.S.) 650

[Peshawar High Court]

Before Shakeel Ahmad and Syed Arshad Ali, JJ

MUHAMMAD FAYAZ

Versus

PRESIDENT, ZARAI TARAQIATI BANK, ISLAMABAD and others

Writ Petition No.565-P of 2022, decided on 3rd October, 2022.

Constitution of Pakistan---

----Arts. 10A & 199---Constitutional petition---Natural justice, principle of---Due process of law---Right of fair trial---Petitioner was employee of Zarai Taraqiati Bank who was dismissed from service on the allegations of misconduct---Validity---Requirement of natural justice was that in any inquiry proceedings against a civil servant or an employee of public sector organization, when there was serious allegations of corruption and misconduct, not only the prosecution was to bring home all the charges but accused officer was to be given a fair opportunity to defend himself--- Petitioner should specifically knew what were the allegations against him---Court or Tribunal seized of the matter, where the employee had lodged his grievance against major penalty empowered by employer, was required to satisfy itself that allegations against the employee were not only established through confident inspiring evidence but employee was given fair opportunity to defend himself---Mere guesswork, surmise and conjuncture of employee regarding alleged misconduct of an employee was not to be upheld in absence of cogent evidence---Statement of allegations issued to petitioner was defective, as it did not specifically mention and refer to particular documents, according to which petitioner misappropriated amount in question---Inquiry proceeding was not conducted in fair manner---High Court set aside order of dismissal of petitioner from service as the same was based on alien considerations and he was reinstated in service---Constitutional petition was allowed, in circumstances.

G. Asghar Malik v. Federation of Pakistan and others 2002 SCMR 433; Muhammad Ikram v. District Education Officer (Female), Peshawar and others 1988 PLC (C.S.) 50; Shakeel Ahmad v. Commandant 502 Central Workshop E.M.E., Rawalpindi and another 1998 SCMR 1970 and Fasahat Ali Khan v. Government of Sindh through Chief Secretary and 2 others 1989 PLC (C.S.) 318 rel.

Bilal Ahmad Kakaizi for Petitioner.

Mehraj Tarieen for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 743 #

2023 P L C (C.S.) 743

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

ASMATULLAH KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education Khyber Pakhtunkhwa at Peshawar and 2 others

Writ Petition No.85-M of 2022, decided on 14th September, 2022.

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

----S.21---Civil service---Leave---Leave withdrawal after action taken---Locus poenitentiae---Scope---Petitioner, a teacher, applied for and was granted extraordinary leave to pursue higher education abroad for 730 days---However, upon returning and approaching the respondents, they informed him that the leave had been withdrawn through vide impugned order---Respondents argued that the petitioner was not entitled to the leave as he was appointed on a contract basis for one year---Validity---Before the petitioner had acted upon the leave sanctioning order, the competent authority could have rescinded it---However, once the petitioner had taken a decisive step by leaving his duty and proceeding abroad for higher studies, the principle of locus poenitentiae prevented the competent authority from withdrawing the leave sanctioning order---Impugned order was set aside---Since the contract period of the petitioner's colleagues had already been extended by the competent authority during the intervening period, the petitioner was also entitled to the same relief of an extension of his service---Constitutional petition was allowed accordingly.

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

----S.21---Power to make to include power to add to, amend, vary or rescind, orders, rules or byelaws---Scope---Competent authority who has passed a lawful order can rescind, alter or withdraw the same unless it has not been acted upon.

Inspector General of Police, Quetta and another v. Fida Muhammad and others 2022 SCMR 1583; Province of Punjab through Secretary Finance Lahore and others v. Atta Muhammad Zafar and others 2021 SCMR 1195; Shakeel Ahmad Zaidi and others v. Secretary Education, Higher Education, Government of Punjab Lahore and others 2021 SCMR 474; Contempt Proceedings against Chief Secretary Sindh and others' case 2013 SCMR 1752; Secretary Ministry of Finance v. Muhammad Hamatullah Farooqi PLD 1969 SC 407 and Executive District Officer (Education) Rawalpindi v. Muhammad Younas 2007 SCMR 1835 rel.

Jalal-ud-Din's case PLD 1992 SC 207 ref.

----Principle of locus poenitentiae will not come into play where the order has either been passed by an incompetent authority or the order has been obtained through fraud or misrepresentation or concealment of facts.

Abdul Qayum, Advocate Supreme Court for Petitioner.

Haq Nawaz Khan, Astt: A.G. for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 791 #

2023 P L C (C.S.) 791

[Peshawar High Court]

Before Qaiser Rashid Khan and Muhammad Ayub Khan, JJ

AHMAD KHAN

Versus

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

W.P. No. 1147-P of 2017, decided on 27th March, 2018.

Civil service---

----Contract officials---Compensation for legal heirs, payment of---Petitioners were legal heirs of deceased officials who laid their lives while escorting Polio Workers during Polio Eradication Campaign---Grievance of petitioners was that instead of full compensation of Rs. 3 million they were given only Rs.300,000---Plea raised by authorities was that the deceased officials were employed on contract basis and were not regular employees---Validity---Deceased-Shahuda were engaged on contract basis and they embraced martyrdom while performing their duties with Polio Eradication Team in Khyber Agency---Deceased officials should not have been treated with different yardstick---Authorities should display a degree of fairness while framing policies, especially in cases where officials/employees knowing well the nature and sensitivity of their job description still go all out to perform their duties and in the process, met with fateful incidents such as in the present case---High Court directed the authorities to pay balance amount of Rupees 2.7 million to legal heirs of Shaheed Officials---Constitutional petition was allowed accordingly.

Muhammad Shabbir Khalil for Petitioner.

Mansoor Tariq, Assistant Attorney General for the Federation.

Muhammad Adil Khan for FDMA.

PLCCS 2023 PESHAWAR HIGH COURT 802 #

2023 P L C (C.S.) 802

[Peshawar High Court]

Before Lal Jan Khattak and Musarrat Hilali, JJ

SHER KHAN

Versus

SECRETARY, ESTABLISHMENT (ESTABLISHMENT DIVISION), CABINET SECRETARIAT, ISLAMABAD and others

Writ Petition No.536-P of 2016, decided on 3rd November, 2021.

Civil service---

----Petitioner prayed for issuance of an appropriate writ directing the respondents to upgrade him as Stenographer (BS-16) with effect from the year 2011 with all back benefits and further promote him in BS-18 by adopting the uniform policy of Pakistan Railways and the Government of Pakistan---Validity---Petitioner was promoted/upgraded to BS-17 vide letter dated: 30-05-2018---Petitioner stood retired from service on 23-08-2018 on reaching his superannuation whereas the petition was filed on 25-05-2021, which was hit by laches---Petitioner was not entitled to second up-gradation as desired by him---Constitutional petition as dismissed.

Khurshid Ahmad Shahan for Petitioner.

Ms. Sabina Iqbal and Qazi Babar Irshad, DAG for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 866 #

2023 P L C (C.S.) 866

[Peshawar High Court]

Before Qaiser Rashid Khan, CJ and Ijaz Anwar, J

IRFAN ULLAH

Versus

FEDERATION OF PAKISTAN through Secretary, Higher Education, Islamabad and others

Writ Petition No.2838-P of 2021 with IR, decided on 10th November, 2022.

(a) Civil service---

----Educational institution---Termination from service---Mis-conduct---Failure to conduct regular inquiry---Effect---Petitioner assailed his removal order---Validity---Petitioner was initially appointed as Manager (Admin & Finance) and was duly confirmed after satisfactorily completing his probation period---Order terminating the services of the petitioner under the subject "service no more required" was though argued to be in terms of the initial appointment letter, according to which, in case of confirmation of his service, his services were liable to be terminated on one month notice or payment of one month salary in lieu thereof, however, in the instance matter, the reason given as 'unsatisfactory performance' after his confirmation became redundant, as the very termination order carried a stigma in the shape of "unsatisfactory performance" which ultimately would be a hurdle for the petitioner while applying to other departments in future---Allegations against the petitioner pertained to bypassing a channel in the matter of correspondence and nowhere, it was alleged that the interest of the University, at any stage, had been compromised---Even otherwise, when there were allegations of any kind against the petitioner, the University was required to have allowed him proper opportunity to defend himself---Termination order was set aside and the petitioner was reinstated in service---Constitutional petition was allowed.

The Secretary, Government of the Punjab, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552 rel.

(b) National University of Computer and Emerging Sciences Ordinance (XXIII of 2000)---

----Ss. 13, 14 & 15---HR Manual of the National University of Computer and Emerging Sciences---Statutory status---Scope---Powers and functions of the Board of Trustees, as provided by S. 13 of the National University of Computer and Engineering Science Ordinance, 2000, include the ability to approve the draft statutes proposed by the Board of Governors---Section 14 provides for the constitution of the Board of Governors, who have general supervision and control over the University's administrative, academic, and financial affairs and the authority to establish University policies---In addition, S. 15(b) and (c) empower the Board of Governors to make and revise rules and regulations for the efficient operation of the University---Said rules and regulations are presented to the Board of Trustees, who are authorized under S. 13(c) to approve the draft statutes proposed by the Board of Governors---HR Manual presented to the court was framed following the procedure prescribed under the Ordinance, which does not provide for the framing of rules by the Government or their placement before the Federal Government---Rules framed by the Board of Governors and duly approved by the Board of Trustees have statutory status.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Masood Ahmad Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others 2012 SCMR 152 rel.

Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Ms. Tauheed Sohail v. National University of Computer and Emerging Sciences FAST House, Islamabad and others (W.P. No.1012/2016) and Ms. Sidra Irshad v. Dr. Amir Muhammad and others (W.P. No.2710 of 2015) distinguished.

----Art. 25A---Educational institutions---Universities, significance of---Article 25A of the Constitution establishes the right to education as a fundamental right---Said provision makes education accessible to all children between the ages of 5 and 16, but it is important to note that the state is responsible for providing educational facilities from primary to higher levels---It is widely acknowledged that human resource development is a crucial factor for success and to keep up with the modern world, the youth of the nation must have the skills for self-employability---Therefore, the government should establish institutes or universities for research, technical training, professional development and special studies---Higher education and industrialization are core functions of the state.

Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court by an employee of a statutory body---Maintainability---High Court can issue a writ in the form of prohibition or mandamus only when a petition is filed by an aggrieved person seeking direction against a 'person' who performs functions within the territorial jurisdiction of the High Court in connection with the affairs of the Federation, a Province or a local authority---To enforce certain rights of employees serving under such 'persons,' the consistent view of the superior courts is that the 'person' against whom a writ is to be issued must be either the Government, a body created by an Act of Parliament or Provincial Assembly, and the rules governing their rights and obligations must have statutory status in the eyes of the law.

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

Amjad Ali for Petitioner.

Bahlol Khattak and Saadullah Khan Marwat for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 910 #

2023 P L C (C.S.) 910

[Peshawar High Court]

Before Muhammad Ibrahim Khan and Shakeel Ahmad, JJ

BISMILLAH DIN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Civil Secretariat, Peshawar and 5 others

Writ Petition No.3722-P of 2022, decided on 12th October, 2022.

(a) Civil service---

----Merit list, objection to---Necessary party---Scope---Department advertised 22 posts for Male Primary School Teacher---Petitioner applied for the post and took the examination---Petitioner later approached the department for re-checking and pointed out that he had given the correct answer at Serial No. 39 of the MCQs (Multiple Choice Questions) but was not awarded a mark---One mark could have raised the petitioner from Serial No. 23 to Serial No. 21 of the merit list---Question put to the candidates who appeared in the written test conducted by the department was "What was called as 'Fateh Mubeen' in Holy Quran?"---Four choices were given: (i) Ghazwa-i-Badar (ii) Ghazwa-i-Tabuk (iii) Fatah-e-Makkah (iv) Sulah-e-Hudaibiya---Correct answer to the question was Sulah-e-Hudaibiya and the petitioner had answered it correctly---However, the petitioner had not arrayed the candidates/selectees who would be affected if relief was granted to him, nor had any attempt been made to array them as respondents---If relief was granted to the petitioner, it would result in the perpetuation of injustice---Education Testing and Evaluation Agency was directed to be careful in the future---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 20---Freedom to profess religion and to manage religious institutions---Scope---Article 20 of the Constitution gives right to every citizen to profess, practice and propagate his religion and provides that every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.

Sajjad Ahmad Mehsud for Petitioner.

Muhammad Soahil, A.A.G., for Provincial Government.

Kashan Abdullah for Respondent along with Murtaza Khan, Director, ETEA.

PLCCS 2023 PESHAWAR HIGH COURT 944 #

2023 P L C (C.S.) 944

[Peshawar High Court]

Before Mohammad Ibrahim Khan and Muhammad Ijaz Khan, JJ

NAYAB KHAN

Versus

CHIEF EXECUTIVE OFFICE PESCO, PESHAWAR and others

Writ Petition No.2596-P of 2022 with Interim Relief, decided on 20th July, 2022.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Maintainability---Employees of Peshawar Electric Supply Company (PESCO)---Non-statutory rules of service---Master and servant relationship---Scope---Petitioner, an employee of Peshawar Electric Supply Company, challenged the company's order---Validity---PESCO was established in 2002 as a result of the bifurcation of the Power Wing of WAPDA, as outlined in S.8(vii) of the Pakistan Water and Power Development Authority Act, 1958---Thirteen different corporate entities/companies were established and duly registered under the Companies Ordinance, 1984, following the restructuring of the Power Wing into generation, transmission, and distribution of electric power---PESCO had taken control of and managed the transition process of the WAPDA Power Wing---Afterward, all functions of PESCO were performed by its Board of Directors---Authority to hire and fire employees and determine the terms and conditions of their services exclusively vested in the Board of Directors---Neither the Federal Government nor the Provincial Government or local authority had any say in this matter---Controversy in the present case related to the petitioner's terms and conditions of service---Petitioner had challenged his transfer order, but his grievance was not governed by any statutory rules---Therefore, the writ petition could not be maintained---Appropriate remedy for him was to approach the Civil Court and not the High Court in a writ jurisdiction under the principle of Master and Servant---Constitutional petition was dismissed.

Chief Executive Officer PESCO, Peshawar v. Muhammad Aftab-ur-Rehman and others (Civil Petition No. 1591 of 2011); Pakistan Electric Power Company v. Syed Salahuddin and others 2022 SCMR 991; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244; Tanvir-ud-Din v. Messrs National Road Telecommunication Corporation (Pvt.) Ltd. (NRTC) through Managing Director and 3 others 2013 PLC (C.S.) 69 and Roshan Dani and 11 others v. WAPDA through Chairman and 3 others 2015 PLC (C.S.) 263 rel.

Pir Hamid Ullah Shah for Petitioner.

Asad Jan for Respondents/PEPSCO.

PLCCS 2023 PESHAWAR HIGH COURT 989 #

2023 P L C (C.S.) 989

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

Mst. YASMEEN BIBI

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribunal Affairs Khyber Pakhtunkhwa, Peshawar and 4 others

Writ Petition No.154-M of 2023, decided on 7th March, 2023.

(a) Khyber Pakhtunkhwa Civil Servants Act (XVII of 1973)---

----S. 19---Constitution of Pakistan, Art. 199---Pensionary benefits---Constitutional petition moved by the widow (legal heir) of deceased civil servant---Maintainability---Constitutional petition moved by the widow of deceased civil servant for seeking pensionary benefits was maintainable.

Mst. Islam Bibi v. Government of Pakistan through Secretary State and Frontier Regions Division, Islamabad and 3 others 2022 PLC (C.S.) 1196; Mst. Rashida Khatoon and 2 others v. District Education Officer (Male) and 3 others 2016 PLC (C.S.) 308 and 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.

(b) Khyber Pakhtunkhwa Civil Servants Act ( XVIII of 1973)---

----S.19(4), provisos 2 & 3 added by Khyber Pakhtunkhwa Civil Servants Act (Amendment), 1973---West Pakistan Civil Service Pension Rules, 1963, Rr. 2 & 3---Civil Service Regulations, Art. 371-A---Pensionary benefits---Regular qualifying service for pensionary benefits---Scope---Deceased servant was recruited on contract but was later regularized---Held, that for the benefit of Art.371-A of Civil Service Regulation ('C.S.R') one had to complete 10 years regular qualifying service and thereafter, his services, whether on contract or daily wages, would be counted for determination of pensionary benefits but not in isolation to the completion of qualifying service of 10 years---Without completion of qualifying service, the services rendered on contract/daily wages could not be counted---Though husband of the petitioner remained in service on contract for considerable period of eleven years and then he was regularized but he was not eligible for pensionary benefits for not qualifying the legibility criteria i.e. 10 years qualifying service, therefore, his service rendered on contractual side for about eleven years could not be counted for providing relief of pensionary benefits under Art. 371-A of C.S.R or Rules 2.3 of the West Pakistan Civil Services Pension Rules, 1963---Constitutional petition was dismissed, in circumstances.

Mir Ahmad Khan v. Secretary to Government and others 1997 SCMR 1477; Chairman Pakistan Railway Government of Pakistan Islamabad and others v. Shah Jehan Shah PLD 2016 SC 534; Ministry of Finance through Secretary and others v. Syed Afroz Akhtar Rizvi and others 2021 SCMR 1546 and Inayat Khan v. Government of Khyber Pakhtunkhwa through Secretary Frontier Education and others (W.P. No.833-M/2018) ref.

Amir Zeb v. The District Accounts Officer Nowshera and 5 others (W.P. No.3394-P/2016) distinguished.

PLCCS 2023 PESHAWAR HIGH COURT 1027 #

2023 P L C (C.S.) 1027

[Peshawar High Court (Abbottabad Bench)]

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

MUHAMMAD ZADA

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Education, Peshawar and 2 others

Writ Petition No.1111-A of 2019, decided on 5th April, 2022.

(a) Constitution of Pakistan---

----Art. 25---Appointment to advertised post---Discrimination---Petitioner applied for the post of 'Chowkidar' as per an advertisement and was subsequently interviewed---However, the post was eventually filled through a transfer, despite the fact that other Similar posts had already been filled---Only reason given for not filling the post was that a transfer/adjustment was in progress---Petitioner had the right to be treated in the same way as others who were appointed, and the treatment he received was discriminatory and unjust---Constitutional petition was allowed and the department was directed to appoint the petitioner to the post.

(b) Constitution of Pakistan---

----Art. 25---Equality of citizen---Reasonable classification---Scope---Reasonable classification means different treatment of un-equals and classification can be made between two groups which are not substantially placed in similar circumstances or conditions.

2015 PLC (C.S.) 283 rel.

Hassan Ali Mashwani for Petitioner.

PLCCS 2023 PESHAWAR HIGH COURT 1043 #

2023 P L C (C.S.) 1043

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

SALEEM AHMAD

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education and others

Writ Petition No.732-M of 2020, decided on 22nd June, 2022.

(a) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S.10---Establishments to employ disabled persons---Scope---Department advertised vacancies for the positions of Theology Teacher (BPS-15), Arabic Teacher (BPS-15), and Qari/Qaria (BPS-12) with a provision to fill 2% of the posts from disabled candidates---Petitioner applied for all three positions and followed the required procedure---Petitioner ranked second on the merit list for the position of Arabic Teacher, while the first-ranked candidate had relinquished his right to the appointment---For the position of Qari/Qaria, the petitioner was the only candidate on the merit list---Petitioner filed a representation, but it was disregarded by the department---Before the High Court, department cited non-availability of posts under the 2% disabled quota for which the petitioner had applied---Validity---Establishment had 2094 sanctioned posts, of which 36 had been filled under the disabled quota---According to S.10 of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, at least two percent of the total number of employees at an establishment must be disabled individuals---Two percent of the total sanctioned posts was 41.88, which left 5.88 posts still to be filled by disabled individuals---Since the petitioner met the criteria for appointment to the positions of Arabic Teacher and Qari/Qaria, the respondents were required to appoint him under the 2% disabled quota---Petition was therefore disposed of accordingly.

Sajjad Ali v. Vice-Chancellor through Registrar University of Malakand at Chakdara, Dir Lower and others 2020 SCMR 124 and Malik Ubaidullah v. Government of Punjab and others 2021 PLC (C.S.) 65 rel.

(b) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S.10---Establishments to employ disabled persons---Scope---Bifurcation of different cadres posts pertaining to the total strength of establishment is against the mandate of S. 10 of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981.

Sajjad Ali v. Vice-Chancellor through Registrar University of Malakand at Chakdara, Dir Lower and others 2020 SCMR 124 and Malik Ubaidullah v. Government of Punjab and others 2021 PLC (C.S.) 65 rel.

----Art. 199---Constitutional jurisdiction---Judicial review---Scope---Constitution requires that public functionaries, deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation---Any deviation therefrom can be corrected through appropriate orders under Art.199 of the Constitution.

Brig. Muhammad Bashir v. Abdul Kareem PLD 2004 SC 271 rel.

A Regd. Society v. Union of India AIR 1999 SC 2979 ref.

Kamran Khan for Petitioner.

Sohail Sultan, A.A.G. for Official Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 1073 #

2023 P L C (C.S.) 1073

[Peshawar High Court (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Shahid Khan, JJ

GUL ASLAM

Versus

GOMAL UNIVERSITY, D.I. KHAN through Vice-Chancellor and others

Writ Petition No.587-D of 2018, decided on 30th January, 2023.

(a) Constitution of Pakistan---

----Art.199---Civil service---Promotion--- Constitutional jurisdiction of the High Court, invoking of---Laches, principle of---Cadre of Mess Munshis was changed and was re-designated as junior Clerk and the petitioner, being one of them, asserted that he was later not promoted as per seniority list---Validity---Record revealed that in the matter-in-question, the petitioner was primarily aggrieved of an order having been passed more than three decades ago while he asserted that he came to know about the said fact about eight years ago, and he applied to the respondent/department---Delay in seeking the remedy of appeal, review or revision beyond the period of limitation provided under the statute, in absence of reasonable explanation, could not be condoned; and, in the same manner, if the remedy of invoking constitutional jurisdiction of the High Court was not availed within reasonable time, the interference by the High Court be refused on the ground of laches---No plausible or logical justification , in the present case, had been offered in the memo of constitutional petition to show as to why the petitioner was waiting for such a long time to approach the High Court---Question of laches in case of promotion had much significance as due to inordinate delay things and circumstances enormously changed---Petitioner approached the High Court after three years of having applied to the respondent/ department and that too after almost two years of having retired on attaining the age of superannuation---Due to reckless and lethargic attitude in invoking constitutional jurisdiction of the High Court , the entire complexion and scenario had change---Not only the issue of limitation, but the conduct of the parties as well as change in situation were also to be considered by the High Court while exercising its discretion---Laches in simplest form meant failure of a person to do something which should have been done by him within reasonable time---If the remedy of constitutional petition was not availed within reasonable time the interference could be refused on the ground of laches, and the same would not be decided on merits---Constitutional petition was dismissed.

Muhammad Din v. Abdul Ghani and another 2012 SCMR 1004 ref.

(b) Constitution of Pakistan---

----Art.199---Civil service---Promotion---Constitutional jurisdiction of the High Court, invoking of---Discretion of the Court---Scope---Grant of relief in constitutional jurisdiction was discretionary, which was required to be exercised judiciously---No hard and fast rule could be laid down for the exercise of discretion by the Court for grant or refusal of relief in the exercise of extra-ordinary jurisdiction---Constitutional petition was dismissed.

Saddam Hussain Zakori for Petitioner.

Aamir Farid Saddozai, Standing counsel and Muhammad Ismail Alizai for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 1131 #

2023 P L C (C.S.) 1131

[Peshawar High Court]

Before Qaiser Rashid Khan, C.J. and S M Attique Shah, J

YOUSAF ALI

Versus

CHIEF EXECUTIVE, WATER AND SANITATION SERVICES, PESHAWAR and 2 others

Writ Petition No.5010-P of 2018, decided on 8th September, 2021.

(a) Civil service---

----Appointment---Discrimination---Factual controversy---Scope---Department invited applications for the post---After conclusion of recruiting process, the petitioner was held to secure 70 marks and his name was recorded at serial No. 4 of the merit list---Respondent was declared successful for the post as he had obtained higher marks than the petitioner---Two other individuals who had secured more marks than the petitioner were not arrayed as party to the petition---Said candidates were necessary party to the petition---Grievance of petitioner was that he was awarded lesser marks in the interview in order to accommodate other candidate; however, as per comments of the department available on file, respondent had 10 years' experience in the relevant field, therefore, he was awarded experience marks for the same---No law or any right of the petitioner was violated by the respondents---Allegation levelled by the petitioner was general and vague qua mala fide against the department, which was not sufficient for intervening in the selection process---Matter pertained to factual controversy which could not be resolved in constitutional jurisdiction---No illegality or irregularity was committed by the department by issuing the appointment order---Constitutional petition was dismissed.

(b) Civil service---

----Appointment---Discrimination---Scope---Authority of Selection Committee cannot be challenged and questioned because of the fact it is the best judge at the given time to form an opinion and take decision after judging the ability of candidates---Court cannot enter into the domain of appointing authority or selection to judge the potential of a candidate nor can substitute its own opinion with that of Interview Committee particularly, when no mala fide is apparent.

Saqib Rehman for Petitioner.

Qazi Babar Irshad and Ahmad Shah Afridi for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 1262 #

2023 P L C (C.S.) 1262

[Peshawar High Court]

Before Lal Jan Khattak and Shakeel Ahmad, JJ

ALTAF SAEED, ET (BPS-14) WORKING FOLKS GRAMMAR HIGHER SECONDARY SCHOOL, KARAK and 16 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and 3 others

Writ Petition No.1307-B of 2019, decided on 23rd December, 2022.

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

----R.9---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Petitioners were employees of Workers' Welfare Fund and their grievance was that they had not been extended benefits provided under Workers' Welfare Fund (Employees Service) Rules, 1997---Validity---Principals, Teachers and teaching cadres did not find umbrella / cover by Workers' Welfare Fund (Employees Service) Rules, 1997---Petitioners who invoked jurisdiction of High Court under Art. 199 of the Constitution belonged to Teaching Cadres, therefore, they could not claim protection under Workers' Welfare Fund (Employees Service) Rules, 1997---Petitioners were not protected under statutory rules---Any invasion on service or relating to their terms and conditions of service did not entitle them to approach High Court through Constitutional petition---High Court declined to interfere in the matter---Petitioner could approach appropriate forum for redressal of their grievances---Constitutional petition was dismissed, in circumstances.

Civil Appeals Nos.654 and 655 of 2020 rel.

(b) Master and servant---

----Non-statutory rules---Effect---In absence of any statutory service rules, relationship between employer and its employees is that of Master and Servant.

Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568; Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another PLD 1979 Lah. 803 and The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 rel.

----Art. 199---Constitutional petition---Maintainability---Employees of private organizations---Statutory rules of service, adopting of---Effect---Mere adoption of rules of government or their application by reference does not lend a statutory cover or content to such rules---Employee of a corporation or company or autonomous institution in absence of violation of law or statutory rule cannot press into service the constitutional jurisdiction for seeking relief relating to terms and conditions of his service rules.

The Lahore Central Co-operative Bank Ltd. v. Pir Saif-Ullah Shah PLD 1959 SC (Pak) 210; 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 rel.

Bashir Khan Wazir for Petitioner.

Jehanzeb Mahsud for Respondents.

Jamshaid Iqbal, Law Officer and Said Umar, Asstt.

PLCCS 2023 PESHAWAR HIGH COURT 1339 #

2023 P L C (C.S.) 1339

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Dr. Khurshid Iqbal, JJ

AMIR SOHAIL

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.688-D of 2022 with C.M. No.839-D of 2022, decided on 11th May, 2023.

(a) Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011)---

----S. 3---Civil Procedure Code (V of 1908), S.12 & O.XXIII, Rr.1, 2---Constitution of Pakistan, Art. 199---Constitutional petition---Withdrawal simpliciter---Bar to institute a fresh one---Scope---Petitioner (candidate) earlier filed constitution petition for his alleged right of appointment as Primary School Teacher (PST) under Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011, ('the Act 2011')---Petitioner withdrew earlier instituted constitutional petition which was dismissed---Later on the same subject-matter, the petitioner invoked constitutional jurisdiction of the High Court again---Contention of the petitioner was that he had withdrawn earlier constitutional petition upon assurance of the respondents (authorities) to redress his grievance, but as they did not comply with their commitment, hence second (present) constitutional petition was being filed---Validity---Petitioner had disclosed his contention/fact in the contents of present petition, however, the relevant order of withdrawal did not support his contention as the same (order) showed that the (earlier) petition had been dismissed being not pressed after request for withdrawal under the instructions of client (petitioner)---Constitutional petition was procedurally governed under the Civil Procedure Code, 1908 ('C.P.C., 1908'), thus provisions regarding withdrawal simpliciter and bar on institution of fresh suit under S.12 and O.XXIII of the C.P.C., 1908, were relevant in the present case---Words "Dismissed as withdrawn " were used by the Court in the said withdrawal order---Court would emphasize that there must be a request for permission to bring a fresh suit; in other words, where no such request was made the withdrawal would be simpliciter alone with no room for implied permission, whereas in the present case the petitioner did not withdraw his earlier constitutional petition with permission to bring a fresh one---Petitioner was precluded from instituting the present/fresh petition in respect of the same subject matter (appointment as a PST); thus, present petition filed by the petitioner was not maintainable---Constitutional petition was dismissed, in circumstances.

Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325 and Muhammad Yar v. Muhammad Amin 2013 SCMR 464 ref.

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

----S.12 & O.XXIII, Rr. 1, 2---Suit, withdrawal of---Permission of the Court, seeking of or otherwise---Powers of the Court---Scope---Fresh suit, filing of---Conditions---Firstly, if a request for permission to file a fresh suit is accompanied with a request for withdrawal or abandonment of claim or a part thereof, the Court has authority either to decline such request or allow the permission---Secondly, in the event of refusal, the dismissal simpliciter should not be ordered, but the request for permission alone should be declined, which would mean that the suit shall continue---Thirdly and more importantly, it would be problematic if the request is not declined in express and clear words , yet the suit is 'dismissed as withdrawn' without recording any reason---Such an order would be bad for being silent on giving reasons and would be more amenable to be put at naught if assailed; though would become final if not challenged---Fourthly and finally, for the sake of safe administration of justice, in regard to such an order it would be deemed and implied that the Court has found it fit for permission to file a fresh suit---There must be a request for permission to bring a fresh suit; in other words , where no such request was made, the withdrawal would be simpliciter alone, with no room for implied permission---In the present case, the petitioner did not withdraw his constitutional petition with permission to bring a fresh one---Petitioner was precluded from instituting the (present) fresh petition in respect of the same subject matter (appointment as a school teacher); thus, present petition filed by the petitioner was not maintainable---Constitutional petition was dismissed, in circumstances.

S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933; Tehsil Council Rajanpur through Nazim v. Additional District Judge Rajanpur and 11 others 2005 MLD 1597 and Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141 ref.

----O.VII, R.11 & O.XXII, Rr. 1, 2---Constitution of Pakistan, Art.199---Constitutional petition---Withdrawal simpliciter---Bar to institute a fresh one---Scope---It is the bounden duty of the Court to reject the plaint if it is liable to be rejected including, most particularly, being barred by law under O.VII, R.11 of the Civil Procedure Code, 1908---In the present case the petitioner did not withdraw his earlier constitutional petition with permission to bring a fresh one---Petitioner was precluded from instituting the present/fresh petition in respect of the same subject matter; thus, present petition filed by the petitioner was not maintainable---Constitutional petition was dismissed, in circumstances.

Burmah Eastern Ltd. v. Burmah Eastern Employees' Union PLD 1976 Dacca 190 and Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 ref.

Malik Hidayatullah Mallana for Petitioner.

Malik Muhammad Asad, Addl: A.G. for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 1383 #

2023 P L C (C.S.) 1383

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

MUHAMMAD SAEED

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Writ Petition No.289-M of 2021, decided on 4th April, 2023.

(a) Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S.4---Constitution of Pakistan, Art. 199---Constitution petition filed by legal heir (widower) of the deceased civil servant---Maintainability---Record revealed that the deceased (late wife of the petitioner) was a regular civil servant---Petitioner, being the legal heir could not seek his remedy from the Tribunal constituted under the provisions of Khyber Pakhtunkhwa Service Tribunals Act, 1974 , thus constitutional petition was rightly filed by him before the High Court---Constitutional petition filed by the petitioner being widower of the deceased civil servant was maintainable.

Muhammad Nawaz Special Secretary Cabinet Division through his legal heirs v. Ministry of Finance Government of Pakistan through its Secretary Islamabad 1991 SCMR 1192; Mst. Islam Bibi v. Government of Pakistan through Secretary State and Frontier Regions Division, Islamabad and 3 others 2022 PLC (C.S.) 1196 and Mst. Rashida Khatoon and 2 others v. District Education Officer (Male) and 3 others 2016 PLC (C.S.) 308 ref.

(b) Civil Service Regulations, 1960---

----Art. 371-A---Civil Services Pension Rules, Rr. 2.2 & 2.3---Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973), Ss.4 & 19, provisos 2 & 3 [as added by Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2013]---Contract appointment regularized later---Pensionary benefits ---Eligibility criteria ---Scope---Contention of the petitioner ( widower) was that the services rendered on contractual side (fixed pay) by her late wife could be calculated towards her regular service for completing qualifying service for the purpose of pensionary benefits---Validity---Pensionary benefits, in view of Art. 371-A of Civil Service Regulations, 1960, in juxtaposition with Rr. 2.2 & 2.3 of the Civil Services Pension Rules as well as Ss. 4 & 19 of Khyber Pakhtunkhwa Civil Servants Act, 1973, could not be availed without completion of 10 years qualifying service after regularization of employee, as in such case the services rendered by him/her on contract/fixed pay could not be added/counted (for pensionary benefits)---Record revealed that the deceased wife of the petitioner had not fulfilled the said eligibility criteria (i.e. 10 years qualifying service ) independently till her death after her regularization, therefore , the services rendered by her on contractual side /fixed pay, could not be added to her regular service for pensionary benefits---Constitutional petition was dismissed, in circumstances.

Mir Ahmad Khan v. Secretary to Government and others 1997 SCMR 1477; Chairman Pakistan Railway Government of Pakistan Islamabad and others v. Shah Jehan Shah PLD 2016 SC 534; Amir Zeb v. The District Accounts Officer Nowhsera and 05 others (W.P. No.3394-P/2016); Ministry of Finance through Secretary and others v. Syed Afroz Akhtar Rizvi and others 2021 SCMR 1546 and Inayat Khan v. Government of Khyber Pakhtunkhwa through Secretary Frontier Education and others (W.P No.833-M/2018) ref.

Petitioner in person.

Khawaja Salah-ud-Din, A.A.G. for Official Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 1415 #

2023 P L C (C.S.) 1415

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

MUKHTAR MUHAMMAD KHAN

Versus

The SHAHEED BENAZIR BHUTTO UNIVERSITY SHERINGAL DIR UPPER through its Registrar and others

Writ Petition No.297-M of 2020, decided on 21st February, 2023.

Civil service---

----Termination from service---Absence from duty---Scope---Petitioner assailed the order of termination of his services on the ground of absence from duty and dismissal of his departmental appeal---Contention of the petitioner was that he was on probation when a false criminal case was registered against him, leading to his arrest---After his acquittal, he approached the department and discovered that he had been terminated ---Validity---Petitioner's claim was questionable since neither before his arrest nor after the framing of charge, he or anyone on his behalf had informed the department about his alleged involvement in the criminal case---It's important to note that the petitioner was terminated from service before he had attained the status of a confirmed employee---Regular or confirmed employee could be removed from service after conducting a full-fledged inquiry, whereas a probationer could be removed from service based on allegations of misconduct, corruption, or malpractice, provided an opportunity for a hearing was provided---If the termination was simpliciter, it did not require the issuance of any notice---Consequently, the constitutional petition was dismissed.

Nadeem Asghar Nadeem and others v. Province of The Punjab and others 2016 PLC (C.S.) 155; Secretary, Ministry of Education, Government of Pakistan, Islamabad and another v. Muhammad Azam Ch. and another 2009 SCMR 194; Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences Jamshoro and others 2014 SCMR 1263; Tasawar Hussain v. Deputy Commissioner Jehlum and others 2023 PLC (C.S.) Chief Engineer, Gujranwala Electric Power Company (GEPCO), Gujranwala v. Khalid Mehmood 2023 SCMR 291 and Member (S&R) Chief Settlement Commissioner Board of Revenue v. Syed Ashfaque Ali PLD 2003 SC 132 rel.

