PLCCS 2024 Judgments

2024 P L C (C.S.) 1254

[Appellate Tribunal Balochistan High Court Quetta]

Before Muhammad Kamran Khan Mulakhail, Chairman and Gul Hassan Tareen, Member NAZIR AHMED

Versus

CHIEF JUSTICE HIGH COURT OF BALOCHISTAN through Registrar and another

Service Appeal No.10 of 2023, decided on 31st October, 2023.

(a) Civil service---

----Leave Preparatory to Retirement, withdrawal of---Principle of locus poenitentiae---Application moved by the appellant ,Court Assistant availing Leave Preparatory to Retirement (L.P.R.), for withdrawal of L.P.R was dismissed---Validity---Record revealed that when the L.P.R was about to come to an end the appellant expressed his desire to withdraw his option of L.P.R.---Request of the appellant was misconceived as an effective order for his retirement had already been passed---Option once having been exercised by the appellant could not be withdrawn on the principle of locus poenitentiae---Appellant had taken the benefit of his L.P.R. notification and received the salary from the public exchequer during the L.P.R period---In his application, appellant had mentioned his intended date of retirement (as 31st July, 2023)---Option of L.P.R. could be withdrawn prior to its acceptance by the competent authority, whereafter, it attains finality and becomes a past and closed transaction---Appellant could not have applied for withdrawal of his option of L.P.R which was secured by the appellant at his own request---Appellant could have applied for withdrawal of his application made for availing the option of L.P.R prior to the issuance of Notification by virtue of which, the L.P.R for 365 days was sanctioned---Appeal was dismissed, in circumstances.

Secretary, Government of Punjab, Food and Co-operation Department v. Shamoon Bahadur PLD 1979 SC 835 and Commandant Pakistan Military Academy Abbottabad v. Nazran Abbasi and others 2012 SCMR 385 ref.

(b) Civil service---

----Leave Preparatory to Retirement, withdrawal of---Scope---Application moved by the appellant, Court Assistant availing Leave Preparatory to Retirement (L.P.R.), for withdrawal of L.P.R was dismissed---Validity---Record revealed that the Notification of premature retirement was acted upon on acceptance of L.P.R. vide a notification---Appellant proceeded on L.P.R after relieving the charge of his office; he enjoyed the L.P.R for almost nine months and all of sudden, changed his mind---According to Chapter-5, Rule 1.6, Serial No.2 the ESTACODE, a written intimation once submitted by a government servant who intends to retire after completing twenty five years service qualifying for pension, shall be final and shall not be allowed to be modified or withdrawn---Hence, appellant's application had rightly been rejected by the Competent Authority---Appeal was dismissed, in circumstances.

(c) High Court Establishment (Appointment and Conditions of Services) Rules, 2020---

----Rr. 40 & 46---Leave Preparatory to Retirement, withdrawal of---'High Court Establishment' and 'Civil Servant'---Distinction---Competent authority, powers of---Application moved by the appellant, Court Assistant availing Leave Preparatory to Retirement (L.P.R.), for withdrawal of L.P.R was dismissed---Contention of the appellant was that as High Court Establishment (Appointment and Conditions of Services) Rules, 2020 ('the Rules, 2020') were applicable to the appellant which governed a civil servant, so appellant was entitled for withdrawal under R. 48 of the Leaves Rules, 2020---Validity---Sub-Rule (1) of R. 48 of the Leave Rules, 2020, provides that a civil servant may, with the approval of the next above/higher authority to the competent authority to sanction L.P.R, withdraw his option of voluntary retirement within the period of LP.R---According to said rule, the approval of the next above/higher authority to the competent authority to sanction L.P.R is a condition precedent for withdrawal LPR---In the present case, the LPR was sanctioned by the Chief Justice of the High Court as the competent authority---In the High Court of Balochistan there does not exist any higher authority to the competent authority (the Chief Justice)---As such, R. 48 of the Leaves Rules, 2020 was not applicable in the case of appellant---By virtue of R. 40 of the Rules, 2020, though, the terms and conditions of service of the High Court's establishment, including leave, pay etc. shall be governed by the laws for the time being enforced and applicable to civil servants in posts in the same scale in the Provincial Government, yet, R. 48(1) of the Leave Rules, 2020, is not applicable in the High Court as higher authority to the Chief Justice does not exist---Besides, while enacting Rules, 2020, R. 48 of Leaves Rules, 2020, was neither adopted nor enacted into Rules, 2020, therefore, reliance on such Rule by the appellant was mis-conceived---Appeal was dismissed, in circumstances.

Registrar, Lahore High Court, Lahore v. Syed Javed Akbar and another 2007 SCMR 792 distinguished.

Khushnood Ahmed for Petitioner.

Muhammad Ali Rakhshani, Additional Advocate General for Respondents.

2024 P L C (C.S.) 808

[Federal Shariat Court]

Before Iqbal Hameedur Rahman, C.J., Khadim Hussain M. Shaikh and

Dr. Syed Muhammad Anwer, JJ

Mrs. NOOR AISHA and another

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and another

Shariat Petition No. 06/I of 2023, decided on 12th September, 2023.

Constitution of Pakistan---

----Art. 203-D---Shariat petition---Maintainability---Relief in personam---Pensionary benefits---Petitioner claimed her right in pensionary benefits of her deceased son as Tarka---Validity---Pension of a person does not fall within definition of Tarka, as it is governed by Pensionary Rules of that department---Petitioner failed to identify any law or rule to be against the Injunctions of Islam as laid down in the Holy Quran and the Sunnah---This was the constitutional requirement to invoke jurisdiction of Federal Shariat Court under Art. 203-D of the Constitution---Shariat Petition, without mentioning of any law or rule which was considered as against the Holy Quran and the Sunnah by petitioner, was not maintainable before Federal Shariat Court---Petitioner sought relief in personam which was altogether out of jurisdiction of Federal Shariat Court---Shariat petition was dismissed, in circumstances.

Wafaqi Hukumat-e-Pakistan v. Awamunnas PLD 1991 SC (SAB) 731 ref.

Zartashi Nadia and others v. Federation of Pakistan and others (Shariat Petition No.09/I of 2021); Federation of Pakistan v. Public at Large PLD 1991 SC 731; Ameeran Khatoon v. Mst. Shamim Akhtar 2005 SCMR 512; Farhat Nigar v. The Auditor General of Islamic Republic of Pakistan and others 2018 CLC 392; Mst. Riffat Yasmeen v. Hassan Din and another 2014 CLC 126 and Mst. Mehmooda Begum v. Zubair Ahmad and others 2013 CLC 1834 rel.

Taj Muhammad Khan for Petitioners.

2024 P L C (C.S.) 1536

[Gilgit-Baltistan Service Tribunal]

Before Mumtaz Ahmed, Chairman and Munir Ahmed, Member-I

MUHAMMAD MUSA

Versus

PROVINCIAL GOVERNMENT and others

Service Appeal No.659 of 2016, decided on 2nd September, 2024.

(a) Gilgit-Baltistan Civil Servants Act (V of 2011)---

----S. 10---Gilgit-Baltistan Civil Servants (Efficiency and Discipline) Rules, 2011, R. 4---Termination from service through verbal order---Scope and effect----Salary of the appellant (Naib Qasid at School) was verbally stopped and it was directed that he was no more in service---Case of the appellant was that he could not be removed verbally as he was appointed on the standard terms and condition under the service laws---Validity---Admittedly, the appellant was appointed after fulfilling the legal/codal formalities and thereafter he started to perform his duties at his place of posting and kept getting his pay---Nothing was available on record to question the performance of the appellant during the probation period of one year extendable for further one year under the rules---After successful completion of one year, the appellant was deemed to have been considered as permanent employee---Moreover, the appellant had served for more than 03 years as regular employee, which was over and above the extended period of probation---Hence, the service of appellant was termed as regular employee for all intents and purposes and his service could not be terminated without adopting legal procedure as provided under service law i.e. Gilgit-Baltistan Civil Servants Act, 2011 and Gilgit-Baltistan Civil Servants (Efficiency and Discipline) Rules, 2011---Record showed nothing adverse against the appellant or him having been proceeded under E&D Rules, 2011---Salary of the appellant was verbally stopped and it was directed that he was no more in service---Such practice was strange and against all the norms and practices as laid down and provided under the service laws---Hence, the respondents / department had not adopted any procedure for removal of service of appellant---Service Tribunal restored the appellant in service while treating the intervening period as leave without pay---Appeal was allowed accordingly.

(b) Gilgit-Baltistan Civil Servants Act (V of 2011)---

----S. 10---Gilgit-Baltistan Civil Servants (Efficiency and Discipline) Rules, 2011, R. 4---Termination from service---Recommendation of the inquiry committee, misconstruing of---Effect---Whether the recommendation of the inquiry committee was termed to be a termination order---Held, that record revealed that recommendation of the inquiry committees could not be termed as termination of service of the appellant as no specific order of termination of service of the appellant was issued in pursuance of the inquiry committee recommendation---Both the said committees had merely recommended that the order of the appellant might be considered cancelled, meaning thereby, the said committee had accepted the appointment of the appellant after the completion of codal formalities, therefore, there should be a clear speaking order with regard to termination of service of the appellant and no such order was available on record---Hence, in the absence of any termination letter, the recommendation of the inquiry committee could not be accepted as a legal instrument---Pertinently, all the documents rested in favor of the appellant as well as the recommendations of the inquiry committee wherein the Committee had recommended for release of salary of the appellant and to adjust him in any vacant post and in the absence of any specific termination order in written form with reason, the appellant would be deemed to have been in service and his service was not terminated in the eyes of law---Thus, the recommendation of the inquiry committee was not termed to be a termination order ---Service Tribunal restored the appellant in service while treating the intervening period as leave without pay---Appeal was allowed accordingly.

(c) Gilgit-Baltistan Civil Servants Act (V of 2011)---

----S. 10---Gilgit-Baltistan Civil Servants (Efficiency and Discipline) Rules, 2011, R. 4---Termination from service---Opportunity of personal hearing before the inquiry committee, not provided---Effect---Admittedly, Committee Report revealed that the appellant was neither summoned to appear before inquire committee nor provided any opportunity of personal hearing to justify his position and the said reports were ex-parte and against the universally recognized principle of nature justice (audi alteram partem)---Service Tribunal restored the appellant in service while treating the intervening period as leave without pay---Appeal, filed by the employee, was allowed accordingly.

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

----S. 21---Gilgit-Baltistan Civil Servants Act (V of 2011), S. 10---Gilgit-Baltistan Civil Servants (Efficiency and Discipline) Rules, 2011, R. 4---Competent Authority---Powers---Removal from service on claim of the Department that appointment was not made as per law and procedure---Principle of locus poenitentiae---Held, that any irregularity which had been committed by the department during the process of appointment, the appellant could not be punished for such lapse---Appointing Authority was responsible to face the consequences of their lapses---Under S. 21 of General Clauses Act, 1897, when the Competent Authority issues an order in favor of any individual and when the same order has taken its legal effect or implemented, the appointing authority becomes functus officio---Appellant had joined his duty in the pursuance of the appointment order and had also received monthly salary till his time in service, as such a valuable right had been accrued to appellant and that valuable right could not be snatched without following the proper procedure---Principle of locus poenitentiae, in the circumstances, was fully applicable and department was not vested with the authority to cancel the order of appointment of appellant which was passed by their predecessor and stood acted upon---Service Tribunal restored the appellant in service while treating the intervening period as leave without pay---Appeal was allowed accordingly.

Anees Ullah for Appellant.

Farman Wali, Law Officer present on behalf of Respondents Nos.1 to 2.

Tufail Ahmed, Legal Advisor for Respondent No.3.

2024 P L C (C.S.) 1561

[Gilgit-Baltistan Service Tribunal]

Before Mumtaz Ahmed, Chairman and Munir Ahmed, Member-I

ENGINEER Dr. NAZIR HUSSAIN

Versus

PROVINCIAL GOVERNMENT and others

Appeal No.49 of 2024 with C.M. No.326 of 2024, decided on 27th August, 2024.

(a) Gilgit-Baltistan Service Tribunal (Amendment) Act, 2022 (II of 2023)---

----S.5(1)---Appeal before the Service Tribunal---Project Director of a hospital---Locus standi---Whether the appellant being a Project Director, had locus standi to approach the Service Tribunal---Under the provision of S.5(1) the Gilgit-Baltistan Service Tribunal (Amendment) Act, 2022, the Project Director did not fall within the definition of Civil Servant, therefore, could not knock the door of Tribunal---Appeal was dismissed, in circumstances.

(b) Gilgit-Baltistan Service Tribunal (Amendment) Act, 2022 (II of 2023)---

----S.5(1)---Additional charge of a post---Civil servant---Scope ---Assailing order before the Service Tribunal of having additional charge---Locus standi---Scope---Additional charge of a Project Director does not fall within the scope of terms and conditions of "Civil Servant" as defined under S. 5(1) of Gilgit-Baltistan Service Tribunal (Amendment) Act, 2022---Consequently, appellant in the capacity of additional charge did not qualify as civil servant---Appeal was dismissed, in circumstances.

(c) Gilgit-Baltistan Service Tribunal (Amendment) Act, 2022 (II of 2023)---

----S. 5(1)---Additional charge, withdrawal of---Authority, powers of---Challenging of withdrawal order of additional charge of Project Director of establishment of hospital---Authority which had appointed the appellant and granted additional charge was competent to withdraw the order, as there was no legal impediment or flaw preventing such withdrawal---Hence, the Authority had not committed any illegality or exercised its power arbitrarily---Appeal, was dismissed, in circumstances.

(d) Gilgit-Baltistan Service Tribunal (Amendment) Act, 2022 (II of 2023)---

----S. 5(1)---Appeal before the Service Tribunal---Project Director of a hospital---Locus standi---Scope---Held, that an additional charge of Project Director does not fall within the scope of terms and conditions of "Civil Servant" as defined under S.5(1) of Gilgit-Baltistan Service Tribunal (Amendment) Act, 2022---Consequently, appellant in the capacity of additional charge did not qualify as civil servant---Besides, on examination of relevant Notification while relieving the service of the appellant as Project Director, additional charge had been granted to another Superintending Engineer, LG&RD, which was also illegal, unlawful and against the practice and procedure as laid down by Planning Commission Manual for Development Project, 2024 in paras. Nos. 4.6 to 4.10---Gilgit-Baltistan Service Tribunal ('Tribunal') also set-aside the said Notification to such extent---Appeal was dismissed accordingly.

Shahid Abbas for Appellant.

Farman Wali, Law Officer, present on behalf of Respondents Nos.1, 3, 4 and 7.

Karim Jan, Legal Advisor for Respondent No.2.

Ammar Hussain, Legal Advisor present on behalf of Respondent No.9.

Ubaid Ullah, A.A.O present on behalf of Respondent No.6.

Nemo for Respondents Nos.5 and 8.

2024 P L C (C.S.) 417

[Supreme Appellate Court Gilgit-Baltistan]

Before Sardar Muhammad Shamim Khan, C.J

PROVINCIAL GOVERNMENT through Chief Secretary and others

Versus

Mst. SHAZIA BATOOL

C.P.L.A. No.171 of 2023, heard on 10th August, 2023.

Civil service---

----Appointment---Contract employee---Regularization in service---Lady Health Worker---Regularization of service in light of Office Memorandum dated 16-01-2018 issued by the Government of Gilgit-Baltistan---Lady Health Worker, who was initially appointed on contract basis, filed constitutional petition for her appointment on the vacant post of Lady Health Worker (BPS-5) in light of Office Memorandum dated 16-01-2018 ('Memorandum'), which was accepted while passing directions to the Department to conduct her skill test only, if required for relevant post---Department filed civil petition seeking leave to appeal contending that by subsequent Office Corrigendum, a schedule had been announced for conducting screen-test/interview for various posts for the purpose of selecting most eligible candidates by observing the merit policy---Validity---Office Memorandum dated 16-01-2018 ('Memorandum') while settling a mechanism to ensure merit based recruitment in the various department, inter alia, envisaged that all the Administrative departments would give preference to the contingent employees for their appointments against the vacant posts and no screening test for appointment on posts from BPS-01 to BPS-05 would be conducted---Respondent was, admittedly, a contract employee (BPS-05), who was performing her duties to the satisfaction of the competent authority and there was no complaint against her, thus her case fell within the ambit of the Memorandum---Petitioners/Department were legally bound, while implementing the policy having been introduced in the Memorandum, to conduct only skill test of the respondent, if required for the said post---Subsequent office corrigendum, whereby the petitioners / Department announced the schedule for conducting screening test / interview for the posts from BPS-01 to BPS-O5, was in violation of the Memorandum wherein a mechanism to ensure merit based recruitments in various government departments had already been introduced---Act of the petitioners/department was in violation of the principle of natural justice and against the policy of Memorandum whereby the services of low paid poor employees belonging to downtrodden areas were not regularized without disclosing any cogent reason---Chief Court, keeping in view lengthy services of the respondent as lady Health Worker on contract , had rightly accepted her constitutional petition directing the petitioners / department to conduct her skill test only, if required ---Civil petition for grant of appeal filed by the petitioners/Department was declined, in circumstances.

Aman Ali Shah, Deputy Advocate-General for Petitioners.

2024 P L C (C.S.) 79

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ and Johar Ali, J

UMAR JAN and 16 others

Versus

ABDUL JABBAR and 29 others

C.M. No.172 of 2023 in W.P. No.743 and C.M. No.1362 of 2022, decided on 19th April, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R. 4---Government of Gilgit-Baltistan Order, 2018, Art.86(2)---Civil service---Application for vacation of status quo---Posts of teaching cadre (BPS-19) of Education Department, Gilgit-Baltistan, filled through Federal Public Service Commission ('FPSC')---Promotion of officer in the Education Department, matter of---Writ jurisdiction of the Chief Court was invoked by officers already serving in the Education Department against recruitment process, in which status quo maintaining order was passed---Applicants (intending candidates), who were waiting for final result after appearing for recruitment for the posts-in-question, filed application for vacation of status-quo maintaining order having been passed by the Chief Court---Contention of the applicants (for vacation of status quo) was that the respondents / writ-petitioners had misrepresented the facts to get status-quo maintaining order passed---Validity---Record (relevant office order notification) revealed that after promoting the officers of BPS-18 of Education Department to BPS-19 against promotion quota, the posts-in-question were sent to FPSC to fill the same against direct quota, while respondents / writ-petitioners had been promoted to BPS-18---Respondents / writ-petitioners were claiming promotion against the posts of BPS-19 even before completion of one year probation period , whereas as per recruitment rules for promotion against a post of an officer (BPS-19), 12 years service in BPS-17 and above or 05 years service in BPS-18 was required which respondents / writ-petitioners did not possess---Moreover, the FPSC had completed recruitment process of the posts-in-question and result was to be announced---Respondents / writ-petitioners had filed their writ-petition after about two months of announcement of schedule of interviews of the candidates by the FPSC---Respondents /writ-petitioners, thus , had failed to make out a good prima facie case and also had failed to show that irreparable loss would be caused to them if temporary injunction was not granted and balance of convenience was also not in their favour---Chief Court recalled impugned order having been passed in the writ petition filed by the respondents / writ-petitioners and status quo, granted in their favour by virtue of impugned order, was vacated---Application for vacation of status quo filed under O.XXXIX, R.4 of the Civil Procedure Code, 1908, moved by the candidates awaiting result, was allowed, in circumstances.

Islam ud Din and Zohaib Ali Shah for the Applicants.

Mir Zeeshan Akhlaque for Respondents Set-I.

DAG Muhammad Qadir assisted by L.A. Tufail Ahmed for Respondents Set-II.

2024 P L C (C.S.) 96

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ and Javed Ahmed, J

REHMAT KARIM----Petitioner

Versus

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

Writ Petition No.438 of 2022 along with C.M. No.884 of 2022, decided on 12th June, 2023.

Gilgit-Baltistan Employees (Regularization of Services) Act (VIII of 2020)---

----S.5---Regularization of service of contigent employee---Post of Motor vehicle Examiner /MVE (BPS-14)---Record revealed that the petitioner was initially appointed by the respondents as contingent paid staff for a period of six months in the year 2017 (about five years ago) at monthly fixed pay vide an order duly issued by Excise and Taxation Officer (Admin)---Contingent service of the petitioner had been extended from time to time---Hence, service status of the petitioner as contingent paid staff was not controversial and was admitted by the respondents---In an official letter addressed to Deputy Director Excise and Taxation Department, the concerned district Excise and Taxation Officer (ETO) had highly recommended the petitioner for regularization of his service against the vacant post of MVE (BPS-14) as he was fulfilling the criteria as required for the said post---Said ETO had also added that the petitioner was working as MVE for the last six months and he had acquired ample experience in matters related to physical examination of vehicles---Moreover, the Deputy Commissioner in his letter addressed to the respondent (Secretary Excise and Taxation), had also requested the said respondent to provide employment to the petitioner being most deserving and poor person on the ground that he had provided land for the construction of Excise and Taxation Office ---Furthermore, the post of MVE (BPS-14) was still vacant in relevant ETO, hence, the regularization case of the petitioner needed consideration by the respondents under the relevant provisions of the Gilgit-Baltistan Employees (Regularization of Services) Act, 2020---Chief Court referred the matter of the petitioner to the relevant Regularization Committee to consider his case in the light of recommendations of ETO---Writ petition was disposed of accordingly.

Malik Kifayat ur Rehman, Irfan Ullah, Kaisar Ali Shah and Akram Ullah for Petitioners.

Malik Sherbaz, Dy. Advocate General assisted by L.A. Imran Hussain for Respondents.

2024 P L C (C.S.) 286

[Chief Court Gilgit-Baltistan]

Before Johar Ali and Mushtaq Muhammad, JJ

MASOOD HAIDER and 3 others

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary Gilgit Baltistan, Gilgit and 5 others

Writ Petition No.465 of 2022, decided on 12th May, 2023.

Civil service---

----Appointment---Recruitment to public sector posts---"Waiting list" for selection of candidates---Vested right(s) of candidates on waiting list---Scope---Petitioners applied for Naib Tehsildar positions but were not selected---Names of petitioners were included in the waiting list---Later, the Finance Department approved 12 new Naib Tehsildar posts---Petitioners requested appointment to these positions, but their requests were not accepted---Validity---Waiting list candidates can claim appointment within the validity period of waiting list if any selected candidate either does not join the post or leaves the same after joining---Candidates on a waiting list have no right to use the "waiting list" as an open license to hunt the post anywhere at any time---Candidates on a waiting list are only for the purpose of contingency and nothing beyond that---Candidates on a waiting list have no vested right of appointment even in case the principal nominee does not joint the post---In present case too, the appointment of a candidate on waiting list was subject to recommendation of the relevant department and approval of the competent authority---Waiting list prepared after a recruitment process was relevant and admissible to the post of said recruitment alone and waiting list of candidates was not valid to the newly created post even if the said posts are created during the validity period of waiting list---Newly created posts were to be filled through a transparent method of appointment according to the relevant rules---Writ petition was dismissed, in circumstances.

Ehtisham Basharat v. DIG Police and 2 others 2023 PLC (C.S.) 8; Rafaqat Ali v. Executive District Officer (Health) 2011 PLC (C.S.) 1615; Qaisar Abbas and 8 others v. The Province of Punjab and 2 others 2018 PLC (C.S) 310 and Munir Hussain and 3 others v. Province of Sindh and others 2022 SCMR 650 rel.

Musa Wazir's case 1993 SCMR 1124 ref.

Asadullah Khan and Waqas Ahmed for Petitioners.

Abdul Karim D.A.G. assisted by Shams-ur-Rehman L.A. for Respondents.

2024 P L C (C.S.) 294

[Chief Court Gilgit- Baltistan]

Before Ali Baig, CJ and Raja Shakeel Ahmed, J

MEHTAR ABBAS

Versus

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

Writ Petition No.307 of 2021, decided on 18th September, 2023.

Civil service---

----Appointment---Appointment on the basis of Prime Minister's Assistance Package---Petitioner being real son of the deceased employee was appointed against the post of Stenotypist---Petitioner sought directions under writ jurisdiction contending that since his father was serving as Girdawer in Revenue Department , therefore, he might be appointed against the said post (Girdawer)---Validity---Record revealed that widow of the deceased , by an affidavit and application, had nominated the petitioner for appointment against any post under Prime Minister's Assistance Package admissible to legal heirs of government employees who died during service---Accordingly, the respondent/department had appointed the petitioner against the post of Stenotypist---(Any) one legal heir of the deceased employee could be appointed against a post from BPS-1 to BPS-15 in accordance with qualification---In compliance with relevant provisions of Prime Minister's Assistance Package, the petitioner had already been appointed against the post of Stenotypist---Respondents were not bound to appoint the petitioner against the post of his choice i.e. Girdawer as such he was not entitled to be appointed against the post of Girdawer BPS-11---Petitioner had failed to make out case for interference of the Chief Court---Writ petition was dismissed, in circumstances.

Islam Uddin for Petitioner.

D.A.G. Mehmood Kamal Afandi assisted by Shams ur Rehman, L.A. for Respondents.

2024 P L C (C.S.) 299

[Chief Court Gilgit-Baltistan]

Before Malik Inayat-ur-Rahman and Johar Ali, JJ

Dr. SHERIN SULTAN, CHIEF CONSULTANT GYNECOLOGIST PHQ HOSPITAL GILGIT

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary Gilgit Baltistan, Gilgit and 3 others

Writ Petition No.318 of 2021, decided on 28th October, 2021.

Government of Gilgit-Baltistan Order, 2018---

----Art. 86---Writ petition---Civil service---Transfer and posting---Maintainability of writ petition---Scope---Petitioner assailed the notification of her transfer---Validity---Notification of posting/transfer transpired that the department had not committed any material irregularity, discrimination or illegality as the matter of transfer/posting of any government officer/official in routine was purely in the domain of the concerned competent authority which could not be challenged in the Court of law in writ jurisdiction---Petitioner had remained posted in the district since the year 2013 and was also unable to show that the concerned post did not exist where she was being transferred---Alleged mala fides in her posting/transfer were not proved from the record on the file---Department was fully empowered by law to transfer/post any subordinate government officer from one place to another and transfer of civil servant could be made by the competent authority in the exigency of services and in the public interest---Writ petition was dismissed.

Ehsan Ali for Petitioner.

Dy. Advocate General for Respondents assisted by Ibrahim-ud-Din, LA for Health Department.

2024 P L C (C.S.) 441

[Chief Court Gilgit-Baltistan]

Before Malik Inayat ur Rehman and Raja Shakeel Ahmed, JJ

ATIQ AHMAD, SUPERINTENDENT ANTI-TERRORISM COURT NO.1, GILGIT-BALTISTAN and another

Versus

PROVINCIAL GOVERNMENT through Chief Secretary GB, Gilgit and 5 others

Writ Petition No.238 of 2020, decided on 7th December, 2021.

Constitution of Pakistan---

----Arts.4 & 25---Government of Gilgit-Baltistan Order, 2018, Art.86(2)---Notification No. CC-E/2020 dated 11th June, 2020---Post, upgrading/re-designation of---Rule of law---Equality of citizens---Discrimination---Writ jurisdiction of the Chief Court was invoked by officials working on the post of Superintendent (BPS-17) in Anti-Terrorism Court and Custom and Banking Court of Gilgit-Baltistan---Record revealed that the (same) post of Superintendent in District Judiciary had been re-designated/upgraded as Staff Officer (BPS-18) w.e.f 1st June 2020, but the petitioners had not been upgraded to bring them at par with the similar placed persons---Qualification and nature of duty for the post of Superintendent in the Courts where the petitioners were working and Lower Judiciary of Gilgit Baltistan was same---Article 25 of the Constitution, having been included in the Government of Gilgit-Baltistan Order, 2018, required that persons similarly placed had to be treated similarly except on the basis of reasonable classification---Qualification and nature of duties of both posts being the same , the petitioners could not be treated differently---Petitioners, in light of Arts. 4 & 25 of the Constitution, had the inalienable right to be treated in accordance with law and were entitled to equal protection of law---Equality before law was subject to reasonable classification but in the present case there was no question of any classification---Post of the Superintendent in BPS-17 in subordinate Judiciary of Gilgit-Baltistan had been re-designated as Court Officers and the same was upgraded from BPS-17 to BPS-18 w.e.f 1st June 2020 by the Gilgit-Baltistan Chief Court vide Notification No. CC-E/2020 dated 11th June 2020, hence the post held by the petitioners also needed to be re-designated/upgraded as per analogy of "equal treatment among the equals"---Petitioners being similarly placed in terms of their natures of job i.e. same type of work, service grade and qualification had clearly been discriminated in treatment by the respondents' vis-à-vis their counterparts in the Lower Judiciary of Gilgit Baltistan---Chief Court directed the respondents to remove the cause of such discrimination by notifying the up-gradation of petitioner's cadre for equal treatment bringing them at par with their counterparts working in the subordinate judiciary of Gilgit Baltistan---Writ petition was allowed, in circumstances.

Akram Hussain v. Government of Gilgit Baltistan through Chief Secretary and 8 others Writ Petition No.301 of 2019 ref.

Muneer Ahmed, Akhtar Ali and Imtiaz Ali for Petitioners.

2024 P L C (C.S.) 501

[Chief Court Gilgit-Baltistan]

Before Malik Inayat-ur-Rehman, J

NAHEED AKHTAR

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and others

Civil Revision No.49 of 2021, decided on 27th October, 2021.

Civil service---

----Appointment---Scope---Plaintiff instituted suit for declaration for appointment to the post of Elementary School Teacher (BS-14) being on top of the merit list of waiting candidates and that recommendations of DSC (District Selection Committee) in favour of private defendant were un-warranted as the latter had contracted marriage and resided with her husband---Trial Court on the basis of compromise between plaintiff and defendant decreed the suit and directed the authorities to appoint plaintiff against the disputed post---Appellate Court dismissed the suit---Validity---Dispute between parties did not relate to eligibility of the plaintiff as she was resident of the concerned district and had successfully qualified the test/interview for the subject post---Private defendant had never contested the correctness of the judgment passed by the Trial Court before the Appellate Court---Judgment passed by Appellate Court lacked merit and warranted interference by the High Court---Revision petition was allowed.

Naveed Hussain for Petitioner.

Deputy Advocate General for Respondents.

2024 P L C (C.S.) 1041

[Gilgit Baltistan Service Tribunal]

Before Mumtaz Ahmed, Chairman, Munir Ahmed, Member-I and Muhammad Ashraf, Member-II

ASGHAR KHAN

Versus

PROVINCIAL GOVERNMENT and others

Appeal No.35 of 2024, decided on 25th March, 2024.

Gilgit-Baltistan Civil Servants Act (V of 2011)---

----S. 9---Civil Servants Act (LXXI of 1973), S.10---Frequent transfers of the civil servant---Right to a specific posting---Scope---Plea/allegation of the applicant/appellant (Assistant Commissioner) was that the official respondents had frequently transferred him without any fault from one place to another---Validity---Controversy-in-hand stemmed from a series of transfer notifications affecting the applicant---It was to be ascertained that whether the transfer order concerning the appellant was motivated by malice, bias or ill-will or was arbitrary on the part of the competent authority---According to S.9 of Gilgit-Baltistan Civil Servants Act, 2011, every civil servant may be required to serve in various positions under different government entities---Consequently, the right to a specific posting is not absolute and a civil servant is obliged to comply with transfer orders issued by the competent authority---Practice of recurrent transfers within short span of time is deplorable, as it prevents the civil servant from settling into a role and performing his/her duties to the best---Posting and transfer decisions are inherent administrative functions of the Government, and a civil servant cannot unilaterally refuse or impugned such orders in contravention of the terms and condition of their service---Furthermore, it is not appropriate to interfere in the administrative affairs and policy decision of the Government, where no legal right of a person is infringed---Perusal of Civil Servants Act, 1973, read with relevant provision of Gilgit Baltistan Civil Servants Act, 2011, shows that it is within the competence of the authority to transfer a civil servant from one place to another to meet the exigencies of service or administration, provided his terms and conditions of service are not adversely affected---Moreover, the civil servant has no vested right to claim posting or transfer to any particular place of his choice, nor did he have any right to continue to hold a particular post at particular place---From the record it appeared that appellant was serving as Assistant Commissioner for more than one and half year before his subsequent posting vide impugned notification of transfer---Hence, the grievance of the appellant for frequent posting from one place to another in short span did not surface from the record---Appeal filed by the civil servant was dismissed, in circumstance.

Dr. Muhammad Saleem v. Government of Balochistan and others 2023 SCMR 2119 = 2024 PLC (C.S.) 77; Dr. Imtiaz Ellahi Piracha v. Government of Punjab 2004 PLC (C.S.) 705 and Muhammad Sajjad v. Federation of Pakistan and others 2021 SCMR 1064 ref.

Asad Ullah Khan for Appellant.

Farman Wali, Law Officer present on behalf of Respondents Nos.1 to 3.

Naveed Hussain, Legal Advisor present on behalf of Respondent No.2.

Shafqat Ali, Legal Advisor for Respondent No.3.

2024 P L C (C.S.) 1048

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ and Mushtaq Mhammad, J

GULSHAN BIBI

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary Gilgit-Baltistan, Gilgit and 5 others

Writ Petition No.424 of 2022, decided on 29th November, 2023.

Constitution of Pakistan---

----Art. 25---Employment---Discrimination---Bio-metric verification, entitlement to---Petitioner, claiming herself as a contingent paid employee, filed writ petition against denial by the (Education, Finance, Services) Departments/respondents for her bio-metric verification---Contention of the respondents (Education Department) was that the petitioner was not appointed as contingent paid employee rather she was appointed as community school teacher, therefore, she was not entitled for bio-metric verification---Validity---Respondents had failed to produce any document (appointment order etc.) regarding appointment of the petitioner as community school teacher---Record transpired that the petitioner and eight (08) other individuals/persons were appointed as contingent paid staff vide Office Order No. DDE(GZ)-43(2)/2015 dated 28th October, 2015---Said Office Order had belied the version/averment of the respondents that the petitioner was community school teacher and she did not fall within the ambit of contingent paid staff---Respondents had conducted bio-metric verification of the colleagues of the present petitioner, but the respondents had not provided a fair opportunity to the petitioner for bio-metric verification---Moreover, vide an official letter addressed to the respondent / Secretary Education, the Director Schools Co-ordination recommended the petitioner for bio-metric verification which was forwarded to the respondent / Secretary Finance, but he had failed to do the needful, which was clear discrimination on the part of respondents against the petitioner---Chief Court directed the respondents to provide opportunity to the petitioner for bio-metric verification within shortest possible time---Writ petition was allowed accordingly.

Rehmat Karim for Petitioner.

Malik Sherbaz, Dy. Advocate General assisted by L.A.

Tufail Ahmed for Respondents.

2024 P L C (C.S.) 1063

[Chief Court Gilgit-Baltistan]

Before Malik Inayat ur Rehman and Raja Shakeel Ahmed, JJ

AMIR HAMZA and 8 others

Versus

PROVINCIAL GOVERNMENT through Chief Secretary GB, GILGIT and 14 others

Writ Petition No.422 of 2021, decided on 7th December, 2021.

Government of Gilgit-Baltistan Order, 2018---

----Art. 86(2)---Civil service---Posts of Grades I and II and Turbine Operator for a hydro power project---Appointment---Local land-owners/affectees of the project, entitlement of---Doctrine of legitimate expectation---Policy statement(s) of Cabinet---Scope---Petitioners / affectees, being land-owners at the power project site, filed writ petition against the appointment of private respondents---Contention of the petitioners was they were promised to be appointed on the subject posts---Validity---Record [office letter(s) by Water and Power Division, resolution(s)/complaint(s) by affectees etc.] revealed that Hydro Power Project (in question) was approved by the Provincial Government, which was constructed on the land of petitioners; after installation of the machinery and pipe, due to the outburst of the pin stock pipe, the houses of the petitioners were damaged that and the petitioners through their formal resolution/complaint demanded the compensation from the respondents; the respondent ratified the damages that occurred to their houses during implementation of project and it had also been admitted by the respondents that due to leakage in the channel of power house the crops and trees of the petitioner had been lost; and a resolution (having been submitted by the affectees that upon approval of the PC-IV priority for jobs may be given to them) was also recommended that as per policy for appointment against the 2% provision of development projects, land donors/affected people and local inhabitants might be given priority on regular footing---Record also showed the orders issued to the petitioners by the respondents against the 2% development project, when the petitioners resisted the initiation of projects on their lands; and that after issuance of a letter dated 26th November 2014 the petitioners served the respondents on volunteer basis for a long period spreading over more than five years and the respondents in recognition of their volunteer services issued certificates of appreciation to the petitioners wherein they admitted that the petitioners were obedient hard workers rendering volunteer services---Till today remaining land is under direct grab of the project due to constant leakage and outburst of the pins stock pipe which passes over the houses and remaining lands of the petitioners---Petitioners were poor souls and only bread earners of their family, the respondents acquired their lands forcefully and against their will at a very low cost by giving them a nominal compensation and made commitment of providing employment which created a legitimate expectation that they will be compensated by means of employment when the project was completed and PC-IV approved---On the basis of said legitimate expectation conveyed by the respondents (Authority) to the petitioners (beneficiaries) for their future security i.e. provision of employment as Grade-1 & 2 in the power project, the petitioners were working with respondents voluntarily with the hope that they will be appointed against the regular posts when the same will be created---Petitioners, admittedly, had eligibility (physical and academic) required for the posts of Grades I & II and belonged to the same vicinity where the power project was constructed, but the respondents failed to consider their day and night services and appointed other persons ( private respondents ), who were residents of far flung areas---Petitioners submitted an application when the respondents advertised the posts of Grades I and II and Turbine Operator for the said power project, and they were assured that they would be preferred during the process of appointment, as such the petitioner appeared before the selection committee due to commitment of respondents, but respondents after conducting interview, instead of appointing them, had appointed the private respondents by violating all rules and law and also against their own previous letter---Action of the respondents was also against the policy and decision of Cabinet wherein it was held that the land donors would be given priority in appointments for the posts of Grades I & Il, as such the respondents had violated the policy by appointing the respondents beyond the local limits of the area where the project belonged, who were residents of other areas distancing 6 to 7 kilometers away from the place of duty of the Hydro Power Project---Doctrine of legitimate expectation has its genesis in the field of administrative law---Government and its departments, in administrating the affairs of the country, were expected to honor their statements of policy or intention and treat the citizens with full personal consideration, without any iota of abuse of discretion---Policy statements cannot be disregarded unfairly or applied selectively, which is akin to violation of natural justice---Doctrine of legitimate expectation is a procedural right---Claims based on legitimate expectation have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel which admittedly occurred in the present case---Official respondents were bound to appoint the petitioners on the vacant posts but they failed to abide by the policy and their commitment---Chief Court directed the official respondents to appoint the petitioners on the available posts of Grades 1 & 2 in Water and Power Department---However, prayer of the petitioners to the extent of termination of private respondents (appointees) was disallowed---Writ petition was disposed of accordingly.

Basharat Ali for Petitioners.

2024 P L C (C.S.) 1426

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ and Raja Shakeel Ahmed, J

SHERBAZ KHAN and 2 others

Versus

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

Writ Petition No.596 of 2022, decided on 27th November, 2023.

Civil service---

----Health department---Promotion, entitlement to---Previous judgment passed by the Chief Court---Scope and effect---Petitioners [Medical Technicians (BPS-17) in Health Department] filed writ petition seeking directions to the respondents / Health Department to proceed for their promotion as Medical Technologist (BPS-17)---Plea of the respondents / Services, General Administration and Cabinet Department, was that as per direction passed in a previous judgment by the Chief Court, observance of 50% quota specified for initial appointment against the posts-in-question was necessary---Validity---From the parawise comments, filed by the Respondents, it was revealed that they (respondents) had admitted the plea/ claim of the petitioners by not denying relevant para (No. 4) of writ petition by stating therein (comments) that they had initiated the working papers for promotion of the petitioners vide a letter but Services, General Administration and Cabinet Department returned the same (working papers) by clearly mentioning that, as per previous judgment passed by the Chief Court, directives had been issued to the respondents regarding observance of 50% quota specified for initial appointment against the posts-in-question---Record revealed that although such like directions were earlier passed by the Chief Court , however, neither the present petitioners nor the respondents were impleaded in the said proceedings before the Chief Court---Therefore, said judgment / directions of the Chief Court were not binding upon the present petitioners---Even otherwise, the Chief Court later varied /expunged the said order passed by the previous Bench by stating that "we in the larger interest of justice law and equity expunge the aforesaid words"---Thus, the said previous judgment passed by the Chief Court would not be a hurdle in promotion of the present petitioners---Chief Court directed the respondents to promote the petitioners against the clear vacant posts of Medical Technologist (BPS-17) in Health Department within the shortest possible time---Writ petition was allowed accordingly.

Jaffar Hussain and Arsalan Hussain for Petitioners.

Muhammad Qadir D.A.G. assisted by L.A Karim Jan and Departmental Rep. Dr. Ashfaq for Respondent.

2024 P L C (C.S.) 626

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

MUHAMMAD RAFIQUE and 9 others

Versus

INSPECTOR GENERAL OF POLICE, AZAD JAMMU AND KASHMIR POLICE DEPARTMENT, HAVING HIS OFFICE AT NEW SECRETARIAT CHATTER, MUZAFFARABAD and others

Writ Petition No.124 of 2022, decided on 6th March, 2024.