Federation of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmad Malik 2020 SCMR 1154 and Nadeem Asghar Nadeem and others v. Province of Punjab and others 2016 PLC (C.S.) 155 ref.

Aziz Ullah Memon v. Province of Sindh 2007 SCMR 229; Province of Sindh through Secretary Education and others v. Saima Bano 2003 PLC (C.S.) 365; Secretary Government of Punjab v. Riaz-ul-Haq 1997 SCMR 1552; Chief Secretary Government of Punjab v. Muhammad Ali Saqib 2020 PLC (C.S.) 1291; Divisional Forest Officer Kasur v. Zahid Ali 2011 SCMR 1618 and Naseeb Khan v. Divisional Superintendent Pakistan Railways, Lahore 2008 SCMR 1369 distinguished.

Noor Muhammad Khattak for Petitioner.

Barrister Dr. Adnan Khan for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 1448 #

2023 P L C (C.S.) 1448

[Peshawar High Court]

Before Qaiser Rashid Khan, CJ and Ijaz Anwar, J

Mst. HALEEMA BIBI

Versus

The ADDITIONAL CHIEF SECRETARY FATA, FATA SECRETARIAT, WARSAK ROAD, PESHAWAR and others

Writ Petition No.3526-P of 2018, decided on 8th February, 2023.

(a) Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011)---

----S.3---Constitution of Pakistan, Arts. 4, 9 & 25---Appointments under Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 ('the Act 2011')---Merit or local based, question of---Vires of S. 3 of the Act 2011---Contention of the petitioners (candidates) was that the law-in-question had given preference to the locals instead of merit based appointments, thus the same be declared violative of Arts. 4, 9 & 25 of the Constitution---Validity---Main emphasis of the petitioners was on a judgment passed by the Supreme Court, but the said judgment was in fact a leave refusing order maintaining a judgment of the High Court---Petitioners were not actually fulfilling the criteria as S. 3 of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011, ('the Act 2011') stipulated that the post of Primary School Teacher would be filled in from the candidates belonging to the Union Councils of their permanent residence mentioned in their CNICs and Domiciles on merit---High Court noticed that many candidates had frequently been applying with different Domiciles/CNICs depriving the genuine candidates of the concerned area of their rights---Candidate must be eligible in all respects in accordance with the advertisement on the last date of submission of applications for appointment and any subsequent changes after the cut-off date for bringing such candidate as eligible were not sustainable---Even the petitioners had not questioned the vires of the Act, 2011 while going through all the process of applying in wake of the advertisement but after having been found ineligible, they had challenged the Act, 2011, which plea was hit by the principle of waiver---High Court declared that S.3 of the Act, 2011 was not violative of any of the express provisions of law / Constitution or did not suffer from any incompetence in the legislative body that promulgated the same---Constitutional petitions were dismissed, in circumstances.

Sidra Bibi v. Secretary, Elementary and Secondary Education, Government of Khyber Pakhtunkhwa and others (Writ Petition bearing No.4347-P/2017) ref.

2023 SCMR 217 distinguished.

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

----O.II, R.2---Constitution of Pakistan, Art.199---Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011), S.3---Second constitutional petition---Maintainability---Appointments under Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011, ('the Act 2011')---Petitioners invoked constitutional jurisdiction of the High Court against the termination orders, claiming that their appointments were made on an order of High Court and they also challenged the vires of S.3 of the Act, 2011---Validity---Though ,previously, some cases were allowed by the High Court and relevant petitioners were allowed appointments in contempt proceedings but the same (appointments) were subject to the decision of the Supreme Court as authorities had already preferred appeals against the judgments of said cases before the Supreme Court---Record revealed that the Supreme Court as an Appellate Court had passed decision in favour of the authorities /respondents---So despite the decision of the Supreme Court, again (present) constitutional petitions were filed by the petitioners against their termination orders and they also challenged vires of S. 3 of the Act, 2011---High Court observed that the present constitutional petitions were not maintainable being hit by the provisions of O. II, R.2 of the Civil Procedure Code, 1908 and High Court could not again adjudicate cases of present petitioners when their matter (termination from service) was subject/pursuant to the orders of the Supreme Court---Constitutional petitions were dismissed, in circumstances.

Criminal Appeal No.01-P of 2019 ref.

----Art.199---Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011), S.3---Legislative enactment, striking of---Powers of the High Court---Scope---Vires of S.3 of Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011, ('the Act 2011')---Legislative enactment could be struck down by the High Court only on two grounds: where the appropriate legislature did not have competency to make the law; secondly, the enactment had abridged any of the fundamental rights enshrined in the Constitution or any other constitutional provisions ---High Court observed that S. 3 of the Act 2011 was not violative of any of the express provisions of law / Constitution or did not suffer from any incompetence in the legislative body that promulgated the same---Constitutional petitions were dismissed, in circumstances.

State of M.P v. Rakesh Kohli and another 2013 SCMR 34 ref.

Akhunzada Ahmad Saeed for Petitioner.

Amir Javed, Advocate General, Khyber Pakhtunkhwa and Syed Asif Jalal and Ms. Sophia Noreen, AAGs and Ashfaq Ahmad Daudzai, Asstt: Attorney General along with Ms. Sajida, Litigation Officer, DEO (F), Nowshera for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 1548 #

2023 P L C (C.S.) 1548

[Peshawar High Court]

Before Ikramullah Khan and Syed Arshad Ali, JJ

IRUM IJAZ

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Director General, Food Safety and Halal Food Authority and others

Writ Petition No.3393-P of 2020, decided on 8th September, 2020.

Khyber Pakhtunkhwa Food Safety Authority Act (X of 2014)---

----Ss. 3 & 8---Constitution of Pakistan, Art. 199---Food Safety and Halal Food Authority, powers of---Constitutional jurisdiction of the High Court---Scope---Appointment criteria---Prerogative of Appointing Authority---Appointment to the post of Food Safety Officer---Eligibility criteria---Food Safety and Halal Food Authority (' the Authority') refused candidature of the petitioner, for her being a M.Sc (Hons.) in Human Nutrition---Contention of the Petitioner, claiming Human Nutrition as a discipline of Nutrition Science, was that her degree, if not higher in standard from the criteria / qualification, was at least equal to the required one, hence her candidature was wrongly refused---Validity---Close perusal of criteria / qualification ,as per advertisement for the post, showed that the candidate must have a Bachelor Degree in Food Safety / Quality Management / Food Safety and Control / Food Nutrition and Science; and if any candidate possessed a Master / B.Sc (Hons.) or BS in biological Science, such candidate should have an additional qualification i.e. Post Graduate Diploma in Food Safety and Control---Petitioner, admittedly, did not possess any Diploma or Degree in Food Safety and Control or Food Nutrition and Science---Eligibility / fitness to hold a particular post was the sole domain of the Appointing Authority and the discretion of the said Authority was structured through Rules / Regulations laying down a particular criteria for a particular post subjectively evaluated by the Competent Authority keeping in view the skills, education of a particular candidate for a particular post---High Court in its constitutional jurisdiction had no mandate to interfere unless the criteria was either contrary to law or was based on discrimination---Concerned department was in better position to lay down criteria for a particular post keeping in view the requirement of job---No case for interference by the High Court was made-out---Constitutional petition was dismissed, in circumstances.

Dr. Shamim Tariq v. International Islamic University, Islamabad through President and others 2020 SCMR 568; Asif Hassan and others v. Sabir Hussain and others 2019 SCMR 1720; Qamar Aziz and others v. Government of the Punjab through Secretary and others 2019 PLC 932; LESCO v. Muhammad Shoaib and others 2020 PLC 654 and Saima v. Government of Balochistan through Secretary Education Department Quetta and another 2014 PLC 579 ref.

Ijaz Ahmad Malik for Petitioner.

Shumail Ahmad Butt, Advocate General, Khyber Pakhtunkhwa and Taimur Khan for Respondents.

PLCCS 2023 PESHAWAR HIGH COURT 1561 #

2023 P L C (C.S.) 1561

[Peshawar High Court (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Shahid Khan, JJ

MUHAMMAD ASLAM

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.248-D of 2019 with C.M. No.03-D of 2023, decided on 30th January, 2023.

(a) Constitution of Pakistan---

----Art. 199---Quo warranto, writ of---Procedure and proceedings---Scope---Procedure of quo warranto gives the judiciary a weapon to control the Executive from making appointments to public office against the law and to protect a citizen from being deprived of public office to which he has a right---These proceedings also tend to protect the public from usurpers of public office, who may be allowed to continue either with the connivance of the Executive or by reason of its apathy---Before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not.

(b) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(aa) & 3---Constitution of Pakistan , Art. 199---Public office, holding of---Regularization of services---Objection to---Constitutional jurisdiction of the High Court---Scope---Ulterior motives /mala fide of the person filing constitutional petition---Contention of the petitioner was that the respondent was illegally appointed / regularized as Assistant Labour Officer in wake of his previous record of services---Validity---Record revealed that the case of regularization was though initially refused by the authority, nevertheless respondent again moved his case for re-consideration under provisions of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the Act 2009'), which was forwarded to Establishment Department who clarified that the case of the respondent fell within the ambit of Ss. 3 & 2(aa) of the Act, 2009, accordingly, his services were later regularized---No illegality or misuse of the authority or jurisdiction in the regularized order was found---Disciplinary proceedings initiated by the former employer (University) against the respondent were commenced after his relieving from the University and thereby his lien was terminated, which did not cast any bar upon the respondent to hold public office---Besides, impact of letter issued by the Establishment Department or other factors , which might be relevant for issuance of writ of mandamus, could not be considered in the present constitutional petition---High Court in exercise of its constitutional jurisdiction in a matter of present nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto or it is motivated by mala fide to gain some undue advantage as a proxy and driving force for others---Record also revealed that, prior to the present constitutional petition, two other constitutional petitions of the same nature and facts having almost same prayer were filed before the High Court but were later-on withdrawn---Petitioner did not seem to have come to the Court with clean hands particularly when he belonged to other Province while the matter pertained to Province of Khyber Pakhtunkhwa and his all present claims were a recap of the earlier filed constitutional petitions---Constitutional petition was dismissed, in circumstances.

Jawad Ahmad Mir v. Prof Dr. Imtiaz Ali Khan, Vice Chancellor, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others 2023 SCMR 162 and Ghulam Shabbir v. Muhammad Munir Abbasi and others PLD 2011 SC 516 ref.

Muhammad Yousuf Khan for Petitioner.

Qudratullah Khan, Assistant Advocate General (for Respondents Nos.1 to 8.

Muhammad Waheed Anjum and Burhan Latif Khaisori for Respondent No.11.

Punjab Subordinate Judicial Service Tribunal

PLCCS 2023 PUNJAB SUBORDINATE JUDICIAL SERVICE TRIBUNAL 921 #

2023 P L C (C.S.) 921

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman and Muhammad Sajid Mehmood Sethi, Member

TAHIR JAMIL BUTT

Versus

LAHORE HIGH COURT, LAHORE through Registrar and another

Service Appeals Nos.27 of 2000 and 43 of 2002, heard on 7th October, 2022.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.6(1)--Misconduct---Culpability of judicial officer proved---Imposition of penalty---Inquiry/Authorized officer, domain of---Scope---Service Tribunal, powers of---Held, that imposition of penalty was within the domain of Inquiry/Authorized officer, who was fully empowered to impose such penalty upon its employee on finding him guilty of commission of misconduct as it considered appropriate and conversion of penalty imposed by Inquiry/Authorized Officer would require strong justifiable reasons for the Tribunal to lessen its gravity---Powers of the Tribunal to modify the punishment imposed by the Inquiry/Authorized Officer were neither unbridled nor unlimited---Penalty of dismissal from service was maintained---Appeal was dismissed, in circumstances.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.6(1)---Judicial Officer---Misconduct---Major penalty---Dismissal from service---Quantum of punishment---Lesser penalty---Scope---Service Tribunal, powers of---Court or Tribunal would ordinarily avoid substituting its own findings with that of the departmental authority, unless it appeared that the quantum of punishment was structured on unreasonable, irrelevant, extraneous considerations or on the face of it against the law---Concept of punishment to a delinquent public servant was founded on the principles of retribution, deterrence or reformation---Court or Tribunal, after being convinced with the findings of the departmental authority with regard to the guilt of the public servant had to concur with the quantum of punishment, unless it alarmingly did not commensurate with the charge(s)---Appellant (judicial officer) was proceeded departmentally on account of serious charges of misconduct and after holding preliminary inquiry, he was confronted with a regular departmental inquiry which followed the opportunity of personal hearing, wherein most of the charges leveled against him were duly established---Charges were very serious and keeping in view their seriousness, the appellant did not deserve any leniency---Penalty of dismissal from service was maintained---Appeal was dismissal, in circumstances.

Divisional Superintendent, Postal Services, Faisalabad and others v. Muhammad Zafarullah 2021 SCMR 400; Director General, Directorate General of Training and Research (Inland Revenue), Lahore and another v. Ijaz Younas 2021 SCMR 710; Government of Pakistan, Revenue Division, Federal Board of Revenue through Chairman, Islamabad and another v. Nawaz Ali Sheikh 2020 SCMR 656; Government of Khyber Pakhtunkhwa through Capital City Police Officer Peshawar and others 2020 SCMR 981 and Chief Postmaster Faisalabad, GPO and another v. Muhammad Afzal 2020 SCMR 1029 ref.

Khalid Maan for Appellant.

Ahtisham-ud-Din Khan, Nauman Sarwar, M. Mahmood Chaudhry and Sardar Azeem Afrasiab for Respondents.

PLCCS 2023 PUNJAB SUBORDINATE JUDICIAL SERVICE TRIBUNAL 1243 #

2023 P L C (C.S.) 1243

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf and Muhammad Sajid Mehmood Sethi, JJ

SHER HASSAN PERVEZ

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE and another

Service Appeal No.02 of 2019, heard on 10th December, 2021.

Civil service---

----Judicial Officer---Performance Evaluation Report---Remarks passed by the Reporting officer---Whether remarks "Advisory" or "Adverse"---District and Sessions Judge passed remarks against Civil Judge as "late-comer who likes to avoid duty" in his Performance Evaluation Report---Appellant (Civil Judge) impugned the remarks-in-question considering the same as "adverse", however, his representation was declined---Contention of the respondent (Registrar High Court) was that the remarks-in-question were "advisory" in nature---Validity---Although the appellant tendered unconditional apology but explanation tendered by him showed that he was late on two occasions by 10 minutes and one hour respectively, which he had duly intimated regarding his short leave , thus his unconditional apology did not suggest that the appellant was a habitual late-comer who liked to avoid duty---Mere caption of the remarks was not the determining factor, rather nature and essence of the remarks would lead to the conclusion as to whether the remarks were "Advisory" or "Adverse"---Adverse remarks indicated the defects or deficiencies in the quality of work or performance or conduct of a civil servant except the words in the nature of counsel or advice---Adverse remarks could be deciphered from the words used by the Reporting Officer in his remarks and the impact those words might have on the reputation and general image of the officer---Adverse remarks did not become advisory even if the Reporting Officer himself had called them advisory or the Authority had treated them so---Advisory remarks, at the time of promotion of the Civil Servant, would become adverse carrying stigma if it was found that despite the advice the Officer did not make an improvement---High Court observed that the remarks-in-question were "adverse" and could not be considered "advisory" by any stretch of imagination---Record did not provide basic or direct evidence for passing of the remarks-in-question---Record also did not reveal that any counseling or warning was ever issued to the appellant warning him for alleged lapse of being late repeatedly---High Court set-aside impugned order, consequently impugned remarks stood expunged---Appeal was allowed, in circumstances.

Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Engineer Jameel Ahmed Malik v. Pakistan Ordinance Factories Board, Wah Cantt through Chairman and others 2004 PLC (C.S.) 130; Malik Azhar-ul-Haq v. Registrar, Lahore High Court, Lahore 2012 PLC (C.S.) 1208 and Government of A.P. rep. by Chief Secretary v. Madanlal, IPS and another 2003(1) S.C.T.627 ref.

Kashif Ali Chaudhry for Appellant.

Junaid Jabbar Khan for Respondent No.1.

PLCCS 2023 PUNJAB SUBORDINATE JUDICIAL SERVICE TRIBUNAL 1462 #

2023 P L C (C.S.) 1462

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman and Muhammad Sajid Mehmood Sethi, Member

NAEEM AHMAD

Versus

REGISTRAR LAHORE HIGH COURT, LAHORE

Service Appeal No.04 of 2017, heard on 10th December, 2021.

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

----S.10---Constitution of Pakistan, Arts.9, 14 & 25---Judicial officer---Major penalty---Termination from service---Charges of corruption and acquiring assets beyond means---Regular inquiry, dispensing with---Legality---Right to life and dignity---Due process---Equality---Services of the Civil Judge were terminated during probation without holding regular inquiry---Validity---When the appellant (Ex-Civil Judge) had refuted the allegations, in such eventuality the matters involved controversial questions of facts which could not have been decided without detailed scrutiny and holding a regular inquiry---Termination of services with stigmatic charges, without holding a regular inquiry, degenerated a host of adverse assumptions against one's character, which had bearing on one's reputation and goodwill for his future career---Thus, it offended right to life and dignity as enshrined under Arts. 9 & 14(1) of the Constitution ---Competent Authority must not dispense with the regular inquiry that could be necessary to probe into charge, particularly when there was likelihood of imposition of major penalty of termination of service if the allegation was proven because it would result into grave miscarriage of justice and prejudice to the aggrieved civil servant---Plausible reasons were to be provided, if at all, the regular inquiry was to be dispensed with---Record revealed that the Hearing Officer duly appointed by the Administrative Committee , after affording personal hearing to the appellant, recommended him either to be re-instated or to hold regular inquiry in order to establish allegation leveled against him---However, the Competent Authority did not consider the said recommendation and proceeded to pass termination order after simply providing personal hearing to the appellant--- Although the Competent Authority was not bound by the recommendation of the Hearing Officer/Inquiry Officer and had powers to differ with it, however, such power had to be exercised on the basis of duly recorded cogent and valid reasons---No cogent reasons had been assigned, in the present case, by the Competent Authority to disagree with the findings and recommendations of the Hearing Officer---Appellant, as a citizen, was entitled to due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety---Record also revealed that, in an identical matter, a regular inquiry had been held, thus, the appellant could not be subjected to the discrimination as enshrined under Art. 25 of the Constitution---Subordinate Judiciary Service Tribunal set aside impugned orders/notifications issued by the Registrar High Court and directed him to hold regular inquiry before deciding the matter as per law---Constitutional petition was allowed, in circumstances.

The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Abdul Qayyum v. D.G., Project Management Organization, JS HQ, Rawalpindi and 2 others 2003 SCMR 1110; Muhammad Idris Khan v. Secretary/Chairman, Ministry of Railways, Islamabad and 5 others 2006 SCMR 104; Salman Faruqui v. Javed Burki, Authorized Officer, Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and another 2007 SCMR 693; Dr. Kumail Abbas Rizvi v. University of Punjab and others 2017 PLC (C.S.) 569; Naeem Akhtar Chang v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others 2017 PLC (C.S.) Note 100; Saleem Wazir Professor Community Medicine and 6 others v. Government of Khyber Pakhtunkhwa through Secretary Health Peshawar and 2 others 2019 PLC (C.S.) 224; Shakir Ali and another v. National Accountability Bureau through Chairman, Islamabad and another 2021 PLC (C.S.) 683; Naveed Shah v. City Police Officer, Faisalabad and 2 others 2017 PLC (C.S.) 214; Allah Ditta v. Province of Punjab and 2 others 2017 PLC (C.S.) 437; Asif Yousaf v. Secretary Revenue Division, CBR, Islamabad and another 2014 SCMR 147; Director Postal Life Insurance, Lahore v. Shakeel Ahmad 2021 SCMR 1162; Naubahar Ali v. Vice-Chancellor and others 2010 PLC (C.S.) 783; Muhammad Umar v. D.G. Excise and Taxation and others 2011 PLC (C.S.) 384 and Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 ref.

Hafiz Tariq Naseem for Appellant.

Zawar Ahmad Sheikh for Respondent.

Ms. Sanam Aziz Bhatti, Civil Judge / Research Officer, LHCRC.

PLCCS 2023 PUNJAB SUBORDINATE JUDICIAL SERVICE TRIBUNAL 1518 #

2023 P L C (C.S.) 1518

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman and Muhammad Sajid Mehmood Sethi, Member

MUHAMMAD ASAD ULLAH SIDDIQUI

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE and another

Service Appeal No.13 of 2018, heard on 20th June, 2023.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.5---Fundamental Rules, R.54---Civil Service Rules (Punjab), R.7.3---Re-instatement of a Civil Judge---Back benefits, grant of---Principles---Working for gain in the intervening period---Scope---Representation of the appellant (Civil Judge) for grant of back benefits from date of his dismissal to date of re-instatement was rejected by the competent authority---Validity---If the officer had worked for gain for certain period, he should not be allowed the back benefits in full, rather the amount which he had earned for working gainfully would be excluded from his entitlement---In order to determine the actual benefits in the case when the officer worked for gain a thorough inquiry and probe was required, which had not been done in the present case; and representation of the appellant was rejected summarily on the sole ground that he had worked for gain for the intervening period---For calculating back benefits, it was not the period which mattered, rather it was the amount, which the employee had earned during that period, which played a pivotal role for such determination---Tribunal set-aside the impugned order and directed that representation of the appellant would be deemed to be pending before the competent authority for a decision afresh---Appeal was disposed of accordingly.

Muhammad Sharif and others v. Inspector General of Police, Lahore and others 2021 SCMR 962 ref.

Mahmood Ahmed Qazi for Appellant.

Asad Ali Bajwa for Respondents.

Quetta High Court Balochistan

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 100 #

2023 P L C (C.S.) 100

[Balochistan High Court]

Before Naeem Akhtar Afghan and Zaheer ud Din Kakar, JJ

AZIZULLAH

Versus

The INSPECTOR GENERAL OF POLICE BALOCHISTAN, CENTRAL POLICE OFFICE and 18 others

Constitution Petition No.383 of 2021, decided on 4th June, 2021.

Police Rules, 1934---

----Chapt.12, R.12.15---Police recruits---Physical standards---Minimum height of 5 feet 7 inch---Such minimum height was a standard/criteria and a condition precedent for the appointment of a candidate as Recruit/Inspector---Record (inquiry report) revealed that petitioner's height measurement was carried out with two different scales by the inquiry officer, which (height) was 2 soot smaller than the minimum required measurement---Since the petitioner had not fulfilled the mandatory requirement as per R.12.15 of Chapter XII of the Police Rules, 1934 and there was no sanction of general or special relaxation by the Deputy Inspector General of Police, therefore, the petitioner was held not entitled for the relief---Constitutional petition was dismissed, in circumstances.

Taqweem Shah for Petitioner.

Abdul Basit Shah and Qasim Mandokhail for Respondents Nos.3 to 19.

Zahoor Ahmed Baloch, A.A.G. along with Muhammad Abbas, DSP Legal for Respondents.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 170 #

2023 P L C (C.S.) 170

[Balochistan High Court]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

SAJJAD HAIDER TAREEN, PDSP, QUETTA and 10 others

Versus

The PROVINCIAL POLICE OFFICER, BALOCHISTAN QUETTA and 12 others

C.Ps. Nos.246 of 2008 and 334 of 2019, decided on 31st January, 2020.

Balochistan Civil Servants Act (IX of 1974)---

----S.8---Balochistan Deputy Superintendents of Police Service Rules, 1978, Rr. 2(b) & 10---Seniority---Scope---Petitioners assailed exclusion of Deputy Superintendents of Police (DSPs) of prosecution branch from the Joint Seniority List---Contention of department was that there was no specific provision in the Balochistan Deputy Superintendents of Police Service Rules, 1978, for maintaining Joint Seniority List of DSPs (General Cadre) and DSPs of the prosecution branch---Validity---Sub-Inspectors and Inspectors of the Prosecution Branch of Police Department could not travel horizontally by transfer to the other branches of the Police Department but after promotion of the Inspectors of the prosecution branch of the Police Department as DSPs, there was no such restriction on the DSPs of prosecution branch---DSPs of the prosecution branch could be appointed in other branches of the Service---Rule 10 of the Balochistan Deputy Superintendents of Police Service Rules, 1978, dealing with the inter se seniority of the DSPs of the Service, did not provide for preparation of separate Seniority List of DSPs of different branches of the service---Rule 2(b) of Balochistan Deputy Superintendents of Police Service Rules, 1978, although provided that all the branches of the service had been organized as separate and self-contained unit of the Police Department but all the branches (including the prosecution branch) of the service had not been sanctioned as a separate unit to fall within the definition of a "separate cadre" warranting preparation of separate seniority lists of the DSPs of different branches of the service under S.8(1) of the Balochistan Civil Servants Act, 1974---Constitutional petitions were accepted and the department was directed to issue joint seniority list of DSPs.

Adnan Basharat for Petitioners (in C.P. No.246 of 2008).

Abdul Latif Kakar, Additional Advocate General for Respondent No.1 (in C.P. No.246 of 2008).

Amanullah Kanrani, Nadir Ali Chalgari, Naseer Ahmed Bungulzai and Bilal Mohsin for Respondents Nos.2 to 12 (in C.P. No.246 of 2008).

Khalilullah Kakar, DSP in person for Respondent No.13 (in C.P. No.246 of 2008).

Adnan Basharat for Petitioners (in C.P. No.334 of 2019).

Abdul Latif Kakar, Additional Advocate General for Respondent No.1 (in C.P. No.334 of 2019).

Amanullah Kanrani, Nadir Ali Chalgari, Naseer Ahmed Bungulzai and Bilal Mohsin for Respondents Nos.3 to 8 (in C.P. No.334 of 2019).

Khalilullah Kakar, DSP in person for Respondent No.2 (in C.P. No.334 of 2019).

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 301 #

2023 P L C (C.S.) 301

[Balochistan High Court]

Before Abdul Hameed Baloch, J

AKHTAR MUHAMMAD

Versus

SHABANA and another

Civil Revision No.239 of 2020, decided on 18th March, 2021.

Balochistan Government Employees Benevolent Fund Act (XV of 2018)---

----S.2(d)(ii)---Balochistan Civil Servants Pension Rules, 1989, R.4.7---Succession Act (XXXIX of 1925), Ss.372 & 373---Succession---Tarka---Grant, entitlement of---Dependent on deceased---Proof---Petitioner/father claimed to be dependent upon deceased---Lower Appellate Court excluded petitioner from receiving any share in Grants---Validity---Petitioner was employee and after retirement was getting pension and was not dependent on deceased, rather he himself was getting salary as a government employee---Dependent was a person who had no earning and was wholly dependent on income of his son---Mere living in same house did not mean that petitioner was dependent on his late son---Benefits which had already become receivable by deceased during his life time payable by employer when he was alive or service benefit which employer gave as to an employee and name of family member of employee to receive it after his death, such was service grant and did not become inheritable by all legal heirs of the employee---High Court declined to interfere in the order passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Dr. Nisar Ullah v. Abdul Majeed Soomro 2009 PLC (C.S.) 263; Mst. Samina Naz v. Baby Dua Saeed alias Hiba through her mother and natural guardian 2015 CLC 260; Sher Ali v. Director General Pakistan Rangers PLD 2019 Lah. 474 and Zaheer Abbas v. Pir Asif 2011 CLC 1528 ref.

Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC (Sharait Appellate Bench) 731 and Mst. Riffat Yasmeen v. Hassan Din 2014 CLC 126 rel.

Dawood Jan for Petitioner.

Atif Faizan and Sadiq Shah, SOC Irrigation Department for Respondent No.1.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 348 #

2023 P L C (C.S.) 348

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

MUHAMMAD ISMAIL MUHAMMAD SHAI

Versus

HON'BLE CHIEF JUSTICE BALOCHISTAN, through Registrar and others

C.Ps. Nos.967 to 969 of 2018, decided on 31st March, 2021.

Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989)---

----S.5(b)(1)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Petitioners were from subordinate judiciary who assailed order passed by High Court with regard to their promotions---Validity---Judicial orders of Supreme Court and High Court on jurisprudential plan were already protected from exercise of Constitutional jurisdiction---Subject to provisions of Art.199(5) of the Constitution, it was only the administrative / executive or consultative functions / orders and acts which in fact had been protected under Art.199 of the Constitution--- High Court could not be deemed to be conferred with two distinct characters, i.e. one judicial which was immune from writ, and the other administrative which was amenable to writ--- Petitioners assailed ante dated promotion and seniority to that of respondents which could not be entertained while exercising Constitutional jurisdiction under Art.199 of the Constitution---High Court had already expressed its view in respect of petitioners and could not revisit its own view in subsequent proceedings in petition under Art. 199 of the Constitution--- Constitutional petition was dismissed in circumstances.

Asif Saeed v. Registrar Lahore High Court and others PLD 1999 Lah. 350; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Mehmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Shahid Nabi Malik v Chief Election Commissioner PLD 1997 SC 32; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 961 and Gul Taiz Khan Marwat v. Registrar Peshawar High Court PLD 2021 SC 391 ref.

Azmatullah Kasi and Ishaq George for Petitioner.

Khalil-uz-Zaman Alizai, Additional Advocate General for Respondents.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 426 #

2023 P L C (C.S.) 426

[Balochistan High Court]

Before Naeem Akhtar Afghan and Zaheer-ud-Din Kakar, JJ

GUL MIR KHAN and 2 others

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Education Balochistan Quetta and 4 others

Constitutional Petition No.234 of 2016, decided on 18th January, 2021.

(a) Civil service---

----Appointment to advertised post---Scope---Two of the petitioners claimed employment in Education Department as Junior Vernacular Teacher (JVT) against the posts reserved for disabled persons---Validity---One post of JVT was available for disabled person---One of the petitioners had secured 40.04 marks, the other had secured 43.93 marks and the person who was appointed as JVT had secured 48.78 marks---Since the appointment against one post reserved for disabled person as JVT had been made on merits and the petitioners had secured marks lesser than the appointed disabled person, therefore, petitioners were not entitled for the relief claimed---Constitutional petition was dismissed to their extent.

(b) Civil service---

----Appointment to advertised post---Scope---Petitioner claimed employment in Education Department as Junior Education Teacher (JET) against the posts reserved for disabled persons---Petitioner had qualified the National Testing Service (NTS) test and was entitled for appointment as JET against the post reserved for disabled person but he was not issued appointment order by the competent authority and his appeal before the Divisional Complaint Redressal Cell was rejected on the ground that the degree issued by the concerned University was not recognized by the Higher Education Commission---Counsel for Higher Education Commission had not only confirmed that the University was accredited and recognized by the Higher Education Commission but had also verified the degree of the petitioner---Disability Certificate of the petitioner was got verified by the High Court, it was held that petitioner was entitled to the relief claimed for---Constitutional petition to his extent was accepted.

Muhammad Aamir Rana, Muhammad Arif Achakzai and Haq Dad Baloch for Petitioners Nos.1 and 2.

Abdul Zahir Kakar and Noor Muhammad Kakar for Respondent No.3.

Zahoor Ahmed Baloch, Assistant Advocate General (A.A.G.) assisted by Lal Jan, DEO Zhob, Musa Khan, DEO Sherani, Mushtaq Hussain, Assistant Director (Judicial) Quetta for Respondents Nos.1, 2, 4 and 5.

Naimatullah Achakzai along with Ahsan Hameed, Assistant Director HEC, Regional Centre, Quetta for Higher Education Commission.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 457 #

2023 P L C (C.S.) 457

[Balochistan High Court]

Before Naeem Akhtar Afghan, CJ and Abdul Hameed Baloch, J

MUHAMMAD WASSAY TAREEN

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others

C.P. No.523 of 2021, decided on 21st September, 2021.

Constitution of Pakistan---

----Arts.25 & 199---Constitutional petition---Discrimination---Superior Judicial Allowance, grant of---Petitioner was Provincial Mohtasib (Ombudsman) and was aggrieved of non-payment of Superior Judicial Allowance to him which was approved by Governor in his favour and previous Ombudsmen had also been receiving the allowance---Validity---Discrimination met with petitioner was not based on any rational ground or reasonable classification and was devoid of intelligible differentia---In order to avoid discrimination, order passed by Governor for paying Superior Judicial Allowance to petitioner was not suffering from any illegality or irregularity---Chief Minister erred in facts as well as law while rejecting summary for approval of payment of Superior Judicial Allowance---High Court directed Provincial Government to make payment of Superior Judicial Allowance to petitioner in pursuance to the order passed by Governor of the Province---Constitutional petition was allowed in circumstances.

Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 and N.W.F.P Public Service Commission v. Muhammad Arif 2011 SCMR 848 rel.

Naseebullah Tareen, Tahir Ali Baloch, Nadir Ali Chalgari and Behram Khan Tareen for Petitioners.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondents.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 495 #

2023 P L C (C.S.) 495

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Gul Hassan Tareen, JJ

JAMEEL AHMED

Versus

GOVERNMENT OF BALOCHISTAN through Secretary C&W Department Civil Secretariat, Quetta and 6 others

C.P. No. 1859 of 2021, decided on 23rd November, 2022.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Appointment to advertised post---Appointment obtained through misrepresentation---Estoppel---Scope---Petitioner assailed the appointment of private respondent on disabled persons' quota and sought a direction for his appointment instead of private respondent's---Validity---Private respondent had earlier applied against different posts while declaring himself to be medically fit---Law of estoppel did not allow the private respondent to alter his position that he suffered from disability---Estoppel was an equitable doctrine, a bar that prevented one from asserting a claim or right that contradicted what one had said or done before, or what had been legally established as true---Private respondent could not take advantage of his own inconsistent positions---So far as locus standi of the petitioner was concerned, two posts were allocated for the persons with disability and the petitioner was placed at Sr. No. 3 of the Merit List, therefore, he was an aggrieved person within the meaning of Art. 199 of the Constitution---Constitutional petition was allowed.

(b) Civil service---

----Medically fit---Meaning---Expression "medically fit" means, a person/candidate who for the time being, is not suffering from any physical and/or mental inability and disability---An employee is considered medically fit to continue working as long as his health does not affect his job performance.

Nadir Ali Chalgari and Bilal Mohsin for Petitioner.

Adnan Basharat and Ch. Munir Akhtar Khan for Respondent No. 7.

Muhammad Aslam Jamali, Assistant Advocate General for Official Respondents.

Gul Dad Law Officer, BPSC.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 705 #

2023 P L C (C.S.) 705

[Balochistan High Court]

Before Rozi Khan Barrech and Muhammad Aamir Nawaz Rana, JJ

KHALID MEHBOOB

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Government of Balochistan, Civil Secretariat, Quetta and 4 others

C.P. No. 1164 of 2022, decided on 1st August, 2022.

Constitution of Pakistan---

----Arts. 199 & 212---Matter relating to terms and conditions of service---Exclusive jurisdiction of administrative tribunals and ouster of jurisdiction of High Court---Scope---Petitioner assailed a notification whereby his services as a Project Director were suspended on charge of week administration, lack of interest in procurement process, negligence and inefficiency---Validity---Petitioner was admittedly a civil servant and was just transferred as a Project Director so the bar contained in Art. 212 of the Constitution was attracted vis-à-vis jurisdiction of the High Court---Questions raised by the petitioner on the notification could be considered and adjudicated upon by the relevant Service Tribunal---Only in extraordinary circumstances of great public importance the extraordinary jurisdiction of the High Court under Art. 199 of the Constitution could be invoked---Constitutional petition, being not maintainable, was dismissed.

Federation of Pakistan through Secretary Establishment, Islamabad v. M.Y. Labib-ur-Rehman and others 2021 SCMR 1554 rel.

Rauf Atta for Petitioner.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 776 #

2023 P L C (C.S.) 776

[Balochistan High Court]

Before Abdullah Baloch, J

ABDUL RAZAQ and others

Versus

HOOR JAN and others

Succession Appeals Nos.03 and 04 of 2021, decided on 29th October, 2021.

Islamic law---

----Inheritance---Tarka---Civil service---Pension---Scope---Appellants claimed to be great distant legal heirs of the deceased who was issueless; thus, they sought their due share in his pensionary benefits---Widow of deceased had also filed an application for similar relief---Trial Court dismissed the application filed by appellants and allowed that of the widow---Validity---Pension of a deceased was not heritable property i.e. it did not constitute 'tarka' of the deceased, and its distribution was governed under the statute/rules that provided for such pension---Appellants were not entitled to receive any share from the pensionary benefits of deceased---Orders passed by Trial Court did not suffer from any material illegality or irregularity to warrant interference by the High Court---Appeals were dismissed.

Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731 and Dr. Safdar Hussain and another v. Flt. Lt. Nadia Latif and others 2014 YLR 1553 rel.

Mrs. Hina Mumtaz Soomro and others v. Abdul Sami Soomro and others PLD 2018 Sindh 671 foll.

Muhammad Ibrahim Lehri for Appellants.

Ghulam Mohyuddin Sasoli and Munawar Iqbal Sumalani for Respondent No.2.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 826 #

2023 P L C (C.S.) 826

[Balochistan High Court]

Before Naeem Akhtar Afghan, CJ and Iqbal Ahmed Kasi, J

MUHAMMAD ALI ZAHOOR, ZONAL DIRECTOR (BISP)

Versus

GOVERNMENT OF PAKISTAN through Secretary Benazir Income Support Programme Islamabad and 3 others

C.P. No.1674 of 2022, decided on 24th November, 2022.

(a) Civil service---

----Deputation---Scope---Normal period of deputation is three years and the concerned official has to report back after completion of his term of three years, unless it is further extended for two years---Maximum period of deputation is five years in terms of Serial No.27(iv) of the ESTA Code whereafter both the borrowing and lending organizations have to ensure immediate repatriation of the deputationist---Period of deputation has been defined specifically and after the expiry of term, the deputationist should automatically be relieved from his duty, unless his deputation period has been extended.

Contempt proceeding against Chief Secretary, Government of Sindh 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

(b) Civil service---

----Deputation---Scope---Deputationist does not have vested right to remain on the post as deputationist forever or for the stipulated period---Deputationist can be ordered to be repatriated to his parent department at any time without assigning any reason.

S. Masood Abbas Rizvi v. Federation of Pakistan, through Secretary Establishment and others 2014 SCMR 799 and Dr. Shafi-ur-Rehman Afridi v. CDA Islamabad, through Chairman and others 2010 SCMR 378 rel.

Naseebullah Tareen for Petitioner.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 938 #

2023 P L C (C.S.) 938

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Muhammad Aamir Nawaz Rana, JJ

MUHAMMAD HASSAN KAKAR and others

Versus

VICE-CHANCELLOR UNIVERSITY OF BALOCHISTAN, QUETTA and others

Constitution Petitions Nos.922, 923, 924, 925 and 928 of 2021, decided on 19th December, 2022.

(a) Civil service---

----Promotion---Principle---Question whether a person is legally qualified for promotion over a particular post and grade is relatable to the factum whether he possesses the requisite qualification for consideration---Question of fitness pertains to competency of the person concerned which is to be decided by the competent authority--- Person may be considered eligible for a particular post but may not be promoted by considering him unfit on the basis of his past service, ACRs and his general conduct towards given assignments.

Muhammad Rahim Khan v. Chief Secretary, N.W.F.P. 1999 SCMR 1605 rel.

(b) Civil service---

----Promotion---Criteria---In case of non-selection post, promotion is based upon seniority-cum-fitness and no employee can ask for or claim a promotion as a matter of right, as it is within the exclusive domain of competent authority--- Neither promotion can take place automatically nor the seniority alone is the deciding factor, as a number of factors constitute fitness for promotion.

Government of N.W.F.P. v. Buner Khan 1985 SCMR 1158 rel.

----Upgradation of post---Promotion---Distinction---Petitioners were employees of respondent University who sought their promotion and upgradation of their post on the basis of a 'Notification'---Validity---Upgradation could not be claimed as a matter of right but was based on policy decision of competent authority for its implementation across the board for particular categories of employees jotted down in the Scheme/Notification who fulfilled required qualification which was normally a particular length of service in a particular pay scale--- Promotion involved advancement in rank/grade, whereas facility or benefit of upgradation conferred some monetary benefits by granting a higher pay scale to ventilate stagnation--- 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---High Court set aside the Notification in question issued by University authorities being illegal, without any lawful authority and void ab-initio---High Court directed respondent University to reconsider the cases of all its employees who benefitted from the Notification, and in case Notifications of their promotions and upgradations of posts were not on merits or in accordance with settled principles of law, the same be recalled/reviewed---High Court directed University authorities to consider the cases of petitioners for promotion strictly on merits and in accordance with law, and without further delay---Constitutional petition was disposed of accordingly.

Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456; Regional Commissioner Income Tax, Northern Region, Islamabad v. Syed Munawar Ali 2016 SCMR 859 and Federal Public Service Commission v. Anwar-Ul-Haq (Private Secretary) Islamabad 2017 SCMR 890 rel.

Naseebullah Tareen and Jahandad Khan Kakar for Petitioners.

Adnan Ejaz Sheikh and Babar Abbas for Respondents.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 1218 #

2023 P L C (C.S.) 1218

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

Dr. SHAHID AMIN

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of National Food Security and Research and another

C.P. No.76 of 2021, decided on 31st of March, 2021.

Constitution of Pakistan---

----Art.199---Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015, Sched I, Para. 6---Constitutional petition---Recommendations of the Board to the Competent Authority---Scope---Petitioner impugned fresh recruitment process i.e. constitution of new scrutiny committee for short listing and interview process---Respondents had invited applications for the post of Chief Executive Officer (CEO)through publication from all over Pakistan---Petitioner along with 22 others being qualified candidates had applied for the post---Respondents after shortlisting 10 candidates out of 23 candidates had issued interview calls---Interview was conducted as per schedule and the petitioner was placed at 1st position while two others were placed at 2nd and 3rd position---Candidates were recommended for approval of Board of Directors---Matter remained pending before the Board of Directors, but all of sudden the petitioner received another interview call from the respondents to appear in interview afresh---Contention of respondents was that the Board of Directors had not approved the recommendations---Validity---Decision of the Board of Directors seemed to be based on mala fide intention just to add and accommodate certain blue eyed candidates, while nothing was brought on record to ascertain the reasons for recalling the interview process---Constitutional petition was accepted, in circumstances, process of fresh appointments was declared to be illegal and the earlier process was directed to be finalized.

Kamran Murtaza, Muhammad Rauf Atta and Adnan Ejaz Sheikh for Petitioners.

Syed Iqbal Shah, D.A.G. and Shahid Baloch, Additional A.G. for the State.

Dr. Zahid-ul-Quddus Bhutta, Technical Officer, LDDB, Islamabad.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 1296 #

2023 P L C (C.S.) 1296

[Balochistan High Court (Turbat Bench)]

Before Muhammad Ejaz Swati and Muhammad Aamir Nawaz Rana, JJ

RIAZ AHMED

Versus

The GOVERNMENT OF BALOCHISTAN through Secretary Food Balochistan Civil Secretariat, Zarghoon Road, Quetta and others

C.Ps. Nos.(T) 108 of 2021 and (T) 164 of 2022, decided on 21st November, 2022.

(a) Balochistan Employees' Efficiency and Discipline Act (VI of 2011)---

----S.20---Proceedings under the Act---Limitation---Scope---Petitioner challenged imposition of penalties under the Balochistan Employees' Efficiency and Discipline Act, 2011, on the ground that the proceedings were finalized after two years of his retirement---Validity---Show cause notice was issued to petitioner in the year 2017 and thereafter the inquiry was not conducted for a considerable period; eventually in 2019 the petitioner was retired from service and even thereafter the inquiry proceedings were not completed with due vigilance and with the sincerity of purpose to bring on record the actual facts, however, penalties were imposed upon the petitioner in 2022 after lapse of statutory period of two years---Impugned order in which the penalties had been imposed upon the petitioner was without jurisdiction and nullity in the eyes of law---Impugned order was set aside and the respondents were directed to pay retirement benefits to the petitioner---Constitutional petition was disposed of accordingly.

Province of Puniab through Conservator of Forest, Faisalabad v. Javed Iqbal 2021 SCMR 328 rel.

(b) Balochistan Employees' Efficiency and Discipline Act (VI of 2011)---

----S.20---Proceedings under the Act---Limitation---Scope---Proviso to S. 20 of the Act provides an upper limit for finalizing the departmental process against a retired employee i.e. not later than two years from the date of his retirement---In a way, a protection has been provided to the retired employees from indefinite proceedings against them, as it would definitely involve and engage the machinery of the department and its resources---Further, the retired employees who have spent best years of their lives in rendering service to their departments should enjoy peaceful retirement life instead of being dragged into infinite inquiries which might be result of ill will or any personal grudge.

Qamber Riaz for Petitioner.

Nasratullah Baloch, Assistant Advocate General for Respondents.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 1399 #

2023 P L C (C.S.) 1399

[Balochistan High Court]

Before Rozi Khan Barrech and Muhammad Aamir Nawaz Rana, JJ

ABDUL JABBAR

Versus

GOVERNMENT OF BALOCHISTAN, FORESTS AND WILDLIFE DEPARTMENT, QUETTA, through Secretary and 4 others

Constitution Petition No.96 of 2023, decided on 21st March, 2023.

Contract Act (IX of 1872)---

----S.23---Specific Relief Act (I of 1877), S. 21---Civil service---Contracts not specifically enforceable---Scope---Any agreement, which stipulates selling of public office posts in lieu of land would be illegal, void and shall not create any right---In case any such illegal contract has been concluded, apart from being void the same is also not enforceable in view of S. 21 of the Specific Relief Act, 1877---Intention of the legislature is very clear; where under a contract, the obligation is cast upon a person to perform continuously a particular duty for a period longer than 3 years from the date of agreement, the same cannot be specifically enforced---Appointments on public offices are to be made strictly on merits, and such public offices are not supposed to be sold under any pretext.

Hameedullah and others v. Headmistress, Government Girls School, Chokara District Karak and others 1997 SCMR 855 rel.

Ameenullah Kakar for Petitioner.

PLCCS 2023 QUETTA HIGH COURT BALOCHISTAN 1526 #

2023 P L C (C.S.) 1526

[Balochistan High Court]

Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ

MEHBOOB ALI RIND and others

Versus

SECRETARY EDUCATION BALOCISTAN and others

Constitutional Petitions Nos.231, 1065 and 1814 of 2022, decided on 20th March, 2023.

(a) Civil service---

----Appointment---Withholding issuance of appointment order---Legality---Vested right of appointment---Scope---Department invited applications from female candidates for teaching positions in each district of the Province---Petitioners, along with others, applied on time---After scrutiny, qualifying tests were conducted, followed by interviews conducted by the District Recruitment Committees (DRCs)---District Recruitment Committees (DRCs) recommended the petitioners and other qualified candidates for appointment---However, the department withheld the issuance of appointment letters without providing any valid reason, except stating that the posts were related to a donor-funded project and the delay caused the donor to withdraw funding for the project---Department's reasoning was unjustified, as they failed to produce the donor's letter and the provincial government's policy despite repeated orders---Moreover, Secretary of the Education Department recognized the sensitivity of the matter and submitted a summary for the petitioners' and others' adjustment---Consequently, the posts were created and included in the PSDP (Public Sector Development Programme)---Department could not be allowed to decline or withhold the issuance of appointment orders in favor of candidates who had gone through the recruitment process and whose names were duly recommended by the Recruitment Committee, especially when the recommendations had not been challenged---Vested rights had been created in favour of the petitioners and such rights could not be taken away---Consequently, the constitutional petitions were accepted, and the judgment's benefit was extended to all candidates who had qualified the tests, interviews, and were recommended by the DRCs based on merit---Department was directed to issue orders of appointment accordingly.

Muawar Hussan v. Chief Secretary, Government of Balochistan and 3 others 2017 PLC (C.S.) 81; Anwar Shah and 5 others v. Secretary Government of Balochistan Irrigation and Power Department, Quetta and 5 others 2014 PLC (C.S.) 250; C.Ps. Nos. 1199, 1201, 1203, 1203, (s)148, (s)149 and (s)151 of 2021 and Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others 2004 SCMR 1864 rel.

(b) Constitution of Pakistan---

----Art. 25-A---Right to education---Scope and significance---Education is either formal or informal---Formal education is imparted through the medium of educational institution e.g. School, Colleges, etc. set up in the public and private sector---Informal education is a general term for education outside of standard school setup---It refers to various forms of alternative education such as non-schooling or house schooling, etc.---Since right to education has been declared to be a fundamental right guaranteed by the Constitution, the Courts are under obligation to protect such right---Right to education is a Fundamental Right as it ultimately affects quality of life which has nexus with other fundamental rights guaranteed under Arts. 4 & 9 of the Constitution---Awareness of rights and duties, growth of civic consciousness in a society, enjoyment of Fundamental Right guaranteed under the Constitution and legal empowerment of people depend to a great extent on quality of education---People cannot be free in the real sense unless they are properly educated.

Students of Government Girls College, Kuchlak v. Government of Balochistan 2012 CLC 168; Fiaqat Hussain and others v. Federation of Pakistan PLD 2012 SC 224; Zubair Ahmed Khaskheli v. Federation of Pakistan and 2 others PLD 2015 Sindh 118 and Syed Nazeer Agha and another v. Government of Balochistan, PLD 2014 Bal. 86 rel.

----Art. 25-A---Right to education---Scope---State is responsible to provide education to its citizens, children and youth without any discrimination of race, religion, caste, sex, residence or place of birth.

(d) Constitution of Pakistan---

----Art. 25---Equality of citizens---'Equal protection of law'---Scope---Equals must be treated equally and similarly circumstanced and situated persons must be dealt alike, as it is a basic and fundamental principle, which rests upon justice under the law.

Ilahi Bakhsh Mengal and Ahmed Nawaz Mengal for Petitioners.

Barrister Muzafar Umrani and Adnan Ejaz for Petitioners (in C.P. No.1065 of 2022).

Muhammad Ali Kanrani, Hazrat Ali Kakar and Yasir Nizami for Petitioners (in C.P. No.1814 of 2022).

Tahir Iqbal Khattak, Additional Advocate General along with Harron-ur-Rasheed, Deputy Secretary, Aslam Pervez, Deputy Director (Judicial), Nusratullah and Baseer Agha, Law Officer, Education Department.

Supreme Court

PLCCS 2023 SUPREME COURT 1 #

2023 P L C (C.S.) 1

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

MUHAMMAD TAYYAB BUKHARI and others

Versus

Dr. ANEES-UR-REHMAN and others

Civil Appeals Nos. 49 to 54 of 2022

(On appeal from the judgment dated 23.12.2020 of the Lahore High Court, Lahore passed in I.C.As. Nos. 39525/19, 50156/19, 50158/19, 24172/20 and 24791/20)

AND

Civil Misc. As. Nos. 2987, 2988 and 11073/21 in C.P. NIL/21

(For permission to file and argue)

AND

Civil Misc. Application No. 10683/21 in Civil Appeal No.53/22

(For impleadment Usama Naqi and others as respondents in the title Civil Appeal)

Civil Appeals Nos. 49 to 54 of 2022, Civil Misc. As. Nos. 2987, 2988 and 11073 of 2021 in C.P. Nil of 2021 and Civil Misc. Application No. 10683 of 2021 in Civil Appeal No. 53 of 2022, decided on 5th September, 2022.

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

----R. 20---Punjab Civil Servants Act (VIII of 1974), S. 23---Constitution of Pakistan, Art. 27(1), third proviso---Interpretation of Article 27(1) of the Constitution and the three provisos thereto---Notification issued under Rule 20 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, reserving a certain percentage of vacancies in respect of certain areas of the Province ('the impugned Notification')---Constitutionality---Article 27(1) of the Constitution commences by safeguarding against discrimination in the service of Pakistan but then proceeds to create certain exceptions; its first proviso permitted that for a period of forty years from the commencing day posts for persons belonging to any class or area may be reserved to secure their adequate representation in the service of Pakistan---Commencing day of the Constitution is 14 August 1973, therefore, forty years stood expired on 14 August 2013, making the first proviso inconsequential---Second proviso is not applicable, in the present case, as it is with regard to services which can only be provided by a member of a particular sex---Third proviso uses language similar to the language of the first proviso in that if there is under-representation of any class or area in the service of Pakistan 'it may be determined by an act of Majlis-e-Shoora (Parliament)'---Admittedly, neither the Province concerned nor the Federation has legislated with regard thereto---In the present case, the Provincial Government, took it upon itself to insert Rule 20 in the Punjab Civil Servants (Appointment and Conditions of Service), Rules, 1974 ('the Rules') and issued the impugned Notification by, wrongly, assuming that it could do so, and in doing did not act in accordance with the third proviso to Article 27(1) of the Constitution---Neither the Notification nor Rule 20 of the Rules accorded with the law or the Constitution.

Muhammad Saleem v. Federal Public Service Commission 2020 SCMR 221; Punjab Public Service Commission v. Hasnain Abbas 2021 SCMR 1017 and Aitzaz Alam Malik v. Federation of Pakistan Order dated 6th December, 2018 passed in Constitutional Petition Nos. 34 and 71 of 2017 and others distinguished.

(b) Constitution of Pakistan---

----Art. 189---Binding precedent of the Supreme Court---Scope---To constitute a binding precedent the Supreme Court should have decided a question of law or it's decision be based upon or enunciates a principle of law.

M. Tayyab Bukhari, Appellant in person (in C.A. 49 of 2022).

Mudassar Khalid Abbasi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.As. 50, 51, 54 of 2022 and C.M.A. 11073 of 2021).

Shaukat Rauf Siddiqui, Additional Advocate-General, Punjab, Suleman Aakash, Law Officer, Special Education Department, Punjab, Faheem Ahmed Khan, Additional Secretary, Services and General Administration Department, Punjab for Appellants.

Hafiz Arshad Ahmed, Law Officer, Services and General Administration, Department, Punjab for Appellants (in C.As. 52 and 53 of 2022) (and also for Respondents in all other cases)

Mubeen-ud-Din Qazi, Advocate Supreme Court for Applicants (in C.M.As. 2987-2988 of 2021).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Applicants (in C.M.A. 10683 of 2021).

Iftikhar Ahmed Mian, Advocate Supreme Court along with Rai Azhar Iqbal, Advocate Supreme Court for Respondents No. 2 (in C.A. 49 of 2022 and Respondent No.1 in C.As. 52 and 54 of 2022).

Salman Mansoor, Advocate Supreme Court for Respondent No. 1 (in C.A. 53 of 2022)

PLCCS 2023 SUPREME COURT 27 #

2023 P L C (C.S.) 27

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sajjad Ali Shah, JJ

PAKISTAN INTERNATIONA AIRLINES CORPORATION through Managing Director

Versus

AMNA FRAZ and others

Civil Petition No. 2481 of 2019, decided on 24th November, 2021.

(On appeal from the judgment/order dated 07.05.2019 of the Peshawar High Court, passed in W.P. No. 4531-P of 2017)

(a) Pakistan International Airlines Corporation (Conversion) Act (XV of 2016)---

----S. 3---Constitution of Pakistan, Art. 199---Pakistan International Airlines Corporation ('PIAC')---Constitutional petition filed against 'PIAC" by legal heirs of an employee to avail financial and other benefits available to the legal heirs of deceased employees---Maintainability---Majority shareholding of PIAC lies with the Federal Government and thereby ultimate control through the Board of Directors vests in the latter---Resultantly constitutional petition filed by the wife of deceased employee was maintainable against PIAC.

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 ref.

(b) Pakistan International Airlines Corporation (Conversion) Act (XV of 2016)---

----S. 3---Constitution of Pakistan, Art. 199---Pakistan International Airlines Corporation ('PIAC')---Administrative order issued by PIAC relating to compensation package for legal heirs of its employees who died in service---Whether such compensation package could be enforced through the constitutional jurisdiction of the High Court---Held, that the compensation package constitutes or constituted a firm commitment by PIAC to the legal heirs of its deceased employees---Death of the respondent's husband occurred at the time when the said package was validly in existence---Consequently, as no other conditions had to be established (the relationship of the respondent with the deceased employee is not in issue) the respondent acquired a vested right to receive the benefits specified in the said package---Question whether the said package can be enforced by the (High) Court is irrelevant when PIAC itself had not opposed the entitlement of the respondent---Petition for leave to appeal was disposed of with the direction that PIAC shall decide the pending application of the respondent, whereby she claimed benefit under the compensation package.

Muhammad Waqar Rana, Advocate Supreme Court for Petitioner.

Zia-ur-Rehman Tajik, Advocate Supreme Court for Respondents.

PLCCS 2023 SUPREME COURT 69 #

2023 P L C (C.S.) 69

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

TASAWAR HUSSAIN

Versus

DEPUTY COMMISSIONER DISTRICT JHELUM and others

Civil Appeal No. 130 of 2021, decided on 8th June, 2021.

(On appeal against the judgment dated 12.09.2019 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No. 2436 of 2019)

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

----Ss. 4(1)(b)(v) & 4(1)(b)(vi)---Willful absence from duty---Penalty of dismissal from service converted to removal from service---Appellant remained absent from duty for a long period of 23 months without taking leave---Only defence put by him was that a fake criminal case was registered against him, therefore, due to fear of illegal persecution he absconded from the country---However, nothing had estopped the appellant to at least inform his department but he neither applied for leave nor informed his office---During his absence, the inquiry proceedings started against him and inquiry officer also issued publication qua absence of the appellant in newspaper and after fulfilling all requirements of inquiry proceedings recommended that the penalty of removal from service---Competent authority (disagreeing with the inquiry officer) instead imposed major penalty of dismissal from service---Enhancement of the penalty of removal from service into dismissal from service was not sustainable in the eyes of law and coupled with appellant's length of service and the fact that he had already suffered hardship, it was appropriate to modify the penalty of dismissal from service into removal from service---Appeal was partly allowed with the said modification of punishment.

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

----Ss. 4(1)(b) & 5(1)(a)---Wilful absence from duty---Major penalty---Regular inquiry---Not required---Where the absence from duty was admitted, there was no need to hold regular inquiry.

National Bank of Pakistan v. Zahoor Ahmed 2021 SCMR 144 ref.

----Ss. 10(6) & 13---Inquiry officer, recommendations of---Scope---Competent authority was not under obligation to act according to the recommendations made by the Inquiry Officer, rather it could inflict penalty as it deemed appropriate according to the facts and circumstances surfacing on the record.

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

----Ss. 4(1)(b)(v) & 4(1)(b)(vi)---Major penalties---'Dismissal from service' and 'removal from service'---Distinction---Penalty of removal from service did not debar the employee to seek re-employment and it was not considered as a continuous stigma but the penalty of dismissal from service stigmatized the employee on permanent basis, therefore, in all fairness the penalty of dismissal from service was placed at a higher pedestal as far as gravity of the punishment was concerned.

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

----Ss. 10(6) & 13(5)(ii)---Enhancement of penalty by competent authority---Judiciable reasoning---While enhancing the penalty (recommended by the inquiry officer), the competent authority was under legal obligation to assign judiciable reasoning.

Khawaja Muhammad Arif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Barrister Qasim Ali Chohan, Additional P.G. and Mirza Muzafar Baig, Chief Officer, M.C. Pind Dadan Khan for Respondents.

PLCCS 2023 SUPREME COURT 90 #

2023 P L C (C.S.) 90

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Munib Akhtar, JJ

CHIEF EXECUTIVE OFFICER, PESHAWAR ELECTRIC AND POWER COMPANY (PEPCO) and another

Versus

SAJEEDA BEGUM and others

Civil Petitions Nos. 4963 and 5021 of 2018, decided on 17th May, 2022.

(Against the judgments of the Islamabad High Court both dated 04.10.2018 passed in Writ Petitions Nos.1015/2018 and 2132/2018)

(a) Constitution of Pakistan---

----Art. 199---Companies Ordinance (XLVII of 1984), S. 7(1) [since repealed]---Territorial jurisdiction of Islamabad High Court---Scope---Peshawar Electric Supply Company (PESCO)---Widow of deceased employee of PESCO filing constitutional petition before the Islamabad High Court claiming benefit of Prime Minister's Assistance Package of 2014---Maintainability---PESCO was regulated by the Companies Ordinance of 1984 and therefore, the relevant High Court for the purposes of issuance of any directions under Article 199 of the Constitution was the High Court where the main office of PESCO was situated---PESCO's headquarters were situated in Peshawar, KPK and none of its activities were undertaken within the territorial jurisdiction of the Islamabad High Court---PESCO had no place of business, branch office or presence in any of the territories that fell within the jurisdiction of the Islamabad High Court---Therefore, in the absence of anything to the contrary, reading Article 199 of the Constitution with section 7 of the Companies Ordinance of 1984, led to the un-escapable conclusion that the relevant High Court for the purposes of issuing any directions (if at all any High Court could assume jurisdiction) would have been the Peshawar High Court and not the Islamabad High Court---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of High Court was set-aside.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Peshawar Electric Supply Company (PESCO)---Widow of deceased employee of PESCO filed a constitutional petition before the Islamabad High Court claiming benefit of Prime Minister's Assistance Package of 2014---High Court allowed the said Constitutional petition---Held, that the 2014 package was meant for families of Government employees who died in-service or security-related deaths---Counsel for widow of deceased employee could not point out any law or rule that would lead to the conclusion that PESCO's employees were governed by any law making them government servants; in fact they were employees of a statutory corporation and the terms and conditions of the service of their employees were determined by their own rules and regulations---High Court could not have directed PESCO to release funds to the widow in terms of the 2014 Prime Minister's Assistance Package in light of the fact that PESCO's employees were not government employees---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of High Court was set-aside.

Mst. Basharat Jehan v. Director General, Federal Government Education, FGEI (C/Q) Rawalpindi 2015 SCMR 1418 and Director, Social Welfare NWFP v. Saadullah Khan 1996 SCMR 350 distinguished.

----S. 3---Constitution of Pakistan, Arts. 199 & 212---Constitutional jurisdiction of High Court---Scope---Water and Power Development Authority (WAPDA)---Widow of deceased employee of WAPDA filed a constitutional petition before the Islamabad High Court claiming benefit of Prime Minister's Assistance Package of 2014---High Court allowed the said Constitutional petition---Held, that WAPDA had, of its own volition, and according to its own rules, granted its employees an assistance package similar in spirit to the Prime Minister's Assistance Package of 2014---WAPDA had internally assessed the compensation the widow was entitled to and had compensated her accordingly---Such assessment was never challenged by the widow before WAPDA or any competent forum, and the matter had, for all intents and purposes, attained finality---WAPDA's own assistance package had been approved by Competent Authority in WAPDA and then passed on to the Federal Government which accorded its approval before the funds were disbursed, therefore, in principle, it would be unconscionable for an employee of any department (or his widow) to benefit from two Assistance Packages if, after availing a department's indigenous Assistance Package (which had already been sanctioned and approved by the Competent Authority and the Federal Government), he/she subsequently sought a direction for grant of another (better) Federal Assistance Package---Even if the widow were to challenge the matter, the relevant forum would have been the relevant Service Tribunal since the Assistance Package would have formed part of the terms and conditions of service of the deceased employee---Therefore, adjudication of the matter by the High Court would have been subject to the constitutional bar under Article 212 of the Constitution---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of High Court was set-aside.

(d) Pakistan Water and Power Development Authority Act (XIII of 1958)---

----S. 3---Constitution of Pakistan, Art. 199---Water and Power Development Authority (WAPDA)---Widow of deceased employee of WAPDA filed a constitutional petition before the Islamabad High Court claiming benefit of Prime Minister's Assistance Package of 2014---High Court allowed the said Constitutional petition---Held, that the 2014 package was meant for families of Government employees who died in-service or security-related deaths---Employees of WAPDA were not government servants and the 2014 Assistance Package was announced for the benefit of government servants only---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of High Court was set-aside.

Asad Jan, Advocate Supreme Court (via video link from Peshawar) and Mir Adam Khan, Advocate-on-Record (Absent) for PESCO (in C.P. No. 4963 of 2018).

Syed Moazam Ali Rizvi, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record (absent) for WAPDA (in C.P. No. 5021 of 2018).

Ms. Farhana Naz Marwat, Advocate Supreme Court (via video link from Peshawar) for Respondents.

PLCCS 2023 SUPREME COURT 155 #

2023 P L C (C.S.) 155

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhel, J

BILAL HUSSAIN (DECEASED) through L.Rs.

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN (NBP), HEAD OFFICE, I.I. CHUNDRIGARH ROAD, KARACHI and others

Civil Appeal No. 746 of 2021, decided on 16th November, 2021.

(Against the order dated 19.03.2019, passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No. 4611 of 2014)

(a) Civil service---

----Branch Manager of National Bank of Pakistan---Major penalty---Compulsory retirement from service---Junior officer/co-accused imposed lesser penalty---Whether a ground to set-aside major penalty---Held, that the appellant being a branch manager of the Bank having higher responsibility was appropriately imposed penalty of compulsory retirement, while co-accused being an OG-II officer and functioning under the directions of the appellant was imposed lesser penalty---Appeal was dismissed and penalty of compulsory retirement from service imposed upon the appellant was maintained.

(b) Civil service---

----Branch Manager of National Bank of Pakistan---Major penalty---Compulsory retirement from service---Order of imposition of penalty---Whether passed by competent authority---Plea of petitioner that the letter provided to him mentioning that he had been compulsorily retired from service by the 'authority' did not mention who the authority was---Held, that it was a routine practice in large organizations that when an authority passed an order, it was communicated by the organization's office to the relevant official---Use of the word authority in the letter itself showed that the competent authority i.e. President of the Bank had passed the order of compulsory retirement of the appellant and the same had been conveyed to him by the Bank officials through a letter signed by a Senior Vice President and an Assistant Vice President---Appeal was dismissed and penalty of compulsory retirement from service imposed upon the appellant was maintained.

Shah Khawar, Advocate Supreme Court for Appellant.

Umer Abdullah, Advocate Supreme Court for Respondents.

PLCCS 2023 SUPREME COURT 182 #

2023 P L C (C.S.) 182

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

ATTAULLAH KHAN

Versus

ALI AZAM AFRIDI and others

Civil Petition No. 3 of 2019, decided on 11th August, 2021.

(On appeal against the judgment dated 13.11.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 3101-P of 2018)

(a) Civil service---

----Upgradation of post from BPS-20 to BPS-21 against policy of the Provincial Government---Petitioner was thrice upgraded, firstly when the post of LAN Administrator, Provincial Assembly was upgraded from BPS-18 to BPS-19 and the same was re-designated as Director Automation and IT; secondly when the post of Director Automation and IT was upgraded from BPS-19 to BPS-20 and the petitioner was promoted to the upgraded post; lastly, the nomenclature of the said post was substituted as Special Secretary/Director IT and the same was upgraded to BPS-21 and the petitioner for the third time was upgraded to BPS-21---Provincial Assembly had promulgated the Upgradation Policy (vide notification dated 29-08-2011) for its employees---Said Policy specifically stated that "personal upgradation shall be made once during the whole service periods', and that "no such upgradation shall be made infavour of such employees or individual whose posts have once personally (been) upgraded either before or after promulgation of the policy"---Three consecutive upgradations given to the petitioner were clearly in violation of the said Policy---High Court had rightly declared the upgradation of post of the petitioner from BPS-20 to BPS-21 as void, coram non-judice and without any lawful authority---Petition for leave to appeal was dismissed and leave was refused.

(b) Administration of justice---

----When a statute/law described or required a thing to be done in a particular manner, it should be done in that manner or not at all.

Taylor v. Taylor (1876) Ch.D. 426 ref.

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope and purpose---Writ of quo warranto was issued by the courts to judicially review situations against a person when he assumed an office for which he had no entitlement---Writ of quo warranto was an effective measure to prevent people from taking over public offences when they did not qualify for the same.

(d) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope---No prohibition existed in law as to who could file a writ of quo warranto, however, the power to issue such writ was discretionary and nobody could claim that the court was bound to issue this writ.

Muhammad Asif Yousafzai, Advocate Supreme Court for Petitioner.

Respondent No. 1 in person.

PLCCS 2023 SUPREME COURT 198 #

2023 P L C (C.S.) 198

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

FEDERATION OF PAKISTAN and others

Versus

MUHAMMAD FARHAN

Civil Appeal No. 3-K of 2021, decided on 28th December, 2021.

(Against the judgment dated 16.12.2019 passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.63 (K)CS/2019)

(a) Administration of justice---

----Production of evidence before the Court/tribunal---Purpose and scope---Court decisions were to be based on truth founded on evidence which was an indispensable obligation---Purpose of producing all material evidence was to assist the Court or Tribunal for reaching just conclusion in the matter, hence it was crucial for the parties to put forward all relevant and convincing evidence in support of case for meeting the standards of proof---Court or Tribunal had to examine whether the evidence led in the matter was confidence inspiring or not.

(b) Civil service---

----Misconduct---Major penalty---Court/tribunal, duty of---Scope---Where a matter reached the Tribunal arising out of the case of misconduct in which major penalty had been imposed, the Court or Tribunal had to see in depth whether the charges against the delinquent had been proved in the inquiry or the inquiry was conducted in cursory or slipshod manner or in violation of principles of natural justice.

Nishat Warsi, D.A.G. for Appellants.

Syed Shoa-un-Nabi, Advocate Supreme Court for Respondent.

PLCCS 2023 SUPREME COURT 214 #

2023 P L C (C.S.) 214

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

SECRETARY SCHOOLS EDUCATION, GOVERNMENT OF PUNJAB and others

Versus

ASGHARI BEGUM and another

Civil Petitions Nos. 936-L and 1023-L of 2015, decided on 22nd December, 2020.

(Against judgment dated 25.02.2015 of Punjab Service Tribunal, Lahore, passed in Appeals Nos. 4337 of 2011 and 344 of 2012)

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

----S. 4(1)(b)(vi)--- Government school teacher---Dismissal from service---Procuring bogus transfer orders---Inquiry report confirmed that transfer order of respondent was bogus---Verification letter of the Headmistress of the school where respondent managed her transfer stated that the respondent was neither employed in the said school nor was any record of her employment available at the said school---Further, the officials who were involved in issuing the said bogus transfer letter were also penalized by the Secretary of the Provincial Schools Education Department in departmental proceedings---Several show cause notices were issued to the respondent, however, instead of replying to the said notices, she was involved in vexatious litigation which prolonged the matter even further---Respondent was time and again asked to produce evidence and furnish her defence, however, she failed to furnish a plausible justification, and, the competent authority while following all codal formalities, dismissed her from service---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the Service Tribunal, whereby respondent was re-instated in service, was set-aside.

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

----S. 4(1)(b)(vi)--- Government school teacher---Dismissal from service---Procuring fake transfer orders after withdrawal of appointment order---Appointment order of respondent was withdrawn since her appointment was found erratic---Despite such withdrawal, the respondent managed to get bogus transfer letters, and, ultimately, switched three schools and ultimately ended up at the school in question, where her services were terminated---After almost 19 years the respondent awoke and realized that her appointment order was withdrawn, and challenged such withdrawal---Case of the respondent was hit by the principle of laches due to the fact that she remained in a slumber throughout almost 19 years---Finding of the Service Tribunal that respondent was not granted an opportunity to defend herself was erroneous for the fact that the respondent herself admitted that her departmental appeal was rejected because she did not appear for personal hearing---Respondent was time and again asked to produce evidence and furnish her defence; she was sent show cause notices on various dates spanning over years, however, the respondent failed to furnish a plausible justification, and, the competent authority while following all codal formalities, dismissed her from service---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the Service Tribunal, whereby respondent was re-instated in service, was set-aside.

----Scope---Litigant who sleeps on his rights has no right to claim relief.

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

----S. 4(1)--- Appeal before the Service Tribunal, filing of---Prerequisite---Departmental appeal---To avail any remedy before the Service Tribunal, it is necessary that a departmental appeal is filed before the competent forum---If no such departmental appeal is filed, a subsequent service appeal filed would not be maintainable.

Rana Shamshad Khan, Additional A.G., Punjab and Razia Sultana, DEO (WEF) for Petitioner.

Sh. Irfan Akram, Advocate Supreme Court for Respondents.