Police Rules, 1934---

----Chapt. 13, R. 13.7, List B---Promotions---Admission to courses at Police Training College---Selection of candidates---Age of the candidates---Petitioners (ten constables/successful candidates in the list "A1") invoked writ jurisdiction of the High Court for enlisting their names in the list "B1" exams of Lower School Course---Validity---Although R. 13.7 of the Police Rules, 1934, elucidates the selection of candidates (for admission to courses at Police Training College) that no constables shall be considered eligible for the relevant course until the entry of his name on list "B" has been approved by the Deputy Inspector General of the Range, yet in the present case, the petitioners had been in litigation for more than a decade before Department / Authorities and the High Court---Thus, most of the petitioners might have crossed the age as required for the purpose during the period when their matter had been subjudice before the concerned Authorities---It is settled principal of law that the employees who are transferred or absorbed from one unit to another will remain below the employees already serving on the department subject to condition that if the seniority lists of employees of both units have separately been prepared in their respective scales and if the police constables from Reserve Force already qualified the exams of list "B", they will be placed at bottom of list "B" prepared for the concerned district---Admittedly, the period for conducting exams of the petitioners pertaining to "B1" had already expired / elapsed on the part of respondents, hence, keeping in view further hardship of the petitioners, High Court concluded that the requisite procedure for entering the names of the petitioners in list "B" shall be completed by the official respondents within short span of period without considering the age limit as they (petitioners) can not be penalized for the fault of authority, if they otherwise fulfill the required qualification---High Court, while granting alternative relief sought by the petitioners, directed the official respondents to conduct the exams of the petitioners for entering their names in list "B" within two moths by relaxing age barrier---Writ petition filed by the constables was partly allowed.

Rashid Ameer v. Federation of Pakistan through Secretary, Ministry of Interior and 4 others 2018 PLC (C.S.) 822 ref.

Mir Ghazanfar Gul for Petitioners.

2024 P L C (C.S.) 675

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

SHAHID AZIZ AWAN, ASSISTANT EDUCATION OFFICER

Versus

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

Writ Petition No.3131 of 2023, decided on 13th February, 2024.

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

----Art. 44---Azad Government of the State of Jammu and Kashmir Rules of Business (Revised), 1985---Writ petition---Maintainability---Petitioner (Assistant Education Officer) filed writ petition seeking directions to set-aside a proposal assertly moved by the Speaker Legislative Assembly in grab of which he would be disturbed from his present place of posting---Held, that apprehension on the basis of facsimile of an alleged proposal of irrelevant office (Speaker Legislative Assembly) provides no room for interference as the Departmental Authorities are under legal obligation to abide by the Constitutionally mandate Rules i.e. Azad Government of the State of Jammu and Kashmir Rules of Business (Revised), 1985---Even otherwise, a proposal of the Speaker Legislative Assembly, for transfer and posting in the Education Department is not relevant, however, the competent authority is clothed with powers to transfer the petitioner as per exigencies of the Department---Thus no vested right can be claimed by the petitioner in said regard---Writ petition, filed by Officer in Education Department, being meritless, was dismissed, in circumstances.

Qazi Zaheer Ahmed Awan for Petitioner.

Abdul Basit Khan, Legal Advisor for the Education Department.

2024 P L C (C.S.) 10

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MASOOD ALAM NIAZI

Versus

SECRETARY MINISTRY OF INDUSTRIES AND PRODUCTION GOVERNMENT OF PAKISTAN, ISLAMABAD and another

Writ Petitions Nos.3732 of 2019 and 290 of 2020, decided on 6th December, 2021.

Constitution of Pakistan---

----Art. 199---Master and servant---Constitutional petition filed by an employee of Utility Stores Corporation of Pakistan (Pvt.) Ltd. ('USCP') with respect to his terms and conditions of service---Maintainability---Petitioners were employees who were dismissed from service by the USCP in wake of their conviction by the Accountability Court---Petitioners' acquittal by the Appellate/High Court had caused a dispute between the USCP and them qua their service as the USCP refused to permit the petitioners to join their duties---Petitioners invoked constitutional jurisdiction of the High Court contending that they were not dismissed from service in accordance with or by resorting to the procedure prescribed in the said Utility Stores Corporation of Pakistan (Pvt.) Ltd. Service Rules, 1981 but solely due to their conviction by the Accountability Court---Validity---Utility Stores Corporation of Pakistan (Pvt.) Ltd. Service Rules, 1981, had not been made by the Federal Government but by the Board of Directors of USCP pursuant to the provisions of its Memorandum and Articles of Association---Said rules had not been made in exercise of any statutory powers and the same contained relevant chapter titled "Efficiency and Discipline Rules" providing an elaborate mechanism for conducting disciplinary proceedings against employees of the USCP---Since the Utility Stores Corporation of Pakistan (Pvt.) Ltd. Services Rules, 1981, were non-statutory in nature, the relationship between USCP and the petitioners was governed by the principle of 'master and servant' and therefore, the petitions filed by the petitioners were not maintainable---Constitutional petitions were dismissed, in circumstances.

Pakistan International Airline Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676; Pakistan Airline Pilots Association v. Pakistan International Airline 2019 SCMR 287; Khalid Zamir Rasib v. Province of the Punjab 2021 PLC (C.S.) 994 and Noor Ullah Saeed v. Utility Stores Corporation of Pakistan (Pvt.) Ltd. (Writ Petition No.3293/2021) ref.

Muhammad Munir Paracha and Nauman Munir Paracha for Petitioner (in Writ Petition No.3732 of 2019).

Muhammad Akram Gondal and Ch. Muhammad Bashir Sappal for Petitioner (in Writ Petition No.290 of 2020).

Attiq-ur-Rehman Siddiqui, Assistant Attorney-General for Respondent.

Muhammad Shoaib Shaheen and Nasir Saleem for Utility Stores Corporation.

Safdar Sial, Law Officer, Utitlity Stores Corporation.

2024 P L C (C.S.) 556

[Islamabad High Court]

Before Aamer Farooq, C.J

MUHAMMAD IRFAN WAHID

Versus

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

Writ Petition No.4546 of 2023, decided on 11th January, 2024.

General Clauses Act (X of 1897)---

----S.24-A---Civil service---Policy Guidelines for Selection, Appointment and Posting of Trade and Investment Officers (BS-18 to BS-21) in Pakistan Trade Missions Abroad, dated 03-07-2023---Selection criteria---Non-speaking order---Station of posting---Determination---Petitioner / candidate was in service of Pakistan and was aggrieved of allocation of place of foreign posting by Interviewing Board---Validity---Candidates were provided options to give their preferences in the Policy and that did not create vested right in them per se to be allocated that particular station---Where a candidate had qualified on merit and his preference of station was available, he had legitimate expectation that such option would be granted to him---Undertaking executed by petitioner / candidate did not debar him for asserting his right to be posted at station of his second preference---Reasoning put forward by Authorities which formed basis for recommendations of the Board did not surface anywhere in minutes of meeting---Such minutes and recommendations of the Board were defective and also violative of S. 24-A of General Clauses Act---High Court declared that recommendations made by Interview Board, to the extent of recommendation of appointment of petitioner / candidate at Riyadh (Saudi Arabia), were in violation of the Policy---High Court directed Federal Government to act strictly in accordance with the Policy---Constitutional petition was allowed accordingly.

Dr. Masood Saleem v. Federation of Pakistan through Secretary, Establishment Division and another 2013 PLC (C.S.) 1062; Zaigham Abbas and 10 others v. Federation of Pakistan through Secretary, Ministry of OP and HRD and 14 others 2021 PLC (C.S.) 486; Muhammad Adil Khan and others v. Federation of Pakistan through Secretary, Ministry of Overseas Pakistanis and Human Resource Development and others W.P. No.3055 of 2019; Dr. Muhammad Saleem v. Government of Balochistan and others 2023 SCMR 2119; Altaf Hussain Khuro and 3 others v. Federation of Pakistan and 6 others 2023 PLC (C.S.) 796; Fida Hussain Shah and others v. Government of Sindh and others 2017 SCMR 798; Sajid Mehmood Raja and another v. Federation of Pakistan and others 2013 PLC (C.S.) 864; Uzma Manzoor v. Vice-Chancellor Khushal Khan Khattak University 2022 SCMR 694 and President National Bank of Pakistan v. Waqas Ahmed Khan 2023 SCMR 766 ref.

Ms. Zainab Janjua for Petitioner.

Umer Sajjad Chaven for Respondent No.2.

2024 P L C (C.S.) 704

[Islamabad High Court]

Before Babar Sattar, J

SUMAIRA NAZIR SIDDIQUI, MEMBER ANTI-DUMPING APPELLATE TRIBUNAL, ISLAMABAD

Versus

MINISTRY OF HOUSING AND WORKS through Secretary, Government of Pakistan and 9 others

Writ Petitions Nos.2479, 2516 and 2624 of 2023, decided on 6th October, 2023.

(a) Equity---

----Doctrines, applicability of---All doctrines of equity are only applicable where an order on the basis of which a benefit or entitlement is sought is a legal order.

(b) High Court Judges (Leave, Pension and Privileges) Order, 1997---

----Cl.21---Accommodation Allocation Rules, 2002, R. 6---Constitution of Pakistan, Art. 205 & Fifth Schedule---Judges of High Courts---Official residence---General Waiting List (GWL)---Applicability---Every Judge of High Court is to be provided residence under Cl. 21 of High Court Judges (Leave, Pension and Privileges) Order, 1997 (Presidential Orders), throughout his term of office without payment of rent---Such right and allowance has been determined by law and forms part of the terms and conditions of service of the Judge---Scheme of such entitlement is different from that which applies to Federal Government Servants under Accommodation Allocation Rules, 2002, framed under Civil Servants Act, 1973---Federal Government Servant is entitled to a house subject to availability determined on the basis of placement of his name on GWL, which accommodation is provided in lieu of a rent allowance made available to Federal Government Servant as part of his terms and conditions of service---Judge under High Court Judges (Leave, Pension and Privileges) Order, 1997 (Presidential Order), is guaranteed provision of residence throughout his/her term of office---Such provision of residence is not in lieu of rent---High Court directed Secretary, Ministry of Housing, to ensure that neither list of allottees maintained under Accommodation Allocation Rules, 2002, nor GWLs and priority lists prepared for purposes of the Accommodation Allocation Rules, 2002, would include names of Judges of Islamabad High Court, as allocation of official residences to Judges of Islamabad High Court was made under Cl. 21 of High Court Judges (Leave, Pension and Privileges) Order, 1997 (Presidential Order) and not under Accommodation Allocation Rules, 2002---High Court further directed Secretary Ministry of Law and Secretary Ministry of Housing to comply with and implement obligation of Federal Government pursuant to Cl. 21 of High Court Judges (Leave, Pension and Privileges) Order, 1997 (Presidential Order).

(c) High Court Judges (Leave, Pension and Privileges) Order, 1997---

----Part-IV---Privileges, allowances and right of Judges---Independence from the Executive---Constitution is based on trichotomy of powers where the Judiciary is independent of the Executive---Judges have been afforded constitutional protections and are obliged to dispense justice in such manner that justice is not only done but is also seem to be done---Within such scheme, the salary, privileges, allowances and rights of a Judge are determined by High Court Judges (Leave, Pension and Privileges) Order, 1997 (Presidential Order), to ensure that a Judge is not required to chase after his/her privileges and entitlements, and to exclude any temptation to extract benefits from the Executive branch of the State.

(d) Accommodation Allocation Rules, 2002---

----R.15(4)(a)---Government accommodation, retaining of---Principle---Allotment of accommodation is not permitted under Accommodation Allocation Rules, 2002, to Federal Government Servant at one station while he/she is posted at another station or while she is not posted within an eligible Federal Government department or organization at the same station---Federal Government Servant can retain accommodation already allotted to him under R. 15(4)(a) of Accommodation Allocation Rules, 2002, so long as he does not claim accommodation or house rent at the new station---Fresh accommodation to Federal Government Servant cannot be allotted at one station while he/she is serving at another.

(e) Constitution of Pakistan---

----Art. 199---High Court is not vested with suo motu powers under Art. 199 of the Constitution.

Mian Irfan Bashir v. The Deputy Commissioner (D.C), Lahore and others PLD 2021 SC 571 rel.

(f) Constitution of Pakistan---

----Art. 199---Constitutional petition---Relief, molding of---Principle---High Court is not strictly bound by prayer clause as articulated by a petitioner---High Court is a constitutional dispute-resolving forum and can tailor the relief to be granted to dispense justice in a fair and reasonable manner.

(g) Accommodation Allocation Rules, 2002---

----Rr. 3(4) & 6---Constitution of Pakistan, Art. 199---Constitutional petition---Allocation of government residence---Principle---Re-employment on contract basis---Petitioner was a retired Federal Government Servant who was re-employed on contract basis---Petitioner was aggrieved of letter issued by authorities cancelling her allotment of residence---Validity---Cancellation letter suffered from no infirmity and allotment made to petitioner was rightly cancelled as she was not entitled to the same in view of R.3(4) of Accommodation Allocation Rules, 2002---Federal Government exercised authority in a colorable and arbitrary manner on the basis of extraneous considerations in breach of Accommodation Allocation Rules, 2002, and allotment made to petitioner herself was a manifestation of the same---Federal Government allotted accommodations in breach of R. 6 of Accommodation Allocation Rules, 2002---Federal Government had neither transparently maintained General Waiting Lists for purposes of various categories of accommodations under Accommodation Allocation Rules, 2002 nor had put together a priority list for purposes of R. 6(7) of Accommodation Allocation Rules, 2002, on the basis of which BS-22 officers were to be allotted accommodation---Issuance of subject-to-vacancy allotment letter was illegal as such allotment letters had no basis in law and/or the Accommodation Allocation Rules, 2002---High Court set aside subject-to-vacancy allotment letters as those were meant to obscure priority to be accorded to Federal Government Servants for allotment of accommodation in various categories of accommodation under Accommodation Allocation Rules, 2002---High Court directed Secretary, Ministry of Housing, on behalf of Federal Government to prepare General Waiting Lists after authentication of data of Federal Government Servants placed in General Waiting Lists for various categories and verify veracity of such data against data maintained by NADRA and Establishment Division---High Court directed Secretary Ministry of Housing to put together a priority list for purposes of R.6(7) of Accommodation Allocation Rules, 2002, on the basis of date of entitlement and other criteria prescribed in R.6 Accommodation Allocation Rules, 2002 and to include within such list all officers of BS-22 who were serving in Islamabad in an eligible government department under R.3(1) of Accommodation Allocation Rules, 2002, and were not allotted accommodation in Category Type-I (including those who could have been issued subject-to-vacancy allotment letters)---High Court further directed Federal Government to determine in view of priority list compiled for purposes of R. 6(7) of Accommodation Allocation Rules, 2002, whether respondents qualified to be allotted accommodation, and if they did, their possession of allotted accommodation would not be disturbed; and if there were senior BS-22 officers who were ahead of respondent No.7 or 8 or either of them in the priority list compiled on the basis of criteria prescribed in R.6 Accommodation Allocation Rules, 2002, the allotment letters issued to respondents could be cancelled and vacated accommodation could be allotted to the senior most Federal Government Servants serving in Islamabad in accordance with their entitlement---High Court further directed Federal Government, Secretary Ministry of Housing to place GWLs as well as other priority lists for purposes of R. 6 of Accommodation Allocation Rules, 2002, on the website of the Ministry of Housing in digital format along with a list of accommodations in relation to each category of accommodation reflecting date of vacation for purposes of each accommodation, and that waiting lists and accommodation lists would be made available in a dashboard on the website of the Ministry of Housing, as undertaken by Federal Government, within a period of thirty days and Secretary Establishment Division, Secretary Ministry of Information Technology, Secretary Finance Division and Chairman NADRA shall provide all required assistance for such purpose---Constitutional petition was dismissed accordingly.

Muhammad Afsar v. Malik Muhammad Farooq 2012 SCMR 274 and Waqas Ali Khan v. Federation of Pakistan and another (W.P No. 4195 of 2022) ref.

Hafiz Irfan Shabbir Kayani for Petitioner (in W.P No. 2479 of 2023).

Ch. Abdul Rehman Hur Bajwa and Atif Shafique for Petitioner (in W.P No. 2624 of 2023).

Ch. Muhammad Asad Raan for Petitioner (in W.P No. 2516 of 2023).

Mansoor Usman Awan, Attorney General for Pakistan, Munawar Iqbal Duggal, Additional Attorney General, Fazal-ur-Rehman Khan Niazi, Deputy Attorney General and Aqeel Akhtar Raja, A.A.G for the Federation.

Rizwan Faiz Muhammad, Barrister Afzal Shinwari and Sardar Haseeb Ahmed for Respondent No.7.

Azhar Naveed Shah and Syed Bilal u Din Bukhari for Respondent No.9.

Taimoor Aslam Khan for Respondent No.8.

Raja Inam Amin Minhas, Ch. Waqas Zamir and Qasim Soomro for Respondent No.10.

Attaullah Hakim Kundi for Respondent No.10.

Ms. Rushma Fawad, Deputy Secretary and Waqas Ahmed Burlas, DS/Joint Secretary (Look after charge), Ministry of Petroleum.

Usman Arif Rai, Dy. Director Legal, Power Division.

Shahzad Khan Bangash, Secretary Ministry of Housing, Waqas Ali Mahmood, Additional Secretary and Muhammad Ashfaq Ghumman, Sr. J. Secretary (Admin) Ministry of Housing and Works.

Tanveer Haider, Joint Estate Officer and Muhammad Adnan, Assistant Director, Estate Office.

Raja Naeem Akbar, Federal Law Secretary, Wajid Aziz Qureshi, Assistant Solicitor and Muhammad Umar Aziz, Deputy Secretary Admin, Ministry of Law and Justice.

Hafiz Shoukat Ali, Joint Secretary, Khurram Shahzad, S.O(E) and M. Sultan, S.O Litigation, Establishment Division.

2024 P L C (C.S.) 894

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

MAJ. (R) MATLOOB AHMAD BAIG

Versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED through Managing Director and others

Writ Petition No.3076 of 2018, decided on 3rd June, 2024.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Master and servant---Non-statutory rules---Petitioner was employee of Oil and Gas Development Corporation and his service was terminated after departmental proceedings---Validity---Constitutional petition was maintainable where respondent / authority had violated any provision of law or statutory rules---Employees, who were governed by statutory rules, could avail remedy of filing Constitutional petition before High Court---Principle of "master and servant" was applicable to the employees whose services were not governed by any statutory rules---Petitioner was employee of a company, which was owned by the Government, and in absence of violation of law or any statutory rule, he could not press into service Constitutional jurisdiction of High Court in order to seek relief with respect to his employment---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Samiullah Narago v. Federation of Pakistan 2012 PLC (C.S.) 1205; Pakistan Telecommunication Company Limited v. Iqbal Nasir PLD 2013 SC 132; Pakistan International Airline Corporation v. Tanveer-ur-Rehman and others PLD 2010 SC 676; Muhammad Azhar Khattak v. OGDCL and others (Writ Petition No.1407/2015); Zahid Rafique v. OGDCL through its Managing Director (Writ Petition No.3745/2019) and Zahid Rafique v. OGDCL through its Managing Director (C.P.No.4826 of 2019) rel.

Mirza Waqas Qayyum for Petitioner in person.

Khurram M. Hashmi for Respondents.

2024 P L C (C.S.) 1006

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

SHER BAHADAR

Versus

PRESIDENT ISLAMIC REPUBLIC OF PAKISTAN and 2 others

Writ Petition No.1608 of 2022, decided on 21st May, 2024.

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

----Ss. 2(h), 6 & 13---Protection Against Harassment of Women at the Workplace (Filing and Disposal of Complaints) Rules, 2013, R.5(1)(a)---Gender-based discrimination---Determination---Petitioner / employee was aggrieved of acceptance of appeal filed by respondent / complainant for causing her harassment at work place---Validity---Respondent / complainant in her complaint did not allege gender-based discrimination against petitioner---Respondent / complainant did not allege that petitioner's refusal to issue NOC to respondent / complainant was simply because she happened to be a woman---At no material stage respondent / complainant applied to amend her complaint---What the Ombudsperson was required to do was to examine the contents of the complaint in order to determine whether it contained allegations of harassment, which squarely fell within the meaning of the word harassment as defined in S.2(h) of Protection Against Harassment of Women at the Workplace Act, 2010---If such threshold was not satisfied, the Ombudsperson had to reject the complaint without further ado---Purpose of recording of evidence was to prove specific allegation of harassment made in complaint but not to give an opportunity for making allegations not present in the complaint---High Court set aside order in question and remanded the matter to Appellate forum for decision afresh---Constitutional petition was allowed, in circumstances.

Anees R. Syed v. Jamshed Munawar and Rabia Jahangir and others (Writ Petition No.2050/2020); Arshad Malik v. Federal Ombudsman for Protection against Harassment of Women at Workplace (Writ Petition No.2653/2019) and Shahina Masood v. Federal Ombudsman Secretariat for Protection Against Harassment of Women at Workplace and 2 others 2020 PLC (C.S.) 186 ref.

Nadia Naz v. President of Islamic Republic of Pakistan PLD 2023 SC 588 rel.

Imran Feroz Malik for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney General and Sarfraz Rauf, Assistant Attorney General for Respondents.

Sheikh Azfar Amin for Respondent No.3.

2024 P L C (C.S.) 1103

[Islamabad High Court]

Before Sardar Ejaz Ishaq Khan, J

SHAHID MEHMOOD

Versus

BENAZIR INCOME SUPPORT PROGRAMME (BISP), through Secretary and 4 others

Writ Petition No.1213 of 2018, decided on 28th March, 2023.

(a) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto in respect of subordinate post or offices, issuance of---Scope---Writ of quo warranto does not lie in respect of subordinate posts or offices (whether permanent or regular) not created directly by the statute where such posts come into existence subsequent to the promulgation of the statute by way of support functions for the public offices created originally by that statute---Writ of quo warranto cannot to be issued (in respect of such support posts) on the erroneous premise that they (posts) ought to qualify as public offices just because they exist in an organization created by statute.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Benazir Income Support Programme Act (XVIII of 2010), Ss. 2 (f), 2(h), 5 & 8---Writ of quo warranto, issuance of---Scope---Post of "the Director" at Benazir Income Support Programme (BISP)---Subordinate/support-posts or Public offices---Scope---Petitioner (former employee of BISP) prayed for issuance of writ of quo warranto regarding two posts the respondents were holding by the designation of "the Director" (Payments and Director Waseela-e-Taleem) with the Benazir Income Support Programme (BISP)---Contention of the petitioner was that as the BISP was constituted under the Benazir Income Support Programme Act, 2010 (the Act 2010), the said two offices were public offices for the purposes of Art.199(1)(b)(ii) of the Constitution---Validity---Proceedings by information in the nature of quo warranto will lie for the office of a public nature and a substantive office and not merely for the function or employment of a deputy or servant held at will and pleasure of others---Posts-in-question (Directors) were not ones created directly by the statute, but were created subsequently by subordinate legislation (statutory or non-statutory) to assist the statutorily created public offices to discharge the sovereign functions delegated to such public offices---To distinguish such subordinate posts from the statutorily created public offices, and to highlight this distinction for the purposes of present judgement, the High Court labelled such posts as support-posts---Perusal of the Benazir Income Support Programme Act, 2010 ('the Act, 2010') revealed that the public offices created by the Act, 2010 are those of the Members of the Board including the Chairperson, the Secretary, the Chief Patron, the Executive Patron and the Council under Ss. 5 & 8 of the Act, 2010, who devise the policies and the direction of BISP---Although the expression "Management " as defined under S.2(h) of the Act, 2010, includes the Secretary and the administrative and technical staff of BISP, the latter two categories are of general description of what have been labelled or as 'support-posts' and qualify under S.2(f) of the Act, 2010 as "employees" of BISP---Posts-in-question were though designated as "Directors", but they were not directors in the sense of being members of the governing body of BISP; the designation "Director" is only a job description as employees reporting to the Director General ,who reports to the Secretary, who then reports to the Board---It is a common designation found in public and private sectors in various manifestations and one has to see whether the designation is for a subordinate "support post", and in the present matter, it was so---Therefore, being 3rd -tier administrative or management posts, they did not qualify as public offices for the purposes of a writ of quo warranto---Constitutional petition filed by former/terminated employee of BISP, being frivolous, was dismissed with costs.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takhatbhai and 10 others PLD 1975 SC 244; Henry Farran Dar v. Reg. (1846) 8 ER 520; Chaudhry Asghar Ali v. Shahid Nauman Afzal and others I.C.A. No.184 of 2015; Amjad Ali, Regional General Managers, Pakistan Media Regulatory Authority (PEMRA) v. Federation of Pakistan and others (Writ Petition No.2060 of 2018) and Sohail Baig Noori v. High Court of Sindh through Registrar and 2 others 2017 PLC (C.S.) 1142 ref.

Majid Rashid Khan for Petitioner.

Hafiz Ahmed Rasheed, A.A.G. and Ch. Shafiq ur Rehman for Respondent No.1.

Muhammad Yar Khan and Muhammad Sultan, S.O. Establishment Division for Respondents Nos.2 and 3.

2024 P L C (C.S.) 1152

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Dr. MUHAMMAD SHAFIQUE ARSHAD, PROFESSOR OF CARDIOLOGY, CARDIAC CENTRE, PAKISTAN INSTITUTE OF MEDICAL SCIENCES [PIMS], ISLAMABAD

Versus

FEDERATION OF PAKISTAN, through Secretary, Ministry of National Health Service and Regulation, Government of Pakistan, Islamabad and 2 others

Writ Petition No.479 of 2024, decided on 25th June, 2024.

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

----S.14(1)---Constitution of Pakistan, Art.199(1)(iii)---Writ of quo warranto---Locus standi---Scope---Re-employment of retired civil servant---Pre-requisites---Public interest---Violation of policy in vogue---Absence of exceptional and necessary circumstances for re-employment---Effect---Contention of the petitioner was that respondent had been re-employed without any public interest and that too by creating blockade in promotion prospects of the petitioner---Validity---Re-employment of a retired civil servant is an exception to the rule that a civil servant is to retire upon attaining the age of superannuation, which is only available in cases of absolute necessity in the public interest and in order to eliminate element of arbitrariness in re-employing a retired civil servant, the process is to be transparent and the reasons for such necessity must be recorded in writing---Civil servant, who is re-employed after his retirement, could not glorify himself as had been done by retired respondent through pleadings in his written comments, rather it was for appointing authority to record reasons as to why such re-employment was considered imperative for the public interest---No material had been brought on record to satisfy the High Court that respondent's appointment after retirement was a matter of necessity or that the public interest would be at stake had he not been appointed---Nothing was on the record to indicate the fulfillment of the essential perquisite of "non-availability of suitably qualified or experienced officers to replace the retiring officer" or that the re-employment of respondent would subserve the public interest---Decision making process by the appointing authority in terms of S.14 of the Civil Servants Act, 1973 was justiciable under exercise of the powers of judicial review in terms of Art.199 of the Constitution---In such process of judicial review, in absence of the material or reasons which make out an exceptional case justifying a civil servant's re-employment after retirement, such appointment would be liable to be struck down---Petitioner, being the senior most serving Professor in the Department had legitimate expectation to be appointed as the Head of the Department---Re-employment of respondent had resulted in the usurpation of the petitioner's right to be considered for appointed as the head of the said department---Constitution petition was allowed accordingly.

PLD 2011 SC 277; 2014 SCMR 848 and Union of India v. Hem Ram Chauhan 2010 (4) SCC 290 rel.

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

----S.14(1)---Section 14(1) of the Civil Servant Act, 1973 (Act), interpretation of---Section 14 is couched in negative and prohibitory terms, which opens with the words "a civil servant shall not be re-employed"---Language in which S.14(1) of the Act is worded is indicative of the legislative command that re-employment after retirement of a civil servant shall not be made unless it is "necessary in the public interest".

Aziz ur Rehman v. Federation of Pakistan PLD 2014 Isl. 53 rel.

(c) Word and phrases---

----'Necessary'---Meaning---Word "necessary" means that is indispensable, needful or essential---As per the Advanced Law Lexicon (3rd Edition), "necessary" means indispensable, essential, unavoidable etc.---Word "necessary" must be construed in connection in which it is used.

Zulfiqar Khalid Maluka for Petitioners.

Arshid Mehmood Kiani, Deputy Attorney-General along with Yasin, Assistant Director, PIMS and Qumer Mahmood Ch., Deputy Director (Legal), Ministry of NHSR&C for Respondents.

Raja Khalid Mehmood for Respondent No.3.

2024 P L C (C.S.) 1222

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

FATEH MUHAMMAD

Versus

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

Writ Petitions Nos.2483, 3554 of 2020, 1203 and 15770 of 2021, decided on 16th March, 2022.

National Database and Registration Authority Employees (Service) Regulations, 2002---

----Regln. 23---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Non-statutory rules---Petitioners / employees were proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973, which were adopted by NADRA by virtue of Regln. 23 of National Database and Registration Authority Employees (Service) Regulation, 2002---Validity---Provisions of National Database and Registration Authority Employees (Service) Regulation, 2002, were non-statutory, therefore, constitutional petition was not maintainable---No employee can enforce through constitutional petition a service rule / regulation which is not statutory in nature nor can he agitate grievance against enforcement or application of non-statutory service rule / regulation in constitutional jurisdiction---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Muhammad Mateen Khan v. Federation of Pakistan 2020 PLC (C.S.) 1 and Major (Retd.) Syed Muhammad Tanveer Abbas v. Federation of Pakistan 2019 SCMR 984 rel.

Mirza Waqaz Qayyum for Petitioner (in Writ Petition No.2483/2020).

Sardar Muhammad Yaqoob Mastoi for Petitioner (in Writ Petitions Nos.3554/2020, 1203/2021 and 1577/2021).

Ch. M. Tahir Mehmood, Assistant Attorney-General.

2024 P L C (C.S.) 1246

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

Raja SOHAIL ARSHAD

Versus

FEDERATION OF PAKISTAN through Secretary Establishment, Right Wing, Islamabad and 2 others

Writ Petition No.2067 of 2023, decided on 17th October, 2023.

(a) National Counter Terrorism Authority Act (XIX of 2013)---

----S. 11---National Counter Terrorism Authority---Service regulations , prescribing of---Scope---National Counter Terrorism Authority (NACTA) was established as an autonomous body pursuant to the provisions of the National Counter Terrorism Authority Act, 2013 ('the Act, 2013')---Section 11(1) of the Act, 2013 provides that NACTA may, from time to time appoint, either through direct recruitment or through deputation, such officials, experts or consultants as it may consider necessary for the performance of functions in the prescribed manner---Section 11(2) of the Act, 2013 provides that NACTA shall prescribe service regulations, with the approval of the Board, for the appointment, promotion and transfer of officers, staff, experts and consultants, their terms and conditions of service, including, additional financial incentives such as special salaries, allowances, pension or gratuity etc., constitution and management of pension and gratuity and shall be competent to take disciplinary action against them---Communication of Establishment Division views/comments to the draft service regulations sent by NACTA to the said Division for vetting did not mean that the said regulations had been made in accordance with S. 11(2) of NACTA Act, 2013---High Court directed NACTA to make service regulations strictly in accordance with the requirements of S.11(2) of the NACTA Act and submit a report in said regard---Constitutional petition, being merit-less, was dismissed, in circumstances.

(b) National Counter Terrorism Authority Act (XIX of 2013)---

----Preamble ---Office Memorandum dated 22.10.2014 issued by the Establishment Division---National Counter Terrorism Authority---Recruitment to posts in BPS-17 and above, process of---Scope---Federal Public service Commission, role of---Scope---Petitioner participated in the competitive process for appointment to the post of Analyst (BPS-18) in the National Counter Terrorism Authority (NACTA) but was not successful---Petitioner assailed the process initiated by the NACTA for recruitment to posts in BPS-17 and above---Contention of the petitioner was that the recruitment process was in violation of the recruitment policy set out in the Establishment Division's Office Memorandum dated 22.10.2014 which required recruitment to posts in BPS-16 and above to be made through the Federal Public Service Commission (FPSC)---Validity---Provisions of NACTA Act, 2013 do not require appointments to posts in BPS-16 and above in NACTA to be made through the FPSC---Establishment Division's O.M. dated 22.10.2014 cannot be interpreted such as to require autonomous bodies having their own mechanism for making appointments, which does not give any role to the FPSC in the appointment process, for appointments to be made through the FPSC, which (version) had been duly acknowledged by the Establishment Division (respondent) in the parawise comments etc.---Constitutional petition , being merit-less, was dismissed, in circumstances.

Raja Shahid Zafar for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney-General.

Zahir Shah, Director General, MS Wing, Nadeem Arshid, Deputy Secretary and Habib Anwar, Section Officer (R.3), for Establishment Division.

Taimoor Khattak, Director and Dr. Jamshaid Asghar, Assistant Director, for NACTA.

2024 P L C (C.S.) 1284

[Islamabad High Court]

Before Saman Rafat Imtiaz, J

MUNIR AHMED

Versus

MINISTRY OF SCIENCE AND TECHNOLOGY through Secretary and another

Writ Petition No.467 of 2023, heard on 1st July, 2024.

(a) National Energy Efficiency and Conservation Authority Service Regulations, 2021---

----Reglns.2 (9), 16 & 32---Termination of service without issuance of notice---Term "employee"---Employee on probation---Status---Expiry of probation period---Petitioner was appointed as Director General-Planning, Policy, Innovation, Program and Research with respondent National Energy Efficiency and Conservation Authority (NEECA)---Services of petitioner were terminated after completion of period of probation without issuance of any notice---Validity---In case of unsatisfactory performance or conduct during probation, etc. services of employee could be terminated under Regln. 16(3) of National Energy Efficiency and Conservation Authority Service Regulations, 2021---Successful completion entailed intimation thereof whereas in the alterative employee was not only to be informed that he had not been successful during his probation period but that his employment was also terminated---Provision of Regln. 32 of National Energy Efficiency and Conservation Authority Service Regulations, 2021 pertained term "employee" which meant a regular employee of Respondent Authority, as per the definition provided in Regln 2(9) of National Energy Efficiency and Conservation Authority Service Regulations, 2021---Provision of Regln. 32 of National Energy Efficiency and Conservation Authority Service Regulations, 2021 did not apply to employees on probation---Petitioner stood confirmed on 28-12-2022 due to failure of Respondent Authority to inform him that his probation was unsuccessful by the day on which maximum period of probation expired---Termination letter issued to the petitioner was in violation of National Energy Efficiency and Conservation Authority Service Regulations, 2021---Petitioner was a regular employee on such date and could only be removed from service in accordance with the National Energy Efficiency and Conservation Authority Service Regulations, 2021 and not by way of any Letter on the pretext of unsatisfactory completion of probation period---High Court set aside order terminating employment of petitioner---High Court declared that petitioner was entitled to salary, benefits, emoluments, etc. from 20-01-2023 till the publication of Gazette Notification dated 04-03-2024 whereby post in question was abolished---Constitutional petition was allowed accordingly.

Prof. Dr. Qazi Tahir Uddin v. The Secretary, Pakistan Medical Commission, Islamabad 2022 PLC (C.S.) 805; Adnan Ahmed v. Province of Sindh through Chief Secretary to the Government of Sindh PLD 2022 Sindh 542; Metropolitan Corporation, Islamabad through Mayor v. Chairman, C.D.A. PLD 2021 Isl. 144; Bashir Ahmad v. The Director General, Lahore Development Authority, Lahore 2020 SCMR 471; Muhammad Zakir Bandhani v. Muhammad Amir Bandhani 2019 MLD 1861; Aamir Tufail Chaudhary v. Government of Punjab, 2018 PLC (C.S.) 493; Roshan Ali Siddiqui v. Federation of Pakistan through Secretary 2017 PLC (C.S.) Note 57; Muhammad Rafi v. Federation of Pakistan 2016 SCMR 2146; Gul Hassan Jatoi v. Faqir Muhammad Jatoi 2016 SCMR 1254; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159; Secretary, Ministry of Education, Government of Pakistan v. Muhammad Azam Ch. 2009 SCMR 194; Muhammad Rafique v. Director-General, Pakistan Rangers, Sindh, 2004 SCMR 23; Major (R) Nisar Ali v. Pakistan Atomic Energy Commission, 2004 PLC (C.S.) 758; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190; National Electric Power Regulatory Authority (NEPRA) through Chairman v. Aijaz Ahmed 2022 SCMR 611; Qazi Tehmid Ahmed v. Secretary Ministry of Petroleum 2015 PLC (C.S.) 449; Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; Punjab Workers' Welfare Board, Government of Punjab and Human Resources Department, Lahore v. Mehr Din 2007 SCMR 13 and Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab 2004 SCMR 44 rel.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Constitutional petition---Policy matter---Scope---Abolishing of any post---High Court in exercise of Constitutional jurisdiction does not interfere in policy matters---It is the prerogative of authorities to ascertain on the basis of its need, requirement, available resources and fiscal space, which posts it wishes to keep and which it wishes to abolish.

Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock and Cooperative Department, Peshawar v. Saeed-ul-Hassan 2022 PLC (C.S) 164 and Abdul Hameed v. Water and Power Development Authority 2021 SCMR 1230 rel.

Barrister M. Saad Buttar and Tahir Hussain Anchan for Petitioner.

Barrister Munawar Iqbal Duggal, Additional Attorney General, Raja Zameer-ud-Din Ahmed, Assistant Attorney General and Rana Imran Farooq, Assistant Attorney General for Respondent No.1.

Obaid Ullah Riaz for Respondent No.2.

2024 P L C (C.S.) 1451

[Islamabad High Court]

Before Saman Rafat Imtiaz, J

Prof. Dr. MAHMOOD BAIG (Sitara-i-Imtiaz)

Versus

MINISTRY OF SCIENCE AND TECHNOLOGY through Federal Minister for Ministry of Science and Technology and 4 others

Writ Petition No.2481 of 2023, decided on 21st September, 2023.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Show-cause notice---Principle---If issuance of Show-Cause notice to an incumbent of a statutory position is allegedly without jurisdiction and in violation of statute, Constitutional petition is maintainable in circumstances.

(b) Civil service---

----Selection process---Advertisement---Object, purpose and scope---Advertisement is an invitation to an offer which eligible candidates can respond to by offering their services for appointment---Unless invitation clearly sets out criteria for evaluation of offers/applications for appointment received in response and employment terms which may be material for the decision to apply for advertised post it cannot solicit suitable offers of services for appointment from eligible candidates and the authority may be deprived of the best candidate.

(c) Pakistan Science Foundation Act (III of 1973)---

----Ss. 5 & 6---Constitution of Pakistan, Art. 48---President---Exercise of powers---Persona designata---Advice of Cabinet / Prime Minister---Principle---Show-cause notice---Petitioner was appointed Chairman of Pakistan Science Foundation by President and assailed show-cause notice issued to him initiating disciplinary proceedings during which he was sent on forced leave---Validity---When President exercises functions conferred upon him by way of statute and not Constitutional functions, he acts as a persona designata and therefore is not bound to take advice from Cabinet or Prime Minister pursuant to Art. 48(1) of the Constitution---Any appointment would be in violation of the legislative intent if it is made by the President on the advice of Prime Minister pursuant to MP Policy under the garb of Art. 48(1) of the Constitution despite the fact that it is the President who is vested with the power of appointment by statute---Concerned authority in disciplinary matters was to exercise adjudicatory and quasi-judicial powers---President was not obligated to act on the advice of Cabinet or Prime Minister under Art. 48(1) of the Constitution in respect of disciplinary proceedings carried out against persons appointed by President under Pakistan Science Foundation Act, 1973---President could not even act on the recommendation of any other person or authority in respect of disciplinary proceedings---Power to remove petitioner / Chairman of respondent / Foundation could not be delegated by the President without the power to delegate conferred upon him by Pakistan Science Foundation Act, 1973---MP Policy was not sustainable under Pakistan Science Foundation Act, 1973 to the extent that it entailed delegation of President's quasi-judicial powers and was also not justifiable under Art. 48(1) of the Constitution---President was not obligated to act on the advice of Cabinet or Prime Minister in exercise of quasi-judicial powers conferred by statute or to even act on recommendation of any other authority or person with regard thereto---MP Policy to the extent that it empowered Secretary to initiate and conduct disciplinary proceedings (which were quasi-judicial in nature) against petitioner were not justified under Art. 48(1) of the Constitution---High Court set aside show-cause notice issued to petitioner as the same was without jurisdiction and void ab initio---Constitutional petition was allowed accordingly.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Prof. Dr. Qazi Tahir Uddin v. The Secretary, Pakistan Medical Commission, Islamabad and 3 others 2022 PLC (C.S.) 805; Commissioner Inland Revenue and others v. Jahangir Khan Tareen and others 2022 SCMR 92; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Allied Bank Limited v. The Commissioner of Income Tax, Lahore and others 2023 SCMR 1166; Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Federation of Pakistan v. Saeed Ahmed Khan and others 2016 PLC (C.S.) 48; Irfan Ahmed and others v. Federation of Pakistan and others 2016 PLC (C.S.) 491; Syed Asghar Ali Shah v. Province of Sindh through Secretary Local Government Department Government of Sindh at Karachi and 6 others 2022 CLC 442; Abdul Latif Mughal v. Government of Sindh and others 2020 PLC (C.S.) Note 9; Pakistan Electric Power Company v. Syed Salahuddin and others 2022 SCMR 991; Commissioner Inland Revenue v. M/s RYK Mills (Civil Petitions No. 1842-L and 1843-L of 2022); Muhammad Ayub Khan Sanjrani v. Sindh Health Care Commission and others (Suit No.379 of 2019); Messrs Pakistan Oilfields through Managing Director v. Federation of Pakistan through Ministry of Finance, Islamabad and 4 others 2023 PTD 505; Dr. Seema Irfan and 5 others v. Federation of Pakistan through Secretary and 2 others 2019 PTD 1678; Zaver Petroleum Corporation Limited through Director Islamabad v. Federal Board of Revenue through Chairman FBR, Islamabad and another 2016 PTD 2332; 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; Dr. Fatima Arshad v. Government of Punjab, 2020 PLC (C.S) 688; Usmat Batool v. Bahauddin Zakariya University, Multan through Registrar and 5 others 2013 PLC (C.S.) 484; Muhammad Intizar-ul-Hassan v. University of Agriculture, Faisalabad, 1997 PLC (C.S.) 855; Muhammad Shafeeq v. Federal of Pakistan through Secretary, Ministry of Petroleum and Natural Resources and 5 others 2023 PLC (C.S.) 205; Mrs. Kaneez Fatima v. The Islamic Republic of Pakistan PLD 2023 Lah. 324; Dr. Karim Shah v. Chairman Search and Nomination Council/Health Minister, Government Khyber Pakhtunkhwa, Peshawar and others 2021 PLC (C.S.) 235; Senator Taj Haider v. Government of Pakistan, through Secretary, Finance Division, 2018 CLC 1910; Mushtaq Ahmad Sukhera v. President of Pakistan PLD 2020 Isl. 1; Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhry PLD 2016 SC 637; Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan 2012 SCMR 6; Hilton v. Wells (1985) 157 CLR 57; Syed Liaquat Shah v. Vice-Chancellor, University of Engineering and Technology, Peshawar 2018 SCMR 1661 and Habibullah Bhutto v. Collector of Customs 2011 PLC (C.S.) 1094 rel.