PLCCS 2023 SUPREME COURT 267 #

2023 P L C (C.S.) 267

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD IQBAL

Versus

REGIONAL POLICE OFFICER, SAHIWAL and another

Civil Petition No. 2692-L of 2016, decided on 3rd January, 2022.

(On appeal from the judgment/order dated 01.07.2016 of the Punjab Service Tribunal passed in Appeal No. 2838 of 2016)

(a) Civil service---

----Police official---Dismissal from service---Involvement in narcotics case---Subsequent acquittal by the High Court---Petitioner (police official) because of being arrested was not in a position to pursue his departmental remedies---Fundamental basis on which the impugned action of dismissal from service was passed against the petitioner had seized to exist after his acquittal in the narcotics case by the High Court---Acquittal of the petitioner by the High Court was a subsequent development that ought to be considered by the departmental authorities whilst considering disciplinary action against the petitioner---Petition for leave to appeal was converted into appeal and allowed, order of Service Tribunal was set aside with the direction that departmental authorities shall be at liberty to commence fresh disciplinary proceedings against the petitioner on the basis of the record and by the grant of opportunity of hearing to him in accordance with law.

(b) Civil service---

----Concurrent departmental and criminal proceedings---Outcome of the disciplinary proceedings is not dependent upon the outcome of criminal proceedings.

Malik Matteullah, Advocate Supreme Court for Petitioner.

Khadim Hussain Qaiser, Additional A.G. on Court's Call.

PLCCS 2023 SUPREME COURT 283 #

2023 P L C (C.S.) 283

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Khyber Pakhtunkhwa, Peshawar and others

Versus

NARGIS JAMAL, EX-DEO (FEMALE) KARAK

Civil Appeal No. 19 of 2022, decided on 6th October, 2022.

(Against the judgment dated 12.03.2020, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeal No.332 of 2019)

(a) Civil service---

----Compulsory retirement, penalty of---Absence from duty---Foreign travel outside Pakistan without prior approval from competent authority---Service Tribunal modified penalty of compulsory retirement to that of reduction to lower substantive post from BPS-19 to BPS-18 for a period of four years---Legality---Travel history of the respondent was not disputed---Even before the Tribunal, the respondent failed to offer any justification or produce any document or NOC, nor did she contradict the "Travel History Report" divulged to her department---Tribunal without any analytical justification, modified the punishment of compulsory retirement to reduction to lower substantive post---Punishment of compulsory retirement was imposed after due process of law and conducting proper inquiry into the charges of misconduct, and it was the province and dominion of the competent authority to award punishment in case the allegations of misconduct were proved in the inquiry---Appeal was allowed, impugned judgment of Service Tribunal was set-aside, and the punishment of compulsory retirement awarded to respondent was restored.

(b) Civil service---

----Misconduct--- Recommendations of the Inquiry Committee---Competent authority, duty of---Scope---No hard and fast rule existed that the competent authority in all circumstances is bound to adhere to the recommendations of the inquiry committee or inquiry officer, but what carries great weight is the assiduousness and onerous duty of the competent authority to scrutinize and gauge the inquiry proceedings and inquiry report with proper application of mind for a fine sense of judgment---If charges of misconduct were proved and ample opportunity of defence was afforded to the accused during the inquiry, then obviously, keeping in mind all attending circumstances including the gravity or severity of the proven charges, the competent authority may impose the punishment in accordance with law.

----S. 5(1)--- Punishment awarded by the competent/departmental authority---Service Tribunal, power of---Scope---Award of punishment under the law is primarily the function of the competent authority and the role of the Tribunal or Court is secondary unless the punishment imposed upon the delinquent is found to be unreasonable or contrary to law---Tribunal enjoys powers to modify any order passed by the departmental authorities---However, such power is required to be exercised carefully, judiciously and after recording cogent reasons for the same in appropriate cases keeping in view and considering the specific facts and circumstances of each case.

Director General Federal Directorate and another v. Tanveer Muhammad and another 2021 SCMR 345; Divisional Superintendent, Postal Services, Faisalabad and others v. Muhammad Zafarullah 2021 SCMR 400; Government of Pakistan, Revenue Division, Federal Board of Revenue through Chairman, Islamabad and another v. Nawaz Ali Sheikh 2020 SCMR 656 and Commissioner Faisalabad Division, Faisalabad and another v. Allah Bakhsh 2020 SCMR 1418 ref.

(d) Administration of justice---

----Relief, award of---Scope---No Court has any jurisdiction to grant arbitrary relief without the support of any power granted by the Constitution or the law.

Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa for Appellants.

Respondent in person.

PLCCS 2023 SUPREME COURT 292 #

2023 P L C (C.S.) 292

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SAJJAD

Versus

FEDERATION OF PAKISTAN and others

Civil Petition No. 283-K of 2020, decided on 8th March, 2021.

(On appeal against the judgment dated 11.03.2020 passed by the High Court of Sindh, Karachi in Constitutional Petitions Nos. D-5659 and D-3597 of 2018)

(a) Cantonment Servants Rules, 1954---

----R. 5(1)---Transfer to another station---Legality---In the appointment letter of the petitioner-employee, it was clearly mentioned that the service of the petitioner was transferable, and it was made clear to him that only if he accepted the clauses of his appointment letter, he should report for duty---Joining of duty by the petitioner meant that he had accepted the appointment letter, which stated that his service was transferable at any other station throughout the country---When the petitioner had accepted the conditions mentioned in the appointment letter, he was estopped to challenge his transfer order---Petitioner neither agitated any element of mala fide on the part of the department nor any of his right had been infringed---Petition for leave to appeal was dismissed and leave was refused.

Tariq Iqbal v. D.G. Military Lands and Cantonments Department 2018 SCMR 335 ref.

(b) Civil service---

----'Transfer' and 'posting'---Scope---Transfer of an employee/public servant fell within the ambit of "terms and conditions" of service, which included transfer and posting---Transfer and posting was part of service and it was for the authority to determine where services of any staff member were required.

Muhammad Akbar Awan, Advocate Supreme Court for Petitioner (w/o PoA) (through video link from Karachi).

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 310 #

2023 P L C (C.S.) 310

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAQIB ALI

Versus

GOVERNMENT OF PUNJAB and others

Civil Petition No. 1174-L of 2021, decided on 19th November, 2021.

(Against the judgment dated 07.10.2019 passed by the Lahore High Court, Lahore in I.C.A. No. 58254 of 2019)

(a) Limitation---

----Condonation of delay---For condonation of delay, each day's delay has to be explained with proper justification.

(b) Civil service---

----Post of Hardware and Network Technician in police force---Provisional appointment letter, withdrawal of---Appointee booked in a murder case before joining duty---Appointee subsequently acquitted from the case on basis of compromise---Whether appointee had right to appointment on basis of provisional appointment letter---Held, that although the petitioner (appointee) was provisionally offered the job but he had not joined the same---When in the very (provisional) appointment letter, it was clearly mentioned that the appointment of the petitioner shall be subject to verification of his character, the petitioner could not claim a right to appointment on the basis of the such appointment letter---Petition for leave to appeal was dismissed and leave was refused.

Petitioner was provisionally offered job for the post of Hardware and Network Technician in police force on contract basis subject to fulfilling certain conditions, which had been duly mentioned in the provisional appointment letter. One of the said conditions was that the appointment shall be subject to verification of character/antecedents/ educational certificates and in case anything adverse was reported, the contract appointment shall be liable to be terminated. Thus, the competent authority had reserved its right to withdraw the appointment letter/terminate the petitioner from service in case anything adverse about his character came on the record even at belated stage. Admittedly a criminal case under sections 302, 324, 148 and 149, P.P.C. was registered against the petitioner, which ultimately ended in compromise. The petitioner was not acquitted on merits and it was only the compromise between the parties, which was made basis for his acquittal. The police was a disciplined force, whose only job was to maintain law and order situation in the society irrespective of nature of job and to apprehend the criminals, who violated the law of the land. Keeping in view the role of the police in a society, only the people of highest moral standard with clean record should be inducted in the department. Petition for leave to appeal was dismissed and leave was refused.

----Appointment---Criteria for appointment---Every department has the right to make rules and induct people according to its own standards and requirements.

Petitioner in person.

Aalia Ejaz, A.A.G., Zahid, DSP and Muhammad Anwar, Inspector for Respondents.

PLCCS 2023 SUPREME COURT 336 #

2023 P L C (C.S.) 336

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of National Health Services

Versus

JAHANZEB and others

Civil Petitions Nos. 3157 to 3165 of 2022, decided on 26th September, 2022.

(Against the judgment dated 21.05.2022 passed by the Federal Service Tribunal, Islamabad, in Appeals Nos. 305(R) to 313(R) CS of 2020)

(a) Civil service---

----Move-over policy---Scope---Move-over cannot be construed as promotion to the post of higher Basic Pay Scale, but the higher pay scale is treated to be an extension of the existing Basic Pay Scale of the post held by the employee---If an employee was not promoted and meanwhile reached to the maximum stage of his pay scale then obviously, he could be stagnant in his earlier pay scale due to attainment of maximum stage, therefore, as per erstwhile move-over Policy, the modus of move-over was devised to cope with such situations in accordance with the criteria provided under SI. No. 73 to SI. No. 91, (O.M. 1975 to 1999) incorporated in the Establishment Code 2007.

(b) Fundamental Rules---

----F.R. 17---Proforma promotion---Scope---If a person is not considered due to any administrative slip-up, error or delay when the right to be considered for promotion is matured and without such consideration, he reaches to the age of superannuation before the promotion, then obviously the avenue or pathway of proforma promotion comes into field for his rescue---If he lost his promotion on account of any administrative oversight or delay in the meeting of Departmental Promotion Committee (DPC) or Selection Board despite having fitness, eligibility and seniority, then in all fairness, he has a legitimate expectation for proforma promotion with consequential benefits---Unjustified delay in proforma promotion cases triggers severe hardship and difficulty for the civil servants and also creates multiplicity of litigation---Competent authority should fix a timeline with strict observance for the designated committees of proforma promotions in order to ensure rational decisions on the matters expeditiously with its swift implementation, rather than dragging or procrastinating all such issues inordinately or without any rhyme or reasons which ultimately compels the retired employees to knock the doors of Courts of law for their withheld legitimate rights which could otherwise be granted to them in terms of applicable rules of service without protracted litigation or Court's intervention.

Ch. Amir Rehman, Additional A.G.P., Iqbal Ahmed, J.S. and G.M. Jakhrani, D.D.(L) for Petitioner.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 367 #

2023 P L C (C.S.) 367

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

GOVERNMENT OF PAKISTAN MINISTRY OF HOUSING AND WORKS through Joint Estate Officer, Federal Government Colony Hassan Ghari, Peshawar

Versus

Malik SAFEER AHMED

Civil Petition No. 361-P of 2018, decided on 18th August, 2022.

(a) Civil service---

----Allotment of official accommodation/residence--- Terms and conditions of service---Matter of allotment or cancellation of an official residence is connected with the terms and conditions of the service of the persons in the service of Pakistan, in public service and other officials of the concerned government, autonomous, semi-autonomous bodies, authorities, corporations etc.

(b) Constitution of Pakistan---

----Art. 199--- Allotment of official accommodation/residence, issue of---Constitutional jurisdiction of the High Court---Scope---Any order made or proceedings taken in respect of an official accommodation, pursuant to the applicable rules, regulations, policies, instructions, directions etc., shall not be called in question before any court, except the forums provided therein---However, if such forum is not provided, a High Court may, if it is satisfied, exercise its power, as provided by Article 199 of the Constitution.

----R. 29---Civil Servants Act (LXXI of 1973), Ss. 23B & 25(1)---Allotment of official accommodation/residence---Allotment cancelled by the Estate Officer---Civil suit filed by employee against order of Estate Officer---Maintainability---In the present case, the respondent was an official of the Federal Government, to whom the official accommodation was allotted and was subsequently cancelled through an order made by an officer authorized by the Accommodation Allocation Rules, 2002 ('the Rules 2002')---Under Section 23B of the Civil Servants Act, 1973 ('Act of 1973'), no order made or proceedings taken under the Rules could be called in question in any court and no injunction shall be granted by any court in respect of any decision made, or proceedings taken in pursuance of any power conferred by, or under the rules made thereunder---Since the order of cancellation was made by an authority, exercising power under the Rules, 2002 framed under the Act of 1973, therefore, it could have been called in question in the forum, provided by the Rules, 2002---Respondent, feeling aggrieved from the order of cancellation of allotment of his official accommodation, made by an authorized officer in pursuance of the power conferred upon him by the Rules, 2002, instead of availing the remedy provided by the Rules, 2002, approached the civil court which had no jurisdiction in the matter---Petition for leave to appeal was converted into appeal and allowed, impugned judgment passed by the High Court and the judgments and decrees of the Courts below were set aside with the direction that the Trial Court, having no jurisdiction in the matter, should return the plaint along with annexures to the respondent.

Amir Javed, Additional A.G.P. for Petitioner.

Abdul Munim, Advocate Supreme Court for Respondent.

PLCCS 2023 SUPREME COURT 392 #

2023 P L C (C.S.) 392

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

DISTRICT EDUCATION OFFICER (FEMALE), CHARSADDA and others

Versus

SONIA BEGUM and others

Civil Petitions Nos. 448-P of 2017, 651-P, 655-P, 658-P and 666-P of 2019, decided on 29th September, 2022.

(Against the Judgments dated 01.08.2017, 09.11.2018, 04.09.2019, 19.08.2019, 16.09.2019, passed by the Peshawar High Court, Peshawar, in W.Ps. Nos. 2932-P/2017, 4061-P/2017, 1210-P/2019, 3768/2019 and 2412-P/2019)

(a) Domicile---

----"Domicile' and 'residence'---Definition and distinction.

Black's Law Dictionary (Ninth Edition), at page 558; Words and Phrases (Permanent Edition), Volume 13, at page 425 - 426; Corpus Juris Secundum, Volume XXV, at pages 2-3; Black's Law Dictionary (Ninth Edition), at page 1423; Words and Phrases (Permanent Edition), Volume 37, at pages 318 to 319; Corpus Juris Secundum, Volume LXXVII, at pages 292 to 293 and Joan Mary Carter v. Albert William Carter PLD 1961 SC 616 ref.

(b) Pakistan Citizenship Act (II of 1951)---

----S. 17---Pakistan Citizenship Rules, 1952, R. 23---Domicile, acquisition of---'Domicile' and 'residence'---Distinction---Principles regarding acquisition of a domicile and the distinction between 'domicile' and 'residence' stated.

To establish or get hold of a domicile, a person should have an abode at a particular place with the intent to be there for an unlimited period. In order to thrash out this particular aspect, the concept of 'animus manendi' (the intention of remaining) is a crucial component and a benchmark to resolve the question of dwelling and whether a person has elected any particular place for his abode rests on the facts of each case separately. The term 'residence' envisions a constituent of permanency in residence and does not connote occasional or intermittent dwelling for any particular period at any particular place. By and large, the domicile of a person can be the residence but the residence may or may not be the domicile or mere residence is not domicile. There is also no concept under the Citizenship Act, 1951 for two simultaneous domiciles of the same person who may inhabit at many places but he can have one domicile only which indicates his permanent place of dwelling, whereas residence is a more flexible notion than domicile.

Cragnish v. Craignish [1892] 3 Ch. 180 and Central Bank of India v. Ram Narain AIR 1955 SC 36 ref.

In English Law most of the jurists agree that two constituent elements for existence of domicile are, first, a residence of a particular kind; and second, an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside forever in the country where the residence has been taken up. It is also a well-established proposition that a person may have no home but he cannot be without a domicile.

Arvind Kumar v. State of U.P. and others (2011) ILR 3 ALL 1350 and Jagir Kaur v. Jaswant Singh 1963 AIR 1521=1964 SCR (2) 73 ref.

----S. 17---Pakistan Citizenship Rules, 1952, R. 23---Civil service---Domicile specific posts---Domicile certificate to be given preference over address on Computerised National Identity Card (CNIC)---By and large, the domicile of a person is treated as a parent document for recruitment in order to ascertain the permanent abode---Weightage and preference should be given firstly to the certificate of domicile which cannot be ignored without due consideration---If jobs are given merely considering the Computerised National Identity Card (CNIC) without considering the address on the domicile then it would create various complications and complexities and even in the case of temporarily shifting or in case of a rented house, the person will be forced every time to apply for fresh domicile with the address of changed abode and in such eventuality, he will become a rolling stone, who would never be able to secure a job due to the alleged discrepancy and his candidature will be rejected every time, meaning thereby that if he will apply on CNIC address, he will be rejected due to difference in domicile address and if he applies on domicile, again he will be rejected due to different address on CNIC.

(d) Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011)---

----S. 3---Posts of Primary School Teachers, appointment of---Legitimate expectation, doctrine of---Scope and applicability---Respondents (candidates) were allowed to compete in the aptitude tests for appointment on ad hoc/contract or permanent basis as per advertisement; they qualified the test; some of them secured top positions and collectively all of them were declared eligible but they were dropped from the merit list due to difference in addresses mentioned on domicile certificates and their Computerised National Identity Cards (CNICs)---If the department had any doubt with regard to the address as mentioned in the domiciles and CNICs, then why due diligence was not done at the time of scrutiny of application forms or at the time of short-listing the candidates which was an appropriate stage to vet all the credentials and antecedents of each candidate and, in case of any objection, the candidate could be confronted and asked to remove the objection before joining the recruitment process---Thus, the conduct of the department was not above board---Nothing was said regarding any vetting of documents made before allowing the candidates to appear in the aptitude test and despite qualifying the test on the basis of documents submitted by them and securing marks on merits, they were denied the job opportunity at the eleventh hour which was against the doctrine of legitimate expectation---High Court had rightly given directions to the department to consider respondents against the vacant posts---Petitions for leave to appeal were dismissed and leave was refused.

Uzma Manzoor and others v. Vice-Chancellor, Khushal Khan Khattak University, Karak and others 2022 SCMR 694; Halsbury's Laws of England, Volume 1(1), 4th Edition, paragraph 81, at pages 151-152 and R. v. Secretary of State of Transport Exporte Greater London Council (1985) 3 ALL. ER 300 ref.

Mian Shafaqat Jan, Additional A.G., Khyber Pakhtunkhwa and Zaheer ud Din, Sub-Divisional Education Officer, District Bajour for Petitioners.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 422 #

2023 P L C (C.S.) 422

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

FAYYAZ HUSSAIN

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), CITY DISTRICT GOVERNMENT RAWALPINDI and others

Civil Petition No. 3525 of 2018, decided on 10th March, 2021.

(On appeal against the judgment dated 18.07.2018 passed by the Punjab Service Tribunal, Lahore in Appeal No. 285/2017)

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

----S.4(1)(b)(v)---Willful absence from duty---Removal from service---Petitioner remained absent from duty for a period of eight long years without obtaining any leave from the department---Record showed that he went abroad---In the earlier departmental proceedings, he was issued three notices for personal hearing but instead of personally appearing before the competent authority he sent his brother---Absence of petitioner from duty was confirmed by the Head Master of the School where the petitioner was serving, and the competent authority i.e. concerned District Education Officer had also visited the school and found the petitioner absent from duty---Despite that to meet the ends of justice, de novo proceedings were directed to be carried out against the petitioner on the charge of absence---Inquiry officer was deputed to probe into the matter, who found the petitioner guilty of the charge---Petitioner was also heard by the competent authority in person and after that major penalty of removal from service was imposed upon him---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 4(1)(b) & 5(1)(a)---Willful absence from duty---Major penalty---Regular inquiry---Not required---Where the absence from duty was admitted, there was no need to hold regular inquiry.

National Bank of Pakistan v. Zahoor Ahmed 2021 SCMR 144 ref.

Muhammad Munir Paracha, Advocate Supreme Court and Mehmood Ahmad Sheikh, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 440 #

2023 P L C (C.S.) 440

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

DIVISIONAL SUPERINTENDENT POSTAL SERVICES JHANG and another

Versus

SIDDIQUE AHMED and another

Civil Appeals Nos. 1499 and 1500 of 2019, decided on 8th July, 2021.

(On appeal against the judgment dated 10.09.2018 passed by the Federal Service Tribunal, Lahore in Appeals Nos. 243(L) and 244(L) of 2016)

(a) Civil service---

----Misappropriation of money orders by forging signatures of payees----Corruption, misconduct and inefficiency---Admission of guilt---Dismissal from service---Service Tribunal converting penalty of dismissal from service into withholding of one increment for two years---Legality---Fact of misappropriation of the money orders amount was not disputed---Respondents (postmen) gave an explanation before the Court that instead of delivering the said amount to the payees, they kept the same with them for 10/15 days, on asking of the payees, who were out of town---However respondents admitted that they were supposed to handover the money orders back to the Post Office if the payees were not available at the addresses---Service Tribunal itself took note of the fact that the respondents had used the money orders' amount for their own purpose and they were in the habit of committing misappropriation of the same amount but despite that took a lenient view, which was not warranted in law because misappropriation of the amount either meager or huge resulted in breach of trust which was reposed in a government servant and the delinquent had no right to be retained in service---Appeal was allowed, impugned judgment of Service Tribunal was set aside, and penalty of dismissal from service was restored.

Divisional Superintendent, Postal Services v. Muhammad Arif Butt 2021 SCMR 1033 ref.

(b) Civil service---

----Misappropriation of public money---Dismissal from service--- Scope---Misappropriation of amount either meager or huge resulted in breach of trust which was reposed in a government servant and the delinquent had no right to be retained in service.

Divisional Superintendent, Postal Services v. Muhammad Arif Butt 2021 SCMR 1033 ref.

Sohail Mehmood, Additional Attorney General and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in both cases).

Respondent No. 1 in person (in both cases).

PLCCS 2023 SUPREME COURT 464 #

2023 P L C (C.S.) 464

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

MUHAMMAD NAEEM

Versus

FEDERATION OF PAKISTAN and others

C. P. No. 4294 of 2019, decided on 25th November, 2022.

(Against the judgment of Peshawar High Court, Peshawar dated 01.10.2019, passed in W.P. No. 4666-P of 2018)

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

----S. 2(1)(b)---Government Servants (Efficiency and Discipline) Rules 1973, R. 2(1)--- Government Servants (Conduct) Rules 1964, R. 3(1)(b)---Penal Code (XLV of 1860), Ss. 21 & 161---Term 'public servant' as provided in sections 21 & 161 of P.P.C.---Scope---Definition of "public servant" as provided in section 21 of the P.P.C. is only for the purpose of application of the provisions of that substantive criminal law, as well as of the related procedural criminal law, the Code of Criminal Procedure 1898, and the extended definition of that term as given in Explanation of section 161, P.P.C.---Said definitions do not confer any civil status, capacity or position on the persons falling in the scope thereof.

Terms "civil servant" and "government servant", having almost the same meaning and scope, are commonly used interchangeably in the civil service laws of the country. The term "public servant" as defined in section 21 of the P.P.C. for the purpose of application of that law is, however, of wide import and scope than those terms. It cannot, therefore, be referred to or used as an equivalent or synonym of them, in the context of a person's civil status, capacity or position. In the ordinary English language, the words "civil servant" and "public servant" may have the same meaning, but this is not so in the legal language as commonly used in the laws of the country (Pakistan). It may be said that in legal parlance, particularly of the service and criminal laws, all civil servants are public servants as defined in section 21 of the P.P.C., but not all such public servants are civil servants.

The definition of "public servant" as provided in section 21 of the P.P.C. is only for the purpose of application of the provisions of that substantive criminal law, as well as of the related procedural criminal law, the Code of Criminal Procedure 1898, and the extended definition of that term as given in Explanation of section 161 (which brings the employees of any corporation or other body or organisation set up, controlled or administered by, or under the authority of, the Federal Government, within the ambit of the term "public servant") is only for the purpose of application of that section and sections 162, 163, 164, 165, 166, 167, 168, 169 and 409 of the P.P.C. These definitions do not confer any civil status, capacity or position on the persons falling in the scope thereof. The reference to the definition of "public servant" as provided in a criminal law, the P.P.C., for claiming the civil status of being a government servant/officer is therefore misconceived.

Professor Alaud Din v. Government of Punjab PLD 1979 Lah. 324 ref.

(b) National Bank of Pakistan Ordinance (XIX of 1949)---

----S. 3(2)---Civil Servants Act (LXXI of 1973), S. 2(1)(b)---Employees of National Bank of Pakistan (NBP)---As per section 3(2) of the National Bank of Pakistan Ordinance, 1949, NBP is a body corporate, and its employees are employees of a statutory corporation, not of the Federal Government---Employees of NBP are therefore not "government servants" or "civil servants" as defined in the Civil Servants Act, 1973.

Deedar Bhayo v. NBP 2013 SCMR 894 and Mubeen-Us-Salam v. Federation PLD 2006 SC 602 ref.

----S. 3(2)---Civil Servants Act (LXXI of 1973), S. 2(1)(b)---Constitution of Pakistan, Art. 199---Employees of National Bank of Pakistan (NBP)---Recourse to writ jurisdiction of the High Court in service matters---National Bank of Pakistan (NBP), being a statutory corporation, is amenable to the writ jurisdiction of the High Courts under Article 199 of the Constitution, and its employees when are governed or proceeded against under the statutory rules can also avail the recourse to the writ jurisdiction for the redressal of their grievances in respect of their service matters---However, such legal position does not merge the NBP, a separate juristic person, into the Federal Government, nor in any manner blurs the distinction between NBP, a statutory corporation, and the Federal Government, a constitutional body, or in any manner turn the employees of the NBP into the employees of the Federal Government.

Deputy Managing Director, NBP v. Ata-ul-Haq PLD 1965 SC 201; Salah-ud-Din v. Frontier Sugar Mills PLD 1975 SC 244; University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Deedar Bhayo v. NBP 2013 SCMR 894; Mubeen-Us-Salam v. Federation PLD 2006 SC 602; K.D.A. v. Wali Ahmed 1991 SCMR 2434; Principal, Cadet College v. Shoab Qureshi PLD 1984 SC 170 and State of Assam v. Barak Upatyaka (2009) 5 SCC 694 ref.

Amjad Ali, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 489 #

2023 P L C (C.S.) 489

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Muhammad Ali Mazhar, JJ

Civil Appeals Nos. 1292 to 1301 of 2021

(On appeal against the judgment dated 11.02.2021 passed by the Sindh Service Tribunal, Karachi, in Appeals Nos. 25, 60, 68, 69 and 118 of 2020)

AND

Civil Misc. Appeal No. 103 of 2022

(Against the order of the Registrar)

MUSHTAQUE AHMED MEMON and another

Versus

ARSHAD HUSSAIN BHUTTO and others

Civil Appeals Nos. 1292 to 1301 of 2021 and Civil Misc. Appeal No. 103 of 2022, decided on 20th September, 2022.

Sindh Civil Servants (Regularization of Ad hoc Appointments) Act (XIX of 1994) [as amended by the Sindh Civil Servants (Regularization of Ad hoc Appointments) (Amendment) Act (XII of 2014)]---

----S. 3---Constitution of Pakistan, Arts. 25(1), 27(1) & 240(2)---Seniority---Discrimination in service of Pakistan---Scope and applicability of the Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994 [as amended by the Sindh Civil Servants (Regularization of Ad hoc Appointments) (Amendment) Act, 2014]---Sindh Civil Servants (Regularization of Ad hoc Appointments) (Amendment) Act, 2014 (the 2014 Act) sought to give an advantage to the appellants with retrospective effect at the expense of the vested rights of the respondents---Unlike the appellants the respondents entered into the service of Pakistan in terms of Article 240(2) of the Constitution by being selected by Provincial Public Service Commission ('the Commission')---While the appellants came through the proverbial back door and were saved by the Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994 ('the 1994 Act')---Having secured their employment by the 1994 Act, an unjustified, illegal and unconstitutional benefit was sought to be extended to the appellants through the impugned notifications and the 2014 Act---Incidentally, the reasons to enact the 2014 Act were neither given therein nor provided by the appellants---Article 25(1) of the Constitution proscribed discrimination and Article 27(1) of the Constitution prohibited discrimination in the service of Pakistan---By way of the impugned judgment the Tribunal had rightly concluded that the amendment brought by 2014 Act used for taking away the constitutional rights of respondents after twenty years could not be recognized as constitutionally legal and valid; that the deeming clause brought twenty years after the promulgation of the 1994 Act was, on the face of it, against the object and scheme of the original 1994 Act itself, and that the purpose of the original 1994 Act was only to validate and regularize the ad hoc appointment of the employees from the date of its promulgation whereas the subsequent deeming clause went much beyond the scheme of the original Act, therefore, it had to be accepted to the extent which it was in conformity with the original 1994 Act---Appeals were dismissed with costs.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Mudassar Shah Termizi v. Peshawar High Court 2021 SCMR 116 ref.

Abdul Rahim Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos. 1292-1296 of 2021).

Nemo for Appellants (in C.As. 1297-1301 of 2021 and C.M. Appeal No. 103 of 2022).

Fauzi Zafar, Additional A.G., Sindh, M. Soulat Rizvi, Additional A.G., Sindh, Ghulam Ali Birhamani, Additional Secretary, S&GAD and Ramzan Solangi, S.O. for the Government of Sindh.

M. Shoaib Shaheen, Advocate Supreme Court for Respondents (in C.As. Nos. 1292, 1295 and 1298 of 2021).

Ahmed Ali Ghumro, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondents (in C.As. Nos. 1293, 1294, 1296, 1300 and 1301 of 2021).

PLCCS 2023 SUPREME COURT 501 #

2023 P L C (C.S.) 501

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Munib Akhtar, JJ

DEAN/CHIEF EXECUTIVE, GOMAL MEDICAL COLLEGE, MEDICAL TEACHING INSTITUTION, D.I. KHAN

Versus

MUHAMMAD ARMAGHAN KHAN and others

Civil Appeal No. 1474 of 2021, decided on 15th November, 2022.

(On appeal against judgment dated 01.06.2021 passed by the Khyber Pakhtunkhwa Medical Teaching Institutions, Appellate Tribunal, Peshawar in MTI Appeal No.25 of 2021).

(a) Constitution of Pakistan---

----Arts. 212(2), proviso & 212(3)---Provincial Service Tribunals (Extension of Provisions of the Constitution) Act (XXXII of 1974), S.2---Direct appeal to the Supreme Court from an order of a tribunal created by Provincial law---Question as to whether an appeal lies to the Supreme Court under Article 212(3) against an order of a tribunal created by a Provincial law to which the proviso to clause (2) of the said Article has not been made applicable?---Held, that an appeal to the Supreme Court under clause (3) of Article 212 of the Constitution against a decision of an Administrative Tribunal created by a Provincial law under clause (1) is possible if, and only if, clause (2) applies to the said Tribunal, i.e., it is covered by an appropriate resolution of the Provincial Assembly and consequent Federal legislation in terms of the proviso to clause (2)---Door to the judicial remedy provided by clause (3) opens if, and only if, clause (2) is applicable and not otherwise---In the case of a Tribunal set up by Provincial legislation this means that the route to clause (3) lies only through the proviso to clause (2)---Clause (2) and its proviso is the gateway to clause (3); the two must be read and applied together and not in isolation and as standalone provisions.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----Preamble---Sindh Service Tribunals Act (XV of 1973), S. 3-B [as amended by the Sindh Service Tribunals (Amendment) Act, 1991]---Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (VIII of 1991), Preamble---Balochistan District Judiciary Act (I of 2021), Preamble---Islamabad Subordinate Judiciary Service Tribunal Act (V of 2016)---Constitution of Pakistan, Articles 212(2), proviso & 212(3)---Appeal to the Supreme Court under Article 212(3) of the Constitution from orders of Tribunals in relation to District judiciaries in the Provinces and Federal Capital---Maintainability---Islamabad Subordinate Judiciary Service Tribunal Act (the 2016 Islamabad Act') presents no difficulties, as it is Federal legislation and clause (2) of Article 212 of the Constitution applies in relation thereto automatically---Door to clause (3) of Article 212 is therefore open---However, this is not so in respect of the Provincial legislation, being the Punjab Subordinate Judiciary Service Tribunal Act, 1991 ('the 1991 Punjab Act'), the Sindh Service Tribunals Act, 1973 ('the 1973 Sindh Act'), the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991 ('the 1991 KPK Act'), and the Balochistan District Judiciary Act, 2021 ('the 2021 Balochistan Act')---Position of the Tribunals (for subordinate judiciary) set up under the said laws is different in the sense that no appeal to the Supreme Court is (at present) maintainable under Article 212(3) against decisions of the said Tribunals---Directions issues by the Supreme Court in such regard stated.

Keeping in mind that leave petitions and appeals under clause (3) of Article 212 may well be pending from Tribunals not covered by the proviso to clause (2), and many such petitions and appeals appear to have been decided and disposed of in the past, the Supreme Court issued the following directions to regularize the matters:

(i) No appeal lies to the Supreme Court in terms of Article 212(3) of the Constitution against the decision of a Tribunal created by a Provincial law to which the proviso to clause (2) has not been applied. Any such leave petitions and appeals as are pending, being not maintainable, must be returned forthwith by the Office and no such leave petitions are to be entertained in future;

(ii) Nothing in para (1) above applies in relation to the following:

Leave petitions and/or appeals that already stand decided or disposed of (including by way of having been withdrawn or remanded or otherwise dealt with), whether by way of a detailed judgment or a short order whether announced orally or in writing and regardless of whether in respect of any such matter detailed reasons are awaited, all such matters beingregarded as past and closed;

Leave petitions and/or appeals in which judgment is reserved, unless the concerned Bench directs otherwise;

Leave petitions and/or appeals that are part heard, unless the Bench concerned directs otherwise; and

Such pending leave petitions and/or appeals as may be directed by the Chief Justice.

(iii) A litigant to whom a leave petition or appeal has been returned in terms of para (i) or by reason of anything contained in para (ii), and who chooses or wishes to avail another remedy before any other forum as may be available under law shall have the benefit of section 14 of the Limitation Act, 1908 if any question of limitation arises or (as the case may be) equivalent equitable relaxations if any question of delay or laches arises.

(iv) The Registrar shall ensure that a copy of present judgment is forthwith sent to the registrars of all Tribunals to which para (i) applies and the said registrars shall immediately bring it to the attention of the Chairpersons and members of the said Tribunals. It shall be the responsibility of each Chairperson to ensure that till such time as the proviso to clause (2) of Article 212 becomes applicable to the Tribunal, the following (or similar) legend is suitably incorporated in the title page of each decision thereof for the benefit of all litigants: 'This Tribunal is not covered by the proviso to clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan and therefore no leave petition or appeal lies to the Hon'ble Supreme Court of Pakistan in terms of clause (3) of the said Article.'

Mansoor Tariq, Advocate Supreme Court for Appellant.

Ahmed Ali, Advocate Supreme Court for Respondent No.1.

Khalid Javed Khan, Attorney General for Pakistan along with Sajid Ilyas Bhatti, Additional Attorney General on Court notice.

Shumail Ahmed Butt, Advocate General, Khyber Pakhtunkhwa along with Mian Shafaqat Jan, Addl. A.G., Khyber Pakhtunkhwa and Zia Ullah, D.S. Health, Khyber Pakhtunkhwa and Barrister Qasim Ali Chohan, Addl. A.G., Punjab.

Fouzi Zafar, Addl. AG, Sindh and Ayaz Khan Swati Addl. A.G., Balochistan.

PLCCS 2023 SUPREME COURT 550 #

2023 P L C (C.S.) 550

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Muhammad Ali Mazhar, JJ

MUHAMMAD IMRAN and others

Versus

MUHAMMAD SAJAN PANHWAR and others

Civil Petitions Nos. 3431 and 3633 of 2021, decided on 8th September, 2021.

(Against the judgment dated 18.05.2021, passed by the High Court of Sindh, Circuit Court, Hyderabad in C.P. No. D-1104 of 2020)

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

----S. 27(5A)---Chief Executive Officer (CEO) of Public Sector Generation Holding Company Limited (GHCL) --- Qualification for appointment---High Court ordered removal of CEO of GHCL ('the petitioner') on the grounds that he was holding the post of a professional engineer while being a Chartered Accountant---Contentions raised on behalf of petitioner that neither in the Public Sector Companies (Corporate Governance) Rules, 2013 nor in the Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015, there was any provision for the Chief Executive Officer to hold a degree in the field of Electrical or Mechanical Engineering and such had been wrongly construed by the High Court; that the petitioner was qualified to be appointed as the Chief Executive Officer of GHCL and there was no illegality in the same and the High Court was not justified in setting aside his appointment as such---Supreme Court granted leave to appeal to consider the contentions raised by the counsel for the petitioner and suspended the operation of the impugned judgment of the High Court.

Afnan Karim Kundi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No. 3431 of 2021).

Ch. Aamir Rehman, Additional Attorney General for Pakistan and Shams ul Haq, Section Officer, Law for Petitioner (in C.P. No. 3633 of 2021).

Zulfiqar Ahmed Bhatti, Advocate Supreme Court for Respondent No.1 (in C.P. No. 3431 of 2021).

Muhammad Yasin Hatif, Advocate Supreme Court for Respondent No.2 (in C.P. No. 3431 of 2021).

Nemo for Respondents (in C.P. No. 3633 of 2021).

PLCCS 2023 SUPREME COURT 563 #

2023 P L C (C.S.) 563

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SIDDIQUE

Versus

Senior EXECUTIVE VICE-PRESIDENT, PTCL and others

Civil Appeal No. 1477 of 2019, decided on 9th June, 2021.

(On appeal against the judgment dated 01.02.2017 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1588-P of 2013)

Master and servant---

----Voluntary Separation Scheme (VSS)---Emoluments---Calculation of emoluments on basis of "Last basic pay" after availing VSS---Documentary evidence (Last Pay Certificate and Initial Pay Slip) showed basic pay of appellant as Rs. 8070/- , however during his cross-examination before the Tribunal below, he inadvertently mentioned his basic salary as Rs. 7,605---Held, that if a person had or had been bestowed some legal right and he omitted to claim such legal right through oral assertion but the best documentary evidence of the case was found in his favour then the documentary evidence should be given credence---In the present case the inadvertent statement of the appellant qua his basic pay had no force and could not be used to deprive him of his valuable rights---Supreme Court directed the respondent-department to recalculate the monthly pension and the amount of outstanding house building advance of the appellant in the light of his basic salary mentioned in the documentary evidence i.e. Rs. 8070/- and pay the difference to the appellant within a period of one month---Appeal was allowed.

Appellant in person.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondents.

PLCCS 2023 SUPREME COURT 592 #

2023 P L C (C.S.) 592

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Civil Appeals Nos. 1172 to 1178 of 2020

and

Civil Petitions Nos. 3789 to 3796, 2260-L to 2262-L and C.P. 3137-L of 2020

(Against the judgment dated 30.11.2018, passed by the Punjab Service Tribunal, Lahore in Appeals Nos. 3780, 3779, 3852, 3778, 3425, 3851 of 2015, 3160 of 2014 and 214 of 2017)

and

C.M. Appeals Nos.23 and 33 of 2021

(Applications for impleadment in C.As. 1172 and 1178 of 2020 respectively)

Syed HAMMAD NABI and others

Versus

INSPECTOR GENERAL OF POLICE PUNJAB, LAHORE and others

Civil Appeals Nos. 1172 to 1178, Civil Petitions Nos. 3789 to 3796, 2260-L to 2262-L and C.P. No. 3137-L of 2020 and C.M. Appeals Nos. 23 and 33 of 2021, decided on 2nd November, 2022.

(a) Police Rules, 1934---

----R. 12.2(3)---Inspectors serving in (Punjab) Police---Seniority---Final seniority list of Inspectors will be reckoned from the date of confirmation of the officers and not from the date of appointment.

Rule 12.2(3) of the Police Rules, 1934 ('the Rules') provides for two stages for determining the seniority, one is prior to the probationary period and is to be reckoned from the first appointment and the final seniority is settled from the date of confirmation which is once the period of probation is successfully completed. Period of probation is important as the officers have to undergo various courses (A, B, C and D) and qualify the same. Once police officer has successfully undergone the said courses he stands confirmed at the end of the probationary period. The seniority is once again settled, this being the final seniority from the date of confirmation. The said rule is, therefore, very clear that final seniority list of Inspectors will be reckoned from the date of confirmation of the officers and not from the date of appointment.

1999 SCMR 1594; PLD 1985 SC 159 and Muhammed Yousaf and others v. Abdul Rashid and others 1996 SCMR 1297 ref.

(b) Constitution of Pakistan---

----Art. 185(3)--- Leave refusing order of the Supreme Court---Precedential value---Leave-refusing order which neither decides any question of law nor enunciates any principle of law in terms of Article 189 of the Constitution does not constitute binding precedent---Impression that a leave-refusing order endorses the statements of law made in the impugned orders and thus enhances the status of those statements as that of the Supreme Court is fallacious---Such impression is based on inference drawn from the leave-refusing orders, while 'a case is only an authority for what it actually decides' and cannot be cited as a precedent for a proposition that may be inferred from it.

Muhammad Salman v. Naveed Anjum 2021 SCMR 1675; Tariq Badr v. NBP 2013 SCMR 314; Quinn v. Leathem 1901 AC 495; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; SHCBA v. Federation PLD 2009 SC 879 and Khairpur Textile Mills v. NBP 2003 CLD 326 ref.

----Preamble---Police Rules, 1934---Service matters relating to police---Interference by Courts in limited circumstances only---Disputes, if any, amongst the police officers must first be resolved by the Inspector General of Police or his representatives---Only in case of any legal interpretation or blatant abuse of the process provided under the Police Order or Rules should the courts interfere in the working of the Police force so that the force can maintain its functioning, autonomy, independence and efficiency.

It is best if the Police force is allowed to be regulated by its statutory framework i.e. the Police Order, 2002 and the Police Rules which provide a complete code of internal governance. Disputes, if any, amongst the police officers must first be resolved by the Inspector General of Police or his representatives. Only in case of any legal interpretation or blatant abuse of the process provided under the Police Order or Rules should the courts interfere in the working of the Police force so that the force can maintain its functioning, autonomy, independence and efficiency which is essential for Police which is charged with the onerous responsibility of maintaining law and order and with the onerous obligation to protect the life and property of the citizens of the country. More than any other organization, it is imperative that the Police must function as a rule based organization which is fully autonomous and independent in regulating its internal governance. Strong and smart Police force requires organizational justice firmly entrenched in the institution so that its officers are assured that they work for an institution that firmly stands for rules, fairness, transparency and efficiency. This upholds the morale of the police officers, especially junior police officers who are required to undertake dangerous and strenuous assignments on a daily basis and also uplifts the institution by making it more vibrant and progressive.

The issues of posting, transfer and seniority must be settled within the department strictly in accordance with the Rules and only matters requiring legal interpretation may come up before the Courts. Several junior officers approaching the courts for redressal of their grievance reflects poorly on the internal governance of the Police department when the elaborate Police Rules and the Police Order provide for such eventualities in detail.

Supreme Court observed that it was sanguine that in future the Police department will take charge of its internal governance strictly in accordance with law and will restore a Rule-based approach in addressing the grievances of the police officers so that courts are not unduly burdened.

(d) Constitution of Pakistan---

----Arts. 4(1), 14(1), 18, 25, 37 & 38---Civil service---Organizational justice---Concept of organizational justice and its importance stated.

Organizational justice focuses on how employees judge the behavior of the organization and how this behavior is related to employees' attitudes and behaviors regarding the organization. The employees are sensitive to decisions made on a day-to-day basis by their employers, both on the small and large scale, and will judge these decisions as unfair or fair. Decisions judged as unfair, lead to workplace deviance. Employees also believe procedures are fair when they are consistent, accurate, ethical, and lack bias. Organizational justice is concerned with all matters of workplace behaviour, from treatment by superiors to pay, access to training and gender equality. Ensuring organizational justice should be a priority for any organization - it can reduce the incidence of workplace deviance, absence, disengagement and counterproductive workplace behaviours and also encourage positive attributes like trust and progressive communication.

Dr. Annette Towler, The benefits of organizational justice and practical ways how to improve it CQNet ref.

Organizational justice stands firmly on the constitutional values and fundamental rights ensured to any person under the Constitution. The constitutional principle of social and economic justice read with due process and right to dignity, non-discrimination and right to a carry out a lawful profession and the right to livelihood are basic ingredients of organizational justice

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

----Preamble---Police force---Promotion and career progression---Organizational justice---Importance of organizational justice in the police force stated.

Organizational justice is necessary for the police officers to perform their duties with complete commitment, dedication and fidelity, because they must perceive that the institution is fair and just towards them. Police officers who have such perceptions of fairness would demonstrate less cynicism towards the job and are also likely to have a more amiable attitude towards the public. Uncertainty in the promotion structure and delay in promotions weakens such perceptions of serving police officers, resulting in inefficiency, likelihood of misconduct and low morale, thereby, also adversely impacting the trust of the public in the police. Therefore, for an efficient and effective police force, it is necessary to ensure the provision of organizational justice in the police as an institution, especially with regards to career progression and promotion. As such, there must be no ambiguity in the promotion structure and any grievance with regards to career progression/promotion must be redressed expeditiously under the law.

Volkov, M. "The Importance of Organizational Justice, Corruption, Crime and Compliance", 2015; Wolfe, Scott E., Justin Nix, and Justin T. Pickett. "The Measurement of Organizational Justice Matters: A Research Note", July 16, 2020 and Weimer, C. "How would Organizational Justice Shape Police Officer's Attitudes in the Workplace?", 2019 ref.

Mian Bilal Bashir, Advocate Supreme Court, Syed R.H. Shah, Advocate-on-Record, Ch. Zulifqar Ali, Advocate Supreme Court (through V.L. Lahore Registry), Maqbool Hussain Sh., Advocate Supreme Court and Talaat Farooq Sh., Advocate Supreme Court (through V.L. Lahore Registry) for Appellants/Petitioners.

Safdar Shaheen Pirzada, Advocate Supreme Court for Applicants (in C.M.A. 8616 of 2022).

Muddasar Khalid Abbasi, Advocate Supreme Court, Muhammad Ramzan Khan, Advocate Supreme Court, M. Sharif Janjua, Advocate-on-Record, Kaleem Ilyas, Advocate Supreme Court, Raja Muhammad Khan, Advocate Supreme Court for Respondents and Atta Muhammad-respondent-in-person.

Ashfaq Ahmad Kharral, Additional A.G. along with Kamran Adil, DIG (Legal), Sh. Asif, S.P., Amir Khalil Syed, S.P. and Kashif Butt, A.D. for the Government of Punjab.

PLCCS 2023 SUPREME COURT 629 #

2023 P L C (C.S.) 629

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

ABDUL QUDOOS

Versus

COMMANDANT FRONTIER CONSTABULARY, KHYBER PAKHTUNKHWA, PESHAWAR and another

Civil Petition No. 2021 of 2019, decided on 4th October, 2022.

(Against the judgment dated 05.04.2019 passed by the Federal Service Tribunal, Islamabad, in M.P. No. 2047/2018 in Appeal No.483(P)CS/2013)

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

----S. 4(1)---Appeal filed by employee of Frontier Constabulary (F.C.)---Service Tribunal, jurisdiction of---Scope---F.C. employees are civil servants and, in a matter relating to the terms and conditions of service, they can approach the Tribunal and file an appeal in accordance with law.

Commandant, Frontier Constabulary, Khyber Pakhtunkhwa, Peshawar and others v. Gul Raqib Khan and others 2018 SCMR 903 ref.

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

----S. 4(1)---Constitution of Pakistan, Art. 199---Constitution petition filed by employee of Frontier Constabulary (F.C.) remitted to the Service Tribunal after consent of both parties---Service Tribunal, jurisdiction of---Scope---After the petitioner [employee of Frontier Constabulary (F.C.)] filed a writ petition in the High Court, the High Court remanded the matter to the Service Tribunal with the direction that the writ petition filed before the High Court shall be treated as a service appeal pending before it, which will be decided after issuing notices to the parties concerned in accordance with law---Counsel for the parties by consent agreed that the pending writ petition may be remitted to the Tribunal for decision and finally, the High Court in view of the dictum laid down in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539), observed that the petitioner had already filed the departmental appeal before filing the writ petition, therefore, with the consent of counsel for the parties, the matter was sent to the Tribunal for further adjudication subject to all just and legal objections, including limitation---In view of the directions of the High Court which were binding upon the Tribunal, neither the petitioner was required to file any application for resurrection of the earlier disposed of appeal by the Tribunal on the ground of jurisdiction, nor the Tribunal could dismiss the application on the ground of limitation---As a matter of fact, only the memo of writ petition filed in the High Court was to be transmitted to the Tribunal for decision on merits, but the Tribunal without proper application of mind dismissed the restoration application, rather than asking for a copy of the writ petition from the petitioner or requisitioning the Registrar, High Court for a copy of the writ petition for further proceedings---Petition for leave to appeal was converted into an appeal and allowed; the impugned order of the Tribunal was set aside with the directions that the Registrar, High Court shall transmit a certified copy of the relevant writ petition along with its annexures to the Tribunal within 10 days which will be treated as a Service Appeal or, alternatively, the petitioner may submit a complete certified true copy of the said writ petition in the Tribunal; that after receiving a copy of the writ petition the Tribunal shall decide the appeal in accordance with law and applicable rules after notice and opportunity of hearing to the parties.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

----Fault/mistake of Court---No person should suffer because of a delay in procedure or the fault of the Court---Act of the Court shall prejudice no one---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---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.

Homoeo Dr. Asma Noreen Syed v. Government of the Punjab through its Secretary Health, Department and others 2022 SCMR 1546 = 2022 PLC (C.S) 1390 ref.

(d) Ex debito justitiae, doctrine of---

----Scope---Mistake/error of court---Power of court to rectify its mistake---Doctrine of ex debito justitiae, refers to the remedies to which a person is entitled as a matter of right as opposed to a remedy which is discretionary---Every court has the power to rectify ex debito justitiae its judgment in order to prevent abuse of process and severe and patent oversights and mistakes---Said doctrine applies to the remedies that the court is bound to give when they are claimed as distinct from those that it has discretion to grant---Power of a court to act ex debito justitiae is an inherent power of courts to fix the procedural errors if arising from courts own omission or oversight which resulted in violation of the principle of natural justice or due process.

Government of the Punjab, through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25 ref.

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

----S. 4(1)---Constitution of Pakistan, Arts. 199---Constitutional power of High Court to remit a case to the Service Tribunal---Scope---High Court in its writ jurisdiction may exercise its discretionary powers to avoid grave injustice and in order to get out of the rigors of technicalities remit the case to the Service Tribunal in a prima facie case, provided all requisite formalities including the filing of departmental appeal are complied with according to law and rules--- Such discretionary powers may only be exercised in exceptional cases where exigency so demands in the interest of justice, rather than adopting it as a routine or everyday practice to extend an advantage or recourse to civil servants to approach the High Court despite the bar contained under Article 212 of the Constitution.

Muhammad Ramzan Khan, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Ch. Amir Rehman, Additional A.G.P. on Court's Call.

PLCCS 2023 SUPREME COURT 655 #

2023 P L C (C.S.) 655

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

DIVISIONAL SUPERINTENDENT POSTAL SERVICES FAISALABAD and others

Versus

KHALID MAHMOOD and others

C.M.As. Nos. 3837 to 3845 in Civil Petition No. Nil of 2022 and Civil Petitions Nos. 1874, 1987 to 2001, 2091, 2605, 2477 and 2478 of 2022, decided on 6th October, 2022.

(Against the judgment dated 11.02.2022 passed by the Federal Service Tribunal, Lahore in Appeals Nos. 185(L), 159-L, 160-L, 161-L, 163-L to 173-L, 179-L, 146-L, 184-L, 174-L, 162-L of 2020 respectively)

(a) Civil service---

----Back benefits, grant of--- Employer-department making a commitment before the Tribunal to pay back benefits---Approbate and reprobate, doctrine of---Applicability---Before the Service Tribunal the petitioners (postal services departments) never defended the case vigorously and submitted their own comments in which they admitted the fact that the services of the respondents (employees) had been regularized from the date of initial appointment, and not only their service books had been verified from the concerned department, but also a commitment was made that the arrears of pay and allowances would be paid on the availability of funds from the Finance Division---After such clear statement, nothing was within the dominion and purview of the Tribunal to decide, when there was no bone of contention between the parties, except that the Tribunal, keeping in view the financial scarcity or crunch, allowed the petitioners to arrange the funds for discharging liability of arrears within the period of three months---Petitioners had assailed the judgment of the Tribunal which was simply disposed of with the concurrence of the petitioners on the basis of their comments, and nothing was decided by the Tribunal, except recording the consensual statement made in the comments---Factual position encapsulated in the comments could not be challenged by the petitioners due to their acquiescence that the services of the respondents (employees) had been regularized and their service books had also been verified with a further promise to pay arrears on the availability of funds, hence at present stage the petitioners' plea was also hit by the doctrine of approbate and reprobate---Petitions for leave to appeal were dismissed and leave was refused.

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

----O. XII, R. 6---Discretionary power of the court to pass a decree based on the admission made by the parties without determining any questions raised by the parties---Purpose and scope of Order XII, Rule 6, C.P.C. stated.

Order XII, Rule 6, C.P.C. empowers and qualifies the civil court to dispose of the lis with regard to which there is no dispute between parties, but for this purpose the entire plaint or written statement is required to be read for the purposes of finding out the nature of the admission, whether it is clear, specific, unambiguous, definite and categorical. The Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. The elemental characteristic of an admission is that it should be a condensed and cautious act. The precondition and benchmark of an admission is that it should be unconditional, unambiguous and intended to be read and construed as an admission.

The legislative purpose of Order XII, Rule 6, C.P.C. is to cut short the length of litigation with forward-thinking comprehension and without the imposition of any irrational constraint, rather the court should consciously and judicially look into the fundamental constituents of the admission for its satisfaction whether the lis can attain finality or not in the facts and circumstances of each case. In the event of any ambiguous, conditional or unclear admission, the court cannot be left to interpretative determination, but the proper course would be that the case should be decided on merits after denouement of a full-fledged trial.

Ch. Amir Rehman, Additional A.G.P, Anis Muhammad Shahzad, Advocate-on-Record, M. Naeem, Assistant Account Officer, M. Zaman, Assistant Superintendent, M. Salman, Assistant Superintendent, GPO, Lahore, M. Imran, Assistant Superintendent, GPO, Faisalabad, M. Tahir, Deputy Senior Postmaster, Shaikhurpura and Amjad Ali, Assistant Superintendent, GPO, Faisalabad for Petitioners.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 694 #

2023 P L C (C.S.) 694

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

IJAZ BADSHAH

Versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, CABINET BLOCK, CONSTITUTION AVENUE, ISLAMABAD and others

Civil Petition No. 3813 of 2019, decided on 12th October, 2022.

(Against the judgment dated 24.07.2019 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1860(R)CS/2017)

(a) Civil service---

----Penalty imposed by the competent authority---Proportionality and reasonableness---Judicial review of penalty by the Supreme Court---Scope---Supreme Court may examine and judicially review the executive discretion (in imposing penalty) on the ground of proportionality and reasonableness but at the same time the gravity of the charges raised in the statement of allegations are also to be considered---While exercising the role of judicial review in order to examine whether the punishment awarded by the competent authority may be converted into some lesser punishment or not, the set of circumstances of each and every case have to be considered minutely to determine whether the person deserves such treatment or not---In fact, it is the gravity of misconduct and charges which predominately guides the exercise of judicial review.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 ref.

(b) Passports Act (XX of 1974)---

----S. 6---Civil service---Dismissal from service---Unauthorized leave---Civil servant in possession of five different passports travelling abroad frequently without obtaining a No Objection Certificate (NOC) from competent authority---In the present case, the magnitude of charges and the conduct of the petitioner (civil servant) explicated that, despite having full knowledge that, being a civil servant in BPS-19, he was not allowed to travel abroad without NOC and approval issued by the competent authority, he still travelled on different passports by deception and impersonation as a businessman---Moreover, , it was not understandable as to how he was in possession of five different passports, and frequently travelled using them without NOC, but nobody could check or trace such illegality and impropriety---Punishment of dismissal from service in the present case awarded to the petitioner was proportionate and reasonable to the act of misconduct committed by him, hence he does not deserve any indulgence for conversion of his punishment from dismissal of service to compulsory retirement---Petition for leave to appeal was dismissed.

Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 distinguished.

----'Departmental inquiry' and 'award of punishment'---Scope---Primary objective of carrying out a departmental inquiry is to catch on the truth whether a case of misconduct is made out or not---Guilt or innocence of a civil servant can only be thrashed out from the outcome of the inquiry---Award of punishment is the dominion of the competent authority and the role of the Service Tribunal or Court is secondary unless the punishment imposed upon the delinquent employee is found to be unreasonable, disproportionate or against the law.

Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019

SC 189 ref.

(d) Civil service---

----Gross misconduct---Punishment, award of---Scope and purpose---Rationale of deterrent punishment in the case of gross misconduct is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure in order to maintain discipline for the general administration of the institution or organisation---If in cases of grievous misconduct any latitude is shown for conversion (reduction) of penalty, then it would also seriously prejudice the discipline of the civil servant's service structure.

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 707 #

2023 P L C (C.S.) 707

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

Syed ARSHAD ALI

Versus

SECRETARY MINISTRY OF HOUSING AND WORKS, ISLAMABAD and others

Civil Appeal No. 799 of 2021, decided on 22nd December, 2021.

(Against judgment dated 12.11.2018 passed by the Federal Service Tribunal, Islamabad in Appeal. No.1208(R)(CS)/2016.)

Civil Servants (Seniority) Rules, 1993---

----R. 6 (as it existed before being amended by SRO No. 572(I)2009, dated 16-06-2009)---Inter-se seniority---'Person appointed by transfer' and 'person appointed by promotion' in the same calendar year---According to R. 6 of the Civil Servants (Seniority) Rules, 1993 (as it existed before being amended by SRO No. 572(I)2009, dated 16.6.2009) persons appointed by transfer in a particular calendar year shall as class be senior to those appointed by promotion or by initial appointment to such post in that year---In the present case, the appellant was promoted on 6.8.2003 with effect from 04.08.2003 to the post of an Assistant while the respondents were appointed as Assistants by transfer on 6.8.2003---Since such transfer and promotion took place in the same Calendar Year 2003, the respondents appointed by transfer would be senior to the appellant who was appointed by promotion---Appeal was dismissed.

Abdul Qadeer v. Government of Pakistan and another 2005 SCMR 1560 and Director General Intelligence Bureau v. Amir Mujahid Khan 2011 SCMR 389 distinguished.

Tikka Khan and others v. Muzaffar Hussain Shah and others 2018 SCMR 332 and Secretary Revenue Division/Chairman, FBR and another v. Muhammad Arshad Hilali 2019 SCMR 980 ref.

Muhammad Ramzan Khan, Advocate Supreme Court for Appellant.

Sohail Mehmood, Additional A.G.P. and Abdul Razzaq, S.O. Ministry of H&W for Respondents Nos. 1 - 4.

Rashid Hafeez, Advocate Supreme Court for Respondents

Nos.5 - 6

PLCCS 2023 SUPREME COURT 724 #

2023 P LC (C.S.) 724

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

ZARAI TARAQIATI BANK LIMITED through President and others

Versus

SARFRAZ KHAN JADOON and others

Civil Appeal No. 97 of 2021 and Civil Petition No. 3478 of 2021, decided on 10th June, 2021.

(On appeal from the judgment dated 03.09.2019 passed by the Peshawar High Court, Abbottabad Bench in W.P. No. 535-A of 2019)

(a) Civil service---

----Out of turn promotions---Illegal promotion orders set aside by the Supreme Court---Prospective effect---Recovery/adjustment of financial benefits paid to such promotees---Held, that in the judgment reported as Akhtar Umar Hayat Lalayka and others v. Mushtaq Ahmed Sukhaira and others (2018 SCMR 1218) the Supreme Court directed that promotions granted to the respondents were "hereby" withdrawn---Word 'hereby' was very significant and it showed that the Supreme Court had withdrawn promotions by the very judgment delivered by it and not prior to it---Had the (Supreme) Court wanted to give effect to its judgment from the date when the promotions were granted, it could have been mentioned in the judgment but it was not done so purposely---In any case, it was an established legal principle of law that the judgments of the Courts always operated prospectively---High Court had rightly given directions not to recover/adjust the financial benefits granted to the persons promoted illegally---Appeal was dismissed.

Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 and Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their Respective Retirements, Irrespective of their length of Service as Such Judges PLD 2013 SC 829 ref.

(b) Words and phrases---

----'Hereby'---Meaning.

Black's Law Dictionary; Oxford Advanced Learner's Dictionary; Advanced Law Lexicon and Words and Phrases (Permanent Edition),Volume 19A ref.

Syed Iqbal Hussain Shah Gillani, Advocate Supreme Court and Zulfiqar Khalid Maluka, Advocate Supreme Court for Applicant/ Petitioner (in C.A. No. 97 of 2021 and C.P. No. 3478 of 2021).

Sajeel Sheryar Swati, Advocate Supreme Court and Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.A. No. 97 of 2021).

Nemo for Respondent (in C.P. No. 3478 of 2021).

PLCCS 2023 SUPREME COURT 740 #

2023 P L C (C.S.) 740

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and

Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF PAKISTAN through Secretary Establishment Division, Islamabad

Versus

MUHAMMAD ISMAIL and another

Civil Appeal No. 410 of 2020, decided on 2nd June, 2021.

(On appeal against judgment dated 16.10.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1184-R of 2017)

(a) Civil service---

----Policy providing quota for employing children of Government employees, who died in service---Prospective effect---Respondent's father died in the year 1995 while he was in regular service---At that time, there was no scheme/policy in field for induction of family member of deceased civil servant in service, and it was only in the year 2006 that the Federal Government issued the `Assistance Package for Families of Government Employees who die in service', wherein employment for posts in BS-01 to BS-15 without advertisement was provided for the families of deceased government employees---Said Assistance Package and the subsequent amendments therein did not contain any provision which gave it retrospective effect especially when the grievance of respondent was agitated with a lapse of almost 17 years---Respondent was not deprived of any right accrued to him at the relevant time, when he was not appointed in pursuance of the Assistance Package in question--- Appeal was allowed.

(b) Interpretation of statutes---

----Statutes/notifications/executive and administrative orders---Operated prospectively unless retrospective operation was expressly provided for therein.

Hashwani Hotels Ltd. v. Federation of Pakistan PLD 1997 SC 315 ref.

Ch. Aamir Rehman, Additional Attorney General and Sajid ul Hassan, S.O. Establishment for Appellant.

Respondent in person.

PLCCS 2023 SUPREME COURT 763 #

2023 P L C (C.S.) 763

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF PUNJAB through Secretary Cooperative Societies

Department, Lahore and others

Versus

ASAD ABBAS

Civil Petition No. 1948-L of 2021, decided on 27th December, 2021.

(Against the judgment dated 20.09.2021 passed by the Lahore High Court, Lahore in Writ Petition No. 55270 of 2020)

(a) Civil service---

----Appointment---Candidates on waiting list---Advertised posts falling vacant after selected candidate/s refusing to join---When some of the selected candidates did not join service, and such posts remained vacant, it was imperative for the department to consider the remaining candidates (on the waiting list) for appointment against the said posts because these posts could not be kept vacant till the next process of recruitment, if some selected candidates were still available on the waiting list.

Government of NWFP v. Qasim Shah 2009 SCMR 382 ref.

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

----Art. 91---Judicial proceedings, sanctity of---Judicial proceedings had sanctity---Presumption of correctness was attached to such proceedings before a judicial forum.

Muhammad Ramzan v. LDA 2002 SCMR 1336; Fayyaz Hussain v. Akbar Hussain 2004 SCMR 964 and Waqar Jalal Ansari v. National Bank of Pakistan 2008 CLD 1202 ref.

Rana Shamshad Khan, Additional A.G. for Petitioners.

Nemo. for Respondent.

PLCCS 2023 SUPREME COURT 780 #

2023 P L C (C.S.) 780

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and

Muhammad Ali Mazhar, JJ

The CHAIRMAN AGRICULTURE POLICY INSTITUTE, MINISTRY OF NATIONAL FOOD SECURITY AND RESEARCH, GOVERNMENT OF PAKISTAN, ISLAMABAD and another

Versus

ZULQARNAIN ALI and another

Civil Petition No. 2892 of 2020, decided on 13th December, 2021.

(Against the judgment dated 02.09.2020 Federal Service Tribunal, Islamabad in Appeal No. 327(R)CS/2019)

(a) Civil service---

----Termination of service---Verbal order of termination---Legality---Termination of service by a verbal order was alien to the labour and service laws of the country and also against the principles of good governance and natural justice.

There was no provision under the Labour Laws or the Service Laws permitting the employer to terminate the services verbally without a written order containing the explicit reasons or cause of termination even in the case of termination simpliciter and for disciplinary proceedings on account of misconduct, obviously separate procedure was laid down which accentuated the issuance of show cause notice, holding inquiry unless dispensed with by the competent authority considering all attending circumstances of the case and after personal hearing, appropriate action may be taken in accordance with the law. The termination of service by a verbal order was alien to the labour and service laws of the country and also against the principle of good governance which was a process of gauging whether the Government, its departments/institutions and authorities were conducting their affairs lawfully and performing their duties honestly, conscientiously and transparently including their process of decision making in accordance with rules and regulations.

Verbal termination order was otherwise against the principles of natural justice.

(b) Civil service---

----Natural justice, principles of---Scope---Before taking any adverse action, the affected party must be given a fair opportunity to respond and defend the action---Principles of natural justice did not lay down any differentiation or inequality between a quasi-judicial function and or an administrative function/action for applying evenly and uniformly to secure justice and prevent miscarriage of justice---Before taking any punitive or adverse action, putting to end the services of any employee/workman or civil servant, the precept of fairness and reasonableness commanded that an evenhanded opportunity to put forth the defence should be afforded.

----Appointment and termination of service orders---Written orders---Due to negligent and unprofessional practice or conduct of issuing verbal termination orders of service, the action of employer was often defeated and non-suited in the court of law without touching the merits of the case despite having sometimes valid grounds for termination of service, therefore, in order to avoid such anomalies and eventualities, even in the case of contractual or temporary engagements, the employees should be issued appointment letters in writing with the terms and conditions of engagement and in the case of termination, explicit reasons of termination should be assigned.

Sohail Mehmood, Additional Attorney General for Petitioners.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 794 #

2023 P L C (C.S.) 794

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Muhammad Ali Mazhar, J

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

Versus

Dr. LIAQAT ALI and others

Civil Appeal No. 835 of 2021, decided on 6th January, 2022.

(Against the judgment dated 14.11.2017, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeal No.34 of 2014)

Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S. 7(1)--- Power of Tribunal to modify punishment imposed by the competent departmental authority---Scope---Provincial Service Tribunal reducing penalty of removal from service imposed by competent authority into that of compulsory retirement with retirement benefits considering 24 years' of service put in by the respondent---Legality---Imposition of penalty was in the domain of the competent authority, for that, the competent authority was fully empowered to impose such penalty upon its employee on finding him guilty of commission of misconduct as it considered appropriate and normally the Court did not interfere in such exercise of power by the competent authority---Conversion of penalty imposed by the competent authority would require a strong justifiable reasons beyond what was stated by the Tribunal in the impugned judgment---Court was not empowered to arbitrarily and whimsically find the penalty imposed by the competent authority to be harsh merely, on the ground that the respondent had put in 24 years' of service and was entitled to grant of retirement benefits---Quantum of punishment had to be left with the competent authority and the Court cannot without any strong reason interfere with the same---Interference in the matter of punishment would be without jurisdiction when strong reasons were not assigned to support the same---Tribunal was not justified in reducing the penalty imposed by the competent authority of removal from service on the respondent into compulsory retirement, as the same was not supportable in law---Consequently, while allowing the appeal, the impugned judgment to the extent of modifying the penalty of removal from service into compulsory retirement was set aside and the penalty of removal from service was restored.

Government of the Punjab through Chief Secretary v. Muhammad Arshad and 2 others 2020 SCMR 1962; Deputy Postmaster General, Central Punjab Lahore and another v. Habib Ahmed 2021 SCMR 584; Director General Federal Directorate and another v. Tanveer Muhammad and another 2021 SCMR 345 and Divisional Superintendent, Postal Services, Faisalabad and others v. Muhammad Zafarullah 2021 SCMR 400 ref.

Mian Shafaqat Jan, Additional Advocate General, Khyber Pakhtunkhwa and Zia Ullah, Deputy Secretary, Health Department, Khyber Pakhtunkhwa for Appellants.

Sh. Riazul Haque, Advocate Supreme Court for Respondent No.1.

PLCCS 2023 SUPREME COURT 813 #

2023 P L C (C.S.) 813

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

JAWAD AHMAD MIR

Versus

Prof. Dr. IMTIAZ ALI KHAN, VICE CHANCELLOR, UNIVERSITY OF SWABI, DISTRICT SWABI, KHYBER PAKHTUNKHWA and others

Civil Petition No. 3944 of 2019, decided on 18th October, 2022.

(Against the judgment dated 20.09.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No.4406-P of 2019)

(a) Civil service---

----Stopgap appointment---Scope and principles relating to a filling a post by way of stopgap arrangement explained.

At times the person possessing requisite antecedents to qualify for a particular post may not be available in the department and, while the selection for appointment is under process, or is delayed due to some plausible reason for the time being, the competent authority, in view of exigency, may assign acting charge and current charge as a stopgap arrangement. The expression 'stopgap' means a temporary way of dealing with a problem or satisfying a need and/or something that can be used until something better or more permanent can be obtained. Ad-hoc appointment is made, or look-after/acting or additional charge is given, under exceptional situations as a stopgap arrangement for a limited period with the sole aim and intention to continue such appointment till the regular appointment on the post. A person appointed as a stopgap arrangement does not hold such post in a substantive capacity; this arrangement characterizes a class which is distinct and dissimilar from those who are appointed to posts in service compliant with the relevant rules of recruitment. Look-after or additional charge as a stopgap arrangement does not entitle the incumbent to claim any benefit on account of such arrangement, which can be revoked or withdrawn by the competent authority at any time without assigning any reason.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope, principles and pre-requisites relating to a writ of quo warranto stated.

The rationality of the writ of quo warranto is to settle the legality of the holder of a statutory or Constitutional office and decide whether he was holding such public office in accordance with law or against the law. The writ of quo warrant can be instituted by a person though he may not come within the meaning of words "aggrieved person". For the purpose of maintaining a writ of quo warranto there is no requirement of an aggrieved person, and a whistle blower need not to be personally aggrieved in the strict sense and may relay the information to the court to enquire from the person holding public office.

Halsbury's Laws of England (Third Edition), Volume 11, page 145; Halsbury's Laws of India, Volume 35, Page 145; American Jurisprudence (Second Edition), Volume 16, page 578; Corpus Juris Secundum, Volume LXXIV, page 174-175; Black's Law Dictionary (Tenth Edition), page 1447; Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203 and Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab and others 2000 SCMR 1720 ref.

In the writ of quo warranto no special kind of interest in the relator is needed, nor is it necessary to explain which of his specific legal rights is infringed. It is enough that the relator is a member of the public and acts bona fide. This writ is more in the nature of public interest litigation where undoing of a wrong or vindication of a right is sought by an individual for himself, or for the good of the society, or as a matter of principle.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007

SC 52 ref.

The conditions necessary for the issuance of a writ of quo warranto are that the office must be public and created by a statute or Constitution itself; the office must be a substantive, one and not merely the function of an employment of a servant at the will during the pleasure of others; there has been contravention of the Constitution or a statute or statutory instrument by appointing such person to that office. The essential grounds for issuing a writ of quo warranto are that the holder of the post does not possess the prescribed qualification; the appointing authority is not the competent authority to make the appointment and that the procedure prescribed by law has not been followed. The burden of proof is then upon the appointee to demonstrate that his appointment is in accordance with the law and rules.

----S. 12---Vice Chancellor---No vested right to extension in tenure---Vice Chancellor who has completed his tenure cannot claim extension as a vested right, if the competent authority is not interested in his extension for any legitimate or justifiable reason.

Raja Saif-ur-Rehman, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Ch. Aamir Rehman, Additional A.G.P. on Court's Call.