Zainab Samantash and Hamza Siddiqui for Petitioners.

Barrister Munawar Iqbal Duggal, Additional Attorney General for Respondents Nos.1 and 2.

Afnan Karim Kundi and Adeel Aftab for PSF/Respondent No.4.

Rana Imran Farooq and Asia Batool, A.A.Gs.

M. Sultan Rao, S.O. Establishment Division.

2024 P L C (C.S.) 1546

[Islamabad High Court]

Before Miangul Hassan Aurangzeb, J

TARIQ MUHAMMAD

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others

F.A.O. No.155 of 2019, decided on 27th May, 2024.

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

----Ss.7(3)(b) & 7(3)(d)---Candidature for participating in the Promotional Examination, rejection of---Promotion---Prescribed length of service---Previous penalty---Effect---Appellant, who was appointed as Patrol Officer (BS-14) in the National Highways and Motorways Police (NH&MP), assailed memorandum dated 18.07.2019 issued by the Federal Public Service Commission (FPSC) whereby his review petition against order dated 18.06.2019 was dismissed; vide said dismissal order, the appellant's application against the rejection of his candidature for participating in the Section Officers Promotional Examination, 2016 ('SOPE, 2016'), was turned down by the FPSC---Plea of the appellant before FPSC was that in the SOPE, 2016, he had emerged at serial No.1 on the merit list, however, the FPSC did not include his name amongst the candidates who had been recommended suitable for appointment as Section Officers---Position taken by the respondents (NH&MP and FPSC) was that the NH&MP did not issue a Departmental Permission Certificate (DPC) to the appellant as he did not have the required length of service for having remained out of service for about eight years as major penalty of dismissal from service was imposed on him---Contention of the appellant/ candidate was that the prescribed length of regular service be considered on account of his re-instatement order passed by the Federal Services Tribunal and that he had Departmental Permission Certificate (DPC) issued by the NH&MP---Validity---Record revealed that when the concerned Deputy Inspector General, NH&MP (DIG) came to know about the DPC-in-question issued to the appellant , he proceeded to enquire about whether the said DPC was genuine or not; and finally, the DIG withdrew the DPC-in-question---Record also revealed that the appellant had preferred anappeal before the Federal Services Tribunal (FST) against the order dated 21.06.2018 passed by the Appellate Authority, whereby the penalty of dismissal from service imposed on him was converted into minor penalties (stoppage of increment for two years, and censure); then he had also preferred an appeal against the NH&MP's decision to treat the period during which he had remained out of service as extraordinary leave without pay ;the FST upheld one minor penalty (of stoppage of two increments ) ; as regards the period during which the appellant had remained out of service on account of having been dismissed from service, the FST held that the intervening period would be dealt with in accordance with the procedure laid down in Serial No.32.10 of Esta Code, 2015, Page 868 and the law laid down by the Supreme Court in the judgment reported as 2010 SCMR 11; after that, on 06.06.2023, the NH&MP issued office order dated 06.06.2023, according to which the period between 10.10.2012 and 08.11.2017 was treated as "on-duty" with all consequential benefits---Said judgment dated 25.03.2020 passed by the FST had become the basis for the appellant to assert that he had the prescribed length of regular service of eight years for him to be appointed by the FPSC as Section Officer---Although appellant stood reinstated in service and the period during which he had remained out of service due to his dismissal had been converted into service on-duty, but that was not done until the NH&MP's office order dated 06.06.2023 which was issued on the basis of the FST' s judgment dated 25.03.2020---In other words, if the NH&MP's office order dated 06.06.2023 had not been issued, the appellant would not have the requisite length of eight years of regular service in order to be eligible for the SOPE, 2016---However, the fact remained that when the appellant applied to take part in the SOPE, 2016, he had been dismissed from service and that fact had been concealed by him in his application dated 22.12.2016 submitted to the FPSC---Therefore, the FPSC did not commit any illegality by not accepting the appellant's eligibility for participation in SOPE, 2016 without a valid DPC issued by the NH&MP---On the other hand, it was the appellant who made mis-statement (in his application dated 22.12.2016 in response to the advertisement issued by the FPSC inviting applications from eligible candidates to take part in the SOPE, 2016) as he had been dismissed from service vide office order dated 10.10.2012 and had not been reinstated in service until 08.11.2017---High Court had no reason to interfere with the orders dated 18.06.2019 and 18.07.2019 passed by the FPSC rejecting his candidature for participation in the SOPE-2016---Appeal, being totally devoid of merit, was dismissed with costs.

Hafiz Noor Muhammad along with Appellant in person.

Arshid Mehmood Kiani, Deputy Attorney-General for Respondents.

Muhammad Arshad, Assistant Director (Legal), FPSC.

Muhammad Asad and Said Gul, Inspectors (Legal) for the NH&MP.

2024 P L C (C.S.) 23

[Sindh High Court]

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

Prof. Dr. PIRZADA JAMALUDDIN AHMED SIDDIQUI

Versus

The FEDERATION OF PAKISTAN through Secretary Ministry of Federal Education and Professional Training and 4 others

Constitution Petition No.D-5192 of 2016, decided on 13th August, 2018.

Civil service---

----Selection Committee, recommendations of---Suitability of candidate---Determination---Petitioner sought a declaration that he was the only person eligible for the post of Director, Centre of Excellency in Marine Biology, University of Karachi and respondent or any other person could have not been appointed---Validity---Petitioner was unwilling to accept appointment of any person other than himself for the post in question---Appointment of respondent was unanimously recommended by a selection board, comprising of individuals proficient in such regard---Petitioner had called into question the assessment as it did not conclude in his favour---Petitioner was unable to demonstrate existence of any vested right for himself to be appointed for post in question as selection process unanimously recommended respondent after having considered eligibility of petitioner for the position---High Court declined to interfere in appointment of respondent for the post in question as petitioner could not identify any infirmity with respect to the process of appointment---Constitutional petition was dismissed, in circumstances.

Muhammad Ali Lakhani for Petitioner.

Salman Talibuddin, Additional Attorney General for Respondent No.1.

Muhammad Iqbal Deputy Secretary Ministry of Federal Education and Javed Memon Higher Education Commission.

Ali Ahmed Turabi for Respondent No.2.

Chaudhry M. Latif Saghar for Respondent No.3.

Mehmood-ul-Hassan for Respondent No.5.

2024 P L C (C.S.) 41

[Sindh High Court]

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

NASEEM-US-SAMI and 49 others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and 4 others

C.P. No.D-1825 of 2021, decided on 9th February, 2023.

Pakistan Standards and Quality Control Authority Act (IV of 1996)---

----S.32---Employees of Pakistan Standards and Quality Control Authority---Special allowances, entitlement to---Decision of Board of Governors---Petitioners sought restoration of special allowance on their running basic pay---Plea raised by petitioners was that allowances in question were approved by Board of Governors---Validity---Board of Governors approved house rent allowance subject to concurrence from Finance Division---Such concurrence was not granted by Finance Division and extension of such allowance to petitioners was out of question---Extension of technical allowance was subject to approval by Federal Government which was lacking and petitioners were not entitled to it either---Technical allowance was over and above the normal allowances being received by some petitioners in their salary; its grant was subject to final approval to be granted by Prime Minister in relaxation of government policy, which too had not been sought either, nor such decision was made by Prime Minister on his own in favour of petitioners---Extension of such allowance to petitioners from very outset was illegal, against government policy, the rules and the Pakistan Standards and Quality Control Authority Act, 1996---High Court in exercise of discretionary powers under Constitutional jurisdiction declined to interfere in the matter pertaining to allowances in question as the same could not be granted---Constitutional petition was dismissed accordingly.

Muhammad Arshad Khan Tanoli for Petitioners.

Syed Yasir Ahmed Shah, Assistant Attorney General.

Imtiaz Ali Solangi for Respondents Nos.4 and 5.

Khalid Ali Lashari, Assistant Director Legal PSQCA.

2024 P L C (C.S.) 91

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

MOHAMMAD TARIQUE KHAN

Versus

TRADING CORPORATION OF PAKISTAN (PVT.) LTD. through Chairman and 5 others

Suit No.630 of 2020 and C.M.As. Nos.11915, 4778, 4779 and 5151, decided on 11th March, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Employment---Promotion---Suit for declaration, injunction and recovery of damages---Plaintiff was an employee of defendant No. 1, and contented that though he performed satisfactorily however was deprived of promotion in 2016 against which he agitated, which annoyed the high-ups and plaintiff became their target; consequently plaintiff was issued different show-cause notices and in order to deprive the plaintiff of his right of promotion, defendant No.1, changed the promotion policy and also reconstituted the selection board for promotion---Validity---On 04.05.2020 defendant No.1 constituted a Selection Board for promotions including for the subject post of Deputy General Manager---In the meantime Eid bonus of plaintiff was withheld on account of pendency of disciplinary proceedings---Plaintiff presuming that he might not be promoted had filed a representation before defendant No.1 followed by present suit---Promotion cannot be deferred on the ground of pendency of some disciplinary or departmental proceedings---Even otherwise, there was no departmental/disciplinary proceedings pending against the plaintiff as in the first show-cause notice, the plaintiff had already been exonerated whereas as far as second notice was concerned, the same had been suspended---Such facts were not disputed by the defendants, as being a matter of record---Thus, even the bonus/Eid allowance could not be denied on account of pendency of the proceedings---Promotion could not be deferred till such time the enquiry and/or disciplinary proceedings were finalized as a person was presumed to be innocent until found guilty---Pendency of inquiry and minor penalties could not come in way of promotion---Enquiry proceedings pending against plaintiff for an indefinite period smacked of arbitrariness and mala fide and was a hanging sword on head of employees---Such treatment could not sustain in eye of law to deprive the plaintiff of promotion---Pendency of inquiry was no ground for denying promotion to the employee and no one could be punished by denying promotion before establishing charge---Any such rule formed in deviation of settled principle of law will not come in the way of equality rights guaranteed by Constitution---Applications were allowed with direction to release the withheld Eid/bonus allowance, if any, to the plaintiff in two weeks time and the plaintiff be considered for promotion on merit in the upcoming selection board meeting.

Muhammad Ayaz Khan v. Government of Sindh 2007 PLC (C.S.) 716; Muhammad Afzal Khan v. Government of Punjab 2009 PLC (C.S.) 40; Muhammad Amin v. Managing Director HBFC 2016 PLC (C.S.) 569 and Nelson Paul v. Mst. Asmat Parveen 2006 SCMR 647 rel.

Junaid Ahmed for Plaintiff.

Fayyaz Ali Metlo for Defendants Nos.1 to 4.

Khursheed Jawed, Deputy Attorney General for Defendants Nos.5 and 6.

2024 P L C (C.S.) 178

[Sindh High Court]

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

Qazi KHALID ALI

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice and 3 others

C.P. No.D-2901 of 2022, decided on 23rd January, 2023.

Constitution of Pakistan---

----Arts. 199, 205 & Fifth Sched., Paras. 2 & 3---Civil service---Pension---Object, purpose, scope and entitlement---Contractual service---Petitioner, after completing his contractual appointment as Chairman Federal Service Tribunal for three years, claimed his entitlement of pension equivalent to retired judge of High Court---Contention of petitioner was that he had served on different public assignments on contractual basis and the length of such services was sufficient to entitle him for pensionary benefits---Validity---Paragraphs 2 & 3 of Fifth Schedule to Art. 205 of the Constitution either read separately / conjunctively or disjunctively, do not alter/change in any manner the requirement of minimum five years length of actual service for every judge of High Court as one of the basic condition to earn right to pension---Right to pension is neither absolute nor unqualified--Pension is not a bounty for the State/employer to servant/employee---Such right is tailored on the premise and resolution that employee serves his employer in the days of his ability and capacity and during the former's debility, the latter compensates him for the services so rendered---Right to pension has to be earned and for the attainment of which condition of length of service is the most relevant and purposive---Contractual offices held by petitioner, even if considered aggregately (which could not have been done under a law) or separately, utterly independent of office of the Chairman Federal Service Tribunal, did not make him entitled to the right to pension under any law---Office of the Chairman Federal Service Tribunal was term-based and contractual in nature, plus it did not confer any right to pension upon petitioner---Case of retired judges of Federal Shariat Court et al had no imaginable parallel with the case of the petitioner to bring him at par with them---All judges of Federal Shariat Court were permanent judges of respective High Courts and had received pensions in that capacity---Petitioner never served against any permanent or regular job, not to mention his lack of qualification i.e. not completing minimum qualifying service of 5 years to claim pension---High Court declined to interfere in the matter as such position was unassailable in law---Constitutional petition was dismissed, in circumstances.

Sindh High Court Bar Association's case PLD 2009 SC 879; PLD 1998 SC 161; Ahmed Ali U. Qureshi v. Accountant General PLD 2008 SC 522; Civil Appeals Nos.140-L to 142-L of 2018; PLD 1973 SC 514; 1991 SCMR 1041; PLD 1994 SC 72; 1996 SCMR 1185; 1997 SCMR 1477; 1999 SCMR 255; PLD 2013 SC 501 and 829; 2015 GBLR 293; 2022 PLC (C.S) 202 and 514 and 2022 SCMR 1691 rel.

Anwar Mansoor Khan for Petitioner.

Yasir Ahmed Shah, Assistant Attorney General.

2024 P L C (C.S.) 203

[Sindh High Court]

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

Sardar IMDAD HUSSAIN GORCHANI

Versus

The PRESIDENT NATIONAL BANK OF PAKISTAN and 7 others

C.P. No.D-1607 of 2020, decided on 24th May, 2022.

Revised Leave Rules, 1980---

----R.9(3)---Absence from service---Extra ordinary leave, grant of---Dismissal from service---Regular inquiry, non-conducting of---Effect---Petitioner was employee of respondent / bank who remained absent from duty without leave, resultantly he was dismissed from service without conducting regular inquiry---Validity---Dispensing with regular inquiry and awarding two punishments i.e. down grading and major penalty of dismissal from service should not have been imposed upon petitioner at the same time, when charges were denied by petitioner---Principle of natural justice demanded that petitioner should have been heard on the allegations levelled against him---Respondent / bank had chosen not to conduct regular inquiry and simply relied upon purported admission of petitioner which was not called for in the circumstances---Order of termination from service and subsequent appellate order issued by respondent / bank were not sustainable under the law as inquiry about allegations of unauthorized absence from duty was not held under the procedure laid down under Service Regulations of respondent / bank---Petitioner had 453 days frozen leave balance in his credit as per leave record certificate and he should have been sent to Leave Preparatory to Retirement (LPR)---High Court directed respondent / bank to issue retirement order and award pensionary benefits to petitioner by setting aside dismissal order---Constitutional petition was allowed accordingly.

National Bank of Pakistan and another v. Zahoor Ahmed Mengal 2021 PLC (C.S.) 385; Secretary Elementary and Secondary Education Department, Government of Khyber Pakhtunkhwa Peshawar and others v. Noor-ul-Amin 2022 PLC (C.S.) 132; Federation of Pakistan v. Mamoon Ahmed Malik 2020 SCMR 1154; National Accountability Bureau through Chairman v. Muhammad Shafique 2020 SCMR 425; Kafyat Ullah Khan v. Inspector General of Police, Islamabad and another (Civil Appeal No.1661 of 2019); National Bank of Pakistan and others v. Zahoor Ahmed Mengal 2021 SCMR 144; Lahore Development Authority v. Muhammad Nadeem Kachloo 2006 SCMR 434; Director General Intelligence Bureau v. Muhammad Javed 2012 SCMR 165; Muhammad Sharif Abbasi v. Member, Water, WAPDA Lahore 2013 SCMR 903; Commissioner Faisalabad Division, Faisalabad and another v. Allah Bakhsh 2020 SCMR 1418 and Government of Punjab through Chief Secretary v. Muhammad Arshad and 2 others 2020 SCMR 1962 ref.

Afaq A. Saeed for Petitioner.

Zain Mustafa Soomro for Respondents.

2024 P L C (C.S.) 267

[Sindh High Court]

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

Syed ZAFAR ALI SHAH

Versus

The GOVERNMENT OF SINDH through Chief Secretary and 3 others

C.P. (D) No.146 of 2022, decided on 17th March, 2022.

Civil service---

----Promotion---Legality---Promotion of respondent No. 3 to the post of Senior Headmaster and posting as District Education Officer on an additional charge basis was challenged through present petition---Validity---Record showed that respondent No.3 was initially appointed as Higher School Teacher (BPS-16) and lastly as a Senior Headmaster---Record did not reflect that he was ever appointed as Education Officer (Elementary, Secondary, and Higher Secondary) to claim the post of Deputy District Education Officer---Both were in different cadres, prima facie, Higher School Teacher (HST)/Senior Headmaster could not be appointed as Education Officer for the reason that the appointment of Education Officer had been given under the recruitment rules---Even the cadre of Headmaster could not be merged in another administrative cadre---Thus, it appeared that Senior Headmaster (BPS-19) could not be posted as District Education Officer (Primary) as the post of District Education Officer (Primary) could only be filled 50% by promotion from amongst Deputy District Education Officers (BPS-18) and 50% by transfer from amongst Cadre Officers and the respondent No.3 was not a Cadre Officer---Post of Education Officer (Primary)/Elementary, Secondary, and Higher Secondary was required to be filled 50% by initial appointment through competitive examination and 50% by transfer from amongst Cadre Officers---Record did not reflect that respondent No.3 was ever appointed as Education Officer as such Senior Headmaster was not required to be posted as Deputy/District Education Officer (Primary)---Respondent No.3 had never been appointed/promoted to the post of Deputy District Education Officer (BPS-18) (Primary); and, his assignment to look after the day to day affairs of the office of the District Education Officer (Primary) was also an erroneous decision on the part of respondent-Education and Literacy Department---Primarily, mere posting of respondent No.3 as Education Officer (Primary) in 2017 did not envisage that he was appointed on the subject post and could be promoted as Deputy District Education Officer and, then allowed to look after the charge of District Education Officer (Primary) and entitled to hold the post of Deputy/District Education Officer (Primary) being Headmaster/Senior Headmaster---Record reflected that respondent No.3 was lastly promoted to the post of Senior Headmaster School Education and Literacy Department on regular basis vide Notification dated 19.01.2022, thus his posting as Education Officer and Deputy/District Education Officer (Primary) (BPS-18/19) was without lawful authority and thus was declared a nullity in the eyes of law---As a result, petition was allowed.

Irshad Hussain v. Province of Sindh through Secretary and 6 others 2020 PLC (C.S.) 1411; Munawar Ali Pathan v. Province of Sindh through Chief Secretary and 2 others 2011 PLC (C.S.) 785 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 ref.

Province of Sindh v. Ghulam Fareed 2014 SCMR 1189; Khalilullah Kakar v. Provincial Police Officer 2021 SCMR 1171; Khan Muhammad v. Chief Secretary Government of Baluchistan, and others 2018 SCMR 1411 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 rel.

Syed Farhan Ali Shah and Saif Sohail Yunus for Petitioner.

Ali Safdar Depar, A.A.G along with Ghulam Ali Birhmani, Additional Secretary (Services), SGA&CD and Abdul Jabbar Shahani, Deputy Secretary (Law-II), SGA&CD for Respondents Nos.1, 2 and 4

Nisar Ahmed Bhanbhro for Respondent No.3.

2024 P L C (C.S.) 318

[Sindh High Court]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

SINDH BAR COUNCIL and 6 others

Versus

The STATE

Constitution Petition No.D-5705 of 2020, decided on 10th October, 2022.

(a) Appointment of Chairman and Members Qualifications Rules, 2016---

----R.3(1)---Industrial Relations Act (X of 2012), Ss.53 & 86---Chairman of the National Industrial Relations Commission, appointment of---Rule 3(1) of the Chairman and Members (Qualifications) Rules, 2016, vires of---Petitioners (Sindh Bar Council and several of its then office-bearers) invoked constitutional jurisdiction of the High Court to impugn the vires of R.3(1) of the Chairman and Members (Qualifications) Rules, 2016 ('the Rules, 2016') setting out the qualification for appointment of a person as the Chairman of the National Industrial Relations Commission ('the Commission')---Validity---Commission stands constituted under S. 53 of the Industrial Relations Act, 2012 ('the Act, 2012'), with its subsection (2) thereof envisaging that "the Commission shall consist of not less than ten full time members, including the Chairman", and its subsection (3) providing that "the qualification for appointment as a member or as the Chairman of the Commission shall be such as may be prescribed"---Section 86(1) of the Act, 2012, confers power upon the Federal Government to make rules to carry out the purposes of the Act, 2012, with the Rules having been made in exercise of that power, with R.3(1) prescribing that "No person shall be appointed as Chairman unless he is or has been judge of the Supreme Court of Pakistan"---In keeping with the requirement of R.3(1), the incumbent Chairman of the Commission was a retired judge of the Supreme Court---Constitutional petition, being meritless, was dismissed, in circumstances.

(b) Industrial Relations Act (X of 2012)---

----S.53---Appointment of Chairman and Members Qualifications Rules, 2016, R.3(1)---Constitution of Pakistan, Art.199---Extension of tenure of the Chairman appointed under R.3(1) of the Appointment of Chairman and Members Qualifications Rules, 2016, assailing of---Writ of quo-warranto---Maintainability---Contention of the petitioners (Sindh Bar Council and several of office-bearers) was that the constitutional petition was in the nature of quo-warranto, hence there was no requirement that the same be instituted by or on behalf of an aggrieved person---Held, that the argument regarding quo-warranto was misconceived, as the incumbent Chairman's appointment was in accord with R.3(1), as it stood, and the petitioners could not seek to supplant that existing qualification so as to then test the appointment with a yardstick that they considered to be better suited---Constitutional petition, being meritless, was dismissed, in circumstances.

Constitutional Petition No.2259 of 2020 ref.

(c) Appointment of Chairman and Members Qualifications Rules, 2016---

----R.3(1)---Industrial Relations Act (X of 2012), S. 53---Constitution of Pakistan, Arts. 25, 177, 193 & 199---Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 9---Constitutional petition---Chairman of the National Industrial Relations Commission, appointment of---Criteria---Discrimination---Contention of the petitioners (Sindh Bar Council and several of its then office-bearers) that in terms of Arts. 177 & 193 of the Constitution, practicing advocates with relevant experience are qualified to be appointed as Judges of Supreme Court of Pakistan and the respective High Courts, however, the qualification in terms of R. 3(1) has been tailor made so as to limit eligibility to the retired judges of Supreme Court, thus the qualification is unreasonably restrictive and discriminatory violating Art. 25 of the Constitution---Held, that the R. 3(1) of the Appointment of Chairman and Members Qualifications Rules, 2016, does not give rise to a violation of Art. 25 of the Constitution or of the Industrial Relations Act, 2012, and even the scope thereof is considered to be restricted and a more expansive qualification criteria is regarded as desirable, which is a matter to be considered by the competent authority and does not of itself affect the vires of the Rule, and neither such alleged defect nor the setting aside of the Rule on that basis would even otherwise constitute a ground for the Impugned Notification to be struck down so as to displace the incumbent Chairman---Moreover albeit that S. 9 of the Legal Practitioners and Bar Councils Act, 1973, on which reliance has been placed in the present petition, envisages one of the functions of a Provincial Bar Council to promote and suggest law reforms, without presently dilating on the scope thereof---Recourse to Art. 199 of the Constitution is not necessarily the appropriate means of performing that function---Constitutional petition, being meritless, was dismissed in limine, in circumstances.

Salahuddin Ahmed for Petitioners.

Nemo for Respondents Nos.1 to 4.

2024 P L C (C.S.) 341

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

ZAHEER UDDIN MEMON and another

Versus

SECURITY PAPERS LIMITED through Chief Executive Officer and another

Suit No.814 in C.M.As. Nos.12692, 11600, 11601, 10608, 8460, 10607 of 2023 and Suit No.815 in C.M.As. Nos.12693, 11603, 11604, 10614, 8463 and 10613 of 2023, decided on 9th October, 2023.

Master and servant---

----Contractual employment---Master and servant relationship---Interim injunction, refusal of---Plaintiffs were aggrieved of their suspension from service and had sought interim injunction against such order---Validity---Relationship between plaintiffs and defendant company was of master and servant---Recourse of restoration of service under such relationship of master and servant was not available---In a private employment employee could not conceive to be an employee of a private entity forever and any interference would amount to interference of his/her fundamental right---Termination even beyond the terms of the employment, at the most would lead to a claim of damages---High Court declined to grant relief of injunction to plaintiffs, as they were in the employment of an entity which created relationship of master and servant---One of the plaintiffs was on contract employment having specific terms which also allowed termination of service on one month's notice or in lieu of a salary---Application was dismissed, in circumstances.

Imtiaz Ali Shah for Plaintiffs (in both suits).

2024 P L C (C.S.) 364

[Sindh High Court]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

Ms. SYEDA ASIA RIZVI

Versus

FEDERATION OF PAKISTAN through Secretary/Chairman Railways, Islamabad and 3 others

Constitution Petition No.D-185 of 2021, decided on 2nd June, 2023.

Civil service---

----Notifications O.M. No. F.13(16)-Reg 6/2017-516 dated 19-06-2018 & O.M. No. F.1 (13)-Reg 6/83, dated 23-10-1983, issued by Federal Government Finance Division (Regulation Wing)---Pensionary right---Widow daughter of deceased pensioner---Entitlement---Petitioner was a widow daughter of deceased pensioner and she was denied right of family pension as her unmarried sister was alive---Validity---Issue relating to family pension of civil servant had already been decided by Federal Government by way of substitution in paras 8(1)(2)(a)(ii)(iii)(iv)(v) of O.M. No. F.1 (13)-Reg 6/83, dated

23-10-1983, issued by Federal Government Finance Division (Regulation Wing)---Petitioner was a divorced daughter of deceased employee who sought pension as per rules---High Court directed the authorities to act in accordance with O.M. No. F.13(16)-Reg.6/2017-516 dated 19-06-2018 issued by Federal Government Finance Division (Regulation Wing), as pension was a fundamental right---High Court directed the authorities to divide family pension of deceased employee amongst surviving unmarried daughter and divorced daughter, equally till marriage / re-marriage---Constitutional petition was allowed accordingly.

Zakia Shaukat Rizvi v. Controller Military Accounts and others 2019 PLC (C.S.) Note 13 rel.

Afaq Ahmed and Arshad Qaser Warsi for Petitioners.

Afsheen Aman and Muhammad Rustam for Respondents.

Pir Riaz Muhammad, DAG along with Imran Ahmed Khan, Senior Audit AGPR.

Sarfraz Ali Metlo, Amicus Curiae along with Barkat Ali Metlo and Muhammad Avais Leghari.

2024 P L C (C.S.) 382

[Sindh High Court]

Before Irfan Saadat Khan and Agha Faisal, JJ

IMTIAZ AHMED

Versus

FEDERATION OF PAKISTAN through Secretary Defence and others

Constitution Petition No.D-6736 of 2020, decided on 15th December, 2021.

Civil Aviation Authority Employees Pay and Pension Regulations, 2014---

----Regln. 34---Civil Service Regulations (CSR), Regln. 371-A---Pensionary benefits, entitlement to---Minimum years of service to qualify for pension---Scope---Petitioner was appointed as helper in Civil Aviation Authority in the year 2006 on daily wages basis and subsequently was regularized on 26.02.2010---Petitioner stood retired after attaining the age of superannuation on 27.05.2016---Pension was not granted on the ground that petitioner had not completed ten years of service required for grant of pensionary benefit---Validity---Regulation No. 34 of Civil Aviation Authority Employees Pay and Pension Regulations, 2014, clearly spelled out that qualifying service of an employee would commence from the date he took the charge of the post to which employee was first appointed either substantively or in temporary capacity, provided that temporary service was followed without interruption by substantive appointment in the same or other service cadre or post---Article 371-A of Civil Service Regulations (CSR) was clear in its terms that a government servant not employed in a substantive permanent capacity who had rendered more than five years continuous temporary service counts such service for the purpose of pension or gratuity excluding broken period of service, if any, rendered previously---Continuous temporary and officiating service of less than five years immediately followed by confirmation would also count for gratuity or pension, as the case might be---In such circumstances, the petitioner was also entitled for pensionary benefits---Petition was allowed by directing that the service rendered by the petitioner from 2006 to 2010 on daily wages basis had to be considered as regular service and the due pensionary benefits would be available to the petitioner which might be granted to him within one month's time.

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

Salman Azizi for Petitioner.

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

Khalid Mahmood Siddiqui for Respondents Nos.2 to 4.

2024 P L C (C.S.) 396

[Sindh High Court (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

ALI HASSAN and 20 others

Versus

PROVINCE OF SINDH through Secretary Home Department, Sindh Secretariat, Karachi and 3 others

Constitution Petitions Nos.D-404, D-424, D-431, D-440, D-441, D-446, D-447, D-452, D-454, D-457, D-458, D-462, D-485, D-492, D-497, D-498, D-500, D-504, D-515, D-526, D-527, D-532, D-535, D-537, D-542, D-549, D-555, D-556, D-557, D-571, D-579, D-589, D-607, D-620, D-626, D-631, D-659, D-680, D-682, D-708, D-717, D-728, D-731, D-736, D-755, D-783, D-806, D-828, D-869, D-872, D-912, D-921 and D-964 of 2023 decided on 31st August, 2023.

Civil service---

----Recruitment process---Favouritism and nepotism, allegation of---Proof---Petitioners / candidates were aggrieved of their rejection in selection process for the posts of Prison Constables---Validity---Petitioners / candidates raised allegations of favouritism and nepotism on the part of authorities but it was a mere accusation as no material in support thereof was produced---High Court declined to declare recommendations made by authorities regarding 1253 candidates, as discriminatory and violating the law and Constitution without impleading those candidates as party---Criteria for appointment were to be formulated and fixed by Selection Committee and no vested right was created in favour of petitioners/candidates who were declared failed in their interviews---High Court could not intrude in the matters of candidates' fitness for a particular post as this was best assessed by the functionaries entrusted with the responsibilities, such as Public Service Commission---High Court declined to interfere in selection process---Constitutional petition was dismissed, in circumstances.

Asif Hassan and others v. Sabir Hussain and others 2019 SCMR 1970; Arshad Ali Tabassum v. The Registrar, Lahore High Court, Lahore 2015 SCMR 112 and Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157 rel.

Sohail Ahmed Khoso, Sheeraz Fazal, Muhammad Raza Soomro, Achar Khan Gabol, Shabbir Ali Bozdar, Sundar Khan Chachar, Farhan Ali Shaikh, Farman Ali Rajput, Muhammad Aslam Gadani, Amanullah Bugti, Abdul Naeem Pirzada, Asadullah Arbani, Athar Hussain Abro, Deedar Ali M. Chohan, Hamid Ali Memon and Ajeebullah Junejo for Petitioners.

Ashfaque Hussain Abro, Assistant Attorney General for Federation of Pakistan.

Ali Raza Baloch, Assistant Advocate General for Province of Sindh.

2024 P L C (C.S.) 410

[Sindh High Court (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan and Muhammad Saleem Jessar, JJ

SALMA MEMON

Versus

SUI SOUTHERN GAS COMPANY LIMITED, through Managing Director and 3 others

C.P. No.D-613 of 2013, decided on 13th April, 2021.

Removal from Service (Special Powers) Sindh Ordinance (IX of 2000)---

----S.3---Dismissal from service---Absence from duty---Scope---Petitioner assailed her dismissal from service on the ground of her absence from duty---Petitioner was granted Ex-Pakistan Leave for 174 days, thereafter she made an application for medical leave supported by an advice of a foreign doctor for 90 days---Petitioner was granted a leave of only 29 days where-after still being unwell she applied for another extension of leave for 63 days that too without pay, that request was declined---Validity---Chief Medical Officer of the authorities having been confronted with the medical reports gave advice that the petitioner could fly to Pakistan for her further treatment---Such act of the Chief Medical Officer itself was in excess of the authority given to him by the Sick Leave Rules---Company had ample material to act as per Cl 30.1 of the Rules and should have granted 30 days initial leave with full remuneration---Correct procedure as provided by Sick Leave Rules should have been followed by initially giving 30 days leave with full remuneration where there was even an option to avail another three months sick leave under Cl. 30.2(iii) and a further three months sick leave under Cl. 30.2(iv), thereafter under Cl. 30.2(v) if after 12 months of illness over and above the entitled sick leave period, an executive was found unfit for further service, then he/she could be retired on medical grounds with full terminal benefits as admissible under the Rules---Authorities had failed to act in accordance with Sick Leave Rules, in circumstances---Constitutional petition was allowed, impugned order was set aside and the petitioner was reinstated on her previous post from the date of the order with all back benefits.

Ishrat Ali Lohar for Petitioner.

Aslam P. Sipio for Respondents/SSGC.

Ashfaque Nabi Qazi, Asst: Attorney General for Respondents.

2024 P L C (C.S.) 431

[Sindh High Court]

Before Muhammad Faisal Kamal Alam, J

MADNI AHMED ALI ARFAT SIDDIQUI

Versus

SUI SOUTHERN GAS COMPANY LIMITED through Company Secretary and another

Suit No.424 of 2022, decided on 3rd October, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff had challenged the public notice given by defendant No. 1 (Sui Southern Gas Company Limited) through defendant No. 2 for recruitment of professionals in senior management positions---Plaintiff (employee of defendant No.1) was not found fit for promotion---Validity---Merely because rules were non-statutory and relationship of defendant No.1 and plaintiff was that of master and servant, it did not mean that plaintiff and such other employees were remediless---If the service regulations were violated or the established policies were deviated from to deprive an employee, from his career progression, then the suit was maintainable, because S. 24-A of the General Clauses Act, 1897, was also applicable to Defendant No.1, and while framing the policies for the employees, they had to act fairly, justly and reasonably---Posts advertised required specialized qualifications---In order to run the organization in an efficient and viable manner, it was not necessary that a senior management position was always filled up internally through promotion, especially when the present positions were on contract and not regular posts---Defendant No.1 and any other organization, especially of public sector, could hire the services of well qualified and reputed professionals in order to operate efficiently---Secondly, an employee could be considered for such specialized posts, only if he had the requisite qualifications---Merely because he fulfilled the criteria of length of service or any other general criteria for promotion did not itself create a vested right in favour of plaintiff---Defendant No.1 was not bound to promote an employee to the next higher grade if that post required specialized qualifications---Present qualification of the plaintiff should have direct nexus with the posts advertised---Record showed that plaintiff had done B.E. Electronics, thus, obviously he could not be considered for the post of Senior General Manager-Information Technology, which in the present times, was one of the most important posts in any organization; rather, sine qua non for viable operation of an organization, including defendant No.1.---Similarly, plaintiff was in the last year considered for the position of HSEQA and was not found fit and nothing was placed on record that what further qualification the plaintiff had acquired to become eligible for the said position---As far as the third post of Senior General Manager, Procurement and Inventory Management, was concerned, it was sole discretion of Defendant No.1 to consider any of the employees including plaintiff, if the defendant No.1 was unable to hire/induct a suitable candidate externally---In the previous and present Service Regulations, H.R. Manual and Employment Policies, nothing had been shown, which could be termed as violative of any principle of law or statutory provisions---Moreover, it was discretion of the board of defendant No.1 to modify, amend, replace and frame policies in accordance with the present day requirement---Suit was dismissed accordingly.

The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad and 2 others v. Abdul Rashid 1995 SCMR 1053; Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 2005 SCMR 650; Nighat Yasmin v. Pakistan International Airlines Corporation, Karachi and another 2004 SCMR 1820; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021 and Faraz Ahmed v. Federation of Pakistan through Secretary, Ministry of Communications, Government of Pakistan, Islamabad and others 2022 SCMR 1680 ref.

President, ZTBL, Head Office, Islamabad v. Kishwar Khan and others 2022 SCMR 1598 = 2022 PLC (C.S.) 1341 rel.

Muhammad Ali Lakhani and Mujtaba Sohail Raja for Plaintiff.

Faisal Mahmood Ghani and Sohail Tharani along with Bilal Farooq Alvi, Senior Legal Counsel for Defendant No.1.

Ameer Haider and Ovais Ali Shah for Defendant No.2.

2024 P L C (C.S.) 460

[Sindh High Court (Larkana Bench)]

Before Adnan Iqbal Chaudhry and Zulfiqar Ali Sangi, JJ

INAYATULLAH LASHARI and 2 others

Versus

COMMISSIONER LARKANA and others

Constitutional Petitions Nos.D-764, D-816, D-1202 of 2015, decided on 8th February, 2023.

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

----S.3---Daily wagers---Regularization in service---Scope---Since the petitioners were employed by the Local Government as daily-wagers, and their service had been discontinued, it was not their case that they were entitled to regularization under the provisions of the Sindh (Regularization of Ad-hoc and Contract Employees) Act, 2013---Not disputed by petitioners that as daily-wagers and contingent staff, their appointment was on the condition that their service could be discontinued at any time and that they would not qualify for regular appointment---Fact that they were re-engaged from time to time also showed that they were never in continuous service---Sole ground taken by petitioners for regularization was that they were entitled to the same treatment as other employee, who had been regularized pursuant to judgment passed by the High Court---Long and satisfactory service was no ground for regularization and an employee engaged as ad-hoc or under a time-bound contract had no vested right to regularization---Continuity in service was a pre-condition to seek regularization---While exercising constitutional jurisdiction the Court could not revive or renew expired contracts or alter the terms and conditions of an employee's contract---Petitions were dismissed, in circumstances.

Deputy Commissioner Upper Dir v. Nusrat Begum 2022 SCMR 964; Government of Khyber Pakhtunkhwa v. Saeed ul Hasan 2021 SCMR 1376; Province of Punjab v. Prof. Dr. Javed Iqbal 2022 SCMR 897; Khushal Khan Khattak University v. Jabran Ali Khan 2021 SCMR 977; Deputy Director Finance and Administration, FATA v. Dr. Lal Marjan 2022 SCMR 566 and Government of Khyber Pakhtunkhwa v. Sher Aman 2022 SCMR 406 rel.

Safdar Ali Ghouri for Petitioners (in C.Ps. Nos.D-764, D-816 and D-1202 of 2015).

Abdul Hamid Bhurgiri, Additional Advocate General Sindh for Respondents.

2024 P L C (C.S.) 524

[Sindh High Court]

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

HAFEEZ UR REHMAN

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

C.P. No.2207 of 2021, decided on 29th March, 2021.

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

----Ss. 3 & 4---Civil service---Terms and condition of service---Disciplinary proceedings---Service Tribunal---Jurisdiction---Suspension order, assailing of---Petitioner (Deputy Director/BPS-18) filed constitutional petition against his suspension order contending that impugned order could not be termed as an order passed within the terms and conditions of his service---Plea of the petitioner was that previously he invoked constitutional jurisdiction against the respondent/Sindh Building Control Authority (SBCA), so with mala fide intention and out of personal vendetta SBCA proceeded against him---Validity---Plea /analogy of the petitioner was misconceived as the pendency of the disciplinary proceedings fell within the ambit of expression terms and condition of service of the public servant---Final decision against the petitioner was yet to be taken by the respondent/SBCA and the petitioner would have an opportunity of hearing before impugned final action, if any, taken against him by the Competent Authority of SBCA---Constitutional petition was dismissed, in circumstances.