PLCCS 2023 SUPREME COURT 831 #

2023 P L C (C.S.) 831

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

ALI BUX SHAIKH

Versus

The CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and others

Civil Petition No. 3112 of 2020, decided on 27 September, 2022.

(Against the judgment dated 21.09.2020 passed by the Sindh Service Tribunal at Karachi, in Appeal No.329 of 2020)

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

----R. 12-A---Date of birth of civil servant recorded at the time of joining Government service---Interpolations---Inquiry by competent authority---Rule 12-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 does not prohibit or restrain the competent authority from inquiring into cases where, on the face of it, certain interpolations are made by the civil servant in the service book, or where he provided incorrect date in the service record---In such a case, obviously, the correction may be made after due satisfaction and inquiry and each case has to be decided on its own facts and circumstances---Civil servant cannot plead that by all means, a wrong entry made in the service book should be treated sacrosanct or as gospel truth which could not be rectified in any circumstances, despite being found and proved to be incorrect, deceitful and or interpolated.

Agha Muhammad Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

S. M. Saulat Rizvi, Additional A.G. (through Video link (Karachi)) and M. Nasir, DIG (Prison) for Respondents.

PLCCS 2023 SUPREME COURT 860 #

2023 P L C (C.S.) 860

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

AMANULLAH KHAN

Versus

HOSPITAL DIRECTOR, KTH (MTI), PESHAWAR and others

Civil Petition No. 2092 of 2019, decided on 12th October, 2022.

(Against the judgment dated 12.03.2019 of the Peshawar High Court, Peshawar passed in W.P. No. 4296-P of 2017)

(a) Civil service---

----Upgradation of a post---Scope---Upgradation of a post is not a vested right but it stems from a policy decision for its implementation for the particular set of employees as per scheme embedded in the policy which cannot be mixed up with the promotion---By and large, upgradation is accorded to all positions in a category upon completion of a required length of service in accordance with the benchmarks laid down by the competent authority as a policy decision.

(b) Civil service---

----'Upgradation of post' and 'promotion'---Distinction---Promotion involves advancement in rank, grade or a footstep en route to a higher position, whereas the facility or benefit of upgradation simply confers some monetary benefits by granting a higher pay scale to ventilate sufferings which is a translucent distinction between the two genres---Upgradation under a scheme is personal to the incumbents of a particular post for sufficient length of service without any progression or avenue of promotion---In the case of upgradation, the candidate continues to hold the same post without any change in his duties but he is accorded a higher pay scale in order to lessen the distress or misery as a result of stagnation.

Fida Muhammad v. Government of Khyber Pakhtunkhwa, Secretary of Education Peshawar and others 2021 SCMR 1895 = PLJ 2022 SC 253 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 ref.

----Upgradation of a post---Scope---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.

Petitioner in person.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 884 #

2023 P L C (C.S.) 884

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

MUHAMMAD NAWAZ KHAN

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and others

Civil Petition No. 2277 of 2019, decided on 11th October, 2022.

(Against the judgment dated 20.03.2019 of the Punjab Service Tribunal, Lahore passed in Appeal No. 4745 of 2017)

Civil service---

----Concurrent departmental 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, civil servant 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 it is 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.

Malik Matee Ullah, Advocate Supreme Court (through video link from Lahore) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 891 #

2023 P L C (C.S.) 891

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

HABIB BANK LIMITED through Attorney

Versus

MEHBOOB RABBANI

Civil Appeal No. 371 of 2020, decided on 4th May, 2023.

(Against the judgment of the High Court of Sindh at Karachi dated 14.05.2019 passed in High Court Appeal No. 57 of 2006)

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

----Preamble---Whenever a Court is adjudicating a civil suit, it is regulated by the requisite laws and civil procedure applicable to it at the time the suit is filed and adjudicated upon.

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

----First Sched. & Art. 22---Bank employee---Wrongful dismissal---Suit for damages---Limitation---Respondent-employee was dismissed from service on 3.10.1991 and his review petition dated 19.4.1992 was rejected by the Competent Authority on 5.7.1992---Respondent filed his suit for on 12.6.1993, after almost one year---Cause of action to file a suit for compensation/damages arose to the Respondent on 5.7.1992 and was therefore within the limitation of one year provided in Article 22 of the Limitation Act, 1908 for claiming compensation for any other injury to the person---Appeal was dismissed.

----S. 73---Breach of contract---Damages, award of---Purpose and scope---Damages are costs that are imposed not as a deterrent or as a means to punish person(s) or party(s) who has/have breached a contract but instead to bring the person(s) or party(s) who has/have suffered from the breach of contract into a position which they would have been had the breach of contract not accrued---Said principle is known as the principle of restitutio in integrum (restoration to original condition)---It therefore stands to reason that damages are in fact the compensation that the law awards when a breach of contract occurs as compensation for the loss that a person or party has suffered from a breach of contract.

Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas. 25; Great Easter Shipping Co. Ltd. v. Union of India AIR 1971 Cal. 150 and Robinson v. Harmain (1848) 1 Exch 850 ref.

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

----S. 73---Breach of contract---General and special damages---Distinction and scope---Concept of awarding damages is, by its very nature, inclusive of awarding both general as well as special damages---However, the nature of general and special damages and proving the two are different compared to each other.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 PLC (C.S.) 571 ref.

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

----S. 73---Breach of contract---Damages, award of---Burden of proof---Onus would lie on a plaintiff or claimant to prove that there had been a contract entered into between the parties; that there had been a breach of contract; and the extent of the damages claimed thereof.

Hadley and another v. Baxendale [1854] EWHC Exch J70 and Messrs A.Z. Company, Karachi v. Government of Pakistan PLD 1973 SC 311 ref.

(f) Habib Bank Limited (Staff) Service Rules, 1981---

----R. 39---Contract Act (IX of 1872), S. 73---Bank employee---Wrongful dismissal---Suit for damages---Breach of employment contract by employer---Employee denied the right of an opportunity to defend himself and discriminated against---Effect---At no point did the Appellant-bank during cross-examination of the Respondent-employee ever try to rebut or deny the allegations made by him against the involvement of the General Management in the losses that had led to the initial preliminary inquiry and subsequent dismissal of the Respondent by the Appellant---In fact, the Appellant had agreed that it had allowed the General Manager, under whose instructions and supervision the Respondent worked, to resign as opposed to being dismissed from service---When the Respondent responded to the show-cause notice issued to him by the Appellant, he demanded a "full and complete" hearing before the Enquiry Committee---However, the Enquiry Committee constituted for probing the allegations against the Respondent dispensed with such requirement (under Rule 39 of the Habib Bank Limited (Staff) Service Rules, 1981) without giving any reason and proceeded to dismiss the services of the Respondent---Principle of audi alteram partem i.e. being granted a hearing before an adverse order is passed applies to employees who are to be dismissed from service since dismissal entails reputational as well as financial loss---Enquiry Committee by dispensing with the requirements of Rule 39 of the Habib Bank Limited (Staff) Service Rules, 1981 infringed the right of the Respondent to present oral evidence and cross-examine anyone who might have testified against him---Respondent was denied a fundamentally important right of an opportunity to defend himself---Furthermore, Respondent was discriminated against as admittedly the General Manager was the person who the Respondent reported to; under whose instructions the Respondent acted; and who admittedly appeared to be reason the branch of the Appellant faced colossal financial loss---Surprisingly, no civil proceedings were initiated by the Appellant against the General Manager and he was ultimately asked to resign from service whereas the Respondent was dismissed from service---Appellant had breached the Respondent's employment contract--- Appeal was dismissed.

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 ref.

(g) Habib Bank Limited (Staff) Service Rules, 1981---

----R.39---Contract Act (IX of 1872), S. 73---Bank employee---Wrongful dismissal---Suit for damages---Breach of employment contract by employer---Employee denied the right of an opportunity to defend himself and discriminated against---Compensation, award of---Financial and economic loss naturally arising out of the wrongful dismissal---In the present case when the Respondent-employee was dismissed from service, it would have been difficult for him to be employed again owing to the fact that a dismissal from service on his record would have had the effect of either barring him from further employment or making it considerably more difficult for him to be employed again---Such blot on his service permanently marked the Respondent for the rest of his life and was only washed away when the Respondent passed away---Had the Appellant-bank treated the Respondent in a just and fair manner and conducted a fair, open and impartial inquiry giving him the opportunity to defend himself, the financial and reputational aspect of a claim in tort would have been non-existent or too remote---Dismissal from service is clearly a stigma and financial and reputational loss apart from mental torture, agony and distress are logical consequences---In the present case, owing to denial of the right to defend himself without just cause leads towards a conclusion of wrongful dismissal and financial as well as economic loss and therefore could naturally be considered to arise out of the wrongful dismissal of the Respondent by the Appellant---Since the Respondent had been wrongfully dismissed from service, the Appellant cannot be granted the premium of not being made to compensate the Respondent especially when the Appellant failed to prove that the damages the Respondent sought were too remote or did not naturally arise out of the breach of contract---Once the Respondent had proved that he had been wrongfully dismissed from service, the onus shifted on the Appellant to prove that the damages claimed by the Respondent were either too remote or did not arise out of the breach of contract---In the absence of anything to the contrary, the Respondent was entitled to such damages that in the opinion of the Court, considering the facts and circumstances of the case, arose directly out of the breach of contract as well as all damages claimed for wrongful dismissal from service---Appeal was dismissed.

Faisal Mehmood Ghani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (absent) for Appellant.

Umer Abdullah, Advocate Supreme Court and Mian Liaquat Ali, Advocate-on-Record (absent) for LRs. of Respondent.

PLCCS 2023 SUPREME COURT 928 #

2023 P L C (C.S.) 928

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

FEDERATION OF PAKISTAN through Chairman Federal Board of Revenue FBR House, Islamabad and others

Versus

ZAHID MALIK

Civil Appeal No.33-K of 2018, decided on 26th December, 2022.

(On appeal against judgment dated 25.07.2017 passed by Federal Service Tribunal, Karachi Bench in Appeal No. 191(K)CS/2015)

(a) Government Servants (Efficiency and Discipline) Rules, 1973 [since repealed]---

----R. 6---Constitution of Pakistan, Art. 10A---Inquiry proceedings---Right of accused to cross-examine witnesses deposing against him---Scope---Right of proper defence and cross-examination of witnesses by the accused is a vested right---Whether the evidence is trustworthy or inspires confidence could only be determined with the tool and measure of cross-examination---Possibility cannot be ruled out in the inquiry that a witness may raise untrue and dishonest allegations due to some animosity against the accused which cannot be accepted unless he undergoes the test of cross-examination which indeed helps to expose the truth and veracity of allegations---Not providing an ample opportunity of defence and depriving the accused from right of cross-examination of departmental representative who lead evidence and produced documents against the accused is against Article 10A of the Constitution.

In a regular inquiry, it is a precondition that than an evenhanded and fair opportunity be provided to the accused and if any witness is examined against him, then a fair opportunity should also be afforded to cross-examine the witnesses.

Right of proper defence and cross-examination of witnesses by the accused is a vested right. Whether the evidence is trustworthy or inspires confidence could only be determined with the tool and measure of cross-examination. The possibility cannot be ruled out in the inquiry that the witness may raise untrue and dishonest allegations due to some animosity against the accused which cannot be accepted unless he undergoes the test of cross-examination which indeed helps to expose the truth and veracity of allegations. The whys and wherefores of cross examination lead to a pathway which may dismantle and impeach the accurateness and trustworthiness of the testimony given against the accused and also uncovers the contradictions and discrepancies. Not providing an ample opportunity of defence and depriving the accused from right of cross-examination of departmental representative who lead evidence and produced documents against the accused is also against Article 10A of the Constitution.

Deputy Director Food and 2 others v. Akhtar Ali, Food Grains Inspector 1997 SCMR 343; Secretary to Government of N.W.F.P, and 2 others v. Saifur Rehman 1997 SCMR 1073; Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others 2010 PLC (C.S.) 559 and Union of India and another v. Tulsiram Patel and others AIR 1985 SC 1416 ref.

If the inquiry officer or inquiry committee is appointed for conducting inquiry in the disciplinary proceedings, it is an onerous duty of such Inquiry Officer or Inquiry Committee to explore every avenue so that the inquiry may be conducted in a fair and impartial manner and should avoid razing and annihilating the principle of natural justice which may ensue in the miscarriage of justice.

Despite the handiness and accessibility of well guided procedure for conducting an inquiry under the Government Servants (Efficiency and Discipline) Rules, 1973 (E&D Rules), the inquiry officer in the present case did not adhere to it religiously and conducted the inquiry in a slipshod manner. Inquiry report did not depict that any witness was called for recording evidence in support of the allegations leveled against the accused. On the contrary, the inquiry report put on view that against each charge only the defence of the accused officer is mentioned along with the rebuttal of the departmental representative and thereafter the finding of the inquiry officer is recorded and finally, the accused was found guilty of inefficiency, misconduct and corruption on account of charges. Mere reproduction of charges with defence submitted in writing by the accused and then the rebuttal submitted by the departmental representative in the inquiry report was not sufficient to prove the accused's guilt as there was no evidentiary value except two statements on record and allegations vice versa (words against words) which could only be proved one way or the other. Had the evidence been recorded, both the statements would have been subjected to cross-examination accompanied by other oral and documentary evidence for sifting the grain from the chaff. Without exploring and finding guilt of accused into the charges of misconduct, neither the inquiry report can be construed as fair and impartial, nor did it commensurate to the procedure provided under the E&D Rules for conducting an inquiry into allegations of misconduct. Inquiry report showed that no opportunity was provided to the accused to conduct cross examination even on the departmental representative who allegedly rebutted the defence of the accused in writing before the inquiry officer and also produced evidence against the accused; at least he should have been subjected to cross examination by the accused, particularly when no other witness was called for recording evidence. In such circumstances, the Service Tribunal had rightly converted major penalty of dismissal from service into minor penalty of stoppage of one increment for a period of one year with reinstatement in service.

Supreme Court observed that the matter of a departmental inquiry should not be conducted in a cursory or perfunctory manner and in order to improvise the norms and standards of departmental inquiry under the Civil Servants Act, 1973 and E&D Rules or in other enabling Rules, it would be advantageous that a "Handbook" of inquiry procedure be compiled by the Federal Government with the excerpts of all relevant Rules including the rule of natural justice and due process of law enshrined under Article 10-A of the Constitution for the step-by-step help and assistance of inquiry officers or inquiry committees so that in future, they may be well conversant with the precise procedure before embarking on the task of an inquiry and conduct the inquiry proceedings without ambiguities. Appeal was dismissed.

(b) Administration of justice---

----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.

Sohail Ahmad v. Government of Pakistan through Secretary of Interior Ministry, Islamabad and others 2022 SCMR 1387 and Inspector General of Police, Quetta and another v. Fida Muhammad and others 2022 SCMR 1583 ref.

----Remand of a case to the lower fora---Scope---Such remand cannot be claimed as a vested right, but it is always the province of the Court or Tribunal to first figure out whether any material error or defect was committed by the Court in the order or judgment which really and adversely affected the corpus of the case and caused serious prejudice or injustice to the party requesting remand on some essential questions of law or fact which was ignored by the courts below while deciding the lis.

Irfan Mir Halepota, Advocate Supreme Court and Mrs. Abida Parveen Channar, Advocate-on-Record for Appellants.

Malik Naeem Iqbal, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

PLCCS 2023 SUPREME COURT 949 #

2023 P L C (C.S.) 949

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ABDUL REHMAN and others

Versus

SECRETARY, MINISTRY OF COMMUNICATION and others

Civil Petition No. 2944 of 2019, decided on 18th August, 2022.

(On appeal against the judgment dated 24.04.2019 passed by the Islamabad High Court, Islamabad in Writ Petition No. 3805 of 2012)

Civil service---

----Deputationist---Special allowance of one month's pay admissible to regular employees---Whether deputationists were also entitled to such special allowance---Held, that petitioners were not the regular employees of the National Highway and Motorways Police and they only served as deputationists on different posts at different intervals---Terms and conditions of service of officials transferred to National Highway and Motorway Police on deputation had been settled vide an office memorandum---At the time of their deputation, the petitioners were duly informed about the terms and conditions of service being deputationist but they never raised any objection at that time---Although in the said office memorandum, the officials on deputation had been held entitled to several allowances but it was nowhere mentioned that the special allowance of one month's pay would also be admissible to them---High Court had rightly observed that both categories of regular and deputationist employees were distinct and the petitioners did not enjoy the status of regular employees---Neither any legal right was available with the petitioners to claim the benefit of special allowance in question nor the question of infringement of any of their vested rights arose---Petition for leave to appeal was dismissed and leave was refused.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Nemo for the Respondents.

PLCCS 2023 SUPREME COURT 972 #

2023 P L C (C.S.) 972

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

ZAFARAN KHAN and others

Versus

NIZAM ULLAH and others

Civil Petition No. 718 of 2021, decided on 24th January, 2023.

(On appeal against the judgment dated 19.01.2021 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.P. No. 272-M and C.M. No. 368 of 2015).

(a) Constitution of Pakistan---

----Arts. 9, 18, 27, 38(c) & 185(3)---Government Posts not advertised---Appointees, removal of---Leave to appeal was granted to consider whether the appointees had been rightly deprived of the means, whereby they did live?

(b) Constitution of Pakistan---

----Arts. 9, 18, 27 & 38 (c)---Liberty to work---Government job---Failure to advertise---Effect---Every citizen who applies for a government job is entitled to it, unless government can establish some reasons for denying the employment---Such is the "liberty right"- liberty to work- which is very essence of Articles 9, 18, 27 & 38 (c) of the Constitution---Denial of a government job is a serious blow to a citizen---Any appointment made on a Government post without issuing advertisement inviting applications from legible candidates and without holding a proper selection, where all eligible candidates get a fair chance to compete, violates the guarantee enshrined under Articles 18 & 17 of the Constitution.

E. Allgeyer et al., Plffs. in Err. v. State of Louisiana and William Truax, SR., Wiley E. Jones, Attorney General of the State of Arizona (1897) 165 US 578; W. G. Gilmore, County Attorney of Cochise County, Arizona, Appts. v. Mike Raich 239 US 33; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Abdul Jabbar Memon and others In re: 1996 SCMR 1349; Obaidullah and another v. Habibullah and others PLD 1997 SC 835 and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 rel.

----R. 10---Government job---Procedural irregularity---Appointment without advertisement in newspaper---Emergency situation---Appellants were appointed after a selection process held without advertisement in newspaper---High Court in exercise of Constitutional jurisdiction set aside the appointments of appellants---Validity---Although vacancies were not advertised in newspaper yet information about the same was communicated to public at large by putting up advertisement at conspicuous places in the District---In response, several persons including appellants applied for recruitment and the department appointed appellants after completing codal formalities---Appellants did not obtain their appointments through back door nor they could be penalized for not publishing the advertisement in newspaper---Appellants had served for more than 10 years without any complaint and had lost all their chances to get fresh appointment elsewhere, as they had become overage---Removal of appellants would tantamount to hitting them hard, which would create massive problems for the society as each appellant was a bread earner for his family---High Court should not have exercised its discretionary power notwithstanding that there was a procedural impropriety in advertisement of vacancies---Supreme Court set aside the judgment passed by High Court---Appeal was allowed.

Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287 and Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others 2012 SCMR 673 ref.

Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1966 SCMR 413; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034; Dr. M. Sohail Karim Hashmi v. Federation of Pakistan through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2009 SCMR 1472; Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630; Chairman/Managing Director, Pakistan International Airlines Corporation and another v. Nisar Ahmed Bhutto 2005 SCMR 57; Muhammad Shoaib and 2 others v. Government of N.W.F.P. through The Collector, D.I. Khan and others 2005 SCMR 85; Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 and Board of Governors, Area Study Centre and another v. Ms. Farah Zahra 2006 SCMR 265 rel.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioners.

Mian Shafaqat Jan, Additional A.G., Dr. Muneeb-ur-Rehman, Dy. D.H.O., Lower Dir and Shahbaz Khan, Superintendent, Health for Respondents.

PLCCS 2023 SUPREME COURT 996 #

2023 P L C (C.S.) 996

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

PROVINCE OF SINDH through Chief Secretary and others

Versus

GHULAM SHABBIR and others

Civil Appeals Nos. 52-K to 71-K of 2022, decided on 30th December, 2022.

(Against the judgment dated 03.12.2021 passed by the Sindh Service Tribunal at Karachi in Appeals Nos. 508 to 526 of 2020 and Appeal No. 8 of 2021)

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

----R. 8-A---Promotion---Acting charge basis---Acting charge does not amount to an appointment by promotion on regular basis, nor does it confer any vested right for regular promotion to the post or grade held on acting charge basis.

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

----R. 8-A---Promotion on acting charge basis, regularization of---Effective date of promotion---Scope---Promotion of respondents was made on acting charge basis in the year 2017 but after three years the incumbents were promoted on regular basis, which demonstrated that there was no case of withdrawal, or dissatisfactory service, or complaint, or any recommendation of the Provincial Public Service Commission (PPSC) justifying the reversion from acting charge to the substantive post, rather the competent authority of its own volition and satisfaction regularized the promotion made on the basis of acting charge after three years on the recommendations of the Departmental Promotion Committee (DPC) which means that, after verifying the dossier with regard to the performance and antecedents of the respondent-employees, the recommendations for regularizing the promotions were acted upon by the competent authority---Despite this the matter was yet again sent to the DPC for effecting regularization for recommendations after a timespan of three years which did not stand to reason---Respondents merely approached the Tribunal for directions to consider the regularization of their acting charge promotion from the date when they were initially assigned the duties in BS-17 on acting charge basis rather than regularizing their promotion after three years with immediate effect, or else they should have been considered for the regularization of their acting charge promotion from the date when the posts had fallen vacant---Sub-rule 4 of Rule 8-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 ("the 1974 APT Rules"), provides that acting charge appointment can be made against posts which are likely to fall vacant for a period of six months or more and against vacancies occurring for less than six months, but in the case of the present respondents the acting charge continued for up to three years without any logical justification or reason and at the end of the day their promotion was regularized without any demur but with immediate effect---Command of Sub-rule 4 of Rule 8-A of the 1974 APT Rules was not adhered to despite the availability of vacant positions on which the promotion was regularized after a considerable period---Tribunal had not issued any directions for reckoning or regularizing the date of promotion on acting charge basis with effect from any specific date but in all fairness, the directions were issued to the competent authority to consider the promotion with effect from the dates when vacancies in their quota became available---No illegality was found in the impugned judgment of the Tribunal---Appeals were dismissed.

----R. 8-A--- Promotion / appointment on acting charge basis---Duration---To stretch or continue acting charge or ad hoc arrangement on own pay scale (OPS) for an extensive period rather than making timely appointments or filling the post by promotion according to the ratio or quota, as the case may be, creates misgivings and suspicions and such a tendency is highly destructive and deteriorative to the civil service structure---Where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely and every effort should be made to fill posts through regular appointments in shortest possible time.

Secretary to Government of the Punjab, Communication and Works Department, Lahore and others v. Muhammad Khalid Usmani and others 2016 SCMR 2125; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Abdul Jabbar Memon and others' case 1996 SCMR 1349 and Pakistan Railways through G.M., Lahore and another v. Zafarullah, Assistant Electrical Engineer and others 1997 SCMR 1730 ref.

(d) Civil service---

----Selection process--- Merit--- Nepotism and favoritism---Adverse consequences---Wrongful selection of blue eyed candidates founded on nepotism, favoritism or other extraneous considerations or pressures lead to chaos and turmoil in the civil service structure and also incites unrest and discontent amongst the civil servants with long-term and serious repercussions---Merit should be the sole criteria in the selection process which is an integral part of good governance.

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

----R. 8-A---Promotion on acting charge basis, regularization of---Effective date of promotion---Scope---Promotion cases of the candidates holding acting charge under the recommendations of the Departmental Promotion Committee (DPC) may be considered by the competent authority, with their fine sense of judgment and proper application of mind from the date when the posts in the promotion quota fall vacant.

Dr. Muhammad Amjad and another v. Dr. Israr Ahmed and others 2010 SCMR 1466; Water and Power Development Authority through Chairman, Lahore and another v. Muhammad Nawaz Khan and another 1998 SCMR 640; Government of N.-W.F.P. and others v. Buner Khan and others 1985 SCMR 1158; S. Abu Saeed v. Government of N.-W.F.P. through Secretary to the Government of N.-W.F.P, Education Department, Peshawar and another 1990 SCMR 1623; B.S. Yadav v. State of Haryana, [1981] 1 SCR 1024; A. Janardhana v. Union of India [1983] 2 SCR 636; G.P. Doval v. Chief Secretary, Government of U.P. [1984] 4 SCC 329; Narender Chadda v. Union of India [1985] 2 SCC 157; A.N. Pathak v. Secretary to the Government [1987] Suppl. SCC 763; Keshav Chandra Joshi v. Union of India [1992] Suppl. 1 SCC 272; Rajbir Singh v. Union of India AIR (1991) SC 518; A.N. Sehgal v. Raje Ram Sheoran [1992] Suppl. 1 SCC 304; S.L Chopra v. State of Haryana [1992] Suppl. (1) SCC 391 and Baleshwar Das v. State of U.P. [1981] 1 SCR 449 ref.

Suresh Kumar, Additional A.G. Sindh and Bhouro Mal, Law Officer (SGA&CD) for Appellants.

M. Aqil Awan, Senior Advocate Supreme Court along with Danish Rashid, Associate for Respondents (in C.As. Nos. 52-K to 64-K of 2022).

Sohaib Shaheen, Advocate Supreme Court for Respondents (in C.As. Nos.53-K to 63-K and 65-K to 71-K of 2022).

Faraz Ahmed Siddiqui, Ghulam Shabbir, Najeebullah Qureshi and Babar Nizamani for Respondents (Respondents in person).

PLCCS 2023 SUPREME COURT 1019 #

2023 P L C (C.S.) 1019

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

PRESIDENT, NATIONAL BANK OF PAKISTAN and others

Versus

WAQAS AHMED KHAN

Civil Appeal No. 441 of 2021, decided on 16th January, 2023.

(Against the judgment dated 22.09.2020 passed by the Peshawar High Court, Abbottabad Bench in Writ Petition No. 830-A of 2019)

(a) Civil service---

----Appointment---Bank employee---Practice or policy of appointing authority---Legitimate expectation, doctrine of---Scope---Doctrine of legitimate expectation connotes 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---Legitimate expectation ascends in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of government of a public authority---When such a legitimate expectation is obliterated, it affords locus standi to challenge the administrative action before the court of law---However, it is for the Court to decide as to whether the expectation is legitimate or not---Said doctrine is applied as a tool to watch over the action of administrative authorities and in essence imposes on all authorities to act fair and square in all matters encompassing legitimate expectation.

Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi 2022 SCMR 1861 ref.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199--- Judicial review--- Scope--- Administrative/ executive actions---Constitutional courts being guardians of the Constitution have the power to judicially review the administrative/ executive actions and the conduct of the public authorities but the same shall be on the touchstone of fairness, reasonableness and proportionality.

----Appointment---Son-quota---Concealment of involvement in criminal case---Although the respondent was involved in a criminal case of murder of his wife and was acquitted subsequently pursuant to proceedings carried out under section 265-K, Cr.P.C., but it is settled law that even if the allegations levelled in the FIR are admitted to be false, even then without recording of evidence, it cannot be said that there was no probability of conviction of the accused---In order to ascertain the genuineness of the allegations, the Trial Court ought to have allowed the prosecution to lead evidence---Respondent was offered the job of cashier in the Bank but when the Bank came to know that he has a criminal background, the Bank did not allow him to join the duty---Post of cashier is considered to be very important in a Bank, as it is the cashier who collects and disburses cash---While not allowing the respondent to join the duty, the Bank was well within its domain and acted naturally---High Court ought to have taken into consideration the such fact but it failed to do so---Appeal was allowed, and the impugned judgment of the High Court directing the Bank to allow the respondent to join his duty in pursuance of his appointment order was set-aside. Rai Mohammad Nawaz Kharal, Advocate Supreme Court and Rafaqat Hussain Shah, Advocate-on-Record for Appellants.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 1030 #

2023 P L C (C.S.) 1030

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

ZAKIR MEHMOOD

Versus

SECRETARY, MINISTRY OF DEFENCE (D.P), PAKISTAN SECRETARIAT, RAWALPINDI and others

C.P. No. 2712 of 2020, decided on 12th April, 2023.

(Against the order of Federal Service Tribunal, Islamabad, dated 28.07.2020, passed in M.P. No.464/2020 in Appeal No.1872(R)CS of 2005)

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

----S. 5(2)---Appeals filed before the Service Tribunal---Principles governing first appeals under the C.P.C. apply to appeals before the Tribunal, and the powers of the first appellate court under the C.P.C. are available to it.

Ali Muhammad v. Commissioner Afghan Refugees 1995 SCMR 1675 and Shakeel Ahmed v. E.M.E., Rawalpindi 1998 SCMR 1970 ref.

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

----S. 5(2)---Civil Procedure Code (V of 1908), Ss. 35, 151 & O. XLI, R. 35(3)---Appeal filed before the Federal Service Tribunal ("Tribunal")---'Actual costs' and 'special costs'---Tribunal can impose actual costs and special costs while deciding the service appeal of a civil servant---First appellate court can award the actual costs incurred in appeal as per provisions of Rule 35(3) of Order XLI, C.P.C. and can also impose special costs in the exercise of its inherent powers under section 151, C.P.C. if the facts and circumstances of the case necessitate the making of such an order to secure the ends of justice or to prevent the abuse of the process of the court---Both these powers are also available to the Service Tribunal while deciding an appeal under the Service Tribunals Act, 1973.

----S. 5(2)---Civil Procedure Code (V of 1908), Ss. 12(2), 35, 35A, 141, 151 & O. XLI, R. 35(3)---Application under section 12(2), C.P.C. filed before the Federal Service Tribunal ("Tribunal")---'Actual costs' and 'compensatory costs'---First appellate court can award not only the actual costs incurred on an application under section 12(2), C.P.C. by virtue of section 35 read with section 141, C.P.C. but also compensatory costs under section 35A, C.P.C. or special costs under section 151, C.P.C.---Tribunal can also exercise these powers in awarding costs while deciding an application under section 12(2), C.P.C. or any other application.

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

----S. 5(2)---Civil Procedure Code (V of 1908), Ss. 12(2), 35B, 141, 151 & O. XLI, R. 35(3)---Costs of Litigation Act (XVII of 2017), Preamble---Appeal/application filed before the Federal Service Tribunal---'Special costs'---No upper limit---While deciding an appeal under the Service Tribunals Act, 1973 or an application under section 12(2) of the C.P.C., the Federal Service Tribunal ("Tribunal") has the powers to impose special costs, without any upper limit of amount, on a party to that appeal or application as the case may be, keeping in view the peculiar facts and circumstances of a particular case---Determining the appropriate amount of special costs has been left to the discretion of the court concerned---Tribunal is to exercise this discretion, like all other discretions, on the principles of fairness, equity and justice, not arbitrarily or perversely, while keeping in view the peculiar facts and circumstances of a particular case.

(e) Practice and procedure---

----Costs---Frivolous and vexatious cases---Unscrupulous litigants---Purpose and benefits of imposing costs on litigants stated.

Courts and tribunals should regularly exercise their powers to impose reasonable costs to curb the practice of instituting frivolous and vexatious cases by unscrupulous litigants, which has unduly burdened their dockets with a heavy pendency of cases, thereby clogging the whole justice system. The possibility of being made liable to pay costs is a sufficient deterrence to make a litigant think twice before putting forth a false or vexatious claim or defence before court. The imposition of these costs plays a crucial role in promoting fairness, deterring frivolous lawsuits, encouraging settlement, and fostering efficient use of resources: (i) promoting fairness: imposing costs in litigation helps to create a level playing field for both plaintiffs and defendants. By requiring both parties to bear the financial burden of litigation, the system encourages parties to consider the merits of their case before initiating legal action. This helps to ensure that only those with legitimate grievances pursue legal recourse, reducing the possibility of abuse; (ii) deterring frivolous lawsuits: imposing costs can discourage parties from filing baseless or frivolous claims, as the risk of incurring significant financial losses may outweigh any potential gains. This helps to protect defendants from having to defend themselves against meritless claims, reducing strain on the court system and preserving judicial resources; (iii) encouraging settlement: when parties are aware of the potential costs associated with litigation, they may be more inclined to engage in settlement negotiations or alternative dispute resolution methods. This can result in more efficient resolution of disputes, lower costs for all involved, and a reduced burden on the court system; (iv) fostering efficient use of resources: imposing costs in litigation incentivizes parties to focus on the most relevant and important aspects of their case, as both parties will want to minimize their expenses. This can lead to more efficient use of legal resources, including court time and the expertise of legal professionals, and may result in more focused and streamlined proceedings. The practice of imposing costs would thus cleanse the court dockets of frivolous and vexatious litigation, encourage expeditious dispensation of justice, and promote a smart legal system that enhances access to justice by taking up and deciding genuine cases in the shortest possible timeframe.

Qazi Naveed ul Islam v. District Judge PLD 2023 SC 298 ref.

Aftab Alam Yasir, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 1049 #

2023 P L C (C.S.) 1049

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Shahid Waheed, JJ

MUBARIK ALI BABAR

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary and others

Civil Petition No. 2045 of 2019, decided on 18th November, 2022.

(Against the judgment of Lahore High Court, Lahore dated 08.03.2019, passed in W.P. No. 20429 of 2016)

(a) Constitution of Pakistan---

----Arts. 9, 14, 18, 20, 22, 26, 27, 36, 37(a), 38(b), 38(d) & Preamble---Constitutional protections for minorities and persons with disabilities (PWDs) stated.

The Preamble of the Constitution provides that it is the "will of the people" of Pakistan to establish an "Order". The term "will of the people of Pakistan" is an inclusive term signifying all citizens irrespective of religion, caste, creed, race, sex, place of birth or personal abilities. Therefore, such a "will" is incomplete without including the will of the minorities and persons with disabilities ("PWDs").

The word "minorities" signifies merely a statistical number, representing a class of people in the country who are Non-Muslims and in no manner does it imply that they are lesser citizens or in any manner less entitled to the fundamental rights under the Constitution.

The minimum right to dignity of the minorities and PWDs is that they ought to be considered equally with the rest of the majority of Muslims and the majority of persons with fuller abilities. Under the Constitution there is no distinction and therefore, the fundamental rights are fully available to the minorities and PWDs in the country as they are available to all other citizens of Pakistan.

The Constitution uplifts PWDs, gives them additional protection so that every effort (reasonable accommodation) is made to bring differently-abled persons at par with fully-abled persons. Similarly, it mandates that minorities are equal citizens of Pakistan and must be protected from all kinds and forms of discrimination. The Constitution, therefore, not only caters to minorities and PWDs as equal citizens of Pakistan, having equal rights and safeguards, it also provides extra protection to them.

People with disabilities are segregated from community life and face discrimination due to pervasive attitudinal and systemic barriers that the law, policy and practice frameworks have failed to remove, such as inaccessible or unequal facilities of housing, transport and education, segregated settings, barriers in accessing justice and legal systems, and employment and health discrimination. The effects of such discrimination are further expounded when intersecting with sexism, ageism, racism and other forms of inequality.

Disabled People's Organization Australia, Segregation of People with Disability is Discrimination and Must End, Position Paper (September, 2020). https://dpoa.org.au/wp-content/uploads/2020/11/ Segregation-of-People-with Disability_Position-Paper.pdf ref.

Lower rates of employment are persistently observed for PWDs. Lower education levels coupled with discrimination, stigma, negative attitudes, inaccessible transport and workplaces, and limited availability of accommodations for PWDs, play a significant role in limiting job opportunities. Due to these reasons, PWDs are pushed backwards and depressed at the hands of an unfriendly and unaccommodating ecosystem, making them fall under the rubric of the backward and depressed classes, as recognized by the Constitution. Under the Constitution, it is the obligation of the State to attend to the legitimate interests of these classes. Legitimate interests are all those interests which can help PWDs actualize their fundamental rights under the Constitution and enable them to become effective members of the society.