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

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

----Ss. 3 & 4---Constitution of Pakistan, Art. 199---Suspension order, assailing of---Constitution petition---Maintainability---Petitioner (Deputy Director/BPS-18) filed constitutional petition against his suspension order---Validity---Constitutional jurisdiction of the High Court is not meant to be exercised to compel an Authority to set aside the suspension order passed against a public servant against whom prima facie evidence shows his involvement in the charges of misconduct or otherwise, which is yet to be probed---Interference by the High Court would be disharmonious to the principle of good governance and canon of service discipline, rather it would cause undue interference and hamper the smooth functioning of the departmental Authorities , more particularly SBCA---Against the adverse result of the inquiry, if any, the petitioner would have the remedy of appeal; and, in presence of such adequate remedy, the High Court at present stage would not step into and declare the suspension of the petitioner illegal or void---More so, the petitioner's objection to his suspension was technical and procedural---High Court was not inclined to exercise its discretion in petitioner's favour to thwart the whole process of inquiry---Constitutional petition, being not-maintainable, was dismissed, in circumstances.

(c) Civil service---

----" Suspension"---Scope---In law, "suspension" is not defined as a punishment but it is an intervening arrangement, which is temporary and resorted to prevent the delinquent official from influencing the outcome of subsequent inquiry on any of the charges against him---Suspension from service, is simply a temporary measure and is taken to reduce the chance of tempering in the course of an inquiry.

Saeed Ahmed Memon for Petitioner.

2024 P L C (C.S.) 690

[Sindh High Court (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

JAMSHER ALI SIAL and 82 others

Versus

PROVINCE OF SINDH through Secretary Home Department and 5 others

Constitutional Petition No.D-900 of 2023, decided on 28th November, 2023.

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

----S. 12---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Terms and conditions of service---Reversion to lower post---Petitioners were aggrieved of orders passed by authorities reverting them to lower posts---Validity---Civil servant appointed on a higher post or status on adhoc, temporary or officiating basis was liable to be reversed under S.12 of Sindh Civil Servants Act, 1973, to his substantive post or grade without serving any notice---There were two permutations in S.12 of Sindh Civil Servants Act, 1973: fist that reversion to lower or substantive post could be made by competent authority without notice; and second that such exercise was within the terms and conditions of service---High Court in exercise of constitutional jurisdiction declined to interfere in the matter as reversion of petitioners / civil servants fell within the terms and conditions of service---In the present case there was neither any question of non-hearing of petitioners, nor of not providing them opportunity of hearing before passing orders in question, and nor the question of discrimination---High Court did not have jurisdiction under Art. 199 of the Constitution, as the matter squarely fell within the jurisdiction of Sindh Service Tribunal---Constitutional petition was dismissed, in circumstances.

Nazeer Ahmed Chkrani v. Government of Pakistan 2004 SCMR 623; Gul Hassan Jatoi and others v. Faqeer Muhammad Jatoi and others 2016 SCMR 1244; 2015 SCMR 456; 2016 SCMR 1254; 2021 SCMR 1390; 2007 SCMR 54; PLD 2001 SC 1032; 1999 PLC (C.S.) 230; 2009 PLC (C.S.) 539 and 2009 PLC (C.S.) 568 ref.

Khalilullah Karar and others v. PPO, Balochistan and others 2021 SCMR 1168 rel.

Fidaullah Qureshi for Petitioners except petitioners Nos.2, 13 and 74.

Noor Hassan Malik for Petitioners Nos.2, 13 and 74.

Ali Raza Baloch, Assistant A.G. along with Inspector/P.I Muhammad Akhtar Pathan on behalf of DIGP, Sukkur and SIP Jameel on behalf of SSP, Khairpur.

2024 P L C (C.S.) 700

[Sindh High Court (Larkana Bench)]

Before Zafar Ahmed Rajput and Adnan-ul-Karim Memon, JJ

NASIR ALI

Versus

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

Constitutional Petition No.D-471 of 2020, decided on 4th August, 2021.

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

----Rr. 10-A & 11-A---Deceased quota---Legal heir of tender age at the time of death of government servant---Son of the deceased government servant (who served at Revenue Department, Government of Sindh) invoked constitutional jurisdiction of the High Court for his appointment under family quto---Validity---Record revealed that the father of the petitioner was Naib Qasid of the office of Deputy Commissioner, who passed away during service---At the time of death of the father of the petitioner, he was under-age and due to his tender age, he could not obtain Computerized National Identification Card and other supporting documents---However, the petitioner attained the age of majority after about nine and half years of death of his father, and he applied for his appointment against the deceased quota after four months (of attaining majority)---Said factor was duly endorsed by contents of a letter of the concerned Additional Deputy Commissioner addressed to the concerned Assistant Secretary, Board of Revenue Sindh---High Court directed respondent (the Chief Secretary, Government of Sindh) for scrutiny and consideration and to pass decision through a speaking order on the application for appointment that shall be submitted by the petitioner---Constitutional petition, filed by the son of deceased government servant, was disposed of accordingly.

C.Ps. Nos.482-K and 403-K of 2016 ref.

Muzafar Ali Wadhio for Petitioner.

Liaqaut Ali Shar, Additional Advocate General for Respondents.

2024 P L C (C.S.) 767

[Sindh High Court (Larkana Bench)]

Before Muhammad Saleem Jessar and Khadim Hussain Soomro, JJ

MUHAMMAD NAWAZ SHAIKH and 2 others

Versus

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

Constitutional Petition No.D-205 of 2021, decided on 6th December, 2023.

Civil service---

----Termination from service---Show-Cause Notice, non-issuance of---Scope and effect---Petitioners (Junior Clerks/ Sanitary Workers posted at Municipal Committee) filed constitutional petition contending that they were terminated without holding regular enquiry and even without serving any Show-Cause Notice---Validity---Record revealed that before termination of services of the petitioners by the respondents / Department, they were not properly served with Show-Cause Notice---Neither any regular departmental enquiry was initiated nor the petitioners were provided any chance of hearing---In view of said aspects, the impugned orders of termination of services of petitioners appeared to be illegal, ultra vires and against the principles of natural justice and fair play---Consequently, High Court set-aside the termination orders of the petitioners, directing the respondents /Department to reinstate the petitioners into service with back benefits, however, the Department would be at liberty to initiate fresh proceedings---Constitutional petition filed by the employees was allowed, in circumstances.

Wakeel Ali Shaikh for Petitioners.

Muhammad Ashique Dhamraho for Respondent No.2 along with Muhammad Nawaz Rahpoto CMO K.N. Shah.

Abdul Hamid Bhurgri, Additional Advocate General.

2024 P L C (C.S.) 817

[Sindh High Court]

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

SHAKEEL-UR-REHMAN

Versus

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

Constitutional Petition No.D-2856 of 2016, decided on 20th January, 2023.

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

----Rr. 4(1)(b)(iv) & 5(iii)---Constitution of Pakistan, Art. 199---Dismissal from service---Constitutional jurisdiction of the High Court, invoking of---Scope---Fake / forged educational document, submission of---Regular inquiry, non-holding of---Petitioner, who was plumber / BS-06 in Port Qasim Authority, filed constitutional petition against his dismissal contending that no regular inquiry was conducted---Validity---Show-Cause Notice, in the present case, revealed that a Scrutiny Committee was formed in terms of an order having passed by the Supreme Court, which Committee was entrusted with the task of examining the legality and vires of appointments made in Port Qasim Authority for last five years, including the case of petitioner---Petitioner was also inquired by the Scrutiny Committee, which later on found that he had provided a fake educational certificate and he was found guilty in departmental proceedings and the punishment of dismissal from service was imposed upon him on the ground that he had produced a fake educational certificate---Record showed that reasonable opportunities were extended to the delinquent / petitioner to defend himself effectively at every stage of the disciplinary proceedings in terms of ratio of order passed by the Supreme Court to meet the principle of natural justice---However, the petitioner failed to substantiate his point of view and his plea was rejected in terms of issuance of Show-Cause Notice and subsequent order of dismissal from service---Charges levelled against the petitioner had also been substantiated by the report of the concerned Board of Secondary Education ('Education Board')---Case of the petitioner could not be thrashed out under constitutional jurisdiction as he was found guilty of misconduct in his capacity as an employee of the PQA and he deserved stringent punishment for his misconduct based on the report of Education Board---Constitutional petition was dismissed, in circumstances.

Faizan Hussain Memon for Petitioner.

Yasir Ahmed Shah, A.A.G for Respondents.

2024 P L C (C.S.) 833

[Sindh High Court]

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

FAHEEMUDDIN and 5 others

Versus

PROVINCE OF SINDH through Chief Secretary and others

C.P. No.D-579 of 2023, decided on 20th February, 2023.

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

----S.4---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Service Tribunal, jurisdiction of---Fitness for promotion---Scope---When matter concerns fitness of civil servant for promotion to next rank, jurisdiction of Service Tribunal is not attracted, and Constitutional petition under Art. 199 of the Constitution before High Court is maintainable.

Chief Secretary, Government of Punjab, Lahore and others v. Ms. Shamim Usman 2021 SCMR 1390 and Secretary, Establishment Division v. Aftab Maneka 2015 SCMR 1006 rel.

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

----S.4---Civil service---Seniority---Fitness for promotion---Matter pending before Service Tribunal---Petitioner / civil servants assailed notification of promotion of respondents issued by Selection Board during pendency of appeals fixing seniority before Service Tribunal---Respondents claim promotion to the post (BS-18), which was a non-selection post---Validity---In principle promotion to such post was required to be made on seniority-cum-fitness basis---It was yet to be determined by Service Tribunal as to who was senior amongst the parties and fit for promotion in the next rank---Meeting convened by Selection Board recommending promotion of respondents should not have been called for on account of the pendency of seniority dispute between the parties before Service Tribunal---Recommendation made by Selection Board in its meeting was an erroneous decision on their part---High Court set aside notification of promotion of respondents as purported recommendation made by Selection Board for promotion of respondents was without justification---High Court directed that promotion of all parties would be subject to the outcome of service appeals filed by parties and those who were not a party could join service appeals by appropriate application before Service Tribunal---Constitutional petition was allowed accordingly.

Federation of Pakistan through Secretary Establishment, Islamabad v. M.Y. Habib-ur-Rehman and others 2021 SCMR 1554; Khalillah Kakar and others v. Provincial Police Officer, Balochistan and others 2021 SCMR 1168; Shafi Muhammad Mughal v. Secretary, Establishment Division and others 2001 SCMR 1446; Zafar Iqbal v. MGO, MGO Branch, GHQ Rawalpindi and 3 others 1995 SCMR 881; Ms. Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others 2011 PLC (C.S.) 596 and Chief Secretary Sindh v. Riaz Ahmed Massan and others 2016 SCMR 1784 ref.

M.M. Aqil Awan and Muhammad Arshad Khan Tanoli for Petitioners.

Abdul Salam Memon and Ms. Rabiya Javed for Respondents Nos.4, 5, 7, 9, 10, 11, 12, 14, 15, 16, 17, 18, 20, 21, 23, 24, 25 and 27.

G.N. Qureshi for Respondents Nos.6, 8, 13, 19, 22, 28, 29 and 30.

Malik Naeem Iqbal and Muhammad Saleem Khaskheli for Respondent No.19.

Ali Safdar Depar, Assistant Advocate General Sindh, Bhoromal, Law Officer, Secretary Services, Government of Sindh along with Muhammad Saleem Rajput, Secretary Services, Altaf Hussain Sario, Additional Secretary Services and Sanaullah Qazi, Section Officer.

2024 P L C (C.S.) 875

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Adnan ul Karim Memon, JJ

NAIMATULLAH

Versus

FEDERATION OF PAKISTAN through Ministry of Science and Technology and 2 others

Constitutional Petition No.D-6365 of 2023, decided on 13th February, 2024.

National Institute of Oceanography Employees Service Rules, 2012---

----R.16---Constitution of Pakistan, Art.199---Civil service---Constitutional petition---Promotion---No vested right---Eligibility criteria, determination of---Approval of recommendations in the first D.P.C. by the competent authority---Convening of second meeting of D.P.C. for withholding of promotion---Judicial review of the decision taken by the competent authority---Scope---Plea of non-adherence to Rules---Validity---Courts can undertake judicial review of decision of executive authority on grounds of illegality, irrationality or procedural impropriety---Government can make rules in the interest of expediency and to remove anomalies in Service rules---Rules making authority can determine eligibility criteria for promotion, which is essentially an administrative matter falling within the exclusive domain and policy decision making of the government, with which interference by the Courts is not warranted and no vested right of a government employee is involved in the matter of promotion or the rule determining his/her eligibility or fitness---Petitioner was considered without adhering to the relevant service rules, therefore, the decision for his reconsideration for promotion was valid---Constitutional petition was dismissed accordingly.

Ghulam Rahman and Ghayasuddin Rajpar for Petitioner.

Kashif Nazeer, Assistant Attorney General along with DS Ministry of Science and Technology for the State.

2024 P L C (C.S.) 890

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

ALI ADNAN ARIF TABBA and others

Versus

NATIONAL DATABASE REGISTRATION AUTHORITY and 3 others

Suit No.2841 of 2021 (along with other connected suits), decided on 19th September, 2022.

(a) National Database and Registration Authority (Service) Regulations, 2002---

----Reglns. 23 & 24---Civil Servants Act (LXXI of 1973), Ss.15 & 16---Civil Servants (Efficiency and Discipline Rules, 2020, R.5---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration, permanent injunction and damages instituted in Civil Original Jurisdiction of High Court---Maintainability---Issuance of show-cause notice in pending departmental proceedings---Upon allegation of involvement in illegal processing of CNICs in respect of suspected aliens plaintiffs were suspended---Plea of violation of fundamental rights---Contention of the plaintiffs was that although their services were governed by non-statutory rules, yet they were being dealt with as being civil servants and proceedings were initiated against them under Civil Servants (E&D) Rules, 2020---Validity---Objection of plaintiffs was irrelevant in terms of Regln. 23 of National Data Base and Registration Authority (Service) Regulations, 2002, which provided that subject to Regln. 24, Rules made and instructions issued by the Government of Pakistan or a prescribed authority as for civil servants under Ss.15 & 16 of the Civil Servants Act, 1973 as amended from time to time would be applicable insofar as practicable to the employees of the authority and the case of the plaintiffs did not fall within the proviso to Regulation, 2002---There was no violation of any fundamental right in issuance of show-cause notices followed by consequential and logical procedure---Proceedings in substance were against show-cause notices in pending departmental disciplinary actions, which had not attained finality and still the right of appeal, as a result of conclusion, was available with the plaintiffs under Regulation, 2002---Suits being not maintainable were accordingly dismissed.

Major (R) Tanveer Abbas v. Federation of Pakistan 2019 SCMR 984; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir PLD 2011 SC 132; Mateen Khan v. Federation of Pakistan 2020 PLC (Sindh) 1 and Pakistan Airline Pilot Association v. PIAC 2019 SCMR 278 rel.

(b) Damages---

----Claim for damages---Scope---In the absence of any substantial relief being matured, no consequential relief could be claimed, be that damages.

(c) Jurisdiction---

----Jurisdictional error---Objection---Forum---Even if there is jurisdiction error it is to be objected to/redressed and/or agitated before the concerned authority and none else.

Commissioner Inland Revenue v. Jahangir Khan Tareen (Civil Petition No.349-L of 2017) ref.

Ali Asadullah Bullo for Plaintiff.

Ch. Muhammad Farooq along with Mrs. Samina Maqsood for defendants/NADRA.

Aamir Saleem holds brief for Arshad Lodhi for Defendant No.3 (in Suit No.632 of 2020).

2024 P L C (C.S.) 913

[Sindh High Court]

Before Aqeel Ahmed Abbasi, CJ, Zafar Ahmed Rajput and Abdul Mobeen Lakho, JJ

MEHBOOB ALI CHANNA and another

Versus

SUHAIL MUHAMMAD LEGHARI REGISTRAR OF SINDH HIGH COURT and others

C.Ps. Nos.D-2781 and 2782 of 2024, decided on 20th June, 2024.

Sindh Judicial Staff Service Rules, 1992---

----R. 4---District and subordinate judiciary, appointments in---Sons of deceased, retired and serving employees---Policy---Clarification---Policy decision of Administration Committee of High Court communicated to all District and Sessions Judges, Province of Sindh from time to time through policy decision read with R. 4 of Sindh Judicial Staff Service Rules, 1992, relating to appointment of sons of deceased, retired and serving employees of District and Subordinate Courts in Sindh was the policy as well as instructions issued by High Court---Backing of decision of Administration Committee as well as R.4 of Sindh Judicial Staff Service Rules, 1992, could not dispute or question policy decision of Administration Committee---Full Bench clarified factual and legal position and sent petitions to Circuit Court for decision---Question was clarified accordingly.

Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others PLD 2021 SC 391 and Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362 / PLD 1995 SC 423 ref.

Petitioner present in person for Petitioner (in C.P. No.D-2781 of 2024).

Aamir Ali present in person (in C.P. No.D-2782 of 2024).

Saifullah, Assistant Advocate General Sindh along with

Ms. Deeba Ali Jaffri, A.A.G. for Respondent No.3.

Ms. Manzooran Gopang and Abdul Sattar Pathan, Law Officers.

2024 P L C (C.S.) 934

[Sindh High Court]

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

Mirza ANWAR MEHMOOD BAIG

Versus

CIVIL AVIATION AUTHORITY through Director General and another

Constitutional Petition No.D-2001 of 2021, decided on 7th April, 2021.

Constitution of Pakistan---

----Art. 199---Civil service---Disciplinary proceedings---Issuance of show-cause notice---Constitutional petition challenging show-cause notice---Maintainability---Good governance---Scope---Constitutional jurisdiction of the High Court is not meant to be exercised to restrain the competent authority from taking action under law against a public servant against whom prima facie evidence showing his involvement in the serious charges of misconduct is available---Any such direction will be disharmonious to the principle of good governance and canon of service discipline rather it would cause undue interference to hamper the smooth functioning of the departmental authorities---In law show-cause is not defined as a punishment---Petitioner could not file a constitutional petition against the issuance of show-cause notice (SNC), which was simply an opportunity to explain the position in the course of the inquiry---Against the adverse result of inquiry arising out of SCN, if any, the petitioner would have the remedy of appeal---In presence of such adequate remedy, High Court at this juncture would not step in to declare the SCN issued to the petitioner illegal or void---Petitioner's objection on the issuance of SCN was technical and procedural, and there was no malice or ulterior motives on the part of respondent/CAA and/or violation of the principles of natural justice---Court would not exercise its discretion to thwart the whole process arising out of the SCN and set aside SCN on any of the technical grounds, as it would amount to interfering in the right of the authority to enquire into allegations against the petitioner---Besides, respondents had levelled serious allegations against the petitioner in their comments about his qualification of B.A. degree being fake document, which would certainly be considered by the competent authority in the inquiry proceedings against the petitioner---Since the show cause was issued against the petitioner and he replied and it was for the respondent/CAA to decide under law for which the High Court was not required to show indulgence in the matter under Art. 199 of the Constitution to set aside the disciplinary proceedings initiated against him---High Court did not see any infringement of the right of the petitioner which could be called in question by way of constitutional petition---Public Servant has no vested right to call in question the disciplinary proceedings in constitutional petition---Constitutional petition having been filed against the issuance of show-cause notice was dismissed.

Farrukh Zia Shaikh for Petitioner.

Dr. Shahnawaz for CCA.

2024 P L C (C.S.) 943

[Sindh High Court]

Before Muhammad Shafi Siddiqui, J

AMIR HUSSAIN

Versus

SIR SYED UNIVERSITY OF ENGINEERING AND TECHNOLOGY, KARACHI through Vice Chancellor

Suit No.S-1961 and C.M.A. No.19310 of 2022, decided on 22nd March, 2023.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and perpetual injunction instituted in original civil jurisdiction of High Court---Relationship of master and servant---Issuance of relieving letter/notice on account of abolition of post by a private university---Instead of challenging the act of abolition of post, plaintiff challenged the relieving notice and sought restoration of his service---Effect---Defendant was a private university, which was formed and was governed by the statute and it was included that there was a relationship of master and servant between the plaintiff and defendant---On account of abolition of post the plaintiff was relieved without any accusation as far as his services were concerned, however, the act of abolition of post was not impugned in the proceedings and the plaintiff had only prayed that relieving letter was in violation of natural justice and contrary to the Act, whereby the university was created---Application for grant of injunction and/or restoration of his service was dismissed.

Dr. Amir Bux Channa and another v. Isra Islamic Foundation (Guarantee) Ltd. and others 2023 CLD 691 ref.

Syed Ahsan Imam Rizvi for Plaintiff.

Tasawur Ali Hashmi for Defendant.

2024 P L C (C.S.) 954

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ

Syed ALI MUHAMMAD

Versus

The FEDERATION OF PAKISTAN through Secretary Ministry of Science and Technology and 3 others

Constitutional Petitions Nos.D-5468 and 5663 of 2023, decided on 29th February, 2024.

Civil service---

----Transfer and posting---Non-existence of relevant post at the place of posting---Effect---Post of the petitioner admittedly did not exist at the moment, therefore, the transfer of the petitioner on a post, which did not exist, had put the petitioner to a disadvantageous position as to his appointment and promotion and holding of his present post---Respondents had been unable to justify that any such post had been created, therefore, the action taken by the respondents was held not to be in consonance with their rules and the availability of the post---Constitution petition was accordingly disposed of with a direction to the competent authority to ensure proper posting of the petitioner as per his appointment by way of promotion at the place of his posting.

Fida Hussain Shah and others v. Government of Sindh and others 2017 SCMR 798; Khan Muhammad v. Chief Secretary Government of Baluchistan 2018 SCMR 1411; Khalilullah Kakar v. Provincial Police Officer 2021 SCMR 1171 and Dr. Muhammad Saleem v. Government of Baluchistan 2024 PLC (C.S.) 77 rel.

Ali Asadullah Bullo for Petitioner.

Khalid Javed for Respondents Nos.2 to 5.

Kashif Nazir, Assistant Attorney General along with Khalid Ahmed Bablani, Director (Finance) PSQCA, Zubair Nomani, Director (Legal), PSQCA and Khalid Ali Lashari, Assistant Director (Legal) PSQCA for Respondent No.1.

2024 P L C (C.S.) 967

[Sindh High Court]

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

MIR HASSAN

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others

C.P. No.D-4452 of 2013, decided on 6th April, 2021.

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

----R. 11-A---Sindh Police---Post of Police Constable---Recruitment---Scope---Post of Police Constable in all units of Sindh Police can be filled under policy for Recruitment in Sindh Police, 2016--Only those candidates can be appointed against any post, who meet the requisite criteria as provided in R.11A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.

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

----S. 12---Standing Order No. 260/2011 issued by the Inspector General of Police, Sindh---Police Department---Son quota---Policy for recruitment---Standing Orders issued by Inspector General of Police without approved of Provincial Government---Contention of the petitioner was that under Standing Order No. 260/2011 issued by the Inspector General of Police, Sindh, Police Department was empowered to appoint him against the son quota---Validity---All the Standing Orders issued by the Inspector General of Police without the approval of Provincial Government had been declared a nullity , therefore, no sanctity could be attached to such Standing Orders---Apparently, the Standing Order in question had not been approved by the Provincial Government as required under S. 12 of Police Act, 1861---Section 12 of the Police Act, 1861, leaves no room or ambiguity as to the fact that the police force is commanded by the Inspector General of Police, who has powers to frame Orders and Rules about the organization, classification and distribution of Police Force subject to the approval of the Provincial Government---In other words, the said provision enables Inspector General of Police to cater to a situation where it is expedient for him to issue such orders and make such rules as required to meet the contingencies with approval of the Provincial Government; yet the Standing Orders issued by Inspector General of Police have to be approved by the Provincial Government---Constitutional petition was dismissed, in circumstances.

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

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

----S. 12---Standing Order No. 260/2011 issued by the Inspector General of Police, Sindh---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.11-A---Police Department---Son quota, entitlement of---Policy for recruitment---Contention of the petitioner that the respondents (Police Department) had issued various appointment orders based on son quota and the case of the petitioner is akin to the other candidates who were already appointed on son quota basis---Validity---There is no concept of son quota under service jurisprudence, thus the appointments, if any, made by the Police Department against the son quota could be looked into in other appropriate proceedings if brought before the High Court, which shall be decided on its merits---Admittedly, that Standing Orders had not been approved by the Provincial Government, therefore, no sanctity could be attached with such Standing Orders to claim its benefit---Constitutional petition was dismissed, in circumstances.

Hakim Ali Khan for Petitioner.

Syed Soulat Rizvi, Additional Advocate General Sindh along with Raza Mian, DSP (Legal).

2024 P L C (C.S.) 995

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ

OMER KHALID ALI

Versus

FEDERATION OF PAKISTAN through President of Pakistan and 6 others

Constitutional Petition No.D-400 of 2024, decided on 13th February, 2024.

State-Owned Enterprises (Governance and Operations) Act (VII of 2023)---

----Ss.15 & 16---Constitution of Pakistan, Art. 199(1)(b)(ii)---Chairperson of Sui Southern Gas Company Ltd. (SSGCL), appointment of---Quo warranto, writ of---Pre-conditions--- Disqualification---Proof---Onus to prove---Petitioner assailed appointment of respondent as Chairperson of SSGCL, a state-owned Company---Validity---Held, that question involved was whether appointment of respondent fell within the ambit of Art. 199(1)(b)(ii) of the Constitution and principles and prerequisites relating to writ of quo warranto---In principle, writ of quo warranto can be instituted by a person, though he may not come within the meaning of words aggrieved person---To maintain a writ of quo warranto there is no requirement for an aggrieved person and a whistle-blower need not be personally aggrieved in the strict sense and may relay information to Court to inquire from the person holding public office---At the same time, it was essential to see whether petitioner had placed any material before High Court to attract Art.199(1)(b)(ii) of the Constitution and whether respondent lacked qualification, skill, competence, and experience to hold subject post and whether respondent was a Member of Majlis-e-Shoora and could not hold any other public office---Petitioner was not able to establish that respondent suffered from any inherent disqualification---It was for the petitioner to satisfy the High Court that appointment of respondent as Chairperson by Prime Minister was tarnished by favouritism and cronyism---Other than oral assertions and unsubstantiated allegations nothing was placed on record to support such assertion---For holding of election for appointment of Board of Directors of SSGCL it was for the competent authority to take steps in accordance with law---High Court declined to interfere in appointment of respondent as Chairperson of SSGCL---Constitutional petition was dismissed, in circumstances.

Messrs Rashid Silk v. Farooq Ahmed and others 2013 SCMR 268; Jawad Ahmed Mir v. Prof Dr Imtiaz Ali Khan and others 2023 SCMR 162; Shahid Pervez v. Ejaz Ahmed and others 2017 SCMR 206; Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132; Khawaja Muhammad Asif v. Federation of Pakistan and others PLD 2014 SC 206; Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109; Abid Hussain v. The State PLD 1994 SC 641; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Federation of Pakistan v. Munir Hussain Bhatti and others PLD 2011 SC 752 and Ghulam Rasool v. Government of Pakistan PLD 2015 SC 6 ref.

Asim Iqbal for Petitioner.

2024 P L C (C.S.) 1024

[Sindh High Court]

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

ZEESHAN ANJUM and others

Versus

PROVINCE OF SINDH through Inspector General of Police Sindh and another

Constitutional Petition No.D-2217 of 2021, decided on 2nd April, 2021.

(a) Civil service---

----Police department---Recruitment---Competent Authority, powers of---Vacancy occurring due to non-joining of any successful candidate---Waiting list candidates were not declared successful---No voted vested right to appointment---Record revealed that the respondent (Police Department) had advertised certain number of pots of Police Constable and they were to be filled in the concerned Range of Police department---Prima facie, the candidates from the merit list were declared successful for appointment against the said posts---Relevant clause of the Final Merit List explicitly provided that any selected candidates found unsuccessful for any reason would stand disqualified and the candidates whose names were not mentioned in the Final Merit List would be treated failed, as such they (respondent) did not need to announce the result of the failed candidates---Regarding the contention / request by the petitioners for an alternate candidate a perusal of the relevant record showed that such discretion laid with the competent authority, in the first place---Admittedly such discretion had not been exercised in favor of the petitioners to date---Prima facie, the exercise of such discretion was not withheld unreasonably because a large number of posts had become available and the Department could re-advertise the subject posts to attract fresh blood/better candidates---There was neither mala fide nor ulterior motive involved in the matter to call in question said discretionary powers---Competent authority had to opt to re-advertise the leftover posts including fresh ones, if not earlier done---Interference by the High Court, that too after the lapse of considerable time was uncalled for, in circumstances---Constitutional petition was dismissed in limine.

(b) Constitution of Pakistan---

----Art. 199---Police department---Recruitment---Constitutional petition---Maintainability---Plea raised by the petitioners (unsuccessful candidates) was that they succeeded in the subject examination , thus vested right existed in their favour---Held, that said plea/ assertion was misconceived---Present constitutional petition was not maintainable for the simple reason that no appointment order had been issued in favour of petitioners thus, no vested right had accrued to them---Even a successful candidate does not acquire an indefeasible right to be appointed and that too could be legitimately denied---Notification inviting application for the appointment was only an invitation to the qualified candidates to apply for the recruitment---On merely submitting application or offer/selection, they do not acquire any right to the post---Constitutional petition was dismissed in limine, in circumstances.

(c) Constitution of Pakistan---

----Art.199---Police department---Recruitment process, challenging of---Constitutional jurisdiction of the High Court, invoking of---Jurisdiction of the High Court under Art. 199 of the Constitution is limited to the extent of ensuring that state functionaries do what they are required by law to do and refrain from doing what they are prohibited by law to do---Unless an act or omission of a state functionary falls with the settled parameters, it is not liable to be interfered with--Constitutional petition was dismissed in limine, in circumstances.

Muhammad Ibrahim M. Sahito for Petitioners.

2024 P L C (C.S.) 1057

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Ms. Sana Akram Minhas, JJ

MUHAMMAD AMIN

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Maritime Affairs Pakistan, Islamabad and 3 others

Constitutional Petition No.D-8112 of 2022, decided on 20th November, 2023.

Constitution of Pakistan---

----Art.199---Civil service---Constitutional petition---Maintainability---Factual controversy---Issuance of appointment letter---Vested right, determination of---Legitimate expectancy, doctrine of---Applicability---Respondents in their alleged that petitioner had worked in two different organizations at the same time, therefore, the post had been re-advertised---Contention of the petitioner was that he was a legitimate expectant for issuance of appointment letter, however, recruitment process had been cancelled only to the extent of the post for which the petitioner had applied, which was illegal and based on mala fide---Validity---Certain allegations levelled by the respondents, which had been objected to by the petitioner being false and misleading were disputed facts, which the High Courts in its constitutional jurisdiction was unable to adjudicate upon---Neither any offer letter had been issued to the petitioner, nor any further commitment had been made by the respondents, which could create any right in favour of the petitioner, which was notwithstanding passing of any test or interview as claimed by the petitioner---High Court while exercising discretionary jurisdiction under Art. 199 of the Constitution cannot assume the role of an appointment authority and must not issue any directions for appointment in given facts and circumstances---Unless a vested right is first established no enforcement thereof can be sought---Doctrine of legitimate expectation had not arisen in the present case as mere passing of a test and interview does not ipso facto create any such legitimate expectation---Once the process had been withdrawn and no appointment offer had been made, no right had accrued in favour of the petitioner to seek any direction under the Constitutional jurisdiction of the High Court---No vested right to appointment accrues unless a merit list is displayed and appointment letters are issued as the Government can always stop or abandon the process or initiate a fresh one if there are valid reasons or justification to support such action---Jurisdiction of the High Court under Article 199 of the Constitution is limited to the extent of ensuring that state functionaries do what they are required by law to do and refrain from doing what they are prohibited by law to do---Neither a vested right had accrued nor there was a question of any legitimate expectation, therefore, that principle of law was not applicable---Constitutional petition was dismissed accordingly.

Ghulam Hussain v. Province of Sindh 2023 PLC (C.S.) 194 ref.

Uzma Manzoor and others v. Vice Chancellor Khushal Khan Khattak University, Karak and others 2022 SCMR 694 and Abdul Rauf v. Government of Baluchistan 2022 PLC (C.S.) 1494 distinguished.

District Manager, Karachi Transport Corporation v. Rahim Bux 1991 PLC 90; Dhani Bux v. Municipal Committee, Tando Allahyar and another 1997 PLC 419; National Database and Registration Authority (NADRA) and others v. Jawad Khan and 2 others 2023 SCMR 1381; Government of Baluchistan v. Abdul Rauf 2021 PLC (C.S.) 519 and The Secretary Punjab Public Service Commission v. Aamir Hayat 2019 SCMR 124 rel.

Abdul Salam Memon and Ms. Rabiya Javed for Petitioner.

Muhammad Nishat Warsi for Respondents Nos.2 to 4.

2024 P L C (C.S.) 1070

[Sindh High Court (Larkana Bench)]

Before Agha Faisal and Shamsuddin Abbasi, JJ

AAMIR ALI

Versus

DISTRICT AND SESSIONS JUDGE, LARKANA and 2 others

Constitution Petitions Nos.D-217 and D-218 of 2024, decided on 21st May, 2024.

(a) Constitution of Pakistan---

----Arts.199 & 189---Constitutional jurisdiction of High Court---Scope---Appointment---'Son quota'---Direction was sought for appointment of another son against "son quota" in judicial establishment on the analogy of earlier judgments in similar cases---Refusal---Absence of any policy/law enforcement of which was required---Effect---In earlier judgments disputed questions requiring inquiry and evidence entertained in writ jurisdiction---Legality---Violation of R. 6 of the Roster set by the Chief Justice of the High Court---High Court held that in absence of any deliberation on maintainability, disputed questions of fact requiring inquiry or evidence were entertained and adjudicated in writ jurisdiction contrary to settled principles of law---Constitution petition was entertained by High Court without any manifest directions from the Chief Justice, without even an objection by the concerned Additional/Deputy Registrar---Such practice would defeat the administration of justice and upset the integrity and sanctity of the Court, therefore, the matter was referred to the competent authority to consider the likelihood and severity of disciplinary proceedings against officers concerned---No direction was issued for appointment of petitioner's son and contempt proceedings were initiated against the delinquents.

(b) Constitution of Pakistan---

----Art. 175(2)---Jurisdiction of Courts---Scope---Appointment 'Son quota'---Enforcement of "son quota"---No vested right---Article 175(2) of the Constitution mandates that no court shall have any jurisdiction save as that conferred by law---There was no statutory backing for the claim of "son quota" sought to be enforced in the judicial establishment, and the Sindh Judicial Staff Service Rules, 1992 also contained no provision for such dispensation---There was no reference to any policy ever having been framed or enacted in such regard---Mere employment of a parent in a public sector institution could not be demonstrated to confer a vested right for appointment against son quota.

(c) Constitution of Pakistan---

----Arts. 189 & 199---Appointment on son quota---Claim against Offices of judicial service---Article 189 of the Constitution enunciates that a decision of the Supreme Court, to the extent that it decides a question of law or is based upon or enunciated a principle of law, should be binding on all other courts in Pakistan and certainly this dictate included the High Courts---Claim of the petitioner was against officers of the judicial service prima facie under the dominion and control of the High Court---There was very little precedent of orders in such matters having been escalated by the relevant office before the Supreme Court, therefore, utmost caution was merited in such instances so as to preserve the sanctity of the law.

2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 SC 415; 2018 SCMR 1607; Shahnawaz v. Federation of Pakistan 2011 PTD 1558; Taufiq Asif v. General (Retired) Pervez Musharaf and others PLD 2024 SC 610; Imad Samad v. Federation of Pakistan 2022 PTD 1860; Muhammad Amir Khan v. Government of KPK 2019 SCMR 1021 and SSGCL v. Toto and others and connected matters (Civil Petition 6164 of 2021 and connected petitions) rel.

Muhammad Taqi Shah v. Secretary Education and others 2018 PLC (C.S.) Note 92 distinguished.

Nemo for Petitioners.

Abdul Hamid Bhurgri, Additional Advocate General, Sindh and Abdul Waris Bhutto, Assistant Advocate General for Respondents.

2024 P L C (C.S.) 1097

[Sindh High Court]

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

RIAZ HUSSAIN

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh Secretariat and 7 others

C.P. No.D-1018 of 2021, decided on 10th February, 2021.

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

----S.4---Constitution of Pakistan, Arts. 199 & 212---Writ, issuance of---Aggrieved party---Scope---Petitioner, serving servant, filed constitutional petition against the decision of the promotion of respondent (servant) by the Provincial Selection Board (PSB)---Held, that burden of proof was on the petitioner to demonstrate as to which of his fundamental rights had been infringed upon but he failed to point out any in fraction of any fundamental rights to claim issuance of the Writ of Mandamus and Writ of Quo warranto---Prima facie, the entire case of the petitioner was based on factual controversy and he had no locus standi to file constitutional petition because he was not an aggrieved person---Subject matter of the constitutional petition pertained to the terms and conditions of service, therefore, the jurisdiction of the High Court was barred under Art. 212 of the Constitution, read with S. 4 of the Sindh Service Tribunals Act, 1973---Constitutional petition was dismissed in limine, in circumstances.

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

----S. 4---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Promotion of another government servant---Challenging of---Petitioner, Project Director SCARP, was aggrieved by the decision of the Provincial Selection Board (PSB), whereby the promotion of respondent to the post of Superintending Engineer was allowed in absence of his Annual Confidential Reports (ACRs') for a certain period---Contention of the petitioner was that the decision of PSB for promoting the respondent in BPS-19 against future vacancy in absence of ACRs is/was an erroneous decision as he (respondent) was not fit for promotion for failing to earn the ACRs during his tenure of service---Validity---Subject matter of the constitutional petition pertained to the terms and conditions of service, therefore, the jurisdiction of the High Court was barred under Art. 212 of the Constitution, read with S. 4 of the Sindh Service Tribunals Act, 1973---Petitioner had failed to point out any inherent defect, prima facie, in promotion of the respondent for the simple reason that the respondent /department while issuing working paper for PSB observed at relevant paragraph that the respondent was also assigned inter-se-seniority at Sr. No.2 by the SGA&CD vide a Notification---Quantification of entire service record, synopsis of ACRs for the last five years of each officer, prima facie suggested that the PSB was well aware of the factum of the ACRs of respondent and accorded approval of his promotion in next grade---Constitutional petition was dismissed in limine, in circumstances.

(c) Civil service---

----Promotion---Preparation of Annual Confidential Report (ACR) and Performance Education Report (PER)---Scope---Preparation of ACR/PER relates to the efficiency and discipline of a civil / Government servant, which is the function of the reporting officer---Prima facie, the evaluation reports play a vital role in considering the case of promotion---However, the promotion depends upon eligibility, fitness and availability of vacancy.

(d) Civil service---

----Promotion---Qualifications---To qualify for promotion, the least that is expected of an employee is to have an unblemished record; this is the minimum expectation to ensure a clean and efficient administration and to protect the public interest---An employee found guilty of misconduct cannot be placed at par with the other employees, and his / her case has to be treated differently---While considering an employee for promotion his/her entire service record has to be taken into consideration and if promotion committee takes the penalties imposed upon the employee into consideration and denies him/her promotion, such denial would not be illegal or unjustified under the service jurisprudence.

(e) Civil service---

----Promotion---Annual Confidential (ACR) and Performance Evalution Report (PER) purpose of---Prime object of maintaining ACR/PERs is to assess whether the officer under consideration is entitled to promotion or not, and such assessment, in addition to his/her performance and eligibility, would also include whether not he/she has been awarded any major or minor penalty---Departmental Promotion Committee (DPC) which is held to finalize the decision about promotion based on the said assessment, is required to make an overall assessment of the performance of the civil servant based on a working paper prepared by the department concerned---Therefore, preparation and presentation of ACRs is the duty of the department concerned and not of the civil / Government servant for the simple reason that ACRs are confidential documents to which the officer concerned cannot have any access---Law only requires that if any adverse remarks are made in ACRs, the officer concerned should be informed so that he/she may be able to improve his/her performance to make up for the deficiency.

(f) Constitution of Pakistan---

----Art. 199---Civil service---Promotion, matter of---Constitutional jurisdiction of the High Court, invoking of---Departmental Promotion Committee , powers of---Primarily , the evaluation made by an Expert Committee should not be easily interfered with by the Court which does not have the necessary expertise to undertake such exercise that is necessary for such purpose---Departmental Promotion Committee (DPC),subject to its powers and authority, has to assess every proposal for promotion on case to case basis under the law.

(g) Civil service---

----Promotion---Disciplinary case / criminal prosecution, pendency of---In cases where the disciplinary case / criminal prosecution against the civil / Government servant is not concluded even after the expiry of two years from the date of the meeting of the first Departmental Promotion Committee (DPC) which kept its findings pending in respect of the civil / Government servant, the appointing authority may consider his/her ad-hoc promotion under law---High Court directed that the Government of Sindh shall ensure that in future before convening the meeting of PSB and/or DPC for considering the cases for promotion of civil/Government servants, the department concerned shall provide the complete set of ACRs/PERs of the concerned officer to PSB/DPC well in advance so that the cases for promotion should be decided without any delay---If the promotion of any civil / Government servant is deferred or delayed after passing of present order for want of ACR/PER, the Secretary of the department concerned, the competent authority, and all officials responsible for deferring or delaying the promotion shall be held personally responsible for defiance of the direction of the High Court. [p. 1102] I & J

Ghulam Hyder Shaikh for Petitioner.

2024 P L C (C.S.) 1118

[Sindh High Court]

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

NOMAN ALI BHATTI

Versus

GOVERNMENT OF SINDH through Chief Secretary and 2 others

C.P. No.D-2135 of 2021, decided on 30th March, 2021.

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

----S. 3---Section 3 of the Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013, interpretation of---Section 3 of the Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 ('the Act 2013') provides that employees appointed on Ad-hoc and contract basis shall be deemed to have been validly appointed on regular basis immediately before the commencement of the Act, 2013---Hence, no ambiguity is left that all employees, who fall within the ambit of law, shall be regularized in service with effect from the promulgation of the Act, 2013.

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

----S.3---Contractual service, regularization of---Entitlement---Contractual employment of the petitioner was not extended by the respondent-Sindh Education Foundation (SEF)---Validity---Competent authority scrutinized the case of the petitioner and concluded that the contractual period of the petitioner could not be extended after culminating date of earlier contractual period---Record reflected that the petitioner was informed via an official letter regarding the expiry of his contractual period of service---Thus, such an appointment would be deemed to have been terminated on the expiry of the contract period or any extended period on the choice of the employer or the appointing authority.

(c) Master and servant---

----Contractual appointment---Appointment on contract not extended---Contractual employment of the petitioner was not extended by the respondent-Sindh Education Foundation (SEF)---Validity---Case of Petitioner was governed by the principle of master and servant, therefore, the petitioner had no vested right to seek extension in his contractual service, which had already expired---He even could not claim vested right for regularization of his service.

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

----S. 3---Constitution of Pakistan, Art.199---Contractual service, regularization of---Entitlement------Constitutional jurisdiction of---High Court---Scope---Contractual employment of the petitioner was not extended by the respondent-Sindh Education Foundation (SEF)---Contention of the petitioner was that he, was arrested in a NAB reference and was not heard---Validity---Policy decision of the Government regarding regularization of the post of the petitioner or otherwise could not be challenged in constitutional jurisdiction of the High Court on the purported plea that he had been condemned unheard by the respondent-SEF before passing the impugned orders, therefore, the service of the petitioner could not be regularized and his contractual period had already expired in the year 2018---High Court does not act as an appellate authority ; its jurisdiction is circumscribed by limits of judicially correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice---In the present case, the contractual period of the petitioner expired in the year 2018, and still, he was insisting to continue on the subject post and claimed violation of natural justice---However , an opportunity of show-cause can be given to the employee of the department, who is holding a permanent post, whereas the record did not reflect that the petitioner was a permanent employee of respondent-SEF, therefore, the petitioner could not claim vested right to be either reinstated, regularized and given extension in his contractual period---Service of the temporary employee can be terminated on 14 days' notice or pay in lieu thereof---There was no material to conclude that the non-extension of the contract of the petitioner had wrongly been issued by the Respondent-SEF---Petitioner had failed to establish that he had any fundamental/vested right to remain on the temporary/contractual post, therefore, the submission of the petitioner that he was not heard before issuance of letters was not tenable in the eye of law---Since the petitioner was facing the NAB reference based on moral turpitude, High Court could not order the competent authority to continue his service---No illegality, infirmity, or material irregularity was found in the impugned letters issued by the respondent-SEF---Constitutional petition was dismissed in limine, in circumstances.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Government of Baluchistan 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; Raja Iviz Mehmood and another v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others 2018 SCMR 162; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Maj. (R) Syed Muhammad Tanveer Abbas and other connected Appeals 2019 SCMR 984; Abu Bakkar Farooq through Chairman and others v. Muhammad Ali Rajpar 2019 SCMR 830; Government of Khyber Pakhtunkhwa, Workers Welfare BOARD through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068; 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; Messrs Suit Southern Gas Company Limited v. Zeeshan Usmani and others Saima Akhtar and others vide judgment dated 18.02.2021 passed in Civil Appeals Nos.936 and 937/2020 and Un-reported judgment dated 25.11.2020 passed in Civil Appeals Nos.240 and 272 of 2020 ref.

Petitioner in person.

2024 P L C (C.S.) 1134

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ

HABIB NASIR SIDDIQUI and others

Versus

The FEDERATION OF PAKISTAN through Secretary Aviation, Cabinet Secretariat and 4 others

Constitutional Petition D-4216 of 2022, decided on 27th March, 2024.

(a) Constitution of Pakistan---

----Art. 25---Discrimination---Expression "intelligible differentia"---Scope---Expression "intelligible differentia" means difference capable of being understood; a factor that distinguishes a class from another which is capable of being understood.

House Building Finance Company Ltd. v. Muhammad Irfan Khan 2020 SCMR 98 rel.

(b) Civil Aviation Authority Employees Pay and Pension Regulations, 2014---

----Regln. 46(10), Chapter IV---Constitution of Pakistan, Arts. 25 & 199---Constitutional petition---Discrimination---Intelligible differentia, principle of---Applicability---Orderly Allowance---Withdrawal---Petitioners were retired employees of respondent Authority and were aggrieved of withdrawal of Orderly Allowance to them which was available to other officials in similar situation---Validity---Categorization of both Executive Groups was at par in various allowances and were bracketed in the same Pay Group---Despite splitting PG-10 in EG-07 and EG-08, most of the allowances were identical and equal---Any discrimination in payment of Orderly Allowance after retirement amongst both the Executive Groups was not fair and justified; rather amounted to discrimination for no plausible reason whatsoever by non-inclusion of Orderly Allowance in their monthly pensionary benefits---Principle of equality before the law was applied in matters of pay and pension---Legislative act to nullify a judgment, without taking away its basis, was an impermissible exercise---High Court in another case had earlier directed respondent / Authority for inclusion of Orderly Allowance in pensionable emoluments of petitioners, under law---Respondent / Authority without taking away basis of the order omitted Regln. 46(10) of Civil Aviation Authority Employees Pay and Pension Regulations, 2014, which exercise amounted to nullifying the effect of earlier order, which was not permissible under the law---High Court placed petitioners at par with EG-08 retired officers and allowed Orderly Allowance to them from the date when they were receiving the allowance, without discrimination---Constitutional petition was allowed accordingly.

Syed Mansoob Ahmed Bukhari and 28 others v. Civil Aviation Authority and others 2024 YLR 713; I.A Sherwani and others v Government of Pakistan 1991 SCMR 1041 and House Building Finance Company Ltd. v. Muhammad Irfan Khan 2020 SCMR 98 rel.

Aamir Saleem for Petitioners.

Khalid Mehmood Siddiqui for Respondents Nos.2 to 5.

Kashif Nazir, Assistant Attorney General for Respondent No.1.

2024 P L C (C.S.) 1186

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rahman, JJ

ABID HUSSAIN TALPUR and others

Versus

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

Constitution Petitions Nos.D-193, D-831, D-1544, D-1822, D-1823 of 2023, D-134, D-268, D-272, D-285, D-315 and D-608 of 2024, decided on 22nd May, 2024.

Constitution of Pakistan---

----Art.9---Civil service---Pension---Pensionary/service benefits---Family pension---Withholding and delay in releasing pension to employees of autonomous bodies---Effect---Violation of judicial and government directives---Plea of paucity of funds to pay the pensionary/service benefits to retired employees and their families taken by the respondents---Legality---Pension, like salary, is a regular source of livelihood and thus is protected by the right to life enshrined in and guaranteed by Art.9 of the Constitution, and right to life of a person/citizen shall include the right to livelihood and such right, therefore, cannot hang on the fancies of individuals in authority---Pension is not a bounty from them i.e. individuals in authority, nor can its survival be at their mercy---Long and unjustified delay in payment of pensions has been a source of tremendous hardship and humiliation to retired officials and their families---Despite strictures and orders passed by the Supreme Court of Pakistan in its various pronouncements, and simplified guidelines laid down by the Government, petitions on account of delay persist---Merely stating lack of funds is not sufficient to deny the rights of the pensioners---Pension granted or continued to the pensioner is not liable to seizure by the department under Pension Act, 1871, and the rules framed thereunder---Government has no power to withhold gratuity, pension or any service benefits at any stage either before the proceeding or after the conclusion of the proceedings, if any---High Court directed the Chief Secretary of Sindh to form a committee to address and resolve pension and service benefit issues of the petitioners, including recalculation of any arrears and the committee must act according to the law laid down by the Supreme Court in the case of Haji Muhammad Ismail Memon (PLD 2007 SC 35) and ensure timely payments---Disciplinary action was also suggested against officials, who neglected these responsibilities---Constitution petition was disposed of accordingly.

Haji Muhammad Ismail Memon's case PLD 2007 SC 35 rel.

Sohail Ahmed Khoso, Alam Sher Bozdar, Rashid Khan Durrani, Abdul Naeem Pirzada, Muhammad Qayoom Arain, Abdul Qadeer Khoso, Mir Ali Nawaz Khan Jagirani, Irshad Hussain Dharejo, Seenghar Ali Shar, Syed Mujahid Ali Shah, Farhan Ali Dayo for the Petitioners.

Liaquat Ali Shar, Ali Raza Balouch, Ghulam Mustafa Abro Addl. A.G and Assistant A.G Sindh along with Hazoor Bux Memon, District Accounts Officer, Sukkur, Nisar Ahmed Oadho and Secretary Market Committee Pano Akil for the Respondents.

2024 P L C (C.S.) 1213

[Sindh High Court (Hyderabad Bench)]

Before Khadim Hussain Tunio and Yousuf Ali Sayeed, JJ

DALAN KHAN SHAR

Versus

FEDERATION OF PAKISTAN and others

C.P. No.D-789 of 2024, heard on 22nd May, 2024.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Employees of Hyderabad Electric Supply Company (HESCO)---Non-statutory rules of service---Master and servant relationship---Departmental proceedings---Conversion of penalty from compulsory retirement from service to reduction to lower stage in present time scale by five steps for a period of five years without future effect---Fact that HESCO had adopted the existing rules of WAPDA for its internal use did not make such rules statutory in the context of HESCO---In view of the fact that HESCO did not have statutory rules governing the terms and conditions of service of its employees, the relationship between HESCO and its employees was governed by the principle of "master and servant", therefore, petitioner could not invoke the constitutional jurisdiction of the High Court for redressal of his grievances---Constitutional petition was dismissed in limine accordingly.

Pakistan Electric Power Company v. Syed Salahuddin and others 2022 SCMR 991; Constitutional Petition No.D-1638 of 2021; Abdul Wahab and another v. The State 2020 PCr.LJ 556 and S. Nasim Ahmed Shah and 115 others v. State Bank of Pakistan through Governor and another 2017 PTD 2029 rel.

Pakistan Defence Officers Housing Authority v. Lt. Col. Syed Jawad Ahmed 2013 SCMR 1707; HESCO v. Arif Manzoor and others Civil Petition No. 65-K of 2020; Kalimullah v. HESCO and others (C.P. No. D-1589 of 2013); Arif Manzoor v. Federation of Pakistan and others (C.P. No.D-689 of 2016); Nayyar Sultana v. Federation of Pakistan and others (C.P. No. D-2214 of 2016); Ms. Hina Talpur v. Federation of Pakistan and others (C.P No. D-1630 of 2022); and Abdul Ghani Patoli v. Federation of Pakistan and others C.P. No. D-1596 of 2016 distinguished.

Ishrat Ali Lohar for Petitioner.

Nemo for Respondents.

2024 P L C (C.S.) 1239

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rahman, JJ

SAJJAD HUSSAIN

Versus

PROVINCE OF SINDH, through Secretary Home Department, Sindh Secretariat, Karachi and 5 others

Constitution Petition No.D-212 of 2024, decided on 25th April, 2024.

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

----Ss.6(3), 7& 15---Withholding of appointment letter on account of involvement in criminal cases---Concealment of fact as to pendency of criminal cases---Effect---Prerogative of the departmental authority to examine fairly and equitably that the accused/candidate for appointment has been exonerated completely or otherwise---Scope---Person with criminal antecedents not fit for appointment in Police Department---Right of a person to be appointed after acquittal from criminal case on the basis of compromise---Scope---Section 15 of the Sindh Civil Servants Act, 1973 (Act) cannot be read in isolation as even if a person has been appointed being qualified in terms thereof, such an appointment being on probation for a certain period has to be formally confirmed under S.7 of the Act, subject to fulfillment of the proviso to S.6(3) of the Act, which provides that in the case of initial appointment to a service or post, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the "appointing authority", therefore, even a probationer can be refused confirmation if he does not fulfill the criteria laid down above---It was not appropriate to accommodate the petitioner in the Police Force as his antecedents and character did not appear to be satisfactory for the reason that when he applied for the post of Constable, he failed to disclose his pending criminal case and after obtaining offer letter, when his antecedents were checked, it transpired that he was involved in injury cases and after that he entered into compromise with the complainant party in both the cases and obtained acquittal order under S.345(6), Cr.P.C, one earlier and the second after the offer of appointment---Prima facie, petitioner's antecedents and character did not meet the criterion laid down by law as well as the judgments of the Supreme Court; hence, High Court could not come to rescue the petitioner and direct the respondent Police Department to accommodate him in Police Force as Constable as they had already declined the request of the petitioner in terms of the decisions of the Supreme Court---Constitutional petition was dismissed accordingly.

Director General Intelligence Bureau Islamabad v. Muhammad Javed 2012 PLC (C.S.) 913 and District Police Officer Mainwali and 2 others v. Amir Abdul Majid 2021 SCMR 420 ref.

President National Bank of Pakistan v. Waqas Ahmed Khan 2023 SCMR 766 and Faraz Naveed v. District Police Officer Gujrat 2022 SCMR 1770 rel.

Abdul Ghani v. P.O Sindh Constitution Petition No. D-6135 / 2023 distinguished.

(b) Constitution of Pakistan---

----Art.189---Supreme Court has complete power to interpret laws and its decisions are binding on all other courts in Pakistan as per Art.189 of the Constitution, as such it is necessary for High Court to have a look at the decisions of the Supreme Court.

Muzaffar Ali Dehraj for Petitioner.

Shaharyar Imdad Awan, Assistant A.G., Sindh along with SIP Ali Murad Narejo from SSP Khairpur and Inspector Muhammad Akhtar Pathan from DIGP Sukkur for Respondents.

2024 P L C (C.S.) 1263

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ

ABDUL GHANI and others

Versus

PROVINCE OF SINDH through Secretary Home Department, Karachi and 3 others

Constitution Petition No.D-6135 of 2023 (and other connected petitions) decided on 23rd April, 2024.

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

----Ss.6(3) & 15---Civil service---Appointment in Police Department---Non-issuance of appointment letters owing to involvement in criminal cases of moral turpitude---Discretionary powers of appointing authority to verify character and antecedent---Scope---Contention of the petitioners was that they had been acquitted/discharged in criminal case on different counts, therefore, they were entitled to issuance of appointment letters---Validity---Section 15 of the Sindh Civil Servants Act, 1973 (Act) could not be read or interpreted in isolation as it has a very meaningful and genuine nexus with the proviso to S.6(3) of the Act, which rests the entire case of an employee onto his good character and antecedents being satisfactory in the opinion of the appointing authority, therefore, the exception in S. 15 is not absolute as if even someone has crossed the threshold of this provision, his appointment would still be subject to the discretion of the appointing authority insofar as his antecedents and good character is concerned---Permitting someone into an employment depends entirely on discretion of the employer, whereas, no right is created by taking shelter under S.15---Being nominated in a crime does not automatically disqualify someone from holding a government job, however, the severity of the crime and the alleged involvement will determine whether someone with a criminal record can be appointed to a government position and this exercise is best carried out by the appointing authority and not the Court as each and every case needs to be evaluated based on the relevant facts---Often police personnel involve themselves in heinous crimes and even if they are apprehended, they are let off by the Courts due to faulty and supportive investigation by their brothren by extending the benefit of doubt---Such practice must stop and Courts were also required to play their part and let it be decided by the Executive/Appointing Authority, which in all fairness is in a much better position to ascertain true facts and the relevant ground realities---High Court ruled that the petitioners could not be accommodated in police employment due to unsatisfactory antecedents, therefore, their petitions were dismissed, except for those discharged by the court and those having cases with cancelled police reports under S.173, Cr.P.C.---Constitutional petition was partially allowed.

President National Bank of Pakistan and others v. Wasaq Ahmed Khan 2023 SCMR 766; Nazaz Ali (Nizar Ali) v. Karachi Building Control Authority 2002 CLC 1464; Abdul Razzak v. The Collector of Customs 1995 CLC 1453; Jameel Qadir v. Government of Baluchistan 2023 SCMR 1919 and (2022 )1 SCC1 & MANU/SC/0797/2021 (Appeal No.6238 of 2021) rel.

Abdullah Shah v. Home Secretary and others (C.P. No. D-4060 of 2020); Majid Ali Memon v. SSP Shikarpur and others (C.P. No.

D-992 of 2014); Muhammad Danish Sidat v. Province of Sindh (C.P. No. D-6435 of 2020); Asif Nawaz v. Province of Sindh and others (C.P. No. D-1332 of 2022); Inspector General of Police, Quetta v Fida Muhammad 2022 SCMR 1583; (C.P. No.D-78 of 2024); Mehmood Khan v. Province of Sindh (C.P. No.D-969 of 2022) and Ali Haider v. Province of Sindh (C. P. No. D-5703 of 2022) distinguished.

(b) Words and phrases---

----"Moral turpitude"---Meaning and connotation.

Ghulam Hussain v. Chairman P.O.F. Board 2002 SCMR 1691 rel.

Khawaja Muhammad Azeem, Mateeullah Gondal, Zahid Ali Metlo, Naveed Ahmed Khan, Tajammul Hussain Lodhi, Nadir Khan Burdi, Fouzia Mushtaq and Humaira Baig for Petitioners.

Ali Safdar Depar, Assistant Advocate General.

Mushtaq Abbasi, AIG (Legal), CPO Karachi, Sarwar Ali Shah, DSP (Legal) District East on behalf of SSP District East Karachi, Syed Mussadiq Amjad, DSP (Legal) CPO Karachi, PI Altaf Ahmed, KPO Legal Branch on behalf of Additional I.G. Police Karachi, PI Syed Safdar Ali, CTD Sindh Karachi, Ghulam Nabi, DSP (Traffic), Muhammad Tufail, PDSP (Traffic) and Muhammad Ashraf, PDSP West Zone Karachi for the Respondents.

2024 P L C (C.S.) 1318

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rehman, JJ

MUHAMMAD ALI MAITLO and others

Versus

PROVINCE OF SINDH through Secretary Local Government Sindh and others

Constitution Petitions Nos.D-730, D-1395 of 2019, D-429, D-513 of 2020, D-70, D-299, D-558, D-576, D-1428, D-1640 of 2021 and D-965, D-1517 of 2023, decided on 14th May, 2024.

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

----Rr.10-A & 11-A---Constitution of Pakistan, Arts. 27, 35 & 199---Appointments against quota reserved for deceased / invalided / incapacitated employees of Local Government Departments---Scope---Adoption of Policy and Rules of Sindh Government by the Local Government Departments for making such appointments---Delay in exhausting the quota---Effect---Contention of the respondents was that petitioners did not apply within the time given in notifications dated 11.03.2008 and 17.07.2009---Validity---Provisos added by notification dated 16.09.2014 omitted the application of earlier notifications to those candidates under the above quota whose right to employment had already occurred---Clog of two years for making the application for employment under the deceased quota for the children, who had already applied for employment before making this rule, was done away with, therefore, the respondents could not make such excuse---Public employment is a source of livelihood; therefore, no citizen shall be discriminated against in the said matter on the grounds as provided under Art.27 of the Constitution---Government is bound to make certain quotas in appointments or posts in favor of any less privileged class of citizens which in the opinion of the government is not adequately represented in the services under the state, therefore, R.11-A of Sindh Civil Servants (Appointment Promotion and Transfer) Rules, 1974, as amended uptodate is introduced to cater to that situation to accommodate the aforesaid categories of civil/public servants---Primarily, purpose of making beneficial policies about appointment against deceased quota is to minimize the miseries of the family on the death of a serving employee---State is under obligation to protect the family of the deceased, therefore, any policy that violates the guaranteed rights cannot be sustained---High Court with the consent of the parties disposed of the constitutional petition with a direction to Chief Secretary to consider the cases of the petitioners and decide the same in accordance with law.

Abdul Naeem Pirzada, Abdul Ahad Burriro, Niazuddin Memon and Muhammad Raza Soomro for Petitioners.

Liaquat Ali Shar, Additional Advocate General Sindh.

Khuda Bux Chohan for Sukkur Municipal Committee (SMC) Sukkur in all Petitions.

Nemo for Secretary Union Council No.17 New Pind Taluka and District Sukkur, Town Officer, Town Committee Nara and Town Officer, Town Committee Kumb.

2024 P L C (C.S.) 1356

[Sindh High Court]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rahman, JJ

JAMIL AHMED

Versus

PROVINCE OF SINDH through Secretary Home Department and others

Constitution Petition No.D-2105 of 2017, decided on 16th May, 2024.

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

----Ss.6(3), 7 & 15---Civil service---Person with criminal antecedents---Where fit for appointment in Police Department---Withdrawal of recommendations for appointment in the Police Department owing to involvement in criminal cases---Concealment of fact as to pendency of criminal cases---Effect---Prerogative of the departmental authority to examine fairly and equitably that the accused/candidate for appointment had been exonerated completely or otherwise---Scope---Right of a person to be appointed after acquittal from criminal case---Scope---Section 15 of the Sindh Civil Servants Act, 1973 cannot be read in isolation as even if a person has been appointed being qualified in terms thereof, such an appointment being on probation for a certain period has to be formally confirmed under S.7 of the Act, subject to fulfillment of the proviso to S.6(3) of the Act, which provides that in the case of initial appointment to a service or post, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the "appointing authority", therefore, a probationer can be refused confirmation if he does not fulfill the criteria laid down above---It was not appropriate to accommodate the petitioner in the Police Force as his antecedents and character did not appear to be satisfactory for the reason that when he applied for the post of Constable, he failed to disclose pendency of criminal cases against him and when his antecedents were checked, it transpired that he was indulged in 05 heinous criminal cases including murder case---Prima facie, his antecedents and character did not meet the criterion laid down by law as well as the judgments of the Supreme Court, hence, High Court could not come to rescue the petitioner and direct the respondent Police Department to accommodate him in Police Force as Constable as the Department had already declined the request of the petitioner in terms of the decisions of the Supreme Court---Constitutional petition was dismissed accordingly.

President National Bank of Pakistan v. Waqas Ahmed Khan 2023 SCMR 766 and Faraz Naveed v. District Police Officer Gujrat 2022 SCMR 1770 rel.

(b) Constitution of Pakistan---

----Art.189---Decision of Supreme Court binding on all subordinate Courts---Scope---Supreme Court has complete power to interpret laws, and its decisions are binding on all other courts in Pakistan as per Art.189 of the Constitution, as such it is necessary for High Court to have a look at the decisions of the Supreme Court.

Muhammad Qayyum Arain for Petitioner.

Ghulam Mustafa G. Abro, Additional A.G., Sindh along with Shafi Muhammad Khaskheli DSP (Legal) on behalf of SSP Sukkur.

2024 P L C (C.S.) 1384

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon, J

FARHAN YASIR DANWAR

Versus

FEDERATION OF PAKISTAN through The Secretary, Federal Public Service Commission, Islamabad and 3 others

Civil Miscellaneous Appeal No.S-11 of 2019, decided on 13th May, 2024.

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

----S.7(3)(a), (b) & (d)---Section Officers Promotional Examination Rules, 2015, R.4(7)(vii) & (viii)---Rules of Business, 1973, Sched.-III, Serial No.20---Jurisdiction of High Court in Civil Miscellaneous Application---Scope---Past and closed transaction---Delay in filing the Civil Miscellaneous Application---Effect---Rejection of candidature of the appellant for being an employee of ineligible department in terms of Section Officers Promotional Examination, 2017 (SOPE)---Representation and review filed by the appellant were dismissed for having failed to prove his candidature---Recruitment process had been completed and successful candidate had joined their posts---Recruitment process of SOPE, 2017 stood completed and appellant wanted to reopen his case at belated stage without impleading the successful candidates as party in the proceedings, who had already joined the respective departments, therefore, the matter had become past and closed transaction---Under clause (d) of S.7(3) of the Federal Public Service Commission Ordinance, 1977 it was incumbent upon the appellant to challenge the findings of FPSC before the High Court within thirty days, if he was at all aggrieved, however, he preferred a constitutional petition before High Court, which was dismissed as withdrawn to avail his remedies under the law---Appellant after exhausting departmental remedies filed the present Civil Miscellaneous Appeal with a considerable delay, therefore, such finding had attained finality coupled with the reasoning that the candidates had already been appointed on the subject posts as much water had flown under the bridge---Appellant wanted the High court to reverse the entire process and direct the FPSC to accept his candidature despite already being informed that he was ineligible to participate in the recruitment process under SOPE Rules, 2015---Prima-facie, respondent FPSC had assigned valid reasons to reject the candidature of the appellant on the premise that he had been working as Senior Auditor (BS-16) in Pakistan Military Accounts Department, however, he failed to submit his Departmental Permission Certificate (DPC) and Office orders of appointment to determine his eligibility---Besides he belonged to ineligible Department in terms of SOPE Rules, 2015 to participate in the examination of 2017---Exercise of jurisdiction by the High Court under S.7(3) of FPSC Ordinance, 1977, is statutory dispensation to foster the cause of justice and fair play---In the present case, High Court did not find any valid reason for indulgence and upset the findings of FPSC at a belated stage---Civil Miscellaneous Appeal was dismissed accordingly.

Tariq Hanif G. Mangi for Appellant.

Muhammad Aslam Jatoi, Assistant, A.G, Pakistan.

2024 P L C (C.S.) 1402

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ

EIJAZ ALI

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others

Constitutional Petition No.D-5270 of 2023, decided on 19th February, 2024.

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

----R.8-A(5)---Constitution of Pakistan, Art.199(1)(b)(ii)---Writ of quo warranto---Scope---Question of "Fitness", determination of---Transfer/posting of a junior officer in presence of senior officers firstly on his "Own Pay and Scale" (OPS) and then permanently against promotion post of Inspector General of Prison---Effect---Contention of the respondent was that petitioner was not an aggrieved person and had no locus standi to file the constitutional petition and post in question was to be filled on merits instead of "seniority-cum-fitness" basis---Validity---Selection Post could be filled on merit and the officer fit in all respects could be appointed as IG Prison Sindh, and in such circumstances, the Sindh Service Tribunal had no jurisdiction over the question of determination of "fitness" of a civil servant, however, the question of "eligibility" was different from the question of "fitness" which was not subject matter of this case---Any person can lay information to the court regarding a public office being illegally occupied---Person laying such information shall not necessarily be aggrieved---There is much difference between the Writ of Quo Warranto and Mandamus---Mandamus also differs from writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed for the performance of public duty and commands the person to whom it is addressed to perform some public or quasi-public legal duty, which he has refused to perform, and the performance of which cannot be enforced by any other adequate legal remedy---Party should be an aggrieved party having no other adequate and efficacious remedy---Article 199(1)(b)(ii) of the Constitution shows that a person performing duties in connection with affairs of the Province can be required to show under what authority he is holding a particular public office and for that purpose, the petitioner therein may not be required to be an aggrieved person---Constitution petition was allowed accordingly.

Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534 rel.

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

----R.8-A(5)---Promotion post---Appointment of juniors on acting charge basis in violation of rules---Effect---Name of respondent was placed at Sr. No.4 in the seniority list, who also lacked twenty-two years of service in BPS-17 and above with successful completion of mandatory training viz. National Management Course (NMC) at the National Institute of Management (NIM) as prescribed under the rules---Grant of higher appointment to junior officer against senior post amounts to accelerated promotion---Respondent department was required to appoint a qualified person to the post of IG Prison BPS-21 as per the relevant Recruitment Rules and not otherwise---Constitutional petition was allowed.

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

----S.9---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.8-A(5)---Promotion/appointment on higher grade on "Own Pay and Scale" (OPS)---Legality---Government makes such appointments in exigencies as a 'stop-gap' arrangement whereas in the present case, recruitment rules were already in field but the respondent-department deemed it fit to post a junior officer as IG Prison Sindh on OPS which act on the part of respondents was against the law---Constitutional petition was allowed.

Province of Sindh and others v. Ghulam Fareed and others 2014 SCMR 1189 and Khan Muhammad v. Chief Secretary, Government of Balochistan Quetta and others 2018 SCMR 1411 rel.

Haider Waheed and Muhammad Asad Tola for Petitioner.

Ali Safdar Depar, A.A.G along with Mir Muhammad Channa Section Officer Prison, Home Department, Government of Sindh for Respondents Nos.1 to 3.

Nemo for Respondent No.4.

Muhammad Arshad Khan Tanoli for Respondent No.5.

2024 P L C (C.S.) 1415

[Sindh High Court]

Before Muhammad Shafi Siddiqui and Ms. Sana Akram Minhas, JJ

RIFFAT HUMAYUN

Versus

PAKISTAN TELEVISION CORPORATION LIMITED through Managing Director and 3 others

High Court Appeal No.216 of 2020, decided on 24th April, 2024.

Civil service---

----Service Tenure---Locus poenitentiae, Principle of---Applicability and exceptions---Claim of the appellant was that the period spent on duty after retirement on account of status quo order of the High Court could be treated as part of her service tenure and no recovery could be effected from her for that period---Whether such amount could be recovered from the employee---Held, that a beneficiary may claim a right under an exception to the principle of locus poenitentine if lawful orders have been issued by the competent authority and received in good faith without any action on the part of the recipient, however, no such orders had been issued by the authority in the present case, which was a prerequisite for invoking the exception, rather, payments had been made by the respondents under the pain of status quo order issued by the Division Bench and obtained by the appellant in her petition, therefore, the absence of a valid order from the competent authority rendered the exception inapplicable in this scenario---Appellant's decision to persist in service beyond the date of her retirement was entirely self-initiated---Respondents neither asked her nor coerced her to do so, rather appellant took it upon herself to extend her tenure in service, and imposed herself on the unwilling employer, meaning thereby that she ensured that the respondents could not legally discontinue her services upon reaching superannuation---By filing a petition and obtaining status quo orders, appellant effectively prevented the respondents from taking any action against her employment status---Appellant sought remuneration from the respondents or intended to retain the payments received during the period in which the respondents endured her continued presence, as it disregarded the circumstances under which the appellant extended her employment and the inconvenience caused to the respondents---Appeal was dismissed accordingly.

Engineer-in-Chief v. Jalaluddin PLD 1992 SC 207; Shakeel Ahmad Zaidi v. Secretary, Higher Education 2021 PLC (C.S.) 560 and Mohammad Saleem v. National Industrial Relations Commissions 2019 SCMR 142 rel.

Umer Lakhani for Appellant.

Ms. Wajiha Mehdi, Assistant Attorney General for Respondents Nos.1 to 4.

2024 P L C (C.S.) 1424

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rahman, JJ

ATIQ-UR-REHMAN and others

Versus

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

Constitution Petition No. D-1417 of 2012 and M.A. No.2184 of 2017, decided on 14th May, 2024.

Constitution of Pakistan---

----Art.199---Civil service---Appointment---Non-issuance of merit list after qualifying in the written test---Constitutional petition was dismissed for non-prosecution---Application for restoration was filed after a considerable delay on the ground that no notice of fixation was received by the petitioners---Held, that object of law of limitation is to help the vigilant and not the indolent---Law of limitation is required to be construed strictly and the delay of each day has to be explained, for which the petitioners had failed to satisfy as to why they took several months to file application for restoration---High Court while dismissing the application for restoration being barred by time ruled that mere fact that petitioners were selected for appointment to vacancies, pursuant to an advertisement, did not confer any right upon them to be appointed to the posts in question and did not entitle the selectees to file a writ of mandamus or any other writ compelling the authority to make their appointments---Application was dismissed.

Sohail Ahmed Khoso for Petitioners.

Zulfiquar Ali Naich, Assistant Advocate-General, Sindh for Respondents.

2024 P L C (C.S.) 1430

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rahman, JJ

AZIZULLAH MEMON and others

Versus

PROVINCE OF SINDH through Chief Secretary and others

Constitutions Petitions Nos.D-142 and D-455 of 2023, decided on 30th April, 2024.

Constitution of Pakistan---

----Arts.14, 25, 189, 190 & 199---Civil service---Appointment against disabled quota---Petitioners sought appointment against disabled quota in the light of policy of the Government and a judgment of the Supreme Court of Pakistan---Failure of the Government to exhaust the quota reserved for disabled persons---Effect---Contention of the petitioners was that they were deprived of their right to appointment against the quota reserved for disabled persons despite the fact they had been duly issued certificates of disability by the concerned authorities, therefore, they were discriminated against---Validity---In view of the principle of equality and non-discrimination the Government is obliged to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity---Fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability---There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups and in order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible, which is necessary, but not sufficient, rather it must be equally ensured that they should be provided the additional support and facilities that are necessary for them to offset the impact of their disability---Dicta laid down by the Supreme Court is binding upon the High Court under Art. 189 of Constitution---Constitutional petition was disposed of with a direction that cases of the petitioners were required to be considered by the competent authority in the light of judgment of the Supreme Court passed in CPLAs Nos.745-K to 750-K dated 14-7-2022.

Muzafar Ali Dehraj for Petitioners.

Ali Raza Baloch, Assistant Advocate General, Sindh for Respondents.

2024 P L C (C.S.) 1433

[Sindh High Court (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

Dr. SHAHZAD TARIQUE and another

Versus

PROVINCE OF SINDH through Secretary Health, Karachi and 2 others

Constitutional Petition No.D-1134 of 2022, decided on 6th March, 2024.

Sindh Health Management Service Rules, 2022---

----R.18---Constitution of Pakistan, Arts. 25 & 27---Option of one time exercise of transfer---Option of petitioners for their transfer from teaching cadre to management cadre was not considered---Validity---Rule 18 of Sindh Health Management Service Rules, 2022, showed that all the Doctors belonging to General Cadre, Specialist Cadre or Dental Surgeons of Health Department, had been conferred with one time option to seek permanent transfer to Management Cadre, subject to having required qualification in Master in Public Health/M.S.P.H. etc.---It was not disputed that petitioners had the requisite qualification and therefore were entitled to have the benefit of said rule---Only ground to deny them such benefit was that they belonged to teaching cadre, which was not incorporated in the said rule---Apparently, the reason behind not giving the petitioners benefit of the said rule was not based on any reasonable classification---However, it was founded mainly on quantity of petitioners being only two out of four in the entire Province---Such reason was basically rooted in apprehension that in case they were transferred to Management Cadre, no one would be left to teach the students in the relevant medical colleges---Such ill based speculative apprehension could not be allowed to run over the scheme under Arts. 25 & 27 of the Constitution, which declared that all citizens were equal and entitled to equal protection of law, in addition to safeguards against discrimination in service---Finding a qualified suitable candidate for a vacant seat was the responsibility of the government, which it had to fulfill according to law---Denying an opportunity to the petitioners to join Management Cadre on the ground of seats falling vacant in the event of their transfer was discriminatory and showed only the weakness of the government to deal with the aftermaths---Option to avail such exercise had been provided by law to all the doctors of varied cadres working in the Health Department, who were also civil servants like the petitioners with same qualification i.e. Master in Public Health etc.---Therefore, denying the same benefit to the petitioners on the ground that it was going to change the terms and conditions of their service was neither valid nor sustainable---Petition was accordingly allowed.

Sarfraz A. Akhund for Petitioners.

Ali Raza Baloch, Assistant Advocate General Sindh along with Dr. Sikandar Memon, Focal Person of Health Department.

2024 P L C (C.S.) 1487

[Sindh High Court]

Before Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ

MUMTAZ ALI PANHWAR and 332 others

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others

Constitution Petitions Nos.D-2628 and 3301 of 2022, decided on 4th June, 2024.

Employment---

----Project posts---Contractual employees---No right of regularization in service on the basis of length of service---Absence of any policy, rule or law---Claim of the petitioners was that they were offered contingency/temporary employment so as to deprive them from their rights of a permanent post---Validity---Petitioners had accepted terms and conditions of their contract---Record did not substantiate the claim of the petitioners that they had been regularly employed for a continuous period and to this effect petitioner had relied upon another appointment order of the year 2007, which did not reflect that those appointments had any nexus with each other---Project in question was neither accorded permanence by the Government nor was made part of the regular budget and, similarly, the posts in question had never been made regular or permanent posts falling within the budget of the Government, rather were admittedly dependent on the funds provided by the loan giving or donor agencies---Mere prolongation of the project did not ipso facto demand that the posts and appointment shall be mandatorily regularized, therefore, petitioners were not entitled for any regularization after completion of the project---Project management had the prerogative to determine which employees were required for the extended period and stage of the project for effective implementation of the same and no vested right existed in favour of a particular employee to insist that the management should be directed to retain his services and extend his contract---Courts are not required to issue any direction to the executives for carrying out any legislation for regularization of project posts, which is purely a policy matter and the prerogative of the executives as to whether a set of employees are required to be regularized or not---Regularization can only be ordered by a court when there is some law, rule or policy duly adopted and issued by the Government and only then its enforcement can be sought and done by the Court---Constitutional petition was dismissed, in circumstances.

Muhammad Jan and 3 others v. The Government of Baluchistan and another 2017 PLC (C.S.) 1471; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Gul Muhammad and 4 others v. Province of Sindh and 4 others 2010 PLC (C.S.) 1169; Naveed Iqbal Wadho and others v. Province of Sindh and others 2010 PLC (C.S.) 1395; Government of NWFP (Now KPK) and others v. Kaleem Shah and others 2011 SCMR 1004; Board of Intermediate and Secondary Education, Multan and another v. Muhammad Sajid and others 2019 PLC (C.S.) 539; Chairman, Pakistan Railways and others v. Arif Hussain and others 2008 PLC (C.S.) 240; Pir Imran Sajid and others v. Managing Director / General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others 1999 SCMR 2557; Water and Power Development Authority v. Abass Ali Malano and others 2004 PLC (C.S.) 1; Water and Power Development Authority v. Abass Ali Malano and others 2004 SCMR 630; Jawaid Ghafoor v. Pakistan Civil Aviation Authority and another 2010 PLC (C.S.) 276; Ayaz Ahmed Memon v. Pakistan Railways, Ministry of Railway, Islamabad and another 2011 PLC (C.S.) 281; Government of North West Frontier Province and others v. Abdullah Khan and others 2011 PLC (C.S.) 775; Secretary, Ministry of Defence, Rawalpindi and others v. Muhammad Miskeen 1999 SCMR 1296; Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others 2011 PLC (C.S.) 367; Pakistan Telecommunication Company Limited and another v. Muhammad Zahid and 29 others 2010 SCMR 253; Abdul Rehman and others v. National Bank of Pakistan and others 2011 PLC (C.S.) 234; Pakistan Muslim League (N) and others v. Federation of Pakistan and others PLD 2007 SC 642; Shah Nawaz and 36 others v. Province of Sindh and 4 others (C.P. No. D-7529/2018); Secretary (Schools), Government of Punjab, Education Department and others v. Yasmeen Bano 2010 SCMR 739; Dr. Bashir Ahmed and others v. Province of Sindh and others 2016 PLC (C.S.) 179; Sarfraz Ahmed v. Government of Sindh 2006 PLC (C.S.) 1304; Pakistan Railways and another v. Zafarullah, Assistant Electrical Engineer and others 1997 SCMR 1730; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 PLC (C.S.) 69; Ikram Bari and others v. National Bank of Pakistan and others 2005 PLC (C.S.) 915; Shamsul Haque Mahar and others v. Province of Sindh and others 2013 PLC (C.S.) 1046 and Vice Chancellor Agricultural University of Peshawar v. Muhammad Shafiq 2024 SCMR 527 ref.

Faraz Ahmed v. Federation of Pakistan 2022 PLC 198; Government of Khyber Pakhtunkhwa v. Sher Aman and others 2022 SCMR 406; Vice Chancellor, Bacha Khan University Charsadda, Khyber Pakhtunkhwa v. Tanveer Ahmad 2022 PLC (C.S.) 85; Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah 2021 SCMR 998; Messrs Sui Northern Gas Company Ltd. v. Zeeshan Usmani 2021 SCMR 609; Khushal Khan Khattak University v. Jabran Ali Khan 2021 SCMR 977; Government of Khyber Pakhtunkhwa v. Saeed-Ul-Hassan 2021 SCMR 1376; Muzaffar Khan v. Government of Pakistan 2013 SCMR 304; Government of Balochistan, Department of Health v. Dr. Zahid Kakar 2005 SCMR 642; Government of Khyber Pakhtunkhwa, Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068; Government of Khyber Pakhtunkhwa v. Intizar Ali 2022 SCMR 472; Pir Imran Sajid v. Managing Director Telephone Industries of Pakistan 2015 SCMR 1257; Deputy Director Finance and Administration FATA v. Dr. Lal Marjan 2022 SCMR 566; Muhammad Yasin v. D.G. Pakistan, Post Office 2023 SCMR 394; Waqas Aslam v. Lahore Electric Supply Company Limited 2023 SCMR 549; Province of Punjab through Chief Secretary, Lahore v. Prof. Dr. Javed Iqbal 2022 SCMR 897; Chapter V, v. Recommendation concerning the Status of Higher-Education Teaching Personnel (1997) UNESCO < https://en.unesco.org/about-us/legal-affairs/recommendation-concerning-status-higher-education-teaching-personnel?>; OECD, Governance and Quality Guidelines in Higher Education: A Review of Governance Arrangements and Quality Assurance Guidelines (2005); Khyber Medical University v. Aimal Khan PLD 2022 SC 92; Province of Punjab v. Muhammad Arif 2020 SCMR 507; Government of Khyber Pakhtunkhwa v. Shahzad Iqbal 2021 SCMR 675 and Umar Farooq v. Sajjad Ahmed Qamar PLD 2024 SC 688 rel.