UN Department of Economic and Social Affairs, Disability and Development Report - Realizing the Sustainable Development Goals by, for and with persons with disabilities (2018). https://social.un.org/ publications/UN-Flagship-Report-Disability-Final.pdf; Indra Sawhney v. Union of India, AIR 1993 SC 477 and Muhammad Yousaf v. Chairman, FPSC PLD 2017 Lah. 406 ref.

In order to safeguard the rights of the minorities and PWDs and to provide equality of status and opportunities, the State has to endeavor to bridge the gap and ensure that the differently-abled persons and the Non-Muslim minority in our country get to enjoy their fundamental rights under the Constitution with the same fervour and force as enjoyed by the Muslim majority and majority of persons with fuller abilities.

(b) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S. 10---Constitution of Pakistan, Arts. 14 & 36---Persons With Disabilities (PWDs)---Minorities---Seats reserved for PWDs and minorities in the Combined Competitive Examination conducted by the Punjab Public Service Commission---Constitutional right of PWDs and minorities---Other than the general seats, the additional provision of quota for the PWDs and the minorities reaffirms the constitutional commitment---In case the seats reserved for PWDs and the Non-Muslim minority are not filled by PWDs and the non-Muslim minority in a particular year, it was not permissible to open and make the said seats available to general quota as it would offend constitutional values, fundamental rights and the Principles of Policy---Seats earmarked for minorities or PWDs must be retained and carried forward; this quota is their constitutional right and cannot be reversed or made available to other citizens---Petition for leave to appeal was dismissed and leave was refused with the direction to respective governments that they shall ensure that the employment quota of the minorities is maintained at all levels and to strictly avoid discriminatory and demeaning advertisements (for posts) flouting the dignity and self-respect of the minorities.

----S. 10---Constitution of Pakistan, Art. 14---Persons With Disabilities (PWDs)---Combined Competitive Examination conducted by the Punjab Public Service Commission (PPSC)---Use of the word 'disabled' in advertisements for posts---Supreme Court directed that the word "disabled" has already been put to disuse in the judgment reported as Malik Ubaidullah v. Government of Punjab and others (PLD 2020 SC 599) and, therefore, the PPSC shall ensure that the word "disabled" is not used and instead persons with disabilities or persons with different abilities is put to use---Supreme Court observed that it was hopeful that in the future these terms will be incorporated in the official correspondence as well as relevant notifications, including public advertisements, issued by the Government.

PLD 2020 SC 599 ref.

Petitioner in person.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 1077 #

2023 P L C (C.S.) 1077

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and another

Versus

MISRI LADHANI and others

Civil Appeals Nos. 21 and 22 of 2022, decided on 2nd June, 2022.

(Against the judgment dated 24.09.2021 passed by the High Court of Sindh at Karachi, in C.P. No.D-3228 of 2020)

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

----R. 7---Promotion---Recommendation of Central Selection Board and Departmental Promotion Committee---According to Rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the competent authority may approve the promotion of an officer or official from the date on which the recommendation of Central Selection Board (CSB) or as the case may be, the Departmental Promotion Committee (DPC) was made but nowhere is it said that the competent authority is by all means bound to accept the recommendations and has no power or jurisdiction to remand or reject the recommendations of CSB or DPC.

Serial No.182 of ESTACODE (Edition 2000) and Serial No.192 of ESTACODE (Edition 2007), Volume I ref.

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

----R. 7---Promotion---Pro forma promotion---No vested right---It is the dominance and ascendancy of competent authority to prescribe benchmarks for awarding promotions in the higher grades or positions---Governing command of competent authority to revise the promotion policy evenhandedly and objectively in order to set the guidelines or benchmarks for promotion to the higher grade or position or exercising the power to remand the matter for reconsideration to Central Selection Board (CSB) and submit fresh recommendations cannot be demurred or opposed by a civil servant to assert the claim of pro forma promotion---Nobody has a vested right to promotion but is entitled to be considered evenhandedly and fairly for promotion in accordance with the rule and the terms and conditions of service conferring right of actual promotion or a right to be considered for promotion.

Muhammad Azam v. Muhammad Tufail and others 2011 SCMR 1871; Government of Punjab v. Muhammad Awais Shahid 1991 SCMR 696; Muhammad Iqbal v. Saeeda Bano 1991 SCMR 1559; Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 817; Union of India and others v. Sangram Keshari Nayak (2007) 6 SCC 704 and Hardev Singh v. Union of India and another, (2011) 10 SCC 121 ref.

Sohail Mehmood, Additional Attorney General and Sajid ul Hassan, S.O., Establishment for Appellants (in C.A. No.21 of 2022).

Shakeel ur Reman, Advocate Supreme Court (video link from Karachi) for Appellants (in C.A. No.22 of 2022)

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.A. No.22 of 2022).

Respondent in person.

PLCCS 2023 SUPREME COURT 1119 #

2023 P L C (C.S.) 1119

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, D.G. KHAN

Versus

NADEEM RAZA

Civil Petition No. 3855 of 2022, decided on 17th January, 2023.

(Against the judgment of Federal Service Tribunal, Islamabad dated 30.8.2022, passed in Appeal No.384(R)CS of 2022)

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

----S. 5---Constitution of Pakistan, Art. 212(3)---Factual questions---Service Tribunal, jurisdiction of---Scope---Tribunal is the final forum for the purpose of determination of facts and the Supreme Court cannot go into the reappraisal of the said facts.

Secretary Revenue Division v. Iftikhar Ahmed Tabbasam PLD 2019 SC 563 ref.

(b) Civil service---

----Misappropriation--- Removal from service--- Duration of misappropriation and amount misappropriated nor relevant---Embezzlement or misappropriation constitutes misconduct and the duration of such embezzlement or misappropriation has little relevance---In the present case, the respondent admittedly misappropriated a sum of Rs. 1,24,305/- on account of electricity bills he collected from consumers before depositing the same in the Government exchequer after almost 23 days without any remorse---Tribunal approved the inquiry report which contains conceding statements on behalf of the respondent admitting that he had retained the said amount as he needed it because he was constructing a house, and therefore, did not deposit the same on time---Duration of this misappropriation, or the amount involved, is irrelevant as the act itself is sufficient to constitute misconduct---Tribunal has not given any reasons or explanation to examine the penalty imposed by the department on the touchstone of proportionality and with a stroke of a pen reduced the said penalty from "Removal from Service" to "reduction to three stages lower in pay scale for two years"---Such casual interference by the Tribunal in the penalty imposed by the department cannot be sustained---Even otherwise, in the facts and circumstances of the case, the penalty imposed by the department does not offend the law or the test of proportionality---Petition for leave to appeal was converted into an appeal and allowed, impugned judgment of the Tribunal was set-aside and order passed by the department awarding major penalty of "Removal from Service" was restored.

Divisional Superintendent, Postal Services v. Muhammad Arif Butt 2021 SCMR 1033 and Divisional Superintendent v. Siddique Ahmed 2021 SCMR 1398 ref.

----S. 5---Service Tribunal, powers of---Scope---Under Section 5 of the Service Tribunals Act, 1973 ("Act") the Tribunal is empowered to confirm, set aside, vary or modify the order appealed before it, however, such powers are to be exercised carefully, judiciously and after recording reasons for the same--- Tribunal has no jurisdiction to grant arbitrary relief to any person as the powers of the Tribunal under section 5 of the Act are neither unqualified and nor unlimited.

Chief Postmaster Faisalabad v. Muhammad Afzal 2020 SCMR 1029; Divisional Superintendent v. Muhammad Zafarullah, 2021 SCMR 400; Divisional Superintendent v. Muhammad Arif Butt 2021 SCMR 1033; Chairman Dr. A.Q. Khan, Research Laboratories v. Malik Muhammad 2010 SCMR 302 and Central Board of Revenue v. Shafiq Muhammad 2008 SCMR 1666 ref.

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

----S. 5---Service Tribunal, powers of---Limited power of the Service Tribunal to reduce penalty imposed by the department on a civil servant---Scope---Test of proportionality for interfering in quantum of penalty/punishment---Scope---Only in exceptional circumstances, i.e. where it is against the law or is unreasonable or fails the test of proportionality, that the Tribunal can interfere in the penalty imposed by the department and that too supported by detailed reasons---Where the Tribunal or the Court interferes in the quantum or nature of the penalty imposed by the competent authority by terming the same as unreasonable, perverse or harsh, or by exercising leniency, such interference is, in effect, only made when the Tribunal or the Court concludes that the penalty is disproportionate to the misconduct proved by employing the test of proportionality---Only where the penalty imposed by the department is so shockingly disproportionate to the misconduct or inefficiency proved that to let it stand would be unfair, unjust and inequitable, that the same would justify interference based on the test of proportionality.

Imposition of punishment under the law is primarily the function and prerogative of the competent authority and the role of the Tribunal or the Court is secondary unless it is found to be against the law or is unreasonable. This is because the department/competent authority, being the fact finding authority, is best suited to decide the particular penalty to be imposed keeping in view a host of factors such as the nature and gravity of the misconduct, past conduct, the nature and the responsibility of the duty assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in the department, as well as any extenuating circumstances. The question of interference with relation to the quantum or the nature of the penalty imposed by the department only arises when the Tribunal or the Court, in consonance with the decision of the competent authority, has also found the delinquent guilty of the same or some form misconduct or inefficiency. It is, therefore, only in the above exceptional circumstances, i.e. where it is against the law or is unreasonable, that the Tribunal or the Court can interfere in the penalty imposed by the department. The imposition of the penalty being against the law would entail that it cannot be held as legally sustainable, such as, when misconduct or inefficiency for which the penalty has been imposed has not been proved and a lesser form of misconduct or inefficiency, in the opinion of the Tribunal or the Court, is proved, or the procedure provided under the law for imposing the penalty has not been followed or the penalty imposed has not been provided for in the law or rules applicable, and therefore, the imposition of the penalty itself is not sustainable under the law, thereby, justifying interference. However, where the Tribunal or the Court comes to the conclusion that the misconduct or inefficiency, for which the penalty has been imposed by the department, has been proved, the procedure under the law has been followed and the penalty imposed is provided for under the law amongst other penalties for the like misconduct or inefficiency, interference in the discretion exercised by the department in imposing a certain penalty would only be possible if the penalty imposed is considered to be starkly unreasonable.

Government of Khyber Pakhtunkhwa v. Nargis Jamal 2022 SCMR 2114; Postmaster General Sindh Province v. Syed Farhan 2022 SCMR 1154; Secretary, Government of Punjab v. Khalid Hussain 2013 SCMR 817; Deputy Commissioner v. J. Hussain (2013) 10 SCC 106; B.C. Chaturvedi v. Union of India (1995) 6 SCC 749; Noor Muhammad v. Registrar, Lahore High Court 2008 PLC (C.S.) 1188; Muhammad Ali v. FOP 2008 PLC (C.S.) 428; Senior Superintendent v. Shahid Nazir 2022 SCMR 327; Muhammad Idris Khan v. Secretary/Chairman, Ministry of Railways 2007 PLC (C.S.) 247 and Member (ACE & ST), FBR v. Muhammad Ashraf 2008 PLC (C.S.) 1161 ref.

Where the Tribunal or the Court interferes in the quantum or nature of the penalty imposed by the competent authority by terming the same as unreasonable, perverse or harsh, or by exercising leniency, such interference is, in effect, only made when the Tribunal or the Court concludes that the penalty is disproportionate to the misconduct proved by employing the test of proportionality. However, the application threshold of the proportionality test remains high and interference in the penalty imposed by the department cannot be based on mere conjectures or surmises. Interference with the penalty imposed by the department has to be exercised cautiously and with circumspection where the order imposing the penalty is wholly perverse or ex facie so demonstrably disproportionate and excessive for the misconduct, that to let it stand would be unfair, unjust and inequitable. Merely observing that the penalty imposed is not commensurate with the offence is not enough and constitutes arbitrary capricious and unstructured exercise of jurisdiction on part of the Tribunal. The order must show that the Tribunal has applied its mind to the facts and circumstances of the case and exercised its discretion in a structured, lawful and regulated manner, duly supported by legally sustainable reasoning. Therefore, it is only where the penalty imposed by the department is so shockingly disproportionate to the misconduct or inefficiency proved that to let it stand would be unfair, unjust and inequitable, that the same would justify interference based on the test of proportionality.

Akhtar Ali v. Director, Federal Government 2011 PLC (C.S.) 808; Shibli Farooqui v. FOP 2009 SCMR 281; Muhammad Ali v. Federation of Pakistan 2008 SCMR 214; Muhammad Ali v. FOP 2008 SCMR 214; Commissioner Faisalabad Division v. Allah Bakhsh 2020 SCMR 1418; Government of Khyber Pakhtunkhwa v. Nargis Jamal 2022 SCMR 2114; Chairman v. Goparaju (2008) 5 SCC 569; B.C. Chaturvedi v. Union of India (1995) 6 SCC 749; Pravin Kumar v. Union of India, (2020) 9 SCC 471; Director General Federal Directorate v. Tanveer Muhammad 2021 SCMR 345; Deputy Postmaster General v. Habib Ahmed 2021 PLC (C.S.) 531 and Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656 ref.

(e) Civil service---

----Penalty, quantum of---Test of proportionality---Reasonableness for the purposes of assessing the quantum or nature of a penalty imposed by the department is to be gauged by applying the test of proportionality---Penalty imposed must be commensurate with the misconduct or inefficiency that has been proved.

Sabir Iqbal v. Cantonment Board PLD 2019 SC 189; Postmaster General Sindh Province v. Syed Farhan 2022 SCMR 1154; Government of Punjab v. Muhammad Arshad 2021 PLC (C.S.) 47 and Inspector-General (Prisons) v. Syed Jaffar Shah 2009 PLC (C.S.) 47 ref.

(f) Civil service---

----Misappropriation or embezzlement of public funds---Moral turpitude---Scope---Misappropriation or embezzlement of public funds while in Government service would be considered as gross misconduct involving moral turpitude.

Imtiaz Ahmed Lali v. Returning Officer 2008 PLC (C.S.) 934 and Ghulam Hussain v. Chairman, P.O.F. Board 2002 SCMR 1691 ref.

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

----S. 5---Service Tribunal, powers of---Moral turpitude---Punishment, quantum of---Test of proportionality for interfering in quantum of penalty/punishment imposed by department/competent authority---Scope---Notion of proportionality requires that the punishment ought to reflect the degree of moral culpability associated with the offence for which it is imposed---In order to render punishment compatible with justice, it is not enough to restrict punishment to the deserving, but also to restrict the degree of punishment to the degree that is deserved---Degree of wrongfulness is described variously as the "moral culpability", "gravity" or "depravity" associated with the offence---Therefore, along with the gravity of the misconduct, interference on the grounds of proportionality in the penalty imposed for misconduct is also assessed in view of the depravity or moral culpability associated with the same---Test of proportionality is, therefore, more stringent in cases of misconduct involving moral turpitude in view of the depravity or moral culpability involved.

Burgh, Richard W. Do the guilty deserve punishment? Journal of Philosophy 79 (4):193-210 (1982) and Ian P. Farrell, Gilbert and Sullivan and Scalia: Philosophy, Proportionality, and the Eighth Amendment, 55 Vill. L. Rev. 321 (2010). https://digitalcommons.law.villanova.edu/vlr/vol55/iss2/2 ref.

Hassan Nawaz Makhdoom, Additional A.G.P. and Ali, Assistant Superintendent for Petitioner.

M. Ramzan Khan, Advocate Supreme Court for Respondent No. 1.

Assisted by: Muhammad Hassan Ali, Law Clerk.

PLCCS 2023 SUPREME COURT 1148 #

2023 P L C (C.S.) 1148

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

CONTROLLER GENERAL OF ACCOUNTS, GOVERNMENT OF PAKISTAN, ISLAMABAD and others

Versus

ABDUL WAHEED and others

Civil Petitions Nos. 1775 to 1778 and 1793 of 2022, decided on 28th September, 2022.

(Against the judgment dated 07.03.2022 passed by the Federal Service Tribunal, Lahore in Appeals Nos. 180(L) to 183(L) and 179(L) of 2021)

Civil service---

----Promotion---Amendment in promotion Rules---Amended Rules not to be applied retrospectively unless specifically mentioned---Where a statute affects a substantive right, it operates prospectively unless, by express enactment or necessary intendment, retrospective operation has been given---Like original statutes, amending statutes shall not be given retroactive construction, unless the language clearly makes such construction necessary---Insertion or deletion of any provision in the rules or the law, if merely procedural in nature would apply retrospectively, but not if it affects substantial rights which already stood accrued at the time when the un-amended rule or provision was in vogue.

Zakaria H.A. Sattar Bilwani and another v. Inspecting Additional Commissioner of Wealth Tax, Range-II, Karachi 2003 SCMR 271; Government of KPK and others v. Khalid Mehmood 2012 SCMR 619; Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864; Bennion on Statutory Interpretation (Seventh Edition), page 181; Crawford's Statutory Construction, Chapter XXV at pages 562 to 566 and 622 and People v. Dilliard (298 N.Y.S. 296, 302, 252 Ap. Div. 125 ref.

Ch. Aamir Rehman, Additional A.G.P. and Anis M. Shahzad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 1162 #

2023 P L C (C.S.) 1162

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Shahid Waheed, JJ

WAQAS ASLAM and others

Versus

LAHORE ELECTRIC SUPPLY COMPANY LIMITED and others

Civil Petition No. 4806 of 2019, decided on 7th December, 2022.

(Against the judgment of the Lahore High Court, dated 21.11.2019, passed in I.C.A. No.1412 of 2016)

Civil service---

----Appointment---Eligibility criteria---Judicial review by Courts---Overqualified candidates---Autonomy, agency and free choice of the employing institution must be respected and be allowed to recruit according to the criteria advertised and anyone overqualified for the said post, if not entertained by the employing institution, the same being an institutional policy, the Court must refrain from interfering in the internal governance of institutions.

While prescribing qualifications for a post and determining eligibility criteria, the employing institution is best suited to assess its needs based on the function and nature of the post; the aptitude or suitability to fulfill such requirements and the qualification required for the post. Where one of the policy decisions of the recruiting company is that a candidate must possess a specific qualification and anyone overqualified will not be inducted, this being an internal policy decision of the company, judicial review must tread warily and must not be extended to expand the ambit of the prescribed eligibility criteria.

Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404; Asaf Fasihuddin v. Government of Pakistan 2014 SCMR 676 and Abdul Hameed v. WAPDA 2021 SCMR 1230 ref.

In the absence of any such stipulation in the advertisement or the recruitment policy of the employing company, it is not possible for the Court to draw an inference that a higher qualification presupposes the acquisition of a lower qualification or that a candidate having a higher qualification is better suited for the post as opposed to a candidate possessing the requisite qualification that has been expressly prescribed in the advertisement according to the nature of the post and the requirement of the employer. It is not for the Court to examine the qualification and eligibility in a recruitment process. The Court, at best, can look into the legality of the recruitment process but cannot delve deeper into the design and need of the employing institution or second guess their selection criteria and job requirement. It is also not open to the Courts to embark upon comparing various degrees held by the applicants/candidates with the advertised qualifications and carry out the function of an employer by carrying out the comparison of the said qualifications. The power of judicial review by the Courts cannot be extended to determine equivalence or comparison of academic qualifications for a post or assume the role of a human resource department of an employing institution. It is a specific expert area and can be best resolved by the institution itself according to the suitability and requirements of a certain post as designed and desired by the employer. It is an area for which the Courts are not best suited.

Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404 and P.M. Latha v. State of Kerala (2003) 3 SCC 541 ref.

Furthermore, inducting candidates possessing a higher qualification than the advertised criteria would also have a social impact as it would deprive people with lesser education of employment opportunities and encourage people with higher qualification. It will cause injustice to those applicants who possessed a lower prescribed qualification in the advertisement, because applicants with a higher qualification would seek automatic preference based on their qualification even when such qualification is not prescribed in the advertisement. It will also disrupt the working of the institution by having overqualified people and affect their hierarchy in the organization. The Court must take into account socio-economic perspectives in order to ensure that employment opportunities are created for at all tiers of the society.

Sakhawat Ali v. Deputy Commissioner/Chairman Recruitment Committee, Narowal, 1998 PLC (C.S.) 19 and Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404 ref.

The autonomy, agency and free choice of the employing institution must be respected and be allowed to recruit according to the criteria advertised and anyone overqualified for the said post, if not entertained by the employing institution, the same being an institutional policy, the Court must refrain from interfering in the internal governance of institutions.

Afnan Karim Kundi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Munawar-us-Salam, Advocate Supreme Court and M. Sohaib Rashid, Advocate Supreme Court assisted by Muhammad Hassan Ali, Law Clerk for Respondents.

PLCCS 2023 SUPREME COURT 1180 #

2023 P L C (C.S.) 1180

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Ayesha A. Malik, JJ

MUHAMMAD YASIN and another

Versus

The DIRECTOR GENERAL, PAKISTAN POST OFFICE, ISLAMABAD and another

Civil Petitions Nos. 688 and 689 of 2020, decided on 9th January, 2023.

(Against the judgment of the Federal Service Tribunal, Islamabad dated 10.01.2020, passed in Appeals Nos. 2061 and 2062 (R)CS of 2019)

Constitution of Pakistan---

----Arts. 4, 5 & 25---Civil service---Right to equality---Scope---Appointment---Eligibility criteria---Any unlawful act cannot be made a standard for enforcing the right to equality guaranteed by the Constitution---Any person aspiring for the appointment to a post has to pass the eligibility criteria prescribed in the relevant law for that post and cannot be absolved from fulfilling those criteria on the ground that some other person who was allowed to compete for or appointed to such post also did not meet the prescribed criteria.

Article 25 of the Constitution guarantees the equal protection of law, not the equal protection of lawlessness, by declaring that all citizens are equal before law and are entitled to equal protection of law. An unlawful act, therefore, cannot be made a standard for enforcing the right to equality guaranteed by the Constitution. One illegality cannot be allowed to be compounded by applying the right to equality. The extension of the right to equality to the acts done in violation of law would amount to perpetuating previous unlawful acts and motivating the commission of further illegalities. Article 25 of the Constitution has no application to a claim based upon other unlawful acts and illegalities. It comes into operation when some persons are granted a benefit in accordance with law but others, similarly placed and in similar circumstances, are denied that benefit. Such other persons cannot be discriminated against to deny the same benefit, in view of their right to equality before law and equal protection of law guaranteed by Article 25 of the Constitution. But where a person gains, or is granted, a benefit illegally, other persons cannot plead, nor can the court accept such a plea, that the same benefit must be allowed to them also in violation of law.

Abdul Wahid v. C.B.R. 1998 SCMR 882; Government of Punjab v. Zafar Iqbal 2011 SCMR 1239; Yar Muhammad v. Government of Punjab 2011 SCMR 1537; Shahid Ahmed v. O.G.D.C. 2014 SCMR 1008 and Government of Khyber Pakhtunkhwa v. Hidayat Ullah 2021 SCMR 1904 ref.

One wrongdoing cannot be permitted, defended or condoned by citing the example of another wrongdoing. If unlawful acts are allowed or acknowledged on the basis of the right to equality and non-discrimination, it would negate the rule of law mandated by Articles 4 and 5 of the Constitution. The one who wants the court to grant him the relief prayed for must base his claim on his own legal right, not on the wrongful gains of others. Any person aspiring for the appointment to a post has to pass the eligibility criteria prescribed in the relevant law for that post and cannot be absolved from fulfilling those criteria on the ground that some other person who was allowed to compete for or appointed to such post also did not meet the prescribed criteria.

Malik Matee Ullah, Advocate Supreme Court for Petitioners (in both cases).

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 1201 #

2023 P L C (C.S.) 1201

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ

Prof. Dr. MANZOOR HUSSAIN and others

Versus

ZUBAIDA CHAUDHRY and others

Civil Petition No. 1942 of 2022, decided on 26th May, 2023.

(Against the judgment dated 03.03.2022, passed by the Islamabad High Court, Islamabad in W.P. No. 3563 of 2017).

Federal Ombudsmen Institutional Reforms Act (XIV of 2013)---

----S. 14(4)---Federal Ombudsmen Institutional Reforms (Processing of Representations) Rules, 2014, Rr. 2(1)(b) & 8(3)---Officer nominated by the President under section 14(4) of the Federal Ombudsmen Institutional Reforms Act, 2013, powers of---Such officer only processes the representations filed before the President---Decision-making powers of the President are not delegated to the said officer as the final decision on the representation is taken only by the President.

The nominated officer under section 14(4) of the Federal Ombudsmen Institutional Reforms Act, 2013 ('the Act') only processes the representation before sending the case to the President for his decision. Processing the representation comprises of the actions or steps towards achieving the required objective i.e. a decision on the representation by the President. The views so expressed by the nominated officer in the form of recommendations/proposals form part of the procedure to process the representation before the case is sent to the President and the final decision thereon is taken only by the President.

President is specifically authorized to nominate an officer to process a representation by preparing the case and giving his/her views on the said representation, which are likely to be only in the shape of recommendations/proposals, and in no manner can it be stated that the nominated officer is deciding the representation. The case is then placed before the President for decision thereon and the power to decide the representation resides solely with and is exercised only by the President after due application of mind.

Power to process a representation, by preparing the case, and the power to decide that representation, after due application of mind, are inherently distinct functions and cannot be equated or conflated. The function of processing a representation by the nominated officer is only ancillary to the main objective of decision on the representation by the President.

For practical purposes, the role of the nominated officer is only to consolidate and simplify the record, and prepare the case before him so that it can be presented before the President for his decision. This in no manner dilutes the decision-making powers of the President because the discretion to accept or reject a representation is retained and vested entirely in the President himself, who, while deciding the representation, may agree with the recommendations/proposals so forwarded by the nominated officer, by adopting the reasons given by the nominated officer and/or also for his own reasons, or disagree with them for his own reasons and decide the representation after assessing the available record and independently applying his mind to the matter. Consequently, the power of the President to decide the representation himself remains intact and cannot be said to have been delegated to any other officer nominated by him under section 14(4) of the Act.

United Woollen Mills Ltd. Workers' Union v. United Woollen Mills 2010 SCMR 1475; Mollah Ejahar v. Government of East Pakistan PLD 1970 SC 173; Gouranga v. The Controller of Import and Export PLD 1970 SC 158; Government of Pakistan v. Farheen 2009 PLC (C.S.) 966 and Razia Jafar v. Government of Balochistan 2007 SCMR 1256 ref.

Sabir Hussain Tanoli, Advocate Supreme Court along with Muhammad Zahid, Assistant Registrar for Petitioners.

Respondent No. 1 in person along with Ruqia Samee, Advocate Supreme Court.

Raja Shafqat Abbasi, D.A.G. and Muhammad Saleem, Dir. Legal (President House) for Government of Pakistan.

Assisted by Muhammad Hassan Ali, Law Clerk, Supreme Court.

PLCCS 2023 SUPREME COURT 1225 #

2023 P L C (C.S.) 1225

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

MUHAMMAD RAQEEB

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others

Civil Appeal No. 1414 of 2021, decided on 2nd March, 2023.

(On appeal from the judgment dated 18.02.2019 passed by the Peshawar High Court, Bannu Bench in W.P. No. 218-B of 2017)

(a) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss.2(b) & 3---Qanun-e-Shahadat (10 of 1984), Art. 114---Pension---Project employee---No right to pension---On one hand, the appellant was pleading that he was a permanent employee and was requesting the grant of pensionary benefits, but on the contrary, in the earlier round of litigation up to the Supreme Court, he himself pleaded that some other project employees were regularized by the employer-Board, and therefore he should also be regularized in service, which was sufficient to divulge by his own conduct that he was not a regular employee but performing his duties as project employee---Status of the appellant as a project employee had already been examined and set at rest in the earlier round of litigation up to the level of the Supreme Court---In the case in hand, besides the doctrine of estoppel, the doctrine of election and doctrine of qui approbat non reprobat (one who approbates cannot reprobate) were also applicable---Even under the doctrine of past and closed transaction, the present controversy could not be reopened by the Supreme Court in the second round of litigation which on the face of it was an abuse of process of the Court---Appeal was dismissed.

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

----S. 11---Res-judicata, doctrine of---Scope---Said doctrine lays down the principle that the controversy flanked by the parties should come to an end and the judgment of the Court should attain finality with sacrosanctity and imperativeness which is necessary to avoid opening the floodgates of litigation---Once a judgment attains finality between the parties it cannot be reopened unless some fraud, mistake or lack of jurisdiction is pleaded and established---Foremost rationale of the doctrine of res judicata is to uphold the administration of justice and to prevent abuse of process with regard to the litigation and it also nips in the bud the multiplicity of proceedings on the same cause of action.

Anwar-ul-Haq, Advocate Supreme Court (via video link at Peshawar) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Waseem-ud-Din Khattak, Advocate Supreme Court (via video link at Peshawar) for Respondents Nos. 2 and 3.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa for Respondents Nos. 1 and 4.

PLCCS 2023 SUPREME COURT 1257 #

2023 P L C (C.S.) 1257

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Dr. SAYYID A. S. PIRZADA

Versus

The CHIEF SECRETARY, SERVICES AND ADMINISTRATION DEPARTMENT and others

Civil Petition No. 2009 of 2020, decided on 13th April, 2023.

(Against the judgment of the Punjab Service Tribunal, Lahore, dated 10. 12.2019 passed in Appeal No. 243 of 2008)

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

----Ss. 4(1)(a) & 5(1)---Appeal filed before the Service Tribunal after departmental authority fails to decide representation within 90 days---Service Tribunal, powers of---Scope---Once the appeal, application of review or representation, as the case may be, of a civil servant is not decided by the departmental authority within a period of 90 days and he has elected to approach the Tribunal through preferring an appeal after lapse of that period, then his appeal has to be decided on merits and the Tribunal cannot dispose of that appeal by issuing direction to the departmental authority to decide the appeal, application for review or representation of the appellant, because the said remedy already stands exhausted by virtue of the lapse of time.

If the departmental appeal, review or representation of a civil servant is not decided within a period of 90 days, the aggrieved civil servant need not endlessly wait for the decision of the departmental appeal, review or representation and can straight away approach the Tribunal by filing an appeal for the redressal of his grievance. The Punjab Service Tribunals Act, 1974 ('the Act') encourages a civil servant to first avail the remedy of departmental appeal, review or representation so that the matter can best be decided at the departmental level. However, if no progress is made on such departmental remedy within 90 days, the Act provides the civil servant with a higher remedy in the shape of an appeal before the Tribunal to agitate his grievance. When the aggrieved civil servant avails the higher remedy of appeal before the Tribunal after lapse of the prescribed period of 90 days, the departmental remedy of appeal, review or representation loses its significance and automatically comes to an end. Once the matter is brought before the Tribunal in accordance with the provisions of section 4 of the Act, the departmental remedy stands exhausted. Under section 5 of the Act, the Tribunal on appeal can only confirm, set aside, vary or modify the order appealed against. The Tribunal has no power under the Act to direct the departmental authorities to decide the departmental appeal, application for review or representation of the civil servant, which remained undecided for a period of 90 days.

Falak Sher v. Government of Punjab 1995 SCMR 962 ref.

Once the appeal, application of review or representation, as the case may be, of a civil servant is not decided by the departmental authority within a period of 90 days and he has elected to approach the Tribunal through preferring an appeal after lapse of that period, then his appeal has to be decided on merits and the Tribunal cannot dispose of that appeal by issuing direction to the departmental authority to decide the appeal, application for review or representation of the appellant, because the said remedy already stands exhausted by virtue of the lapse of time.

Petitioner in person.

Sanaullah Zahid, Additional A.G., Punjab, M. Safdar Abbasi, N.S., Waqar Malik, L.A. and Riaz Ahmed Muazzmi, Law Officer HED for Respondents.

PLCCS 2023 SUPREME COURT 1286 #

2023 P L C (C.S.) 1286

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ijaz Ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

KIRAMAT KHAN

Versus

IG, FRONTIER CORPS and others

Civil Petition No. 3287 of 2019, decided on 18th August, 2022.

(Against judgment dated 25.07.2019 of Federal Service Tribunal, Islamabad, passed In Appeal No.388(P)CS of 2019).

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

----S. 14---Exclusion of time of proceeding bona fide in Court without jurisdiction---Scope---In order to avail the benefit of section 14 of the Limitation Act, 1908 it is imperative that a litigant seeking benefit of the said provision must show that he was prosecuting his remedy with due diligence and in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it---Material words are "due diligence" and "good faith" in prosecuting a remedy before a wrong forum---Term "due diligence" entails that a person takes such care as a reasonable person would take in deciding on a forum to approach.

(b) Frontier Corps Ordinance (XXVI of 1959)---

----Preamble---Service Tribunals Act (LXX of 1973), S. 4---Service Tribunal, jurisdiction of---Employees of the Frontier Corps---Such employees shall be governed under the provisions of Frontier Corps Ordinance, 1959 and for the limited purpose would enjoy the status of civil servants---As such, they could avail their remedies before the (Service) Tribunal for redressal of their grievances.

IG, HQ Frontier Corps v. Ghulam Hussain 2004 SCMR 1397 and Commandant, Frontier Constabulary v. Gul Raqib Khan 2018 SCMR 903 ref.

----Void order---Limitation would run even against a void order and an aggrieved party must approach the competent forum for redressal of his grievance within the period of limitation provided by law.

Parvez Musharraf v. Nadeem Ahmed (Advocate) PLD 2014 SC 585; Muhammad Sharif v. MCB Bank Limited 2021 SCMR 1158 and Wajdad v. Provincial Government 2020 SCMR 2046 ref.

Zia ur Rehman Tajik, Advocate Supreme Court for Petitioner.

Nasir Mehmood, Advocate Supreme Court for Respondents.

PLCCS 2023 SUPREME COURT 1304 #

2023 P L C (C.S.) 1304

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

ALLAH DITTA

Versus

DEPUTY POSTMASTER GENERAL (ADMN.), OFFICE OF THE POSTMASTER GENERAL, NORTHERN PUNJAB CIRCLE, RAWALPINDI and another

Civil Petition No. 2602 of 2019, decided on 5th October, 2022.

(Against the judgment dated 20.05.2019 passed by Federal Service Tribunal, Islamabad in Appeal No.2321(R)CS of 2016)

(a) Civil service---

----Fraud and misappropriation of public money---In a case of proven fraud and misappropriation of public money, the delinquent cannot be exonerated---Embezzlement of public money cannot be treated as misconduct of a minor nature.

(b) Civil service---

----Fraud and misappropriation of public money---Long term of service is no ground for conversion of punishment of dismissal from service into compulsory retirement---If such type of leniency is shown in the heinous matters of misappropriation of public money or public funds, then it will amount to giving a license to all such civil servants to first join service, then serve at considerable length and commit crimes or misconduct at the verge of retirement without any fear of disciplinary proceedings, but with the confidence and assurance that the dismissal order from service will be converted into compulsory retirement by the competent authority or court by taking a lenient view.

----Fraud and misappropriation of public money---Accused refunding the misappropriated amount---Not a mitigating factor to reduce quantum of punishment---Civil servant has no justification for claiming lenient treatment (in the matter of his punishment) merely for the reason that he refunded the misappropriated amount, which does not vitiate the gross misconduct of misappropriation, nor can this be treated as mitigating circumstance.

Ch. Afrasiab Khan, Advocate Supreme Court for Petitioner.

Malik Javed Iqbal Wains, Additional A.G.P. and M. Hafeez ur Rehman, Dept. Rep. for Respondents.

PLCCS 2023 SUPREME COURT 1319 #

2023 P L C (C.S.) 1319

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

ALLIED BANK LIMITED

Versus

HABIB-UR-REHMAN and others

Civil Petition No. 2537 of 2020, decided on 25th May, 2023.