M.M. Aqil Awan and Danish Rashid for Petitioners (in both petitions).

Ali Safar Deeper, A.A.G for Respondents.

2024 P L C (C.S.) 1555

[Sindh High Court]

Before Muhammad Shafi Siddiqui, CJ and Jawad Akbar Sarwana, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED and another

Versus

RASHEED AHMED

High Court Appeal No.283 of 2022, decided on 5th September, 2024.

Pakistan Telecommunication Company Limited Service Regulations, 1996---

----Para. 7.01---Suit for declaration and injunction---Removal from service---Resolution of Board of Directors---Applicability---Appellant / Pakistan Telecommunication Company Limited (PTCL) removed respondent / plaintiff from service---Trial Court decreed the suit in favour of respondent / plaintiff on the ground that GM (HRA) had unauthorizedly and without jurisdiction issued/communicated show-cause notice and charge-sheet under paragraph 7.01 of Pakistan Telecommunication Company Limited Service Regulations, 1996---Validity---Such finding of Trial Court was contrary to evidence available on record---When Board of Directors passed resolution amending para. 7.01 of the Pakistan Telecommunication Company Limited Service Regulations, 1996, the paragraph stood amended as of the same date---Pakistan Telecommunication Company Limited (PTCL) was a publicly listed company, and its board resolutions were also uploaded to Pakistan Stock Exchange website---Board Resolution had come into effect on the date of passing the resolution and not when it was communicated to company's management---Date of inter-office memo communicating contents of Board resolution was irrelevant for the purpose of coming into force of the resolution, which had become law on the date when Board of Directors resolved and passed the resolution to amend para. 7.01 of Pakistan Telecommunication Company Limited Service Regulations, 1996---GM (HRA) was duly authorized and competent to issue and communicate show cause notice and charge-sheet to respondent / plaintiff---Trial Court misread the evidence on the point of authorization and jurisdiction of GM (HRA) to issue and communicate show-cause notice and charge-sheet---High Court set aside judgment and decree passed against appellant / PTCL and the case was remanded to Trial Court for decision afresh---Appeal was allowed accordingly.

PTCL v. M. Samiullah 2021 SCMR 998 ref.

Khalid Jawed Khan for Appellants Nos.1 and 2.

Dr. Shahab Imam for Respondent.

2024 P L C (C.S.) 1572

[Sindh High Court (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rahman, JJ

ABDUR RAUF MAHAR

Versus

PROVINCE OF SINDH through Chief Secretary Government of Sindh and 4 others

Constitutional Petition No.D-1244 of 2021, decided on 23rd May, 2024.

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

----Rr. 10-A & 11-A---Constitution of Pakistan, Arts. 9, 27, 34, 35 & 199---Appointment---Deceased quota---Petitioner, a minor, at the time of death of his father, who was an employee of Revenue Department---Petitioner on attaining the age of majority applied for his appointment against deceased quota---Rejection of his claim on the ground that he did not apply within time for the subject post---Contention of the petitioner was that on attaining the age of majority he had become entitled for his appointment against deceased quota without having any impact of clog that applicant, whose father had expired during service on or before 16.09.2014, would be required to apply against the deceased quota appointment within two years from the date of death of his father---Validity---Father of the petitioner had died before the restraining clause envisaging a cap of 02 years on legal heirs of deceased or incapacitated employees to apply for a job was introduced in S.11-A of the Sindh Civil Servants (Appointment, Promotion, and Transfer) Rules, 1974 (Rules), thus, limitation of 02 years to apply for a job after the death of his father could not apply to the case of petitioner for the reason that just after attaining the age of majority, petitioner became entitled to apply against the deceased quota appointment---Public employment is a source of livelihood, thus, no citizen should be discriminated in the said matter on the grounds as provided under Art.27 of the Constitution---Government is bound to make certain quotas in appointments or posts in favor of any less privileged class of citizen which in the opinion of the government is not adequately represented in the services under the State, thus, R. 11-A of Rules as amended up-to-date was introduced to cater to such situation to accommodate the aforesaid categories of civil servants---Under Art.35 of the Constitution, the State is under obligation to protect the family of the deceased, thus, any policy that violates guaranteed rights cannot be sustained and if such a policy is approved, it will amount to defeating another constitutional guarantee provided under Art.34 of the Constitution---It is an inalienable right of every citizen to have the protection of the law and also to be treated and dealt with under Art.9 of the Constitution with the particularity that no one can take action against him/her detrimental to his/her life and liberty and he/she cannot be prevented from an act which is not prohibited by law---Constitutional petition was disposed of, in circumstances.

Province of Sindh v. Muhammad Taqi Shah 2018 SCMR 1607 and Province of Sindh and others against Waheed Ali Amur and others (C.Ps. Nos. 482-K and 503-K of 2016) rel.

Abdul Naeem Pirzada for Petitioner.

Asfandyar Kharal, Assistant A.G., Sindh for Respondents.

2024 P L C (C.S.) 1

[Lahore High Court (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Sultan Tanvir Ahmad, JJ

ABDUS SALAM

Versus

ASSISTANT COMMISSIONER, MURREE and 5 others

Intra Court Appeal No. 53 of 2021, heard on 23rd February, 2023.

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

----S.18---Constitution of Pakistan, Arts. 199 & 212---Pension, recovery of---Intra Court Appeal---Terms and conditions of service---Constitutional jurisdiction of High Court---Scope---Appellant was aggrieved of order issued by respondent / authority stopping his pension after his retirement on attaining age of superannuation---Judge in Chambers of High Court in view of bar contained in Art. 212 of the Constitution, declined to exercise Constitutional jurisdiction---Plea raised by appellant was that after retirement he ceased to be a 'civil servant', therefore, bar of Art. 212 of the Constitution did not apply---Validity---Pension was one of the terms of service of a civil servant, though it started with retirement---Pension formed part of those terms and conditions to which civil servant joined the service---Question of jurisdiction of High Court was different from the question whether the respondent/authority had correctly withheld the pension of appellant---Latter aspect of the matter was always to be considered, in such cases, by the forum having jurisdiction to adjudicate upon matters---Question of delay, on account of pursuing remedy before High Court could also be seen by competent forum for which guidelines were available in number of judgments of Supreme Court---Division Bench of High Court declined to interfere in the matter as Judge in Chambers of High Court correctly appreciated the law on the subject---Intra Court Appeal was dismissed, in circumstances.

Mst. Islam Bibi v. Government of Pakistan through Secretary State and Frontier Regions Division, Islamabad and 3 others 2022 PLC (C.S.) 1196; Mst. Chandni Asad v. Federation of Pakistan and others 2020 PLC (C.S) 96; Sher Zaman Ex-Assistant Excise and Taxation Officer (B-16) v. Board of Revenue Balochistan (Excise and Taxation Branch) through Member Board of Revenue-II/Secretary Excise and another 2020 PLC (C.S) 969; Syed Raza Mehdi Baqari v. Province of Punjab through Secretary LG and CD Department and 2 others 2016 PLC (C.S) 1046; Abdul Wali v. WAPDA through its Chairman and others 2004 SCMR 678; Ehsan-ul-Haque v. Executive Engineer, Ahmadpur Canal Division Ahmadpur East and 2 others 2011 PLC (C.S.) 1523; Muhammad Younis v. Abbas Raza and 6 others 2005 PLC (C.S.) 833; Abdul Aziz Virk v. Special Secretary, Education (Schools), Government of the Punjab, Lahore and 7 others 2001 PLC (C.S.) 661; Khalid Imran Khan Barki v. Government of Punjab and others 2021 PLC (C.S.) 426; Jamshaid Khan v. Divisional Forest Officer and others K.L.R. 2013 Civil Cases 68; Javed Iqbal v. Government of the Punjab through Secretary Forestry, Wildlife and Fisheries, Punjab Lahore and 5 others PLJ 2021 Lah. 647; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Qazi M. Asif Jah Bahadur v. Government of the Punjab through Education Secretary, Lahore and 3 others 2004 PLC (C.S.) 292; Dr. Ghazanfarullah and 2 others v. Secretary Health, Government of the Punjab, Lahore and 6 others 2010 PLC (C.S.) 51; Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545; Chief Secretary, Government of Punjab, Lahore and others v. Ms. Shamim Usman 2021 SCMR 1390 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.

Sardar Abdul Raziq Khan for Appellant.

Qazi Muhammad Nauman Sarwar, Assistant Advocate General for Respondents.

2024 P L C (C.S.) 33

[Lahore High Court]

Before Abid Aziz Sheikh, J

AMIR SHAHZAD and 3 others

Versus

FEDERATION OF PAKISTAN and 3 others

Writ Petition No.113414 of 2017, heard on 22nd March, 2022.

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

----Ss. 44 & 45---National Database and Registration Authority Employees (Service) Regulations, 2002---Employees of National Database and Registration Authority ("NADRA") were not considered for promotion---Constitutional petition filed by employees challenging the said act of Authority---Maintainability---Relevant Service Regulations and Promotion Policy were non-statutory---Terms and Conditions of service of employees of NADRA including their promotion police vide Notification dated 22.01.2004, were also framed by the Authority under S. 45 of the Ordinance, 2000 (and not by the Federal Government under S. 44 of the Ordinance), therefore the same were non-statutory---Since Regulations of NADRA were non-statutory, therefore constitutional petition for enforcement of such non-statutory regulations or promotion policy, was not maintainable---Constitutional petition being not maintainable was dismissed.

Maj. (Retd.) Syed Muhammad Tanveer Abbas v. Federation of Pakistan through Secretary Ministry of Interior and another 2019 SCMR 984; Chairman NADRA, Islamabad through Chairman, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979; Muhammad Zaman and 14 others v. Government of Pakistan through Secretary, Finance Division, (Regulation Wing), Islamabad and others 2017 SCMR 571; P. T. C.L. and others v. Masood Ahmad Bhatti and others 2016 SCMR 1362; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 and Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad 2013 SCMR 1707 rel.

Khalid Ismail for Petitioners.

Hafiz Hafiz-ur-Rehman for Respondents.

Malik Khalid Shafique, Assistant Attorney General for Pakistan.

2024 P L C (C.S.) 68

[Lahore High Court]

Before Ch. Muhammad Iqbal and Sultan Tanvir Ahmad, JJ

MADEEHA MUNIR

Versus

GOVERNMENT OF THE PUNJAB and 6 others

I.C.A. No.56780 of 2020, (and other connected Appeals) heard on 6th April, 2023.

Civil service---

----Appointment---Merit list---Software error---Principle of locus poenitentiae---Non-applicability---Appointments, on contract basis, made by the Provincial Government, withdrawal of---Legality---Basis of withdrawal was that on account of some error in the software, appointments of the Educators were made on wrongly generated merit list, and new appointments of deserving candidates were later made on basis of rectified /original merit list---Constitutional petitions filed by the earlier appointees were allowed, against which order new appointees preferred present appeal---Plea of the respondents(earlier appointees), relying on the basis of principle of locus poenitentiae, was that once the contracts of employment had been issued, they could not have been withdrawn---Validity---Record revealed that the entire process of recruitment was completed on software provided by Respondent (Education Department)---Admittedly, the appointments, on contract basis, were to be made against vacant seats in schools of particular area and on the basis of school specific merit---Soon after the execution of agreements of the private respondents (earlier appointees), some error in the software was detected, which purportedly had resulted into selection of candidates having lower marks---As per the criteria in the concerned policy, those securing higher marks than the appointed candidates could not be appointed due to the software error---Even the documents as well as the pleadings also showed that number obtained as per the rectified merit list were not disputed , but private respondents (earlier appointees) had built up their case on the basis of principle of locus poenitentiae---However, if an act is wrongly done due to some misunderstanding, error or illegality, the principle of locus poenitentiae does not come into operation to protect such wrong---If foundation of an action is based on an illegality or error, the protection of locus poenitentiae cannot be provided to beneficiary of said action at cost of others who are otherwise placed higher in merit---In the absence of any specific evidence or material showing favoritism, political interference or departure from merits or mala fide established through clear evidence, the interference in the process of requirements was not warranted by law---There was no evidence or document leading to inference that the respondent (Education Department) had appointed the appellants (later appointees) without merit or against the policy or rules---Even private respondents (earlier appointees) could not deny that the appellants (later appointees) did possess the requisite qualifications, therefore, no interference in said process of appointments through jurisdiction under Art. 199 of the Constitution was warranted---Intra Court Appeals, filed by later appointees were allowed accordingly.

Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another 2022 SCMR 201; Province of Punjab through Secretary, Finance Department, Civil Secretariat, Lahore and others v. Atta Muhammad Zafar and others 2021 SCMR 1195; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S) 924; Malik Munsif Awan, Advocate Chairman, Pakistan Justice Party, Lahore v. Federation of Pakistan through Secretary, Law and Justice, Islamabad and others PLD 2021 SC 379 and Province of Punjab through the Director (E.E.), Lahore Division, Lahore and others v. Muhammad Afzal 2003 PLC (C.S.) 1434 ref.

Junaid Babar Khan, Ms. Sahar Ilyas and Shehzad Chaudary for Appellant.

Farrukh Jahangir Wahla and Ch. Jawad Mehmood Pasha for Respondents.

Muhammad Naseem Kashmiri Additional Advocate General with Abdul Sattar, Legal Advisor CEO, Education, Faisalabad for the Province.

2024 P L C (C.S.) 84

[Lahore High Court (Rawalpindi Bench)]

Before Jawad Hassan, J

Dr. AFTAB HASSAN MINHAS

Versus

NATIONAL COUNCIL FOR HOMEOPATHY and others

Writ Petition No.2362 of 2017, heard on 14h September, 2023.

National Council for Homeopathy (Staff) Service Regulations, 1987---

----Regln. 33---Employee/staff of National Council for Homeopathy, dismissal of ---Reinstatement into service---Appeal under National Council for Homeopathy (Staff) Service Regulations, 1987---Scope---Petitioner (superintendent) invoked constitutional jurisdiction of the High Court to set-aside dismissal orders against him with the prayer to reinstate him in service with all back benefits---Contention of the petitioner was that the respondents (National Council for Homeopathy) had not decided his appeal under Regln. 33 of the NCH (Staff) Service Regulations, 1987 ('the Regulations')---Stance of the respondents was that the appeal filed by the petitioner against his dismissal order was time barred---Validity---Petitioner had, pertinently, impugned two orders i.e. order of his dismissal passed in the year 2015 and the other passed in the year 2017 which was actually passed pursuant to directions issued by the Supreme Court of Pakistan in a Constitutional petition filed by him---Earlier the version of the petitioner was that he could not file appeal as he was not provided copies of inquiry proceedings for which he had to approach the High Court---There was no dispute regarding dismissal of the petitioner in terms of order passed in the year 2015---As per Regulation 33 of the Regulations, 28 days time was provided for filing appeal against the order from its communication---Impugned dismissal order was passed by the President of the Council against which the petitioner had to file appeal within 28 days---However, the petitioner filed appeal before the Council after about 33 days i.e. after expiry of limitation period; and on the same date he filed constitutional petition, for provision of inquiry proceedings/documents; and on the same date, said constitutional petition was disposed of with direction to the concerned respondent to provide copies of the documents claimed and that too were provided to him the next day (as the record revealed)---Petitioner was, interestingly, fully aware of Regulation 33(2) of 'the Regulations' which clearly provided exact period of limitation for filing the appeal before the concerned authority which he failed to do---If the stance taken by the petitioner was to be admitted as correct (that he was not provided the documents/inquiry proceedings which caused delay in filing the appeal before the Council after the expiry of limitation), even then the said exercise could be done by him within the period of limitation rather he opted to approach the High Court for provision of documents/inquiry proceedings after expiry of limitation period---Hence such version of the petitioner was not believable---Law helped the vigilant and not the indolent---When a law had described or required a thing to be done in a particular manner, it should have been done in that manner or not at all---So far as impugned order passed in the year 2017 was concerned, the same was passed pursuant to directions of the Supreme Court of Pakistan, which( impugned) order evinced that the Council being an Appellate Authority after ordering a fact-finding inquiry on formal inquiry already conducted on the basis of which the Petitioner was awarded major penalty of dismissal from service and on considering the inquiry reports, it came to the conclusion that the penalty imposed upon him by the Authority was well commensurate with proved charges--- Moreover, all the grounds taken in the present petition as well as in appeal filed by the petitioner were dealt with by the Council and he was afforded full opportunity of personal hearing as well as right of defence but he could not counter the charges/allegations through cogent, convincing and confidence inspiring evidence which otherwise had been proved---No case for interference by the High Court with the impugned orders was made-out which otherwise had been passed aptly---Constitutional petition was dismissed, in circumstances.

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; Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi 1999 SCMR 1326; Attaullah Khan v. Ali Azam Afridi and others 2023 PLC (C.S) 182 and Inam-ul-Haq v. Allied Bank Limited and 4 others 2018 PLC 215 ref.

Mian Abdul Rauf, Advocate Supreme Court with Tariq Mehmood, Barrister Shahid Rasul Ch., Saeed Afzal and Bilal Shahzad for Petitioners.

Amir Abdullah Abbasi, Advocate Supreme Court for Respondents.

Arshad Mehmood Malik, Assistant Attorney General.

2024 P L C (C.S.) 116

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD MAQSOOD ASLAM

Versus

PROVINCE OF PUNJAB through Secretary Irrigation and Power Department and 7 others

Writ Petition No.66920 of 2020, heard on 3rd June, 2022.

(a) University of Engineering and Technology, Taxila Act (XII of 1994)---

----S.3---Petitioner was appointed as Assistant Engineer by order of Vice-Chancellor, University of Engineering and Technology Lahore ('UET Lahore'), but was posted at University of Engineering and Technology, Taxila Campus ('UET Taxila Campus'), however, later he served on deputation to Irrigation Department---On superannuation petitioner was denied issuance of his retirement notification and pensionary benefits---Petitioner invoked constitutional jurisdiction of the High Court seeking directions for award of his pensionary benefits---Contention of the respondent/UET Lahore was that the petitioner had no lien with UET, Lahore---Validity---Record reflected that UET, Taxila Campus, was made University of Engineering and Technology Taxila ('UET Taxila') in the year 1994---Under S. 3(6) of the University of Engineering and Technology, Taxila Act, 1994, regular employees of UET Lahore serving at UET Taxila Campus were declared employees of the UET Taxila---Petitioner was, admittedly, not virtually serving in UET Taxila Campus when the same was converted into independent University, rather he was deputed in Irrigation Department being the employee of UET, Lahore---Civil servant / deputationist, who had never been absorbed permanently in the borrowing department would continue to be on deputation and his lien could not be terminated in his parent department---Even his lien could not be terminated with his consent, unless he had been confirmed against some other permanent post---Respondent/ UET Lahore shall be finally responsible to pay the pension / pensionary benefits to the petitioner , however, for the period he worked in the Irrigation Department, respondent / UET Lahore shall collect the pensionary contribution for that period as its own---Petitioner could not be denied the right of pension rather UET Lahore was obliged to pay the petitioner within shortest possible time---Constitutional petition was allowed, in circumstances .

Executive Engineer, Provincial Building Circle, Lahore v. Muzaffar Bil Haq and 2 others 2000 SCMR 656; Chief Secretary, Government of N.-W.F.P. and others v. Syed Zafarmand Ali 2005 SCMR 1212; International Islamic University, Islamabad, through its President, Islamabad v. Jehanzeb Khan and others (Civil Appeal No.48 of 2013); I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2014 SCMR 1336 ref.

(b) Constitution of Pakistan---

----Art.9---Civil service---Pensionary benefits, entitlement to---Fundamental right---Scope---Question of payment of pensionery benefits is purely a matter pertaining to fundamental rights---Pension is a measure of socio-economic justice which inheres economic security in the fall of life---Person who enters the Government /public service has also something to look forward to after his retirement viz. his retirement benefits; the grant of pension being the most valuable of such benefits---Pension is like a salary and is no longer a bounty or an ex-gratia payment , but isa right acquired after putting in satisfactory service for the prescribed minimum period---Right to pension has been conferred by law and cannot be arbitrarily abridged or reduced or refused except to the extent and in the manner provided in the relevant rules and it becomes the property of the retiring employee or civil / public servant as a matter of right upon the termination of his / her service---Pension, like salary, is a regular source of livelihood, and thus, is protected by the right to life enshrined in and guaranteed by the Art. 9 of the Constitution.

Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2014 SCMR 1336 and Nasir Kamal v. Federation of Pakistan through Secretary, Ministry of Maritime Affairs, Islamabad and another 2021 PLC (C.S.) 1226 ref.

Ch. Shabbir Hussain for Petitioner.

Hafiz Tariq Nasim, Amicus Curiae.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General.

Shan Saeed Ghuman, Rana Zohaib and Wali Muhammad for Respondents.

Khalid Mehmood, Registrar UET, Texila for Respondents.

2024 P L C (C.S.) 135

[Lahore High Court (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

ZAHOOR AHMAD

Versus

DISTRICT ACCOUNTS OFFICER and others

Writ Petition No.3726 of 2017, decided on 13th December, 2021.

(a) Punjab Civil Servants Pay Revision Rules, 1977---

----Paras. 10(i) & 10(iii)---Notification No.FD.PC-39-14/77(Pt.IV) (APCA/2008) dated 17-06-2014---Grant of premature increment, entitlement to---Daftri, who got retirement on medical grounds, was not granted premature increment---Respondent/District Account officer ('DAC') refused said grant---Validity---Record revealed that clarification was sought from the respondent/DAC regarding their (DAC's) letter of refusal to grant premature increment but said respondent, who was otherwise under obligation to reply, did not reply---One step promotion was granted to the petitioner by the Department Promotion Committee under the Government of Punjab, Finance Department Notification No.FD.PC-39-14/77(Pt.IV)(APCA/2008) dated 17-06-2014, whereas premature increment was to be awarded to him under Paras 10(i) & 10(iii) of the policy instruction of the Punjab Civil Servants Pay Revision Rules, 1977, which clearly provided that on promotion of a civil servant to a higher post / Scale 2 to 19, where the stage of the higher post, next above his pay in the lower post, gives a pay increase equal to or less than full increment of the pay scale of the higher post, the initial pay of the highest post will be fixed after allowing a premature increment in the Revised National Pay Scale of the higher post---Record also showed that other officials who were promoted to the next higher scale along with the petitioner, had already been granted premature increment, and the case of the petitioner was at par with them---Petitioner had been able to make out a case of premature increment---High Court directed the respondent (District Account Officer) to revise the pension of the petitioner after fixation of premature increment on account of his promotion to the next higher pay scale---Constitutional petition was allowed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Punjab Civil Servants Pay Revision Rules, 1977, Paras. 10(i) & 10(iii)---Grant of premature increment, matter of---Constitutional petition---Maintainability---Petitioner , who was a Daftrigetting retirement on medical grounds, was not granted premature increment---Contention of the respondents / Department was that the fixation of premature increment related to the terms and conditions of service---Held, that since the petitioner had already been retired, his case did not fall within the meaning of civil servant and as such constitutional petition moved by him was competent before the High Court.

Mukhtar Ahmad Malik and Mian M. Shahid Hussain Akhtar for Petitioner.

Malik Shah Nawaz Kalyar, Assistant Advocate General for Respondents.

2024 P L C (C.S.) 142

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

ASAD ABBAS

Versus

GOVERNMENT OF THE PUNJAB through Secretary Co-operative Societies Department, Lahore and others

Writ Petition No.55270 of 2020, heard on 20th September, 2021.

(a) Constitution of Pakistan---

----Art.25---Civil service---Appointment to advertised post---Selection of candidates---Discrimination---Waiting list of candidates---Petitioner challenged the order passed by department whereby his application for appointment as Sub-Inspector (BS-11), being next in merit, was turned down---Validity---Merit list was prepared in 2017 and department for the first time in 2018 requested the Public Service Commission to provide substitute candidates by clearly mentioning that none out of the four recommended candidates joined duty---In this view of the matter, petitioner came at Serial No. 4 of the waiting candidates, thus, his right to be considered for appointment being next in merit list accrued well within the validity of the merit list---In response, Public Service Commission only provided one substitute candidate and already recommended three candidates were again included---Admitted position of the matter was that the recommended candidates had not joined the duties and the department was willing to make appointment from waiting candidates then why four candidates in the waiting list were not appointed simultaneously---Department was at fault in not actively completing the recruitment process and lingering on the matter without any legal justification---Waiting candidate had already been appointed but the petitioner was subjected to discrimination in violation of equality clause contained in Article 25 of the Constitution---Petitioner could not be penalized for a wrong, lapse or ignorance on the part of the department---Impugned order was declared to be illegal and was set aside---Department was directed to redress the petitioner's grievance in liaison with the Public Service Commission---Writ petition was allowed, in circumstances.

Dr. Sumera Tabassum v. F.P.S.C. and others 2016 PLC (C.S.) 596; Shabana Akhtar v. District Coordination Officer, Bhakkar and 2 others 2012 PLC (C .S.) 366; Collector of Customs, Lahore and others v. Messrs S. Fazal Ilahi and Sons through Proprietor 2015 SCMR 1488; Dr. Farhat Naz v. Chairman Selection / Promotion Board, Ayub Teaching Hospital, Abbottabad and others 2017 MLD 1842; Muhammad Arshad v. Province of Sindh through Chief Secretary, Government of Sindh and 9 others 2018 PLC (C.S.) Note 2; Managing Director, Public Procurement Regulatory Authority (PPRA) and another v. Muhammad Zubair and 6 others 2019 PLC (C.S.) 1348 and Kh. Aamir Ahmed v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 6 others 2021 YLR 1313 ref.

The Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others 2019 SCMR 124 distinguished.

(b) Civil service---

----Appointment to advertised post---Selection of candidates---Waiting list of candidates---Scope---When any of the selected candidates does not join the service, the department should consider the next candidate in the merit list for appointment against said post.

Government of N.-W.F.P. through Secretary, Education Department, Peshawar and others v. Qasim Shah 2009 SCMR 382 rel.

Saif-ur-Rehman Jasra for Petitioner.

Barrister Ameer Abbas Ali Khan, A.A.G. along with Usman Umar, District Officer Co-operative, Khushab and Muhammad Ilyas, Superintendent.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General on Court's call.

Muhammad Imran Sh. Addl. District Judge / Senior Research Officer, LHCRC.

Ahmad Zia Ch., Civil Judge / Research Officer, LHCRC.

2024 P L C (C.S.) 170

[Lahore High Court (Rawalpindi Bench)]

Before Jawad Hassan, J

MUHAMMAD BASHIR

Versus

FEDERATION OF PAKISTAN and NESPAK and others

Writ Petition No.3320 of 2022, heard on 28th September, 2023.

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

----S.2(f)---Constitution of Pakistan, Art. 199---Constitutional petition--Maintainability---Re-instatement in service sought---Sacked employee of 'NESPAK'---Non-statutory rules---Master-servant relationship---Petitioner / employee sought direction to respondent / employer to reinstate him into service from the date of his termination, on the basis of a judgment passed by Supreme Court in case of other employees---Validity---Petitioner's / employee's date of appointment was 26-09-1992 whereas under S.2(f) of Sacked Employees (Re-instatement) Act, 2010 prescribed period to come under definition of 'sacked employee' was from 01-11-1993 to 30-11-1996---Principle of 'Master and Servant" was applicable to petitioner / employee as rules of "NESPAK" were not framed under any statute rather were made by Board of Directors of "NESPAK" in exercise of powers conferred on it by Articles of Association of the Company---Such rules were merely regulations, instructions and directions for internal use and management of the company---Petitioner was provided fair opportunity of hearing but he failed to prove his case through cogent and confidence expiring evidence---Petitioner failed to cross hurdle/objection taken by respondent / employer regarding maintainability of petition---Constitutional petition was dismissed, in circumstances.

Muhammad Tahir Nawaz Cheema and others v. Federation of Pakistan and others 2023 PLC (C.S.) 662; Munda Eleven Cricket Club v. Federation of Pakistan and 4 others PLD 2017 Lah. 802; Aown Abbas Bhatti v. Forman Christian College and 2 others PLD 2018 Lah. 435; Dr. Khalid Zamir Rasib v. Province of the Punjab through Secretary Higher Education Department, Lahore and 4 others 2021 PLC (C.S.) 994; Umer Atta-ur-Rehman Khan v. Ministry of Energy through Secretary/Chairman, NESPAK and 4 others 2021 PLC (C.S.) 1126; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Muhammad Zaman and others v. Government of Pakistan and others 2017 SCMR 571; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Pakistan Defence Officer's case 2013 SCMR 1707; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Abdul Wahab and others v. HBL and others 2013 SCMR 1383 and Pakistan International Airline and others v. Noreen Naz Butt 2017 PLC (C.S.) 923 rel.

Moazzam Sajjad Kiani for Petitioner.

Saad Rasool, Advocate Supreme Court with Shan S. Ghumman with Muhammad Ashfaq Basharat, Manager Legal and Corporate Affairs, NESPAK.

Malik Amjad Ali, Additional Advocate General with Abid Aziz Rajori, Assistant Advocate General.

Malik Muhammad Siddique Awan, Additional Attorney General along with Arshad Mahmood Malik and Tahir Raheel Awan, Assistant Attorney Generals for Respondents.

2024 P L C (C.S.) 222

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

AROOJ ASGHAR

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 4 others

Writ Petition No.66990 of 2020, decided on 26th September, 2022.

Policy Governing Allotment of Residential Government Accommodation at District Level---

----Ss.15 & 16---Allotment policy---Entitlement of the government officers of various grades/scales---Powers of the authorities---Scope---Government accommodation having been allotted to the petitioner (principle at a college for women) was withdrawn by the respondents / authorities ; and was restored to the previous allottee (respondent / principal ) on her transfer back---Petitioner previously challenged the withdrawal of allotment before the High Court and the matter was referred to the respondents / authorities to be re-decided---Petitioner challenged the impugned order passed by the Respondents / authorities declining the request of the petitioner to retain house-in-question---Respondents / authorities contended that the petitioner was not entitled as the house-in-question was meant for officers of the scale higher than that of the petitioner, for which Ss. 2 to 5, 10 to 12, 17 & 27(d)(ii) of the Punjab Residences Allotment Policy, 2021 ('the Allotment Policy') were cited in the impugned order---Held, that all the provisions of Punjab Residences Allotment Policy, 2021, were irrelevant in the present case as the petitioner was allotted accommodation on her turn after observing all codal formalities while she was in service residing in house-in-question and paying the house rent along with utility bills regularly, therefore, her allotment could not be withdrawn in casual manner on the single ground that previous allottee (respondent) had been transferred back, particularly in absence of any specific provision in the Allotment Policy---Respondents/authorities failed to show to the Court any document approved by the competent authority chalking-out entitlement of the government servants to various categories and classes of accommodation and instead produced only a site-plan prepared by an architect showing elevation and sections of buildings (government accommodations) which (site-plan) was not sufficient for proper allotment of government owned accommodation---Such inherent defect / flaw in the allotment policy gave unbridled discretion to respondents /authorities to make allotments at their whims and wishes, facilitating (certain) government servants in getting undue benefits---High Court deprecated such lacuna in Allotment policy and directed the respondents / authorities to take steps for necessary legislation / amendments in allotment policy, for smooth allotment of residential accommodation to government servants at various stations---High Court set-aside the impugned order declaring the same as illegal and without lawful authority and directed the respondents/authorities that present accommodation of the petitioner be retained---Constitutional petition was allowed, in circumstances.

Ch. Ishtaiq Ahmad and Adnan Ahmad Chaudhry for Petitioner.

Amir Sohail Bhatti for Respondents.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General.

2024 P L C (C.S.) 234

[Lahore High Court (Multan Bench)]

Before Ahmad Nadeem Arshad, J

AKHTAR ALI

Versus

POST MASTER GENERAL

Writ Petition No.2738 of 2018, decided on 23rd June, 2022.

Pension Regulations, Volume-II (Army), 1986---

----R. 40(1) & (5)---Pakistan Army Act (XXXIX of 1952), S. 176-A---Hand Book of Instructions dealing with Payment of Military Pension through Post Offices, R. 25---Payment of Military Pension through Post Offices, with-holding of---Forfeiture of pensions---Procedure for restoration of the pension forfeited---Whether the pensioner would be entitled to get pensionary benefits or not, whose sentence was suspended and he was released on bail during pendency of his criminal appeal---Petitioner was a retired army personnel whose pension was stopped on account of sentence of 'Imprisonment for life' awarded to him as T'azeer' by the Trial Court in a murder case---After release on bail, petitioner/convict moved an application to the respondent to immediately release his pension, however, the same was dismissed by the respondent---Petitioner invoked constitutional jurisdiction of the High Court contending that respondent had wrongly withheld pension of the petitioner as his sentence had been suspended, hence there was no justification for stoppage of his pension---Validity---Government servant who retires from service and gets pension does not get the same as bounty of the State but as a right acquired after earning satisfied record of service,however, in order to qualify for pension, the pensioner has to maintain his good conduct which is an implied condition for grant of pension---Grant of pension cannot be refused arbitrarily and if refused, it has to be in accordance with the relevant Rules---There are two conditions provided under Rule 2307 of General Conditions Governing Pension (C.S.R. 351) which empower the Government to withhold or withdraw the pension or any part of it, where the pensioner is convicted in a serious crime or is guilty of a grave misconduct---In Pension Regulations, Volume II (Army), 1986 ('the Regulations 1986'), Federal Government in exercise of the powers conferred by S. 176-A of the Pakistan Army Act, 1952 introduced certain amendments with regard to reduction or forfeiture of pensions if a military pensioner is convicted in a serious crime by court of law and is guilty of grave misconduct, and also provides a procedure for restoration of the pension forfeited---Rules 40 and 41 of the Regulations, 1986 prescribe that if a pensioner is sentenced to imprisonment for a criminal offence, his pension shall be stopped from the date of his imprisonment and the case shall be reported to the pay Disbursing Authority, who shall take up the case for orders of sanctioning authority---In case where a pensioner is kept in police or jail custody as an under-trial prisoner and is eventually sentenced, the suspension of pension shall take effect from the date of conviction---If a pensioner is sentenced to imprisonment by a lower court but is acquitted on appeal by a higher court, the pension withheld shall be restored forthwith---However, in case a pensioner is undergoing imprisonment in any criminal case his pension shall be sanctioned for the period of imprisonment in jail till the final decision of case, and either it may be end on his conviction or acquittal---Moreover, for suspension of a pension or release/restoration of a pension, the sanctioning authority shall decide the case in consultation with the Audit Officer, Controller of Military Pension and the civil authorities, if necessary---Rule 25 of Hand Book of Instructions dealing with payment of Military Pension through Post Offices provides that future good conduct shall be an implied condition of every grant of pensions or allowances---Admittedly, petitioner was convicted/sentenced to 'Imprisonment for life' in a criminal case---Pension regulations contemplated that if a pensioner is convicted/sentenced his pension is to be forthwith stopped/withheld---Under R. 25 of Hand Book of Instructions as discussed supra which provides that when the Postmaster becomes aware of any case in which a pensioner/convict is sentenced to imprisonment, he should forthwith suspend the pension and report this fact to the concerned Controller Military Accounts (Pension);similarly on release/acquittal of the pensioner from imprisonment, the Postmaster will obtain an application from the pensioner for restoration of pension and submit to the concerned Controller Military Accounts (Pension), along with required documents; Controller Military Accounts (Pension) will further take up the matter for release of pension with Sanctioning Authority--- In the present case, petitioner's pension was stopped due to sentence awarded by the competent Court of law whereby he was convicted/sentenced to Imprisonment for life in a murder case---In light of said provisions of law, it appears that petitioner would be entitled with regard to restoration of his pension only if his criminal appeal was successful and as a consequence of which, he was acquitted of the charge by the Court---In the Present case petitioner was not acquitted from the charge rather he was simply released on bail by High Court while suspending his sentence whereas his Criminal Appeal against conviction and sentence was still pending before High Court---Even otherwise, murder is a serious crime which act itself circumvented good conduct of the petitioner as envisaged under Rule 25 of Hand Book of Instructions, therefore, he was not entitled to get pensionary benefits till the acceptance of his appeal---Respondent/Post master General was justified to withhold the pension of the petitioner---Petitioner failed to point out any illegality or irregularity on the part of respondent---Constitutional petition was dismissed, in circumstances.

Qasim Ali for Petitioner.

Khan Ehtisham-ul-Haq Khan, Assistant Attorney General along with Muhammad Akbar, Deputy Senior Postmaster, Layyah for Respondent.

2024 P L C (C.S.) 256

[Lahore High Court (Rawalpindi Bench)]

Before Jawad Hassan, J SAMRA GUL

Versus

CHAIRPERSON TEVTA and others

Writ Petition No.1407 of 2022, heard on 25th May, 2023.

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

----Ss.9, 10(6) & 13(3)---Constitution of Pakistan, Arts. 4 & 199---Constitutional petition---Dismissal from service---Regular inquiry, non-holding of---Effect---Petitioner was dismissed from service without a regular inquiry---Validity---No regular inquiry was conducted for bringing on record relevant reliable evidence for fixing up extent of liability of culprit officials in subject issue as well as for onward determination of quantum of penalties---It is an inalienable right of every citizen to be treated in accordance with law as envisaged by Art. 4 of the Constitution---It is duty and obligation of every public functionary to act within four corners of the mandate of the Constitution, Punjab Employees Efficiency, Discipline and Accountability Act, 2006, and pass a speaking order---High Court set aside order passed against petitioner and matter was remitted to authorities to conduct a regular inquiry against all alleged accused officials/officers including petitioner revealing duty/role/responsibility/wrong doing of each individual emerging from the inquiry, calling for imposition of minor/major penalty against each one---High Court directed the petitioner to join proceedings as and when so summoned by Inquiry Officer---Constitutional petition was allowed accordingly.

Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 and Secretary, Government of Punjab (C&W) v. Ikramullah and 5 others 2013 SCMR 572 ref.

Muhammad Waris v. Director General, Punjab Emergency Services Rescue 1122 , Lahore and 3 others 2022 P L C (C.S.) 367; Dr. Rana Zeeshan v. Government of Punjab and others 2022 PLC (C.S) 1300; Muhammad Riaz v. Medical Superintendent, Service Hospital, Lahore and 2 others 2016 PLC (C.S) 296 and Allah Ditta v. Province of Punjab and 2 others 2017 PLC (C.S) 437 rel.

Raja Saif-ur-Rehman, Advocate Supreme Court and Muhammad Kamal Hassan for Petitioners.

Umair Shahid, Abdul Waheed, Legal Advisor and Syed Mudassar Nazir Naqvi, A.A.G. for Respondents.

2024 P L C (C.S.) 310

[Lahore High Court]

Before Shahid Jamil Khan, J

LAHORE TAX BAR ASSOCIATION

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.27339 of 2023, decided on 18th December, 2023.

Appellate Tribunal Inland Revenue (Appointment of Chairperson and Members) Rules, 2020---

----Income Tax Ordinance (XLIX of 2001), S.130---Constitution of Pakistan, Arts. 240 & 242---Constitutional petition---Appointment of Chairman---Appellate Tribunal Inland Revenue (Appointment of Chairperson and Members) Rules, 2020, vires of---Petitioner / Tax Bar Association assailed appointment of respondent as Chairman Appellate Tribunal Inland Revenue along with vires of Appellate Tribunal Inland Revenue (Appointment of Chairperson and Members) Rules, 2020---Validity---Words 'Prime Minister' as used in existing S.130(2) of Income Tax Ordinance, 2001, was to be read as 'Federal Government' from the date when the provision was brought in the statute book---Provision was to be read down accordingly---High Court declared Appellate Tribunal Inland Revenue (Appointment of Chairperson and Members) Rules, 2020, ultra vires the Constitution as same were not approved by Federal Cabinet---Appointments, under Appellate Tribunal Inland Revenue (Appointment of Chairperson and Members) Rules, 2020, were also illegal and without lawful authority---High Court invoked de facto doctrine to save continuity in system and directed that Members and Chairman appointed under the Appellate Tribunal Inland Revenue (Appointment of Chairperson and Members) Rules, 2020, were allowed to continue their service, till the appointment of regular incumbents, under the Rules, to be framed and promulgated by Federal Government, in consonance with the law---High Court directed the authorities to frame Rules within thirty (30) days from the date of judgment and process of recruitment to be completed within forty five (45) days thereafter---Posts of Members and Chairman of Appellate Tribunal Inland Revenue are in connection with the affairs of the Federation, therefore, under Art. 240 of the Constitution, appointments to the posts and the conditions of service should be under the Act of Majlis-e-Shura (Parliament)---Even if Rules to be framed under the S.130(2) are under the Act of Parliament, framers of the Rules have to comply with command of the Constitution---For purposes of a competitive process to determine capacity and capability based on eligibility, Public Service Commissions are constituted under Art. 242 of the Constitution---Statutes under this mandate provided an independent forum and procedure---High Court deprecated tendency of bypassing such forum as the same would not only deprive deserving candidates from appointment on merits, but would instill mistrust in the candidates and those who are striving for their future---Constitutional petition was allowed accordingly.

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

Messrs Mustafa Impex Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 rel.

Shahbaz Butt and Chaudhry Anwaar-ul-Haq Arif for Petitioner.

Mirza Nasar Ahmad, Additional Attorney General and Syed Sajjad Haider Rizvi, Assistant Attorney General for Federation.

Barrister Lamia Niazi for Respondent No.5.

M. Nazeer Chauhan for Respondent No.6.

2024 P L C (C.S.) 333

[Lahore High Court]

Before Ch. Muhammad Iqbal, J

ALI HUSNAIN

Versus

INSPECTOR GENERAL OF PUNJAB POLICE, LAHORE and others

Writ Petition No.16640 of 2020, heard on 10th November, 2022.

(a) Civil service---

----Notification No.SE-IV/7317-70/II, dated 26.06.2014 issued by the Govt. of the Punjab, Police Department---Standing Order No.6 of 2015 issued by the Govt. of the Punjab, Police Department, Cl. 23---Appointment in the Police Department, eligibility of---Criminal record of the candidate---Scope and effect---Petitioner was appointed as Operator BS-5-EDC in Technical Cadre Special Branch Punjab Police, Lahore on contract basis and the same had been extended from time to time uptill the same was not further extended---Punjab Public Service Commission ('the Commission') advertised the posts of Supervisor BS-14/EDC Technical Cadre Special Branch, Punjab Police and the petitioner was declared successful candidate and selected but his appointment letter was withheld due to his involvement in some criminal case---Petitioner invoked constitutional jurisdiction of the High Court challenging the rejection of his representation against withholding his appointment letter having been made before the concerned Authority---Validity---As per notification No.SE-IV/7317-70/II, dated 26.06.2014 issued by the Government of the Punjab, Police Department, the competent authority had principally decided that all those candidates who during character verification, had been found involved in criminal cases (either under trial or acquitted on multiple grounds) were not eligible for appointment in Police Department---Further, as per Cl. 23 of the Standing Order No.6 of 2015 issued by the Government of the Punjab, Police Department, the candidates having criminal record could not be appointed---Record revealed that the petitioner had failed to fulfill the eligibility criteria required for the said post as he was found involved in a criminal case---Commission while recommending the petitioner and other candidates, clearly mentioned in the relevant letter that recommendation made by the Commission did not bear any compulsory binding obligation / duty upon the respondent/Department to appoint the petitioner against the post especially when there were serious flaws in the character of the petitioner---Petitioner had not pointed out any illegality, material irregularity and jurisdictional defect in the impugned order (rejection of his representation), passed by competent authority---Constitutional petition was dismissed, in circumstances.

The Regional Police Officer, Faisalabad and others v. Jabir Ali Civil Petitions Nos.1668-L and 1852-L of 2012; Abdul Manan v. Provincial Police Officer and 2 others 2017 PLC (C.S.) 862 and I.C.A. No.86949 of 2017 ref.

(b) Civil service---

----Appointment in the Police Department---Eligibility---Criminal record of the candidate---Scope and effect---Petitioner was appointed as Operator BS-5-EDC in Technical Cadre Special Branch Punjab Police, Lahore on contract basis and the same had been extended from time to time uptill the same was not further extended---Punjab Public Service Commission ('the Commission') advertised the posts of Supervisor BS-14/EDC Technical Cadre Special Branch, Punjab Police, and the petitioner was declared successful candidate and selected but his appointment letter was withheld due to his involvement in some criminal case---Petitioner invoked constitutional jurisdiction of the High Court challenging the rejection of his representation against withholding his appointment letter having been made before the concerned authority---Validity---For the recruitment in the Police Department, the incumbents should necessarily have an unblemished character, which was apparently found deficient in the petitioner who had deliberately concealed the material fact (criminal case having been registered against him), thus he had come to High Court with soiled hands which disentitled him from any discretionary relief---High Court was well within jurisdiction to withhold the exercise of extraordinary constitutional jurisdiction in favour of the petitioner---Petitioner had not pointed out any illegality, material irregularity and jurisdictional defect in the impugned order (rejection of his representation), passed by competent authority---Constitutional petition was dismissed, in circumstances.

Munir Hussain Bhatti for Petitioner.

Gohar Nawaz Sindhu, Addl. Advocate General along with Muhammad Saleem Sadiq, Technical Officer, Special Branch, Punjab for Respondents.

2024 P L C (C.S.) 352

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Dr. MEHMOOD AYAZ

Versus

GOVERNMENT OF PUNJAB through Secretary Health Punjab, Civil Secretariat, Lahore and 5 others

Writ Petition No.81113 of 2021, heard on 13th May, 2022.

Transplantation of Human Organs and Tissues Act (VI of 2010)---

----S.8(3)---Constitution of Pakistan, Art. 199---Administrator of Punjab Human Transplantation Authority ('PHOTA')---Appellant challenged the notification whereby respondent was appointed against the post in question---Validity---Undeniably, under S.8(3) of the Transplantation of Human Organs and Tissues Act, 2010, the Monitoring Authority was bestowed with the function to appoint an Administrator with consultation with the Government (who was Chief Minister as per the Punjab Government Rules of Business, 2011), therefore, the recommendations of the Monitoring Authority were to be given due weight and the Government/Chief Minister, if differed with the same, had to provide cogent reasons---Only reason that respondent had better management experience than petitioner could not be made basis to supersede a candidate securing top position after going through a detailed process of interview conducted by the Monitoring Authority---Under the provisions of the Act, 2010, absolute power of appointment of Administrator PHOTA had not been given to the Government i.e. Chief Minister to appoint any person of his choice but the Monitoring Authority consisting of eminent professionals was constituted who after detailed scrutiny of the credentials and lengthy interview of each candidate, recommended three names as per order of merit---Appointment of Administrator PHOTA had been structured to preclude the arbitrary and capricious exercise of discretion at the cost of appointments on merit---Reasons provided by the Chief Minister for not appointing the petitioner, who was placed highest on the merit list, were justiciable especially when in the instant case, admittedly no reasons were given by the Chief Minister and the Court could examine them on the touchstone of validity, fairness and compliance with the law, rules and departmental practice---Discretion of the Chief Minister in such regard was not unfettered, unbridled and unregulated and impugned action of the Chief Minster amounted to an illegal, arbitrary, capricious and unbridled exercise of discretion---Discretion when exercised by an authority in an arbitrary manner and against the law, the jurisdiction of the Court to interfere under Art. 199 of the Constitution of Pakistan, was not barred---Constitution petition was allowed, in circumstances.

Dr. Iqrar Ahmad Khan v. Dr. Muhammad Ashraf and others 2021 SCMR 1509; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157; Arshad Ali Tabassum v. The Registrar, Lahore High Court, Lahore 2015 SCMR 112; Messrs Power Construction Corporation of China Ltd. through Authorised Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83; Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206; Shahid Aziz v. Chairman, Punjab Labour Appellate Tribunal, Multan and 4 others 2021 PLC 118; Chief Executive Officer, Multan Electric Power Company Ltd, Khanewal Road, Multan v. Muhammad Ilyas and others 2021 SCMR 775; Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977 and Danish Usman v. Government of Khyber Pakhtunkhwa, through Chief Secretary and 6 others 2022 PLC (C.S.) 418 ref.

Dr. Iqrar Ahmad Khan v. Government of the Punjab through Secretary Agricultural Department, Lahore and others 2020 PLC (C.S.) 1087; The State v. Zia-ur-Rahman and others PLD 1973 SC 49; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 rel.

Muhammad Ahsan Bhoon, Muhammad Imran Suleria and Zunaish Afzal Farooqa for Petitioners.

Malik Akhter Javaid, Additional Advocate General and Waqar Saeed Khan, Assistant Advocate General along with Imran Ahmad, Director (Legal) PHOTA.

Mian Zahid ur Rehman (on behalf of Respondent No.2).

Barrister Imran Aziz Khan (on behalf of Respondent No.5).

2024 P L C (C.S.) 376

[Lahore High Court]

Before Shams Mehmood Mirza, J

AHMAD MUKHTAR and others

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and others

Writ Petitions Nos.56683 of 2021 and 55205 of 2011, decided on 12th September, 2023.

(a) Pakistan Engineering Council Act, 1975 (V of 1976)---

----Ss. 2(xxiii) & 2(xxv)---Punjab Communication and Works Department (Engineering Posts Qualification and Conditions Recruitment) Rules, 1985 [as amended vide Notification No. SOR-III(S&GAD)1-11/2020(A) dated 04-09-2021]---Post of Executive Engineer in Communication and Works Department---Entitlement for promotion ---Criteria---Qualification---Whether degree obtained from accredited universities or degrees of B.Tech (Hons) or BS Engineering Technology---Notification No. SOR-III(S&GAD)1-11/2020(A) dated 04-09-2021 vires of---Petitioners (Sub-Divisional Officers) having qualification of professional / registered engineers obtained from accredited universities, who expected to be promoted to the next higher post of Executive Engineer, challenged the Notification---Contention of the petitioners was that by amendments made in the Punjab Communication and Works Department (Engineering Posts Qualification and Conditions Recruitment) Rules, 1985 ('the Rules 1985') 5% quota to the post of Executive Engineer was reserved for Sub-Divisional Officers (Assistant Engineers/Directors) holding B.Tech (Hons) or BS Engineering Technology ,thus diluting the earlier 100% seats reserved for the petitioners under the Rules --- Validity ---Record revealed that, regarding present issue, a meeting of Qualification Equivalence Determination Committee (QEDC) had taken place ,having participants from all stake-holders; minutes of which (meeting) revealed that the meeting, inter alia, unanimously held that the degree of B.Tecch (Hons) was not similar to B.E./BSc Engineering and could not be equated with the same as the contents of both the degrees were altogether different ---Post of Executive Engineer could only be filled up by persons who had a degree in Engineering in the requisite discipline from a recognized University and equivalent qualification and was registered as a professional engineer with Pakistan Engineering Council (PEC) ----Thus, the Official Respondents (Government/Department) had no authority to change the criteria for granting a right of promotion to persons who did not qualify the same in terms of Pakistan Engineering Council Act, 1975---Official respondents could not dispute that only a professional engineer , having the requisite qualification, could be promoted to the post of Executive Engineer---High Court set aside the impugned Notification No. SOR-III(S&GAD)1-11/2020(A) dated 04-09-2021 for being without lawful authority---Constitutional petition filed by Sub Divisional Officers (professional / registered engineers), was allowed, in circumstances.

Moula Bux's case 2018 SCMR 2098 and Afnan Farid and others v. Federation of Pakistan and others Writ Petition No.1764 of 2021 ref.

(b) Pakistan Engineering Council Act, 1975 (V of 1976)---

----Ss. 2(xxiii) & 2(xxv)---Constitution of Pakistan, Art. 199---Punjab Communication and Works Department (Engineering Posts Qualification and Conditions Recruitment) Rules, 1985, [as amended vide Notification No. SOR-III(S&GAD)1-11/2020(A) dated 04-09-2021]---Post of Executive Engineer in Communication and Works Department---Entitlement for promotion---Criteria---Notification No. SOR-III(S&GAD)1-11/2020(A) dated 04-09-2021 ('the Notification'), vires of---Constitutional petition challenging the Notification---Maintainability---Petitioners (Sub-Divisional Officers) professional / registered engineers having qualified from accredited universities, who expected to be promoted to the next higher post of Executive Engineer, challenged the Notification---Official Respondents (Government / Department raised objection regarding Constitutional jurisdiction of the High Court regarding subject matter---Held, that objection regarding constitutional jurisdiction of the High Court was misconceived as the High court could pass order on the subject matter---Thus, constitutional petition, in the present case, was maintainable---High Court set aside the impugned Notification No. SOR-III(S&GAD)1-11/2020(A) dated 04-09-2021 for being without lawful authority---Constitutional petition filed by Sub-Divisional Officers (professional / registered engineers), was allowed, in circumstances.

Afnan Farid and others v. Federation of Pakistan and others Writ Petition No.1764 of 2021 ref.

Muhammad Maqsood Butter for Petitioner.

Nemo for Petitioner (in W.P. No.5505 of 2021).

Barrister Asad Ullah Chatha, Assistant Advocate General.

2024 P L C (C.S.) 402

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Dr. GHULAM SARWAR

Versus

PROVINCE OF PUNJAB through Vice-Chancellor and 5 others

Writ Petition No.76581 of 2021, decided on 2nd November, 2022.

University of Sargodha Ordinance (LXXX of 2002)---

----S.10----Professors, appointment of---Selection Board/Scrutiny Committee recommended one of the petitioners for appointment as Professor---On such recommendation, Syndicate appointed said petitioner as Professor on regular basis, on two years' probation---Feeling aggrieved respondent No.6 filed an appeal against petitioner's appointment before the Chancellor, who declared petitioner's appointment as null and void---Certain other professors also challenged the Chancellor's actions of constituting a committee to examine all cases of appointments---Validity---Perusal of record showed that from the very beginning of the respondent-University way back in the year 2002, the standard practice of the Selection Board was to recommend candidates to the Syndicate for appointment against the posts of Associate Professor and Professor on the basis of assessment of foreign and local referees---However, in its meeting held on 22-23rd July, 2018, the Selection Board digressed its own practice and decided to award marks to the candidates for the posts in question out of 30 marks, which decision was forthwith implemented without getting it approved---In that backdrop the Chancellor of the University after discussing material aspects of the matter, proceeded to nullify the proceedings/recommendations of the Selection Board dated 22nd-23rd July, 2018 and the subsequent approval by the Syndicate dated 27 July, 2018---Evidently, the Chancellor had passed a speaking order as per law, however, there was only one aspect of the matter which needed reconsideration on part of the respondent-authorities i.e. whether petitioners procured their appointments through ill-will, mala fide, fraud or illegal means and if the appointees were not at fault, the appointing authority ought to have been proceeded against as the party should not be made to suffer for action or inaction of the authority, who was obliged to follow the law---High Court noted with concern that the Selection Board and Syndicate, who appointed petitioners to the posts in question, presumably, the applicable law/rules and regulations should have been on their sleeves at the time of appointment of petitioners---If respondents were of the opinion that appointment of petitioners was made without approval of the competent authority, then instead of de-notifying petitioners' appointment, respondents should have blamed themselves rather than claiming premium of their own wrongs---Constitutional petitions were allowed to the extent that respondent-University shall re-examine each and every case and if the persons, who had already been appointed, were not at fault, and no mala fide was there on the part of the Selection Board, they shall not be disturbed and the persons, who were higher on merit, possibility of creating new seats shall also be explored so as to redress their grievance for their appointment on merit in terms of the advertisement already published.

Mian Tariq Javed v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others 2008 SCMR 598; Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others 2015 SCMR 1418; Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956; Uzma Manzoor and others v. Vice-Chancellor Khushal Khan Khattak University, Karak and others 2022 SCMR 694; Muhammad Yasin Saqib v. Chairman, Pakistan Telecommunication Corporation; Islamabad and 7 others 2003 PLC (C.S.) 1105; Abdul Wahab v. Khyber Pakhtunkhwa Public Service Commission through Chairman and 18 others 2014 PLC (C.S.) 926; Dr. Khalil ur Rehman v. Government of Punjab through Chief Secretary, Punjab and 5 others 2015 PLC (C.S.) 793; Ayaz Ahmed Khan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 4 others 2021 PLC (C.S.) 1394; Altaf Hussain v. FPSC through Chairman and another 2022 PLC (C.S.) 92; Danish Usman v. Government of Khyber Pakhtunkhwa, through Chief Secretary and 6 others 2022 PLC (C.S.) 418; Pradeep Kumar Rai and others v. Dinesh Kumar Pandey and others (2015) 11 Supreme Court Cases 493; Madras Institute of Development Studies and another v. K. Sivasubramaniyan and others (2016) 1 Supreme Court Cases 454; Ashok Kumar and another v. State of Bihar and others (2017) 4 Supreme Court Cases 357; Dr. W. B. Vasantha v. The Chairman and Board of Governors Indian Institute of Technology, Madras 2013 SCC Online Mad 2171; Smt. Kamlesh Devi v. State of Haryana and others 2016 SCC Online P&H 9912 and Mahesh MR. and another v. State of Kerala, Represented by Secretary to Government and others 2019 SCC Online Ker 19645(sic) ref.

Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 rel.

Barrister Haris Azmat, Barrister Maryam Hayat, Hamza Amjad, Ahmad Saeed, Abid Hussain Sial, Faizal Ahmad, Daniyal Akbar Tarar, Wajahat Ali and Rahil Riaz for Petitioners.

Barrister Ameer Abbas Ali Khan, Additional Advocate General.

Khalid Ishaq and Usman Nassir Awan for Petitioners (in connected W.P. No.1444 of 2022).

Barrister Muhammad Ahmad Pansota, Jawad H. Tarar, Barrister Hamza Shahid Buttar, Barrister Scheherzad Sheharyar, Barrister Safi Ul Hassan, Barister Ahtasham Mukhtar, Ali Umrao and Shahjahan Khan, Legal Advisors for Respondent-University.

Salman Mansoor and Abdul Majid Abid for Respondent No.6.

2024 P L C (C.S.) 421

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

SAJID HUSSAIN and others

Versus

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

Writ Petition No.1578 of 2020, decided on 20th October, 2021.

(a) Civil service---

----Grant of Selection grade---Scope---Selection grade "Locus poenitentiae", Principle of---Scope---Petitioners were appointed on 04/05/1991 without granting selection grade---Requirement of 5 years' service for admissibility of selection grade was reduced to 2 years vide notification dated 25/07/1991 (w.e.f. 25/05/1991)---Said notification was superseded on 18/10/1993---Some employees junior to petitioners were promoted having been granted selection grade---Petitioners applied for and were granted selection grade and their pay was re-fixed accordingly---Finance Department did not regularize the presumptive selection scale of petitioners---Petitioners were asked to deposit payment received by them on account of presumptive selection scale---Petitioners' constitutional petition was allowed---Defendant again dismissed petitioners' representation---Held, that no element of exemption from principle of locus poenitentiae was found---Upon detection of anomaly regarding award of selection grade on 04/05/1991 instead of 25/05/1991, penalty was imposed upon petitioners and entire extra payment made to them was recovered---Public Accounts Committee had no Authority to resuscitate the matter, which had become a past/closed transaction---No further action was permissible---Controlling authority had limited powers to interfere with the financial affairs of the respondent Board---Petitioners right to procedural fairness and procedural propriety had been ignored while passing impugned order for withdrawal of presumptive selection scale and recovery of amount from petitioners---Constitutional petition was allowed accordingly.

Secretary Local Government and Rural Development, Government of Punjab, Lahore and another v. Ahmad Yar Khan 2010 PLC (C.S.) 495 and Employees Welfare Association through President and General Secretary, Employees Welfare Association Board of Intermediate and Secondary Education, Multan and 3 others v. Board of Intermediate and Secondary Education, Multan through Chairman and 2 others 2000 CLC 1102 rel.

(b) Constitution of Pakistan---

----Art. 10A---Right to procedural fairness/propriety---Departmental proceedings---Applicability---Right to procedural fairness/propriety was applicable to judicial, quasi-judicial and non-judicial proceedings.

(c) Constitution of Pakistan---

----Art. 13---Double punishment, protection from---Once someone was punished for an act, he could not be penalized again for the same.

(d) Constitution of Pakistan---

----Art. 13---Double punishment---"Locus poenitentiae", Principle of---Scope---If certain rights had been created in favour of a person in pursuance of an action/order which had once taken effect, then such action/order could not be withdrawn/rescinded to the detriment of rights created---Such action/order will become irrevocable/past/closed transaction---Sole exemption was if such action/order was illegal or procured through fraud and no effective steps had been taken in implementation thereof.

Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others 2007 PLC (C.S.) 824; Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI Rawalpindi and others 2015 SCMR 1418; District Headmasters/Principals Association District, Multan, through President v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 3 others 2015 PTD 1714 and Muhammad Farooq v. Ministry of Defence through Secretary Defence, Rawalpindi Cantt. and 3 others 2015 PLC (C.S.) 1018 rel.

(e) Administration of justice---

----Duty of court---Courts were custodian of fundamental rights of citizens and protectors of civil liberties and they were bound to guard those rights jealously/enviously.

Malik Noor Muhammad Awan for Petitioners.

Barrister Ameer Abbas Ali Khan, A.A.G.

2024 P L C (C.S.) 445

[Lahore High Court (Multan Bench)]

Before Abid Aziz Sheikh and Ch. Muhammad Iqbal, JJ

MUHAMMAD KHAN

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and 3 others

I.C.A. No.21 of 2021, decided on 2nd February, 2021.

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

----Regln. 4---Deduction of salary---Scope---Appellant was appointed as an Area Manager in the State Life Insurance Corporation of Pakistan---Zonal Head started deduction from his monthly salary in the name of "excess cost"---Against the deduction, he filed a writ petition which was dismissed with the observations that order passed by the respondent of down gradation from category B to C due to poor business performance was rightly passed and that the salary was rightly deducted---Appellant assailed said order through an intra court appeal, which was dismissed---Appellant again filed a constitutional petition seeking declaration that the action of respondent to calculate his salary/pay, pension and group insurance as part of the operational cost was illegal---Constitutional petition was dismissed through impugned order---Held; Regln. 4 of State Life Employees (Service) Regulations, 1973, provided that the performance of an Area Manager would be reviewed by the Zonal Head on a monthly basis for such periods as the Board prescribed---If the Area Manager fell short of the prescribed standards, the Zonal Head could terminate his services after giving him three months notice or take other measures prescribed in the regulation---Appellant had failed to point out any illegality or material irregularity in the judgment passed by the Single Judge---Intra court appeal was dismissed.

Muhammad Yafis Naveed Hashmi for Petitioner.

2024 P L C (C.S.) 448

[Lahore High Court]

Before Ali Baqar Najafi, J

Syed DANISH HUSSAIN SHAH

Versus

PROVINCE OF PUNJAB and others

Writ Petition No.72701 of 2017, decided on 4th March, 2022.

Pakistan Prison Rules, 1978---

----Rr.1042(c), 1045, 1046 & 1047---Punjab Prisons Department Service Rules, 2010---United Nations Convention on the Rights of Persons with Disabilities, 2007, Art. 1---Constitution of Pakistan, Arts. 18 & 199---Constitutional petition---Recruitment criteria---Eyesight---Petitioner was a candidate for the post of Assistant Superintendent Jail but he was rejected for not having 6 / 6 eyesight without glasses---Validity---If 6/6 eyes sight (without glasses) was considered a permanent disability of candidates then they should b e treated as such---If it was not, then such persons were to be treated at par with other human beings as normal---Nature of job of Assistant Superintendent Jail did not require perfect eyes sight as the official was not required to fulfill any responsibility without power glasses with slight weakness of eyes---High Court set aside condition of 6/6 eyes sight (without glasses) as mandatory for Assistant Superintendent Jail, as such condition was violative of Art. 18 of the Constitution---High Court declared that petitioner was entitled to be considered having 6 / 6 eyes sight with glasses and a sight weakness without glasses if otherwise found eligible for the post in question---Constitutional petition was allowed accordingly.

Khadim Hussain v. Secretary, Ministry of Human Rights, Islamabad and others PLD 2020 Isl. 268; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan PLD 1975 SC 667; Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 and Messrs Al-Haram Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and USHR through Secretary and others 2011 SCMR 1621 rel.

Mian Inam-ul-Haq for Petitioner.

2024 P L C (C.S.) 487

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

GHULAM GHOUS

Versus

PROVINCE OF PUNJAB through Secretary Higher Education Department and another

Writ Petition No.77143 of 2021, heard on 20th July, 2023.

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

----R.3(v)---Government College University Faisalabad Ordinance (LXX of 2002), S.14---Punjab Government Rules of Business, 2011, R.2(c)---Punjab Civil Servants Act (VIII of 1974), S.23---Registrar at Government College University Faisalabad, appointment of---Age relaxation---Petitioner had served as a Registrar of Government College University Faisalabad ('University') but was subsequently denied appointment being over-age---Petitioner invoked constitutional jurisdiction of the High Court calling into question vires of an order / letter dated 12-11-2021 issued by the Respondents (Government of the Punjab/ Higher Education Department,) whereby he was held disentitled to get age relaxation in terms of R. 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 ('the Rules 1976')---Contention of the petitioner was that his name for the post of Registrar was recommended by the Search Committee twice but he was not appointed---Plea of the respondents was that R.3(v) of the Rules, 1976 was applicable to civil servants and did not apply to university employees---Validity---Record revealed that earlier after conducting the interview by the Search Committee, a panel of three candidates for the post of Registrar, wherein petitioner's name was at Sr.No.1, was submitted to the respondent (Higher Education Department, Government of the Punjab) for approval of the Chancellor but the same was not materialized as in the meanwhile, a uniform criteria for the post of Registrar, Controller of Examinations and Treasurer was notified and circulated vide Notification dated 23.02.2021---Accordingly, the respondent-/University again advertised the posts including the post of Registrar (BPS-20)---Dispute, in the present case, was regarding applicability of R. 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 ('the Rules, 1976'), which read "In the case of a candidate already working as a Government servant, the period of his continuous service as such shall for the purpose of upper age limit prescribed under any service rules, of the post for which he is a candidate, be excluded from his age"---Rules, 1976 had been framed by the Governor of the Punjab by deriving authority from S. 23 of the Punjab Civil Servants Act, 1974 were applicable to the recruitment of all posts---Rule 3(v) specifically provides that period of continuous service of a Government servant shall be excluded while computing upper age limit---Said Rule does not specifically provide that it would apply to civil servants rather it is providing benefit to Government servants---High Court viewed that had the Rules making authority intended to extend benefit of R.3(v) to 'civil servants' only, it could have used these words in explicit terms in the said Rule---Term 'Government servant' connotes all Government servants including civil servants and not vice versa---Relevant Notification dated 23.02.2021 specifically envisages that age for initial recruitment would be 40 to 50 years, with age relaxation as per Government Rules, leaving no room for respondent (Higher Education Commission) to create any distinction or non-applicability of the Rules of 1976---General age relaxation and exclusion of period served in Government employment for the purpose of computation of upper age limit are two separate and distinct benefits / rights awarded to Government employees including those in contract employment---These rights can be pressed into service by Government employees seeking further employment---Rules 3(v) of the Rules of 1976 is a beneficial dispensation and is to be interpreted in a manner so as to advance the remedy---Government College University, Faisalabad, was constituted by way of the Government College University Faisalabad Ordinance, 2002, which was an 'Autonomous Body' not only in terms of R. 2(c) of the Punjab Government Rules of Business, 2011, but also had been mentioned as an Autonomous Body in all concerned entries (of the Government of Punjab including the Higher Education Department and the Finance Department)---Petitioner being Government employee was entitled for benefit of R. 3(v) of the Rules, 1976 and refusal of such right was against law / Rules and as such the petitioner had been discriminated---High Court declared the impugned letter dated 12.11.2021 to be illegal and without lawful authority and directed that recommendation of the Search Committee, vide letter dated 16.07.2021, be processed and finalized as per law at the earliest---Constitutional petition was allowed, in circumstances.

Saleem-ur-Rehman and others v. Government of Punjab through Secretary, S&GAD, Lahore and others 1986 SCMR 747; Punjab Government and others v. Saleem-ur-Rehman and others 1985 PLC (C.S.) 112; Muhammad Iqbal v. Government of the Punjab through Secretary Education Schools, Punjab, Lahore and 4 others 2020 PLC (C.S.) 747; Muhammad Qasim and 6 others v. Home Department, Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others 2004 PLC (C.S.) 69 and Saghir Ahmad Naqi v. Government of the Punjab through Secretary Home (Prisons) Department, Lahore and another 2005 PLC (C.S.) 1409 ref.

Abid Saqi and Mudassar Farooq for Petitioner.

Malik Muhammad Awais Khalid, Sadiq Ameen Cheema, Muhammad Azam Khalil and Muhammad Ali Bhatti for Respondents.

Ms. Shehzeen Abdullah, Assistant Advocate General along with Ch. Rehman, Senior Law Officer and Mian Zahid, Law Officer, Higher Education Department.

2024 P L C (C.S.) 529

[Lahore High Court]

Before Safdar Saleem Shahid, J

Mst. KAUSAR KHATOON and others

Versus

INSPECTOR GENERAL OF POLICE and 4 others

Writ Petition No.66576 of 2017, heard on 20th April, 2022.

Punjab Civil Services Pension Rules, 1963---

----Rr.1.8(a) & 1.8(b)---Constitution of Pakistan, Art.199---Constitutional petition---Pensionary benefits---Inquiry proceedings abating after the demise of government servant---Deceased servant was recruited as Constable in police department and was promoted up-to the rank of ASI---Said servant was dismissed from service in consequence of an inquiry, however, he was reinstated into service by the order of Supreme Court---Later on another inquiry proceedings were initiated against him and he died during said inquiry proceedings before its finalization---Department withheld the pensionary benefit and also recovered some amount from his pension---Validity---Record showed that the other inquiry was initiated against deceased servant on 12.09.2011 who passed away on 27.09.2015 during his service---Inquiry was finalized by the concerned inquiry officer on 25.12.2015 after more than four years of its initiation and about three months after the death of the deceased---Such proceedings were intended to impose departmental penalty and would abate on account of death of a civil servant and such purpose of imposing penalty could only be achieved if the official was in service---Deceased passed away on 27.09.2015 during the pendency of the inquiry proceedings and inquiry was finalized on 25.12.2015 wherein the deceased official was held responsible for embezzlement of amount mentioned therein---Any subsequent action of the inquiry officer in the said proceedings was illegal and not sustainable in the eyes of law---Adverse order was passed against the deceased official when he was no more employee of the respondents---Respondents could not with-held the pensionary benefits of the petitioners under the garb of the inquiry report---Petitioners being widows of the deceased official were entitled to get all the pensionary benefits in respect of their late husband---Constitutional petition was accepted, orders impugned were set aside and respondents were directed to release pension and other remaining benefits of the deceased official in favour of the petitioners as per rules.

Mst. S. Yasmin v. Pakistan Railways through General Manger and others 2017 PLC (C.S.) 1 and Mst Shahnaz Bano v. Chairman WAPDA and 2 others 2017 PLC (C.S.) 643 rel.

Saif ul Haq Ziay for Petitioners.

Sikandar Azam, Assistant Advocate General, Punjab with Malik Khuda Yar, Inspector Legal for Respondents.

2024 P L C (C.S.) 580

[Lahore High Court]

Before Muhammad Sajid Mehmood Sethi, J

Mst. AYESHA BIBI

Versus

GOVERNMENT OF PUNJAB through Chief Secretary Punjab, Lahore and another

Writ Petition No.59277 of 2021, heard on 14th June, 2022.

(a) Punjab Government Servants Housing Foundation Rules, 2013---

----R.19(3)(b)---Punjab Government Servants Housing Foundation Act (X of 2004), Ss. 3, 4, 5, 7, 16 & 21---Punjab Government Servants Housing Foundation Rules, 2005 , R. 19---Allocation of house / plot to member of the Punjab Government Servants Housing Foundation---Change in priority of station of allocation---Petitioner was mother of her deceased unmarried son who was member of the Punjab Government Servants Housing Foundation who, in his life, booked a plot with first choice of priority in his native district---Petitioner invoked constitutional jurisdiction of the High Court against order passed by Managing Director Punjab Government Servants Housing Foundation ('PGSHF'), cancelling her provisional allotment ---Stance of respondents (PGSHF) was that only members who retired on or before 26.11.2008 were included in the draw, therefore petitioner's son having passed away on 15.04.2010, the petitioner was not included in the draw for the allotment of plot / house---Validity---Perusal of Ss.3, 4, 5, 7, 16 & 21 of the Punjab Government Servants Housing Foundation Act, 2004, as well as the R. 19 Punjab Government Servants Housing Foundation Rules, 2005, showed that the allocation of house or plot and change in priority of stations is the authority and prerogative of PGSHF because the said provisions show the intention of the Legislature that the Board of Directors has been formulated to facilitate the PGSHF to carry out the purposes of the Act of 2004 whereas authority to change priority of stations has been devolved upon the Managing Director in R.13(3)(b) of the Rules of 2013---However, the stance of respondents (regarding only members who retired on or before 26.11.2008 were included in the draw) was misconceived as such arrangement was neither provided in the Act, 2004 or the Rules / Regulations nor supported by any lawful justification---Record revealed that even petitioner's name was included in the draw pursuant to direction of High Court, she deposited requisite amount and was ultimately allotted plot, therefore, in absence of any express provision of law regarding her disentitlement to participate in the draw, such allotment could not have been withdrawn / cancelled----High Court set-aside the impugned order declaring the same to be illegal and without lawful authority and remitted the matter to Board of Directors of PGHSF with the direction to reconsider petitioner's request and redress her grievance strictly in accordance with the applicable Laws/Rules/Regulations---Constitutional petition , filed by mother of deceased unmarried son (Government Servants), was allowed, in circumstances.

(b) Punjab Government Servants Housing Foundation Rules, 2013---

----R. 19(3)(b)---Punjab Government Servants Housing Foundation Act (X of 2004), Ss. 3, 4, 5, 7, 16 & 21---Punjab Government Servants Housing Foundation Rules, 2005, R. 19---Delegated legislation---Rules made under Statute---Interpretation---Allocation of house / plot to member of the Punjab Government Servants Housing Foundation---Rule 19(3)(b) of the Punjab Government Servants Housing Foundation Rules, 2013, vires of---Petitioner being mother of her deceased unmarried son, who was a Government servant, invoked constitutional jurisdiction of the High Court challenging vires of R.19(3)(b) of the Punjab Government Servants Housing Foundation Rules, 2013 ('the Rules, 2013')---Plea of the petitioner was that R.19(3)(b) of the Rules, 2013 is inconsistent with the provisions of the Act of 2004, the Rules of 2005 and the Regulations of 2013---Validity---Undeniably, Rules framed under a statute are to remain within the precinct of the statute itself and cannot transgress the limits and parameters of the parent statute---It is equally well-settled that rule-making power is an incidental power that must follow and not run parallel to the parent statute---Such legislation has to be interpreted in a way which conformed to and stayed within the parameters of the parent statute---No doubt, all efforts are to be made to interpret the rules so as to bring them in conformity and without injuring the intent and spirit of the statute, however where it was not possible, then the rules inasmuch as they injured the very intent and spirit must yield to the statute---Courts, therefore, will require due proof that the rules / regulations have been made and promulgated in accordance with the statutory authority and if those fail to comply with statutory essentials, the Courts may declare the same as invalid and ultra vires---To determine the vires of delegated legislation, High Court has to examine whether such delegated legislation was beyond the power granted by the enabling legislation and whether such delegated legislation was consistent with the parent statute---High Court declared the provision of R.19(3)(b) of the Punjab Government Servants Housing Foundation Rules, 2013 to be inconsistent and ultra vires to the Punjab Government Servants Housing Foundation Act, 2004---Constitutional petition, filed by mother of deceased unmarried son (Government Servants), was allowed, in circumstances.

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; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550; Syed Mehmood Akhtar Naqvi and others v. Malik Israr, Senior Member, Board of Revenue Sindh and others PLD 2018 SC 468; Independent Newspapers Corporation (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2017 Lah. 289; Abdullah and 7 others v. Province of Balochistan through Secretary Education Civil Secretariat and another 2021 PLC (C.S.) 272 and Rida Fatima v. Pakistan Medical Commission and others PLD 2022 Lah. 197 ref.

Safdar Shaheen Pirzada, Naveed Ahmad Khawaja, Mian Shakeel Ahmad, Ch. Tauseef Ahmad Bajwa, Nasir Mehmood Ch. and Ali Shahzad for Petitioner.

Tahir Attique Paracha and Mirza Aurangzeb for Respondents.

2024 P L C (C.S.) 597

[Lahore High Court (Multan Bench)]

Before Muhammad Raza Qureshi, J

KOUSAR PARVEEN

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education and 6 others

Writ Petition No.18509 of 2019, heard on 8th November, 2021.

Punjab Civil Services Pension Rules, 1963---

----R. 1.8(a)---Pensionary emoluments, withholding of---Bogus documents---Pensionary benefits of petitioner / retired civil servant were withheld, on the basis that her Matriculation Certificate filed at the time of her initial appointment was bogus---Validity---All credentials and degrees and record of petitioner was with respondent authorities, who never questioned her qualification or degree---Upon attaining superannuation all required certificates were issued and till year 2017 no question was raised about her degrees---No departmental disciplinary proceedings were pending in such regard against petitioner at the time of attaining age of superannuation---Authorities conceded that till year 2019 the Government remained silent and upon a direction issued by High Court for the first time it was informed to petitioner that her Matriculate Certificate was bogus, that too, in a manner in which petitioner was never associated with proceedings initiated against her and she was informed that pensionary benefits were withheld and could not be released---High Court set aside order of withholding pensionary benefits of petitioner and imposed cost upon authorities for passing such order illegally and without lawful authority---High Court directed the authorities to release pensionary benefits to petitioner---Constitutional petition was allowed, in circumstances.

Haji Muhammad Ismail, Advocate's case PLD 2007 SC 35 and Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal 2021 SCMR 328 rel.

The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P. Communications and Works Department, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514; D.S. Nakara and others v. Union of India AIR 1983 SC 130; Regional Operation Chief, National Bank of Pakistan, Human Resource Department, Regional Office, Sargodha and others v. Mst. Nusrat Perveen and others 2021 SCMR 702 and Syed Raza Mehdi Baqari v. Province of Punjab through Secretary, LG & CD Department and 2 others 2016 PLC (C.S.) 1046 ref.

Syed Azhar Abbas Haider Bukhari for Petitioner.

Mian Muhammad Shahid Riaz, Assistant Advocate General with Ms. Rukhsana Yasmeen, Deputy District Education Officer, Kabirwala for Respondents.

2024 P L C (C.S.) 640

[Lahore High Court]

Before Abid Hussain Chattha, J

UMAR ASGHAR QURESHI and another

Versus

FEDERATION OF PAKISTAN and 3 others

Writ Petitions Nos.9041 and 26490 of 2023, decided on 8th December, 2023.

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

----S.11---National Bank of Pakistan (Staff) Service Rules, 2021, R.2---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Non-statutory rules---Effect---Dismissal from service---Petitioners were employees of National Bank of Pakistan who were proceeded departmentally and were dismissed from service---Plea raised by petitioners was that they joined service much before National Bank of Pakistan (Staff) Service Rules, 2021, therefore, provisions of National Bank of Pakistan (Staff) Service Rules, 1973, were not applicable to them---Validity---Powers were conferred under S.11 of Banks (Nationalization) Act, 1974, upon the Board of National Bank of Pakistan to frame rules---Scope of S. 11 of Banks (Nationalization) Act, 1974, was dominant and preemptive command of law in terms of vesting complete management powers on the Board of National Bank of Pakistan, free from interference of Federal Government---Act of making non-statutory National Bank of Pakistan (Staff) Service Rules, 2021, by Board of National Bank of Pakistan after repeal of statutory National Bank of Pakistan (Staff) Service Rules, 1973, by Federal Government was a conscious effort by the management of National Bank of Pakistan in concert with Federal Government to streamline human resource of National Bank of Pakistan in order to bring it at par with other private banks in increasingly competitive commercial arena considering that primary services of any bank were in the nature of provision of efficient services to its customers---National Bank of Pakistan was a statutory commercial bank and in order to retain its viability, was expected and required to compete with other commercial banks---Desire to exercise control over its employees at part with other private banks was quite natural---There was no harm in the objectives provided the same was achieved after due process within the ambit of law---Board of National Bank of Pakistan in exercise of its powers conferred under S. 11 of Banks (Nationalization) Act, 1974, read with bye law 51 of Bye Laws, 2015, made the National Bank of Pakistan (Staff) Service Rules, 2021, without approval of Federal Government was non-statutory---After repeal of National Bank of Pakistan (Staff) Service Rules, 1973, only National Bank of Pakistan (Staff) Service Rules, 2021 were in vogue and same indiscriminately applied to all employees of National Bank of Pakistan after date of enforcement of Banks (Nationalization) Act, 1974, subject to R. 2 of National Bank of Pakistan (Staff) Service Rules, 2021---High Court declined to interfere in the matter as petitioners were rightly proceeded under non-statutory National Bank of Pakistan (Staff) Service Rules, 2021--Constitutional petition was dismissed, in circumstances.

Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others 2012 SCMR 152 and Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 distinguished.

National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 105; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; P.T.C.L. and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362; Umar Hayat Khawaja v. National Bank of Pakistan through President and 2 others 2015 PLC (C.S.) 1331; Umar Hayat Khawaja v. National Bank of Pakistan through President and 5 others 2019 PLC (C.S.) 258; Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376; Mst. Siddiqan Afzal and 6 others v. Assistant Collector of Central Excise and Land Customs, Faisalabad and 2 others PLD 2001 Lah. 78; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Telecommunication Co. LTD. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Sui Southern Gas Company Limited and others v. Saeed Ahmed Khoso and another 2022 SCMR 1256 ref.

Shafique Ahmed Khan and others v. Nescom through Chairman, Islamabad and others PLD 2016 SC 377; Rana Muhammad Khalil v. Regional Audit Chief, NBP Audit Office 2018 PLC (C.S.) 442 and Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571 rel.

Hafiz Tariq Nasim for Petitioners.

Nasir Javed Ghumman, Deputy Attorney General for Respondent No.1.

Abid Hussain Chaudhry, Umer Abdullah, Hamza Najeeb, Hussain Tahir and Zarak Zaman Khan for Respondents Nos.2 to 4.