(Against the judgment dated 20.07.2020 of the Peshawar High Court, Peshawar passed in Civil Revision No. 399-P of 2020)

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

----Ss. 42 & 54---Suit for declaration, permanent injunction and recovery of benevolent funds---Employee of private bank---Pensionary benefits changed through a revised scheme---Through a Circular the appellant-bank introduced a new retirement benefits scheme ('the new scheme')---New revised scheme was made effective from 01.07.2002 and it, generally, was applicable to all the employees of the appellant-bank unless an employee submitted a "written option" for the pension on frozen basic pay by 30.09.2002; and, in case of non-submission of such a written option by the cut-off date, the employee would be governed by the new revised scheme---By introducing the new revised scheme, the pension up to 30.06.2002 was protected and new retirement benefits in the shape of Contributory Provident Fund (CPF) and gratuity were introduced from 01.07.2002--- New scheme, unequivocally, froze the basic pay as on 30.06.2002 for the purpose of the calculation of pension for an employee of appellant-bank who opted for the old scheme---Respondent admittedly, did not submit a "written option" to opt for the old scheme, and as such his case was to be dealt with in accordance with the new pension scheme---Respondent, being an officer in a position as high as the Vice-President of the bank, was fully conversant with the command as well as the operation of the new scheme and it was a matter of record that he had already received the retirement benefits in accordance with the new scheme and did not raise any objection thereto at the relevant time---Having received the benefits under the newly revised policy, he was now estopped to question the legality of the said new scheme---Trial Court had rightly dismissed the suit of the respondent---Petition for leave to appeal was converted into appeal and allowed.

(b) Precedent---

----Binding precedent, doctrine of---Scope---Doctrine of binding precedent promotes certainty and consistency in judicial decisions, and ensures an organic and systematic development of the law.

Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296; The Province of East Pakistan v. Abdul Basher Cohwdhury PLD 1966 SC 854; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Gulshan Ara v. The State 2010 SCMR 1162; Zahid Rehman v. The State PLD 2015 SC 77; WAK Limited Multan Road v. Collector Central Excise and Sales Tax 2018 SCMR 1474; Shafqat alias Shafaat v. The State PLD 2019 SC 43 and Mst. Samrana Nawaz v. M.C.B. Bank Ltd. PLD 2021 SC 581 ref.

----Art. 189---Decisions of Supreme Court binding on other Courts---Scope---Where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 of the Constitution and is binding on all Courts in Pakistan---However, not every statement or observation in a judgment of the Supreme Court creates a precedent to become binding on courts---Decision not expressed, not accompanied by reasons, and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 189 of the Constitution.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483; Muhammad Shifa v. Meherban Ali 2022 SCMR 647 and Arnit Das v. The State of Bihar AIR 2000 SC 2264 ref.

Makhdoom Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

PLCCS 2023 SUPREME COURT 1353 #

2023 P L C (C.S.) 1353

[Supreme Court of Pakistan]

Present: Yahya Afridi, Muhammad Ali Mazhar and Ayesha A. Malik, JJ

NADIA NAZ and another

Versus

The PRESIDENT OF ISLAMIC REPUBLIC OF PAKISTAN, ISLAMABAD and others Civil Review Petitions Nos. 255 and 570 of 2021, decided on 14th March, 2023.

(Review against judgment dated 05.07.2021, passed by this Court in Civil Petition No.4570 of 2019).

Per Ayesha A. Malik, J; Muhammad Ali Mazhar, J. agreeing; Yahya Afridi, J. also agreeing but with his own reasons.

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

----S. 2(h)---"Harassment" as defined under section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010---Meaning and scope---[Per Ayesha A. Malik, J: Intent and purpose behind the enactment of the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') was to address harassment at the workplace which is prompted on account of gender and was not limited to a sexual form of harassment---Sexual harassment at the workplace is not only about physical intimacy or sexual form but also includes discrimination on account of gender---Sexual harassment is a form of sex-based discrimination, which reduces a woman's potential for social equality and reduces her participation in the workplace---In the context of harassment, the word sexual and sexually are relevant and give meaning to the word harassment, which in this context becomes actionable when it relates to the gender, being sex-based discrimination as opposed to only meaning coital relations and advances---Definition of harassment includes sex-based discrimination that is based on the conduct of the harasser which affects the workplace environment in a negative manner as it interferes with the work and performance of the victim]---[Per Yahya Afridi, J: 'Harassment' in form of 'sexually demeaning attitudes' is motivated to degrade and demean a person by exploitation, humiliation and hostility on the basis of his or her gender, and such harassment is rooted in gender based discrimination]

Per Ayesha A. Malik, J.

Sexual harassment at the workplace is not only about physical intimacy or sexual form but also includes discrimination on account of gender. Sexual harassment, therefore, includes a form of sex-based discrimination, which hinders equal opportunity for employment performance and advancement of women. Sexual harassment is a form of sex-based discrimination, which reduces a woman's potential for social equality and reduces her participation in the workplace. As a phenomenon, sexual harassment is gender specific and the majority of victims are women. Sexual harassment at the workplace means that the presence of women at the workplace triggers this gender-based harassment, which in turn undermines a woman's right to public life, her right to dignity and most important, her basic right to be treated equal. Sexual harassment compromises these rights of a woman which entails being economically and financially independent and being able to make independent decision and more importantly to be considered as a productive member of society. The judgment under review assumed that sexual only means relating to the act of sexual nature. As a result, the meaning relating to the gender was never considered and entirely excluded gender-based discrimination and harassment faced at the workplace. If the definition of the word sexual is taken to also include the gender, the impact is significant when reading Section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') as harassment means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes. So in the context of harassment, the word sexual and sexually are relevant and give meaning to the word harassment, which in this context becomes actionable when it relates to the gender, being sex-based discrimination as opposed to only meaning coital relations and advances. Reading further into the definition of harassment, it appears sex-based discrimination does not have to be limited to sexual activity, rather it is behaviour which is promoted on account of the gender as a result of gender-based power dynamics, which behaviour is harmful and not necessarily a product of sexual desire or sexual activity. Such harassment is motivated to degrade and demean a person by exploitation, humiliation and hostility which amounts to gender-based harassment and can include unwanted sexual alleviation and sexual coercion. Such behaviour in law becomes harassment at the workplace when it causes interference with work performance or creates an intimidating, hostile or offensive work environment and has the effect of punishing the complainant for refusal to comply with a request or is made a condition for employment. Accordingly, the definition of harassment includes sex-based discrimination that is based on the conduct of the harasser which affects the workplace environment in a negative manner as it interferes with the work and performance of the victim. If the conduct of the harasser is given a restricted meaning to being of sexual nature or form, it takes away the essence of the meaning of harassment, its purpose and reduces its impact and scope and ignores that sexual harassment is oftentimes less about sexual interest and more about reinforcing existing power dynamics. Such an application of the law limits the protection offered under the Act and effectively excludes many instances where the victim may be harassed but cannot bring action against the harasser since the conduct was not sexual in nature.

Sexual, Concise Oxford English Dictionary (12th Ed. 2011); Sexual, Collins Online English Dictionary, Collins; Sexual, Merriam-Webster.com Dictionary; International Labour Organization, Sexual Harassment in the World of Work, ILO.ORG; Anum Mesiya, Ten Years of the Protection Against Harassment of Women at the Workplace Act, 2010, 11, Pakistan Law Review, 225, 238 (2020); Catharine A. MacKinnon, Sexual Harassment of Working Women, Yale University Press, New Haven and London, p. 183 (1979); Palvasha Shahab, Understanding Sexual Harassment at the Pakistani Workplace, Legal Aid Society (2020); Chamallas, Martha, Writing about Sexual Harassment: A Guide to Literature, 4(1), UCLA Women's Law Journal, 37, 38 (1993); Rhitu Chatterjee, A New Survey Finds 81 Percent Of Women Have Experienced Sexual Harassment, NPR.ORG, (21 February 2018, 7:43 PM ET), www.npr.org/sections/thetwo-way/2018/02/21/587671849/ http://www.npr.org/sections/thetwo-way/2018/02/21/587671849/; (1997) 6 Supreme Court Cases 241 Vishaka and others v. State of Rajasthan and others; (1999) 1 Supreme Court Cases 759 Apparel Export Promotion Council v. A.K. Chopra and Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252 ref.

The Act is not restricted to female victims, as the word employee defined in Section 2(f) of the Act means any regular or contractual employee and does not simply state women employees. Furthermore, complainant defined in Section 2(e) under the Act means a woman or man who has made a complaint. Hence, the Act recognizes that harassment is gender-based and that the victim can be a man or a woman. The impugned judgment under review overlooked the inclusion of men in the definition of complainant which is relevant when seen in the context of the protection given to employees under the Act. If the present definition of harassment, as given in the judgment under review is considered, its application on employees and complainants who are not women becomes questionable and its applicability may become redundant. This aspect of the matter was not considered in the judgment under review as its interpretation of harassment has rendered the Act ineffective for employees or complainants who are not women. This error is so manifest and evident that it cannot be ignored.

In order to further examine the meaning of sexual and to understand the purpose of the Act, Report of the National Assembly Standing Committee on Women Development dated 29.09.2009, the debates of the National Assembly of 21.01.2010 and of the Senate of 25.02.2010 were examined. All these documents show that the intent and purpose behind the enactment of the Act was to address harassment at the workplace which is prompted on account of gender and was not limited to a sexual form of harassment. The debates show that the intent was to inter alia, give effect to Articles 11 and 13 of the Convention Against the Elimination of Discrimination Against Women (CEDAW) and International Labour Organization (ILO) Convention Nos.100 and 111 on Worker's Rights and to eliminate all forms of discrimination in the workplace, including gender-based discrimination and sexual harassment. CEDAW was actively discussed in the debates and considered such that there should be no constraint on women when they enter the workplace. The Parliamentary debates also show that wherever the word harassment was used, it was intended to include harassment in the form of discrimination at the workplace.

There appears to be an error in the judgment under review owing to the interpretation of harassment displayed by the Court, which definition is patently against the Act and its Statement of Objects. If the word sexual as used in the definition of the word harassment was assessed for its true meaning, as given in the dictionaries, then the conclusions drawn by the Supreme Court (in the judgment under review) would have been different; and this makes valid grounds for review. Review petitions were allowed and matter was remanded to the President to decide the representation against the Ombudsperson's order.

Pakistan Bar Council v. Federal Government 2018 SCMR 1891 ref.

Per Yahya Afridi, J:

It is important to underline three points: first, that the error pleaded by the petitioners and accepted by the Court to exercise its review jurisdiction does not require lengthy arguments or detailed re-examination of the record as it is apparent on the face of the record; second, that had the second meaning of the word 'sexual', which has now been brought to the attention of the Supreme Court, been then agitated and considered by the Court, its decision in the judgment under review on the meaning and scope of the word 'harassment', as defined in the Act, would have been otherwise; and finally, that the reference in the present judgment to the definitions of 'harassment' made in international Declarations and Conventions, as well as in existing legal literature is, only for the purpose of elaboration, while the meaning and scope of the word 'harassment' is to be interpreted on the basis of the definition given in the Act.

'Harassment' in form of 'sexually demeaning attitudes' is motivated to degrade and demean a person by exploitation, humiliation and hostility on the basis of his or her gender, and such harassment is rooted in gender based discrimination. 'Sexually demeaning attitude' becomes harassment at the workplace, as it causes interference with work performance or creates an intimidating, hostile or offensive work environment for the victim of such attitude.

The second meaning of the word 'sexual' was not brought to the notice of the Court, and thus, escaped its attention, while delivering the judgment under review, which resulted in misconstruction of the definition of 'harassment' as given in the Act. The non-consideration of an important aspect of the matter, which if it had been considered, the decision of the Court would have been otherwise, amounts to an error apparent on the face of the record and is a well-established ground to exercise review jurisdiction. Review petitions were allowed, and the matter was remanded to the President for deciding afresh the representation of the petitioner, which shall be deemed as pending before him, and be decided in accordance with the law, in view of the meaning and scope of 'harassment' as discussed and explained in the present judgment.

Amir Khan v. Controller of Estate Duty PLD 1962 SC 335; Suba v. Fatima Bibi 1996 SCMR 158; Abdul Ghaffar v. Asghar Ali PLD 1998 SC 363 and Barkat Ali v. Qaim Din 2006 SCMR 562 ref.

Per Ayesha A. Malik, J.

(b) Interpretation of statutes---

---Purposive approach---Meaning and scope---While interpreting statutes, the cardinal rule is to take the purposive approach which means to look at the meaning of the words and the object and purpose of the law, which states the aim and objective of the law---Discovering the aim of the legislature carries significant weight while construing the meaning of the words of the statute.

Dilawar Hussain and others v. Province of Sindh and others PLD 2016 SC 514 ref.

----Art. 188---Review of judgments by the Supreme Court---Grounds---Error apparent on the face of the judgment---Scope---Every judgment of the Supreme Court is presumed to be a solemn and final decision on all points arising out of the case and if the Court has not taken a conscious and deliberate decision on point of facts or the law, then this results in a material irregularity, which makes for an error apparent on the face of the judgment and has a bearing on the fate of the case.

Sikandar Hayat v. The State PLD 2020 SC 559 and Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 ref.

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

----S.2(h)---Harassment---Victim's perspective---In cases of harassment, the victim's perspective is relevant as against the notion of acceptable behaviour---Standard of a reasonable woman should be considered to determine whether there was harassment, which rendered the workplace hostile and all relevant factors should be viewed objectively and subjectively.

Petitioner in person (in C.R.P. No. 255 of 2021).

Barrister Shehzad Ata Elahi, Attorney General for Pakistan assisted by Miss Marium Rashid and Aitzaz ul Haq, Advocates for Petitioners (in C.R.P. 570 of 2021).

Barrister Umer Aslam Khan, Advocate Supreme Court for Respondents Nos.4 and 5

Agha Muhammad Ali, Advocate Supreme Court for Respondent No.6 (in C.R.P. No. 255 of 2021).

Agha Muhammad Ali, Advocate Supreme Court for Respondent No.7 (in C.R.P. No. 570 of 2021).

M. Nazir Jawwad, Advocate Supreme Court for PTV.

M. Irfan Arjumand, Deputy Director for Ministry of Information.

PLCCS 2023 SUPREME COURT 1392 #

2023 P L C (C.S.) 1392

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

ASRAR AHMED and others

Versus

CHAIRMAN PAKISTAN AERONAUTICAL COMPLEX BOARD, KAMRA and others

Civil Petitions Nos. 657 to 662 of 2020, decided on 5th July, 2022.

(Against the judgment dated 11. 12.2019 passed by the Federal Service Tribunal, Islamabad, in Appeals. Nos. 1096(R)CS/2019, 1103(R)CS/2019, 1106(R)CS/2019, 1107(R)CS/2019, 1108(R)CS/2019 and 1109(R)CS/2019)

(a) Pakistan Aeronautical Complex Board Ordinance (XXVIII of 2000)---

----Ss. 3 & 7(a)---PAC Board Employees (Service) Rules, 2002, Rr. 2 & 4(g)---Employees of Mirage Rebuild Factory, Kamra appointed before promulgation of the Pakistan Aeronautical Complex Board Ordinance, 2000 ('the PACB Ordinance')---Whether civil servants or employees of the Pakistan Aeronautical Complex Board ('the PAC Board')---Option to remain a civil servant not exercised---Approbate and reprobate, doctrine of---Applicability---On one hand, the petitioners (employees) were asserting that they submitted the option ( to remain civil servants) but on the other hand, their never-ending and non-stop attempts in the departmental examination unambiguously corroborated that they never submitted any option (to remain civil servants) in keeping with the requirements laid down in the PACB Ordinance---Petitioners intermittently appeared in the departmental examinations starting from the year 2012 to 2018, but nobody could qualify the examination which was a precondition for awarding promotion---Demeanor of petitioners signified they assented and acquiesced to be governed by the PACB Ordinance and the PAC Board Employees (Service) Rules, 2002 ('the PACB Rules'), rather than being governed under the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ('the APT Rules')---It was clear from the conduct of the petitioners that, after failure in the departmental examinations, a fall back stand was set in motion that the promotion cases of the petitioners should be processed in accordance with the APT Rules, being civil servants, and not as the employees of the PAC Board without submitting their option at the relevant time when they were afforded an opportunity to segregate themselves from the purview of the PACB Rules, but they failed to do so despite receiving an evenhanded and fair opportunity---Plea of the petitioners was also hit by the doctrine of approbate and reprobate---It was also beyond any logical comprehension that according to the petitioners they were forced to sit in the examination, but they never put forward any objection or reservation, nor anything was brought on record to show that they appeared in the examinations without prejudice to their right to challenge---First right of refusal was extended in terms of PACB Ordinance to opt the new service rules and service structure of the PAC Board according to the scheme of restructuring and reorganization, which cannot be construed the violation or infringement of any fundamental rights of the petitioners but it was founded on consensual act of every individual employee without any compulsion or pressure and the particular portion or provision of law inviting options from the employees was never challenged by the petitioners---Petitions for leave to appeal were dismissed and leave was refused.

Pakistan Aeronautical Complex through Chairman and others v. Nazar-ul-Islam 2019 SCMR 1933 ref.

(b) Words and phrases---

----Maxim 'qui approbat non reprobat' (one who approbates cannot reprobate)---Meaning and scope---Person taking advantage under an instrument, which both grants a benefit and imposes a burden, cannot take the former without complying with the latter---Person cannot approbate and reprobate or accept and reject the same instrument.

Muhammad Aftab Alam Rana, Advocate Supreme Court for Petitioners.

Ayaz Shaukat, DAG, Wing Commander, Muhammad Kamran Haider Ali, Superintendent for Respondents.

PLCCS 2023 SUPREME COURT 1409 #

2023 P L C (C.S.) 1409

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Peerzada WAQAR ALAM

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman, Islamabad and others

C.P. No. 4729 of 2019, decided on 5th December, 2022.

(Against the judgment of Islamabad High Court, Islamabad dated 17.10.2019, passed in Writ Petition No.218 of 2016)

(a) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S. 10---United Nations Convention on Rights of Persons with Disabilities (CRPD), Art. 27---Persons With Disabilities (PWDs)---National Accountability Bureau (NAB)---Quota for Persons with Disability---Under section 10 of the Disabled Persons' (Employment and Rehabilitation) Ordinance, 1981 establishments (including NAB) are to employ persons with disabilities "not less than 3% of the total number" of persons employed at any time by the said establishment, and there is no limitation or distinction of grade in allocating 3% quota for persons with disabilities in any organization---Quota of 3% for persons with disability applies across the board in an organization, covering all tiers of posts in an organization and goes upto to the highest post including that of the Chairman, NAB---Said quota for PWDs must co-exist alongside the general category of posts---Given the variety of posts with different qualifications, skill sets, and descriptions it is only appropriate that the disability quota be apportioned and allocated against the sanctioned strength of various categories which have a separate selection criterion---Supreme Court directed NAB to immediately comply with the provisions of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 and earmark posts representing 3% quota for PWDs across the institution at all tiers.

Malik Ubaidullah v. Government of Punjab and others PLD 2020 SC 599 = PLC 2021 (C.S.) 65 ref.

(b) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S. 10---Constitution of Pakistan, Arts. 9, 18 & 25---United Nations Convention on Rights of Persons with Disabilities (CRPD), Art. 27---Persons With Disabilities (PWDs)---Employment quota---Employment of PWDs is not a charity but a right---Constitutional values of equality and social justice, the fundamental rights to life, to carrying out a profession and to non-discrimination also extend to PWDs and make no distinction between PWDs and others--- Any law or policy relating to PWDs is rights-based and is not to be viewed as charity or pity or mercy---Universality, indivisibility, interdependence and interrelatedness of constitutional values and fundamental rights fully encompass the persons with disabilities and discrimination guarantees them full protection without discrimination.

Dr. G.M. Chaudhary, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sattar Awan, DPG, NAB, Hafiza Mehnaz Nadeem Abbasi, S.P., NAB, Imran Sohail, Director (HRM) NAB Hqrs. and Adnan Nadeem, Dy. Director, NAB for Respondents.

Respondent No. 2 in person.

PLCCS 2023 SUPREME COURT 1444 #

2023 P L C (C.S.) 1444

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Ayesha A. Malik and Athar Minallah, JJ

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and another

Versus

UMAR DARAZ

Civil Petition No. 4618 of 2019, decided on 28th November, 2022.

(Against the judgment of Federal Service Tribunal, Islamabad dated 30.09.2019, passed in Appeal No. 1503(R) of 2016)

(a) Civil service---

----Incapacitated employee of Pakistan Railways---Visual impairment---Adjustment in another suitable and appropriate post keeping in view the degree and level of incapacitation---Perusal of Clauses 510 and 512 of the Personnel Manual of the Pakistan Railways reveals that in order to protect and safeguard the interest and right to employment of an officer who has been incapacitated during service, such an employee can be transferred or accommodated against a post in the organization which is more suitable and appropriate to his condition or disability---Under the said Manual efforts are to be made to ensure that the employee gets transferred to a post in an equivalent grade---In the present case the respondent-employee developed visual impairment and as a result was transferred to a post of lower grade against which the respondent agitated and finally the Tribunal transferred him to a post of an equivalent grade i.e. Ticket Collector Grade-I ("TCR")---In terms of the UN Convention on the Rights of Persons with Disabilities ("CRPD"), to which Pakistan is a party, it is the duty of an employer to ensure that reasonable accommodation is provided to persons with disabilities ("PWDs") and that those with disabilities are not discriminated against---Perusal of job description of the TCR provided in clause 6.18 of the Commercial Manual of Pakistan Railways revealed that a visual impaired officer could carry out the duties of TCR, as provided in the said Manual---Supreme Court directed Pakistan Railways to revisit the Personnel Manual in the light of the fundamental rights and principles of policy enshrined in the Constitution, as well as, the CRPD, in particular Article 27 thereof, so that the Personnel Manual was constitution compliant and met the international standards when dealing with persons with disabilities---Petition for leave to appeal was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Arts. 9 & 38(d)---Civil service---Incapacitated employee---Adjustment in another suitable and appropriate post keeping in view the degree and level of incapacitation---In case an officer develops physical incapacitation the department has to reach out to said officer to ensure the best possible option available for the officer in his condition to continue to serve the department---Said transfer to another suitable post of the respondent is as a special case and is over and above the regular process of transfer, appointment or promotion---Such a special transfer is to provide "reasonable accommodation" to an employee who has been incapacitated during service and for no fault of his own suffers from a disability---Any such "reasonable accommodation" is a priority action item for the department and must be addressed at the earliest---Suitability of the new post must factor in the earlier job description as well as the grade so that the employee is not worse off in financial terms---Such reasoning finds support from Articles 9 and 38(d) of the Constitution which provide for right to life, which includes right to a meaningful livelihood as an integral part of life and policies must be made by the State to safeguard the interest of persons suffering from infirmity or sickness.

Jawad Mehmood Pasha, Advocate Supreme Court (through video-link from Lahore) for Petitioners.

Nemo for Respondent.

PLCCS 2023 SUPREME COURT 1456 #

2023 P L C (C.S.) 1456

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Muhammad Ali Mazhar, J

ABID JAN

Versus

MINISTRY OF DEFENCE through Secretary, Islamabad and others

Civil Petition No. 2467 of 2020, decided on 4th April, 2023.

(Against Order dated 18.08.2020 passed by the Federal Service Tribunal, Islamabad in Appeal No. 141(P)CS/2022)

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

----S. 4---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition filed by the civil servant before the High Court instead of approaching the Federal Service Tribunal (FST)---High Court instead of dismissing or non-suiting the petitioner on the question of jurisdiction, observed that the writ petition should be treated as a Service Appeal and remitted it to the FST for its disposal in accordance with law---High Court directed the Office to retain a copy of the writ petition and send the original memo of the petition along with its annexures to the FST at the earliest possible date---Federal Service Tribunal (FST) dismissed the appeal on the ground of limitation rather than deciding the appeal on merits---Legality---High Court's purpose of sending the original memo of petition to the FST was to entertain and register it as a Service Appeal rather than subpoenaing the petitioner (civil servant) to submit any fresh or amended memo of appeal---When the original writ was directed to be transmitted to the FST by the High Court, then it was neither within the dominion of the petitioner to present the fresh memo of appeal by himself, nor was he obligated to submit a fresh memo of appeal which would otherwise have become time barred when, in order to save the lis from the rigors of limitation, the writ petition was converted into an appeal---Indeed, the matter of transmitting the memo of the writ petition after its conversion to the FST was, in all fairness, a matter between the Office of the High Court and FST---When the writ petition was treated as a Service Appeal and transmitted to the FST, then non-suiting the petitioner on the ground of limitation was not justified and the proper course was to issue notice to the respondent and, after providing ample opportunity of hearing to the parties, the Service Appeal should have been decided on merits as opposed to a technical knock-out---Petition for leave to appeal was converted into an appeal and allowed, impugned judgment of the Federal Service Tribunal was set aside and the matter was remanded back to decide the appeal afresh after providing a proper opportunity of hearing to both the parties.

Muhammad Akram v. DCO, Rahim Yar Khan and others 2017 SCMR 56; Abdul Qadoos v. Commandant Frontier Constabulary, KPK, Peshawar and another 2023 SCMR 334 and Government of the Punjab, through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25 ref.

(b) Administration of justice---

----Maxim 'actus curiae neminem gravabit'---Scope---It is the foremost duty of a Court and Tribunal to do complete justice---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 that an act of the Court shall prejudice no one, and this principle also denotes the extensive pathway for the safe administration of justice---It 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 beyond doubt that no person should suffer because of a delay in procedure or the fault of the Court---Court and Tribunal should be conscious and cognizant that nobody should become a victim of injustice as a consequence of their mistake and, in the event of any injustice or harm suffered by mistake of the Court, it should be remedied by making the necessary correction forthwith---According to the principle of restitution, 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.

Homoeo Dr. Asma Noreen Syed v. Government of the Punjab through its Secretary Health, Department and others 2022 SCMR 1546 = 2022 PLC (C.S) 1390 ref.

Riaz H. Rahi, Advocate Supreme Court for Petitioner.

Nasir Mehmood, Advocate Supreme Court (through video link at Peshawar) for Respondents.

PLCCS 2023 SUPREME COURT 1499 #

2023 P L C (C.S.) 1499

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Muhammad Ali Mazhar, JJ

FIDA HUSSAIN

Versus

CHIEF SECRETARY, KHYBER PAKHTUNKHWA, CIVIL SECRETARIAT and others

Civil Petition No. 1777 of 2020, decided on 7th April, 2023.

(Against Order judgment 24.04.2020 passed by the Peshawar High Court, Peshawar in W.P. No. 4181-P of 2018)

Civil service---

----Disciplinary proceedings---De novo inquiry, directions for---Authorized officer (Member, Board of Revenue)---Authorized officer cannot issue directions to the competent authority to decide the disciplinary proceedings in a particular manner nor could he give directions to conduct a de novo inquiry if proceedings were dropped/filed after due consideration.

The Authorized officer cannot impose any condition or issue directions to the competent authority to decide the disciplinary matter in a particular manner. The holding of inquiry under Civil Servant laws on the allegation of misconduct is a routine affair and a common phenomenon which is triggered after the issuance of a show cause notice and statement of allegations, and when Inquiry Report is submitted to the competent authority then it is their domain, with proper sense of duty, to impose the penalty keeping in mind the gravity of charges, if proved, during the inquiry. It is not mandatory that, in all circumstances, the competent authority should agree with the recommendations of the Inquiry Officer or Inquiry Committee, but in case the competent authority decides to impose a penalty greater than that recommended by the Inquiry Officer, then obviously some reasons are to be assigned with proper application of mind, after providing a right of personal hearing to the accused, and in case the competent authority decides to file the Inquiry Report without taking any action thereon, with proper reasoning, then obviously there would be no justification to expect a de novo inquiry to start from scratch in each and every case without any lawful justification.

Petitioner in person.

Asif Hameed Qureshi, Advocate Supreme Court for Respondents.

Respondent No. 7 in person.

PLCCS 2023 SUPREME COURT 1544 #

2023 P L C (C.S.) 1544

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

Dr. MUHAMMAD AMIN

Versus

ZARAI TARAQIATI BANK LIMITED through Board of Director, ZTBL, HO, Islamabad and others

Civil Petition No. 2933 of 2019, decided on 10th August, 2022.

(Against the judgment dated 29.05.2019 passed by the Islamabad High Court, Islamabad in W.P. No. 1057 of 2018)

Civil service---

-----Dismissal from service---Unauthorized absence from duty---Cases filed in multiple forums to challenge dismissal from service---Overlapping proceedings in Civil Court and High Court---Propriety---History of the petitioner's litigation showed that he selected multiple forums to institute multiple litigations to challenge the action of the management instead of jotting down all the causes of action available to him for suing in one go---Petitioner could unite both the causes of action such as the rejection order of the appeal and the dismissal order from service promptly instead of splitting the claims and opting to challenge them separately in the High Court and Civil Court which created the complication of overlapping the proceedings and also multiplicity of proceedings---Strange methodology was adopted by the petitioner in that the writ petition was filed in the High Court against the rejection of departmental appeal alone, whereas the dismissal order was challenged separately in a declaratory suit which was instituted after filing the writ petition---Ultimate challenge must have been to the dismissal order rather than assailing the rejection order of the appeal---Merely challenging the order of rejection of the appeal could not serve any purpose, unless, the declaratory suit was proceeded by the competent court of law to decide the fate of the petitioner's dismissal from service---Seemingly, the petitioner had already availed the appropriate remedy of filing a suit in the Civil Court for challenging his dismissal order---Order passed by Civil Court demonstrates that the judge recorded the statement of petitioner and Law Officer of employer-bank, who confirmed that an application to the management had been submitted by the petitioner for an amicable settlement on humanitarian and compassionate grounds which would be processed in accordance with law---After recording the statements, the suit was dismissed as withdrawn with the permission to file a fresh suit in case of further grievance---In view of this situation, there was no justification to interfere, in the impugned judgment of High Court---Supreme Court directed that if the management of the employer-bank had not decided the application moved by the petitioner till date, then the petitioner may avail a remedy of filing fresh suit or in the alternate, he was also at liberty to move proper application for resurrection of his suit and if such application was filed in the Trial Court and the suit was resurrected/restored to its original position, then the Civil Court shall decide the suit on merits within three months after providing an ample opportunity of hearing to the parties---Petition for leave to appeal was disposed of accordingly.

Petitioner in person.

Nemo for Respondents.

PLCCS 2023 SUPREME COURT 1558 #

2023 P L C (C.S.) 1558

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD YASEEN

Versus

SECRETARY, MINISTRY OF INTERIOR AND NARCOTICS CONTROL, NARCOTICS CONTROL DIVISION, ISLAMABAD and another

Civil Petition No. 873 of 2021, decided on 25th July, 2023.

(On appeal against the judgment dated 02.02.2021 passed by the Federal Service Tribunal, Lahore in Appeal No. 12(L) of 2017)

Constitution of Pakistan---

----Art. 25(1)---Police official---Assistant Sub-Inspector in Anti-Narcotics Force (ANF)---Allegation of illegally snatching money from a civilian at a picket---Discrimination in award of penalty---Dismissal from service converted into minor penalty---Petitioner along with three other ANF officials was charge-sheeted for illegally taking/snatching an amount of Rs.103,000/- from a person "K" and a joint inquiry in this regard was conducted by Deputy Director, ANF---After inquiring into the matter, the Inquiry Officer recommended imposition of minor penalties on the three co-accused, whereas petitioner was removed from service---Statement of person "K" showed that case of the petitioner was not distinguishable from the other three co-accused---Petitioner had 33 years of unblemished service on his part and during present proceedings, his retirement age had passed---After serving the department for such a long period, the pensionary benefits were the right of an employee, which enabled him to spend rest of his life peacefully---By dismissing the petitioner from service while awarding minor penalties to the other officials, the petitioner had been discriminated against and the Service Tribunal did not take into consideration this aspect of the matter---Petition for leave to appeal was converted into appeal and allowed, impugned judgment to the extent of the petitioner was set-aside and the department was directed to treat the petitioner similar to his co-accused by awarding him minor penalty, and that if the date of retirement of the petitioner had passed, all pensionary benefits for which he was entitled, shall be given to him within a period of two months from the date of receipt of certified copy of present order.

Manzar Abbas Khokhar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ch. Ehtisham ul Haq, Special Prosecutor ANF and Muhammad Tariq, Joint Director Law, ANF for the State.

Supreme Court Azad Kashmir

PLCCS 2023 SUPREME COURT AZAD KASHMIR 146 #

2023 P L C (C.S.) 146

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

ARSLAN IQBAL and 2 others

Versus

MUHAMMAD SHABIR and 6 others

Civil Appeal No. 157 and Civil Miscellaneous No.72 of 2018, decided on 26th October, 2021.

(On appeal from the judgment of the High Court dated 10-5-2018 in Writ Petition No.188 of 2015).

Civil service---

----Appointment---Advertisement for recruitment---Scope---Respondent challenged appointment orders by way of writ petition on the ground that the same were issued without advertisement and adhering to rules on the subject matter---High Court through impugned judgment accepted the writ petition and issued the direction for re-advertisement of the posts---Validity---Department had initially changed the cadre of the posts of Head Constable (BPS-5) to Junior Clerk (BPS-7) in derogation of the departmental service rules and thereafter issued the appointment orders of the appellants without adopting prescribed procedure for appointment---Posts of Junior Clerk (BPS-7) were liable to be filled in through initial recruitment and no other mode was provided, hence it was binding obligation of the department to advertise the posts for initial recruitment and fill in the same as per law---Appeal was dismissed.

Aftab Hussain v. Executive Engineer Highway, Rawalakot and others 2019 SCR 602 and Secretary for Prime Minister and 3 others v. Muhammad Aslam and 5 others 2000 PLC (C.S.) 155 rel.

Ch. Muhammad Ashraf Ayaz, Advocate for Appellants.

Rashid Nadeem Butt, Advocate for Respondent No.1.

Javed Najam-us-Saqib for MDA.

PLCCS 2023 SUPREME COURT AZAD KASHMIR 166 #

2023 P L C (C.S.) 166

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, CJ and Raza Ali Khan, J

SHAHEENA NASEER LECTURER POLITICAL SCIENCE IN GOVERNMENT GIRLS POST GRADUATE COLLEGE MUZAFFARABAD AZAD JAMMU AND KASHMIR

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Higher Education of the State of Jammu and Kashmir, Muzaffarabad

and 5 others

Civil Appeal No.457 of 2020, decided on 30th November, 2021.

(On appeal from the judgment of the Service Tribunal dated

1-7-2020 in Service Appeal No.892 of 2019).

(a) Civil service---

----Transfer and posting---Scope---Appellant challenged the notification whereby she was transferred from college to another---Validity---Contention that the transfer order issued illegally during academic session had no substance as she had not produced any document to show that teaching staff of an institution could not be transferred during academic session---So far as contention that transfer order was a result of political influence, Supreme Court observed that a post of lecturer was lying vacant in transferee college which was advertised and after conducting test and interview, the concerned authorities filled the same by transferring the appellant---Respondents had not explained in their comments as to why the newly appointed candidate was not posted in the relevant college---Impugned notification to the extent of adjustments of the appellant and private respondent was cancelled---Concerned authorities were directed to reissue the order in a transparent manner---Appeal was accepted.

(b) Public functionaries---

----All judicial, quasi-judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure the dispensation of justice according to spirit of law---Exercise of power in unreasonable manner is not proper and in such a case the process initiated/order issued by the authorities is not immune from judicial review.

Abdul Rasheed and 85 others v. Board of Trustees and 3 others 2008 SCR 417 ref.

Sardar Muhammad Habib Zia, Advocate for Appellant.

Syed Sahroosh Gillani and Syed Ashfaq Hussain Kazmi, Advocates for Respondents.

PLCCS 2023 SUPREME COURT AZAD KASHMIR 1159 #

2023 P L C (C.S.) 1159

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, ACJ and Ghulam Mustafa Mughal, J

SECRETARY COUNCIL OF ISLAMIC IDEOLOGY, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 3 others

Versus

Syed HAMID ALI BUKHARI, CALLIGRAPHER, COUNCIL OF ISLAMIC IDEOLOGY, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 2 others

Civil Appeal No.285 of 2019, decided on 17th June, 2020.

(On appeal from the judgment of the High Court, dated 16-1-2019, in Writ Petition No.1278 of 2017).

Civil service---

---Up-gradation of post---Scope---Appellants (department) by leave of the court assailed acceptance of constitutional petition by the High Court, whereby it had directed them to up-grade the post of Calligrapher (B-6) to (B-16)---Held, as the other posts of the same nomenclature had been up-graded in various other departments, therefore, the employee was also entitled to the same treatment under law and there was no justification to refuse him the relief, which had been given to the other similarly placed persons---Appeal was dismissed.

Muhammad Noorullah Qureshi, Advocate for Appellants.

Syed Shahid Bahar, Advocate for Respondents.