2024 P L C (C.S.) 661

[Lahore High Court]

Before Shujaat Ali Khan, J

SAFDAR IQBAL CHAUDHRY

Versus

CHIEF OPERATING OFFICER, TECHNICAL EDUCATION AND VOCATION TRAINING AUTHORITY (TEVTA) and 3 others

Writ Petitions Nos.65818 of 2020 and 17823 of 2023, heard on 5th June, 2023.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Service matter---Principle---When no final order has been passed against a petitioner and he cannot approach Service Tribunal, such petitioner becomes remediless and his only option is to approach High Court.

Umer Daraz v. Additional Sessions Judge and others 2021 MLD 2077 and Finance Department, Azad Government of the State of Jammu and Kashmir, through Secretary Finance, Civil Secretariat, Chatter Domail, Muzaffarabad v. Mahboob Ahmed Awan 2020 PLC (C.S) 741 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Show cause notice---Principle---In routine, Constitutional petition against issuance of show cause notice is not maintainable, however, where show cause notice has been issued in violation of law on the subject, the same can be challenged in constitutional petition.

Commissioner Inland Revenue and others v. Jahangir Khan Tareen and others 2022 SCMR 92; Jahangir Muggo and others v. Securities and Exchange Commission of Pakistan and others 2022 CLD 1325; Pakistan Telecommunication Company Limited v. Federation of Pakistan through Ministry of Information and others 2021 CLC 159; Reliance Commodities (Private) Ltd. v. Federation of Pakistan and others PLD 2020 Lah. 632 and Dr. Fatima Arshad v. Government of the Punjab and others 2020 PLC (C.S.) 688 rel.

(c) Fundamental Rules---

----F.R. 54-A---Departmental proceedings---Retirement from government service---Effect---Departmental proceedings, pending against government service, stand abated under R. 54-A of Fundamental Rules, in the event of his retirement from government service.

Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others 2010 SCMR 1554; Deputy Director, Food, Bahawalpur and others v. Akhtar Ali and others 1998 SCMR 597; Nasir Kamal v. Federation of Pakistan through Secretary, Ministry of Maritime Affairs, Islamabad 2021 PLC (C.S.) 1226 and Syed Anwar Ali Shah v. Zarai Tarqiati Bank Ltd. 2021 PLC (C.S.) 662 rel.

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

----R. 1.8 (a)---Pensionary emoluments, withholding of---Inquiry after retirement---Effect---Petitioner / retired government servant was aggrieved of withholding of his pensionary emoluments on the basis of de novo inquiry initiated after his retirement---Validity---Competent Authority can proceed against a retiree if he is found involved in any activity prejudicial to good conduct of a government servant/retiree but not after his retirement---Disciplinary proceedings pending against a government servant abate after retirement and the same cannot be switched over to those under R.1.8(a) of Punjab Civil Services Pension Rules, 1963---Departmental proceedings against serving government servant and those against retiree are governed under distinct laws/rules and they have no overlapping effect on each other---Departmental proceedings pending against petitioner could not be converted into those under R. 1.8(a) of Punjab Civil Services Pension Rules, 1963, during service of petitioner---High Court set aside the notification withholding certain amount of petitioner as it was illegal and conditions envisaged under R. 1.8(a) of Punjab Civil Services Pension Rules, 1963, were not attracted---High Court directed the authorities to release the amount withheld from pensionary emoluments of petitioner---High Court quashed all proceedings initiated by authorities against petitioner---Constitutional petition was allowed accordingly.

Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal 2021 SCMR 328; Chief Manager, Staff Bank of Pakistan and 2 others v. Ghulam Rasool and others 2011 SCMR 313; Province of the Punjab through Secretary, Livestock and Dairy Development Department, Punjab, Lahore and others v. Syed Munir Hussain Shah 1998 SCMR 1326; Hafiz Muhammad Kaleem ud Din v. Province of Punjab and others 2022 PLC (C.S.) 999; Khalid Imran Khan Barki v. Government of Punjab and others 2021 PLC (C.S.) 426; Masood Khan and another v. Federation of Pakistan through Chairman Federal Board of Revenue, Islamabad and another 2021 PLC (C.S.) 1540; Irshad Hussain v. Municipal Corporation Multan through Mayor and 3 others 2019 PLC (C.S.) 1203; Mrs. Riffat Sattar v. Government of the Punjab through Secretary and 6 others 2016 PLC (C.S.) 472; Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2015 PLC (C.S.) 296; Ehsan-ul-Haque v. Executive Engineer, Ahmadpur Canal Division Ahmadpur East and 2 others 2011 PLC (C.S.) 1523; Noor Ahmad Shah v. Government of N.W.F.P. through Secretary Education and 5 others 2003 PLC (C.S.) 1400 and Muhammad Masood Joya v. Government of Punjab and others 2000 PLC (C.S.) 864 ref.

Chief Secretary, Government of Punjab, Lahore and others v. Ms. Shamim Usman 2021 SCMR 1390; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Taj Muhammad Afridi v. Principal Secretary to the President Secretariat and others 2011 SCMR 1111; 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 and Muhammad Nawaz v. Ghulam Mustafa Ansari and 7 others PLD 2009 Lah. 467 distinguished.

Masood Ahmad Zafar for Petitioner.

Rana Shamshad Khan, Additional Advocate-General for Respondents.

Umair Shahid for TEVTA.

2024 P L C (C.S.) 681

[Lahore High Court]

Before Ali Baqar Najafi, J

AROOJ HAMMAD

Versus

D.G. L.D.A. and others

Writ Petition No.62993 of 2022, decided on 6th November, 2023.

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

----R. 17-A---Deceased quota--- Legal heir(s) , entitlement of---Non-transferable---"A" child indicated in the R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Scope---Daughter of the deceased government servant (who served at Lahore Development Authority) invoked constitutional jurisdiction of the High Court for her appointment under deceased quota---Plea of respondents/LDA was that right of appointment under the R. 17-A Punjab Civil Servants ( Appointment and Conditions of Service ) Rules, 1974, had already been availed by her brother---Validity---Petitioner was being represented by her counsel, who was her brother---Record revealed that (said very) brother of the petitioner was already appointed under R. 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, after the death of his/her father---It was also not denied that the petitioner accepted the appointment in favour of her brother and did not agitate that she was more deserving candidate amongst the legal heirs of deceased , but after the resignation of her brother, she filed an application to appoint her, and that too after six years of said resignation, which was an afterthought---Right of the petitioner, if any, had existed before the appointment of her brother, which had been surrendered in his favour---If the petitioner was better qualified for the job she could agitate her right by competing within the family members and then with their (legal heir's) consensus, the respondents/LDA could extend the right to her, but she thought it appropriate not to do so---If the right of the petitioner was allowed, then there would be un-ending claim which was never intended by the R.17-A Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, as said Rule indicated that "a" child and not "children" of a deceased government servant is to be accommodated once which cannot be left to the option of such accommodated child to transfer his / her right to another after testing the rigors of un-suitable job and transferring it to a more deserving legal heirs---Such right once exercised was non-transferable, subsequent to joining of service with the consent of the other legal heirs---Constitution petition was dismissed, in circumstances.

Muhammad Ijaz v. Government of the Punjab through Director General Fisheries, Punjab, Lahore and 3 others 2021 PLC (C.S.) 1154 ref.

Nauman Jahangir for Petitioner.

2024 P L C (C.S.) 695

[Lahore High Court]

Before Sultan Tanvir Ahmad, J

RIZWAN ALI

Versus

CHAIRMAN BOARD OF DIRECTOR, FESCO and 4 others

Writ Petition No.52009 of 2023, decided on 21st December, 2023.

State-Owned Enterprises (Governance and Operations) Act (VII of 2023)---

----S.36---Employee of a state-owned Electric Supply Company---Seniority---Retrospective effect of state-owned Enterprises (Governance of Operations) Act, 2013---Petitioner was employee of a State-owned company and aggrieved of fixing of his seniority by Board of Directors in their meeting held in the year 2014---Petitioner pleaded violation of some provisions of State-Owned Enterprises (Governance and Operations) Act, 2023---Validity---Provision of State-Owned Enterprises (Governance and Operations) Act, 2023, received assent of the President on 30-01-2023 and came into force at once---When an Act of Parliament provided that it would come into force at once, then every provision of it became enforceable from the day the Act had received assent of the President unless any provision of Act provided otherwise---Claim of applicability of State-Owned Enterprises (Governance and Operations) Act, 2023 to the decision taken by Board of Directors on 16-06-2014 or retrospective effect of the Act, even otherwise, was negated by S.36 of the Act---Constitutional petition was dismissed, in circumstances.

Muhammad Shoaib Roomi v. Secretary / Additional Secretary, Education Department, Government of Punjab and others 2005 SCMR 605; National Database and Registration Authority (NADRA), through Chairman, Islamabad and others v. Jawad Khan and 2 others 2023 SCMR 1381; Muhammad Shahzad Raza v. FESCO and others" (Writ Petition No. 22990 of 2012) Shafiq-Ul-Hassan v. Federation of Pakistan and others 2020 PLC (C.S.) 1593; Pakistan Electric Power Company v. Syed Salahuddin and others 2022 SCMR 991; National Engineering Services Pakistan (NESPAK) and 2 others v. Muhammad Nawaz Cheema and 13 others 2023 PLC (C.S.) 785 and Sui Southern Gas Company Limited and others v. Saeed Ahmed Khoso and another 2022 SCMR 1256 ref.

Messrs Khurshid Soap and Chemical Industries (Pvt.) Ltd. through Sheikh Muhammad Illyas and others v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others PLD 2020 SC 641 rel.

Muhammad Ahsan Bhoon Senior Advocate Supreme Court, Junaid Jabbar Khan, Syed Ali Zohair Karmani, Shehzad A. Chaudhry and Sehar Ilyas for Petitioner.

Barrister Muhammad Ahmad Pansota for Respondent No.1.

Jawad H. Tarrar for Respondent No.2.

Mian Muhammad Javaid for Respondents Nos.3 and 4.

Barrister Chaudhary Saeed Nagra for Respondent No.5.

Malik Muhamad Awais Khalid for Respondent.

Ghulam Mujataba Khan, Director (Labour and Legal) FESCO and Mehboob Talib, Assistant Director (L&L) FESCO.

2024 P L C (C.S.) 796

[Lahore High Court]

Before Shahid Jamil Khan, J

Mst. SUGHRA

Versus

GOVERNOR OF PUNJAB, through Deputy Secretary and 5 others

Writ Petition No.15158 of 2021, heard on 11th May, 2022.

Punjab Mineral Development Corporation Act (XXXIII of 1975)---

----S.5---Constitution of Pakistan---Art. 25---Employees of Punjab Mineral Development Corporation ('PUNJMIN')---Financial assistance for family of deceased employees---Discrimination against family of deceased employees---Petitioner (widow of employee of PUNJMIN) applied for financial benefits under Notification dated 15.08.2017 ('the notification-in-question') after death of her husband on 07.02.2019; but she was declined assistance on the ground that the notification-in-question was applicable from the date of its adoption i.e. 03.10.2019 by the respondent-PUNJMIN and not retrospectively from 22.02.2017, as made effective by the adopted notification whereas the date of PUNJMIN Board meeting was subsequent and that Board had not clearly approved adoption of the policy retrospectively---Plea was that PUNJMIN is a Corporation created by Punjab Mineral Development Corporation Act, 1975 ('Act of 1975') whereas Assistance Package by the Government of Punjab was only meant for the civil servants while the petitioner's husband was never a civil servant but was an employee of the Corporation (PUNJMIN)---Question was whether families of the employees of a statutory Corporation fully owned and controlled by the Government of Punjab and families of a deceased Civil Servants were different classes for the purpose of the Art. 25 of Constitution"---Held, that the respondent's/Government's claim was that power of adopting notification vested in the Board, which had not given it retrospective effect expressly, therefore, it was applicable prospectively---Said submission was an explicit admission that the Board had jurisdiction to apply it retrospectively---Consequent question arose whether Board had exercised its power contrary to the guaranteed fundamental right under Art. 25 of the Constitution---Statutory Corporations are created, by or under the law, for administrative ease of the Provincial Government, deriving competence from the Constitution, and their financial and administrative control is always with the Government, as is discernable from S. 5 of the Act of 1975---Literally, financial terms are determined under the relevant special law, but practically, the financial benefits extended to the family of civil servants are extended to the family of employees of the Corporation, on approval by the Cabinet Division through Finance Department and as a consequence, the competent authority or Board adopts the notification of financial benefit---Financial benefit-in-question, was meant for families of the employees, who died during service---There was no denial that both, employees of the Corporation and Civil Servants were paid from the Provincial Consolidated Fund after similar procedure for allocation, approval and disbursement---Since employees of the Corporations are not administratively controlled by relevant departments or Ministries, therefore, the procedure of adoption of the notification is applied---Such discrimination would certainly offend the equality clause under the Art. 25 of the Constitution which ensures equal treatment and equal financial protection---Thus, both sets of employees are employees of Government of the Punjab, one is called civil servants and the other employees of the Corporation---If Government of Punjab takes any decision to help the families of deceased employees, through any financial package, it cannot discriminate between families of other employees being paid from the same consolidated fund of the Provincial Government---Family of an employee, who died during service, undergoes similar difficulties, financial or social, while living in similar circumstances, therefore, can not be discriminated against in absence of any extra financial protection to one class, which may be a case for terms and condition and financial terms for an employee of a Corporation and a civil servant---But for financial benefit to the family of a civil servant or to an employee of a Corporation, different treatment only for the reason that the employee died before the date of adoption, amounts to creating another class, even, between the employees of the Corporation---Extension of the same financial benefit to the families of employees of the Corporation, confirms that both the families are equally placed---Procedure of adoption, being a legal requirement, may delay the extension of financial benefit but cannot deprive a family, merely for the reason that the employee died before the date of adoption---High Court directed that impugned order would have no binding effect and the notification of the adoption dated 03.10.2019 shall be deemed to have been issued with retrospective effect i.e. from 22.02.2017---Constitutional petition , filed by widow of employee of Punjab Mineral Development Corporation, allowed, in circumstances.

Allah Nawaz Khosa, M. Irfan Arif Sheikh and Salman Farooq for Petitioner.

Malik Abdul Aziz Awan, Additional Advocate General Punjab for Respondents.

Faheem-ur-Rehman, Advocate/Legal Advisor and Akram Sikandar Gondal, Manager (Admin).

Mrs. Naseem Mushtaq, Advocate/Law Officer, Finance Department.

2024 P L C (C.S.) 811

[Lahore High Court]

Before Faisal Zaman Khan, J

Mst. GUL BAHA

Versus

Sr. GENERAL MANAGER PAKISTAN RAILWAYS and 3 others

Writ Petition No.15570 of 2022, heard on 25th May, 2023.

(a) West Pakistan Civil Services Pension Rules, 1963---

----Rr. 4.10(2)(A)(ii) & 4.10(2)(B)(iv)---Constitution of Pakistan, Art.199---Unmarried sister of deceased employee---Family pension, entitlement to---Scope---Succession certificate for seeking family pension was allowed in favour of un-married sister of real deceased brother (Head Clerk serving with the Railways) ; she filed constitution petition, as time and again she approached the respondents /Railways for seeking family pension, but the needful had not been done---Objection of the respondents / Railways was that the petitioner was not entitled to family pension as the deceased was succeeded by his two sons---Validity---Question of succession and the payment of pension had already been resolved by the court of competent jurisdiction by way of issuing a succession certificate, which had attained finality after dismissal of civil revision filed by the respondents---In view of which (Succession Certificate) no other legal heir of the deceased, who was entitled to receive the family pension, was available, thus in view of R.4.10(2)(b)(iv) of the West Pakistan Civil Services Pension Rules, 1963 ('the Rules, 1963'), petitioner was entitled to receive the family pension, thus, refusal of the respondents to allow the family pension to her, was not only illegal, but was also an act of cruelty on their part---Objection of the respondents was not tenable for the reason that both the sons admittedly were more than 24 years of age---Thus keeping in view R.4.10(2)(a)(ii) of the Rules, 1963, they (sons) were disentitled to receive family pension---High Court directed the respondents/Railways to pay the family pension of the deceased to the petitioner within a period of 30 days---Constitution petition, filed by un-married sister of deceased employee, was allowed, in circumstances.

(b) West Pakistan Civil Services Pension Rules, 1963---

----Rr. 4.7, 4.8 & 4.10---Unmarried sister of deceased employee---Family pension, entitlement to---Gratuity---Nomination---Scope---Succession certificate for seeking family pension was allowed in favour of un-married sister of real deceased brother (Head Clerk serving with the Railways) ; she filed constitution petition, as time and again she approached the respondents /Railways for seeking family pension, but the needful had not been done---Contention of the respondents / Railways, relying on Rr. 4.7 & 4.8 of the West Pakistan Civil Services Pension Rules, 1963, was that the petitioner was not entitled to family pension as she was not nominated by the deceased to receive family pension---Held, that contention of the respondents was misplaced for the reason that the provisions of Rr. 4.7 & 4.8 of the West Pakistan Civil Services Pension Rules, 1963, dealt with payment of gratuity and for that the concept of "nomination" was available, whereas, R.4.10 of the Rules, 1963 was applicable in the present case, which specifically dealt with family pension and nomination by the deceased employee for receiving family pension was not required---Moreover, while promulgating R. 4.10 of the Rules, 1963, the competent authority had in fact added certain categories of the relatives to the definition of family as defined in Rr. 4.7 & 4.8 of the Rules, 1963 only for the payment of family pension (and not gratuity) and, thus, had amplified and extended the definition---High Court directed the respondents/Railways to pay the family pension of the deceased to the petitioner within a period of 30 days---Constitution petition, filed by un-married sister of deceased employee, was allowed, in circumstances.

Ch. Abdul Sattar Ghumman for Petitioner.

Sh. Shahzad Ahmed Pasha for Respondents.

Ijaz Rehmat Basra, Assistant Attorney General.

2024 P L C (C.S.) 826

[Lahore High Court]

Before Shahid Jamil Khan, J

Syed ALI RAZA NAQVI and others

Versus

CHAIRMAN PPSC and others

Writ Petition No.43082 of 2023, decided on 17th October, 2023.

Constitution of Pakistan---

----Arts. 18, 25 & 27---General Clauses Act (X of 1897), S. 24-A---Police service, recruitment in---Appointment letters, non-issuance of---Candidates with criminal record subsequently exonerated, due to absence of evidence---Rule thumb principle law laid down by the Supreme Court of Pakistan in the case reported as Faraz Naveed v. District Police Officer Gujrat and another (2022 SCMR 1770) ['the Faraz Naveed case']---Petitioners invoked constitutional jurisdiction of the High Court being aggrieved of non-issuance of appointment letters despite recommendations by Punjab Public Service Commission (PPSC)---Contention of the respondent / CCPO was that the acquittal of petitioners was due to absence of evidence, therefore, petitioners could not be appointed---Plea of the respondents (Police Department) was that candidates having criminal record or affiliation with any proscribed organization could not be appointed while placing reliance on the Faraz Naveed case---Validity---Record (including reply by respondents) did not show that, in the present case, the parameters and dictum laid down in the Faraz Naveed Case had not been followed while declining the appointment letter---Said judgment (Faraz Naveed Case) required the relevant Authority to form an opinion fairly and equitably that despite exoneration the criminal record suggested that the candidate was a constant threat to the discipline of the police force, police confidence and might demoralize and undermine the environment in department etc.---Said judgment (Faraz Naveed Case) did not support the rule of thumb that in presence of an FIR, even after acquittal the successful candidate recommended by PPSC would be refused appointment letter---Rule of thumb is not even supported by the Standing Order No.6 of 2015 issued by IG Police, Punjab which envisages "candidates having criminal record"---Term "criminal record", denotes a consistent involvement in criminal activities---Such exercise of discretion is declared against the spirit of the judgment in Faraz Naveed Case and violative of S. 24-A of General Clauses Act, 1897---Discretion cannot be exercised in mechanical way, when future of a citizen is at stake---Petitioners, being citizens, have fundamental right under Arts. 18 & 25 of the Constitution against discrimination and for choice of occupation and profession---In particular under Art. 27 of the Constitution, a person qualified for appointment is protected from any discrimination, which includes denial for appointment on conjectures and surmises---For having an opinion on the criminal record, the Authority must disclose the reasons, as envisaged in Faraz Naveed Case (supra), based on material gathered from Special Branch or concerned Police Station---Rule of thumb followed by the respondents to refuse appointment was declared ultra vires of the Constitution---Admittedly, the petitioners were named in the FIRs arising out of some family dispute---No evidence or information of their other criminal record was available---Acquittal for no evidence meant that the allegation in FIR was false---Any law abiding citizen, by fate, can be entangled in any criminal case, therefore, his future and fundamental rights under the Constitution cannot be compromised by a rule of thumb---Respondent/ CCPO was directed to issue appointment letters to the petitioners---Constitution petition was allowed, in circumstances.

Faraz Naveed v. District Police Officer Gujrat and another 2022 SCMR 1770 ref.

Muhammad Shabbir Hussain, Muhammad Adnan Afzal, Rana Rafaqat Ali, Mehar Ahsan Javed and Usman Haider Toor for Petitioners.

Waseem Majeed Malik, Additional Advocate General, Punjab for Respondents.

Ijaz Ahmad Awan, Law Officer, PPSC.

Javed Dogar, DSP/Legal, Capital City Policy Officer.

2024 P L C (C.S.) 853

[Lahore High Court]

Before Tariq Saleem Sheikh, J

HASHIM RAZA

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No.2528 of 2023, decided on 18th April, 2023.

(a) Small and Medium Enterprises Development Authority Ordinance (XXXIX of 2002)---

----Ss. 6, 7(xxvii), 12, 13 & 14---SMEDA Employees Service Rules 2015, Rr. 4(1) & 8---SMEDA Employees Performance, Promotion and Recruitment Regulations, 2016, Regln. 16---Chief Executive Officer (CEO) of Small and Medium Enterprises Development Authority (SMEDA), appointment of---Fitness, and propriety---Scope---Extension of the SMEDA's CEO---Petitioner, on the expiry of his term as Chief Executive Officer (CEO) of (SMEDA), invoked constitutional jurisdiction of the High Court challenging the appointment of private respondent as the new CEO of SMEDA---Contention of the petitioner was that the Federal Government had appointed (private) respondent as CEO of SMEDA without following the procedure outlined in the relevant laws---Validity---Provisions of Ss. 12, 13 & 14 of Small and Medium Enterprises Development Authority Ordinance, 2002 ('the Ordinance 2002')stipulate that Federal Government shall appoint Chief Executive Officer while determining relevant credentials (terms and conditions, duration, qualification and disqualification)---However in terms of R. 4(1) of the SMEDA (Employees Service) Rules, 2015 ('the Rules 2015'), the Federal Government, subject to said provisions (of Ss. 12, 13 & 14 of the Ordinance, 2002), shall appoint the CEO on the recommendation of the SMEDA Board as per powers and functions provided to it (Board) in S. 7 (xxxvii) of the Ordinance, 2002---While R. 8 of the Rules, 2015 prescribes education and experience for selection of CEO, Regln. 16 of SMEDA Employees Performance, Promotion and Recruitment Regulations, 2016 ('the Regulations, 2016'), elaborates the procedure to be followed for naming the CEO---In the present case, SMEDA had no Board in accordance with S. 6 of the Ordinance, 2002 because the six private members had not been nominated; resultantly, the Board made no recommendations and the Federal Government appointed the (private) respondent without them---Purpose of regulating the appointment process of CEOs in public sector companies is to promote merit and good governance and eschew favoritism and nepotism---Sections 7(xxxvii), 12, 13 & 14 of the Ordinance, 2002 and R.4(1) of the Rules, 2015 and Regulation 16 of the Regulations, 2016 are mandatory---Board has an important role in appointing a CEO and its recommendations are vital---Impugned Notification (of appointing respondent as CEO) gave the impression that it was a routine transfer of an officer (private respondent) awaiting posting in the Establishment Division to SMEDA as its CEO; moreover, it did not mention his tenure and said the transfer/appointment was "with immediate effect and until further orders", whereas as per S. 12(2) of the Ordinance 2002, the CEO's appointment had to be for three years---When the law requires a thing to be done in a particular manner, it must be done in that manner and not otherwise---SMEDA was without a functional Board - and a CEO - which was likely to impact its operations---High Court set-aside impugned notification and declared the appointment of the private respondent as the CEO of SMEDA to be without lawful authority and of no legal effect---Federal Government (respondent) was directed to take immediate steps to fill the vacancies on the Board, following which it shall proceed for the appointment of the CEO---Constitutional petition, was disposed of accordingly.

Muhammad Ashraf Tiwana and others v. Federation of Pakistan and others 2013 SCMR 1159; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132; Ghulam Rasool v. Government of Pakistan and others PLD 2015 SC 6; Human Rights Case No. 11827-S of 2018 (In the matter regarding the Selling of National Assets, including PIA, at Throwaway Price) 2019 SCMR 1952; PLD 2010 SC 759; Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; Ajmir Shah v. The Inspector General, Frontier Corps Khyber Pakhtunkhwa and another 2020 SCMR 2129; Wajid Ali Shah v. Election Commission of Pakistan and 13 others 2022 CLC 1507 and Federation of Pakistan and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021 ref.

(b) Small and Medium Enterprises Development Authority Ordinance (XXXIX of 2002)---

----S. 12(2)---Constitution of Pakistan, Art. 199---Extension of tenure of Chief Executive Officer (CEO) of Small and Medium Enterprises Development Authority (SMEDA), matter of---Constitutional jurisdiction of the High Court, invoking of---Scope---Extention in service not vested right of an employee---Petitioner, on the expiry of his term as Chief Executive Officer (CEO) of Small and Medium Enterprises Development Authority (SMEDA), invoked constitutional jurisdiction of the High Court challenging the appointment of private respondent as the new CEO of SMEDA, and sought a direction to the Federal Government to consider his extension in accordance with S.12(2) of Small and Medium Enterprises Development Authority Ordinance, 2002 ('the Ordinance, 2002') for his "exemplary performance"---Validity---Petitioner wished to be considered for a second term as CEO under S. 12(2) of the Ordinance, 2002 whereas the Federal Government was not interested in him because of several complaints against him---Admittedly, the petitioner had already retired after completing his three-year tenure---Petitioner had no vested right to claim an extension if the competent authority was not interested owing to legitimate or justifiable reasons---An employee cannot seek an extension of his contract in a constitutional petition---Resultantly, Federal Government/respondent could not be issued the direction the petitioner had prayed for---Constitutional petition was disposed of accordingly.

Khushal Khan Khattak University and others v. Jabran Ali Khan and others 2021 SCMR 977; Government of Khyber Pakhtunkhwa and others v. Intizar Ali and others 2022 SCMR 472 and Jawad Ahmad Mir v. Dr. Imtiaz Ali Khan and others 2023 SCMR 162 ref.

Jawwad Khan Lodhi with Syed Samir Sohail and Ahmad Khan Niazi for Petitioner.

A.D. Naseem, Deputy Attorney General with Zafar Iqbal Bhutta, Deputy Secretary, Ministry of Industries and Production for Respondents Nos.1, 2 and 4.

Umer Javed with Muhammad Arif Chaudhary, Deputy General Manager SMEDA for Respondents Nos.3 and 5.

2024 P L C (C.S.) 879

[Lahore High Court]

Before Shahid Bilal Hassan, J

Rehana Shafqat

Versus

Afira Butt and 3 others

Civil Revision No. 49064 of 2022, heard on 24th October, 2023..

(a) Oaths Act (X of 1873)---

----Ss. 8, 9, 10 & 11---Special oath, administration of---Binding upon the party---Arrangement for disposal of suit/case as agreed by the parties is a sort of a compromise, which is lawful and permissible; therefore, the same cannot be assailed through appeal.

Rashid Mahmood v. Mst. Rashida Begum and 2 others 2010 YLR 218 rel.

(b) West Pakistan Civil Services Pension Rules, 1963---

----Rr. 4.7 & 4.10---Succession Act (XXXIX of 1925), S.373---Oaths Act (X of 1873), Ss. 8, 9, 10 & 11---Pensionary benefits---Succession certificate---Tarka---Legal heirs, entitlement of---Special oath, administration of---After death of civil servant, petitioner applied for issuance of succession certificate about pensionary benefits of her deceased husband, who was an employee in the Pakistan Telecommunication Company Limited---Petitioner contended that deceased had already divorced his second wife/respondent No. 1, therefore she was not entitled to any pensionary benefits---Such claim was resisted by the respondents---Trial Court held the two wives and children entitled for pensionary benefits---Petitioner being aggrieved preferred an appeal---Appellate Court modified the order and entitled both wives only for pensionary benefits---Matter was decided on Special Oath---Held, that nothing was on record to divulge that the petitioner was prompted by the respondents or by the Trial Court to arrange the disposal of lis on the basis of special oath, rather it was her sweet will to get decided the matter in terms of Special Oath---Therefore, said offer being made voluntarily and accepted by the respondent No. 1 was binding upon the petitioner---Offer so made by the petitioner to the respondent No. 1 was binding upon her and she could not resile from the same, and she had to face the consequence of the same---Revision petition in hand came to naught and the same stood dismissed, in circumstances.

Tasaduq Hussain v. Additional District Judge, District Vehari and 2 others 2010 YLR 3283; Maulana Muhammad Idrees v. Fazal Said Khattak and others 2009 CLC 241 and Inayat Hussain alias Inayatullah v. Chaudhry Sultan Ahmad 2010 CLC 596 rel.

(c) West Pakistan Civil Services Pension Rules, 1963---

----Rr. 4.7 & 4.10---Succession Act (XXXIX of 1925), S.373---Pensionary benefits---Succession certificate---Tarka---Legal heirs, entitlement of---After death of civil servant, petitioner applied for issuance of succession certificate about pensionary benefits of her deceased husband, who was an employee in the Pakistan Telecommunication Company Limited---Petitioner contended that deceased had already divorced his second wife/respondent No.1, therefore she was not entitled to any pensionary benefits---Such claim was resisted by the respondents---Trial Court held the two wives and children entitled for pensionary benefits---Petitioner being aggrieved preferred an appeal---Appellate Court modified the order and held both wives only entitled for pensionary benefits---Validity---Petitioner took a stance that deceased divorced the respondent No.1 through Talaq-e-Bian on 13.12.2002 but as per observations of the Appellate Court, there were two divorce deeds of different dates on record of the concerned Union Council: one was issued on 13.12.2002 and other one issued on 03.09.2004 by the deceased in presence of two witnesses but the petitioner could not produce both the said witnesses in support of her contention especially after a categorical denial and special oath by the respondent No.1 in pursuance to the offer of the present petitioner---Other aspect of keeping the purported proceedings of issuance of certificate of Talaq for a considerable period of seven years also spoke volumes of the authenticity and veracity of the same, as the first notice of Talaq was issued on 28.05.2011 and divorce effectiveness certificate was issued on 05.10.2011---Moreover, it was also not clear that on which divorce deed the same was issued, because the Appellate Court found two divorce deeds of different dates in the record of Union Council---In such view of the matter, the Appellate Court had rightly adjudged the matter in hand and had not committed any illegality or irregularity while upholding the order passed by the Trial Court, warranting interference by High Court in exercise of revisional jurisdiction---Revision petition in hand came to naught and the same stood dismissed, in circumstances.

Rana Muhammad Nawaz for Petitioner.

Chaudhry Tanveer Zahoor Gujjar for Respondents.

Date of hearing: 24th October, 2023.

Judgment

SHAHID BILAL HASSAN, J.---Tersely, the instant revision petition arises out of the proceedings brought by the present petitioner through an application for issuance of succession certificate about the pensionary benefits, etc. of her deceased husband namely Shafqat Rasool, who was an employee in the Pakistan Telecommunication Company Limited. In the said application, the Pakistan Telecommunication Company Limited, Public at large and the respondents were impleaded as respondents and it was averred that the deceased Shafqat Rasool had already divorced his second wife i.e. respondent No.1 on 13th December, 2002, therefore, she was not entitled to any pensionary benefits. This claim of the petitioner was resisted by the respondents. Evidence of the parties was recorded. The learned trial Court vide impugned order dated 11.02.2019 held entitled two wives and children for pensionary benefits. The petitioner being aggrieved preferred an appeal. The learned appellate Court modified the order and entitled both wives only for pensionary benefits vide judgment dated 15.05.2019. The petitioner challenged the said order and judgment by filing C.R.No.37749 of 2019, wherein this Court summoned the Secretary Union Council concerned along with record and after perusal of record, set aside the judgment dated 15.05.2019 and remanded the case to the learned appellate Court with direction to decide the appeal afresh after taking into consideration the facts. However, the learned appellate Court vide impugned judgment dated 30.06.2022 dismissed the appeal and upheld the decree of the learned trial Court; hence, the instant revision petition.

1. Heard.

2. The legal proposition involved in the present case is that whether a decision rendered on the basis of special oath is appealable or not? In this regard, it can safely be observed that arrangement for disposal of suit/case as agreed by the parties was a sort of compromise, which was lawful and permissible; therefore, the same cannot be assailed through appeal, as held in Rashid Mahmood v. Mst. Rashida Begum and 2 others (2010 Y L R 218-Lahore).

2024 P L C (C.S.) 985

[Lahore High Court (Rawalpindi Bench)]

Before Jawad Hassan, J

Syed ALI KAZMI

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.319 of 2021, heard on 26th September, 2023.

(a) Master and servant---

----Contract appointment---Termination---Re-instatement---Scope---Relevant clause of appointment letter, stipulated that the offer of appointment was only for a period of 89 days which may be terminable without assigning any reason or might be extended subject to satisfactory performance---Yet another clause revealed that this daily wages employment neither conferred any right of permanent job nor any privilege of regular appointment would be claimed in future whereas another significant clause revealed that the employment could be treated as cancelled in case of non-fulfilment of the prescribed accessories and not appearing for duty on time---Record revealed that the period of work was extended from time to time and ultimately it was discontinued on 13.03.2010 in terms of said clause, however, on application of the petitioner, he was re-appointed on 17.12.2012 under the same terms and conditions of initial appointment letter which too was discontinued on 17.02.2016---Petitioner who, at the time of joining, had accepted all the terms and conditions of his daily wages employment, could not resile from the same at a belated stage---Moreover, it was nowhere mentioned in the appointment letter that it was a job of permanent nature or the same was likely to be permanent in future---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; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others 2022 SCMR 472 and Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others 2022 SCMR 406 ref.

Board of Intermediate and Secondary Education, Multan through Chairman and another v. Muhammad Sajid and others 2019 SCMR 233; WAPDA through Chairman and others v. Abdul Ghafffar and others 2018 SCMR 380; Kashif Zafar v. Postmaster-General and others 2013 SCMR 726 and Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others 2009 SCMR 1 distinguished.

(b) Master and servant---

----Contract appointment---Regularization in service---Long-standing length of service---Scope---Long service is no ground for regularization and it has to be supported by legislation and is not an automatically accruing right.

Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others 2022 SCMR 566 ref.

(c) Constitution of Pakistan---

----Arts. 25 & 199---Master and servant---Contract appointment---Similarly placed persons, regularization of---Policy matter---Non-interference by Courts---Petitioner sought regularization in wake of grant of benefit of regularization to certain persons appointed with the petitioner---Held, that as the present matter related to the policy of the official respondents, therefore, the High Court could interfere into it---It is not in 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---It was for the respondents 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 ---Even otherwise, the petitioner had neither made party to this petition the named persons (who were regularized) nor any document, in that regard had been brought on record by her, hence it could not be said that the respondents had treated him indifferently or given discriminatory treatment to him---As the Petitioner was a daily wager employee and was governed by the principle of master and servant, therefore, he did not have any vested right to seek extension of the contract/regularization as a matter of right rather it was the prerogative of the competent authority either to dispense with services of such employee or continue with the same by extending the contract or regularizing the services as per the policy---Constitutional petition was dismissed, in circumstances.

The Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others 2019 SCMR 124; M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363; Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 and Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Syed Sadiq Shah and others 2021 SCMR 747 ref.

(d) Constitution of Pakistan---

----Art. 199 ---Master and servant---Contract employee---Constitutional petition filed before the High Court by contract employee---Maintainability---Where employment is on contract, there is a relationship of master and servant and in such like cases the constitutional petition under Art. 199 of the Constitution is not maintainable.

Pakistan International Airlines and others v. Noureen Naz Butt 2017 PLC (C.S.) 923 and Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others 2020 SCMR 1625 ref.

(e) Constitution of Pakistan---

----Art.199---Constitutional Jurisdiction of High Court---Doctrine of laches---Scope---Contract employee----Petitioner had challenged the orders of his termination and dismissal of his application of re-instatement after lapse of almost two years, five months and nineteen days without explaining any convincing reasonable cause for the inordinate delay, as such principle of laches was applicable in the present case as three months' time was considered reasonable for a party to assail an adverse order in constitutional jurisdiction of the High Court---Law helps the vigilant and not the indolent---Constitutional petition was dismissed , in circumstances.

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; Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 and Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi 1999 SCMR 1326 ref.

Tanveer Iqbal, Advocate Supreme Court with Jamil Aghar and Ch. Gulzar Mehdi for Petitioners.

Malik Amjad Ali, Additional Advocate General with Abid Aziz, Assistant Advocate General Punjab for Respondent No.1.

Haroon Irshad Janjua and Arshad Mehmood Malik, with Abdul Majeed and Muhammad Ibad, Superintendent/BISE for the Respondents Nos.2 to 5.

2024 P L C (C.S.) 1013

[Lahore High Court]

Before Shujaat Ali Khan, J

AHSAN LIAQAT and 3 others

Versus

UNIVERSITY OF THE PUNJAB through Vice Chancellor and others

Writ Petition No.1550 of 2017, decided on 15th June, 2022.

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

----S.4(1)(b)(iv)---Constitution of Pakistan, Art. 199---Forgery/mal pratice---Compulsory retirement from service---Findings of competent authority---Recording of statements in question and answer form---Scope---Petitioners, who were employees of respondent / University of the Punjab, were dismissed from service---Plea raised by petitioners was that inquiry committee did not strictly adhere to the procedure---Validity---High Court could not substitute findings of competent / appellate authority until and unless the same were found to be perverse or arbitrary---High Court declined to show leniency to petitioners---Neither any material irregularity on the part of inquiry committee was pointed out by petitioners nor inquiry officer / committee was bound to follow strict principles applicable in other proceedings---Statements recorded in shape of questions and answers were sufficient---High Court declined to give any premium to petitioners for alleged procedural deficiency of recording of statements---Constitutional petition was dismissed, in circumstances.

Province of Punjab through Special Secretary, Specialized Healthcare and Medical Education Department, Lahore and others 2021 SCMR 1419; Akbar Khan v. Federation of Pakistan and others 2002 SCMR 684; Shamshad Ali v. Senior Post Master (Dely), Islamabad G.P.O., Islamabad and 2 others 2003 SCMR 367 and Board of Intermediate and Secondary Education v. Hafiz Ahmad Sufyan

PLD 2004 SC 25 ref.

Najam-Uz-Zaman and others v. Engineer-in-Chief, G.H.Q., Rawalpindi and 2 others 2009 PLC (C.S.) 127 rel.

Usman G. Rashid for Petitioner (in this petition).

Asif Nazir Awan for Petitioner (in W.P. No.30810 of 2017).

Rana Muhammad Khalil for Petitioners along with Petitioners (in W.Ps. Nos.101536 and 32676 of 2017).

Naveed Younas for Petitioner in person (in W.P. No.39469 of 2016).

Malik Muhammad Awais Khalid for Respondent-University.

2024 P L C (C.S.) 1144

[Lahore High Court]

Before Anwaar Hussain, J

MUHAMMAD ATIF and others

Versus

GOVERNMENT OF PUNJAB through Secretary School Education Department, Lahore and others

Writ Petition No.41101 of 2023, decided on 1st June, 2024.

Constitution of Pakistan---

----Arts.25, 189 & 199---Contract appointments---Termination from service---Petitioners were appointed with the stipulation that they would obtain the requisite qualification of B.Ed. within the stipulated time---Failure of the petitioners either to obtain the requisite qualification or to obtain the same within the stipulated time---Effect---Contention of the petitioners was that other equally placed employees had been regularized by way of relaxing/extending the limit of time to complete their requisite qualification---Plea of the respondents was that law/policy on the subject had been enforced throughout the Province and employees had not assailed the order of their termination in appeal, therefore, filing of constitutional petition amounted to seeking review of order of High Court---Validity---Petitioners had an opportunity to immediately file an appeal, which they had not done---They had no idea as to whether any other similarly placed employees had been given any extension---Present petition had been filed to take a chance on the basis of principle of similarly placed persons and amounted to review of the judgment of High Court---If relief is given to one person against the applicable policy and/or law, the same cannot be a ground for the grant of same relief in another case---Two wrongs are not going to make one right---No applicable policy/law was violated or deviated, as the petitioners could not obtain qualification in accordance with the applicable policy albeit few had been given undue favour, which was also not of any help to the petitioners inasmuch as the benefit of Para-5(ii) of the judgment of High Court was to be extended to such petitioners if any similarly placed person was regularized prior to the passing of the said judgment and not in negation of the said judgment---If doctrine of similarly placed person is to be applied, the petitioners should also not be extended any such relief as any contra decision (like in case of other employees) would become a case of reverse discrimination qua those individuals across the Province---Division Bench of High had already settled the specific issue and High Court was obliged to follow the same---Constitution petition was dismissed accordingly.

Government of Khyber Pakhtunkhwa through Secretary Agriculture and others v. Adnanullah 2016 SCMR 1375 and Mst. Ghulam Zuhra Jahangir and another v. Vice-Chancellor, University of the Punjab, Lahore and 8 others 2020 PLC (C.S.) 285 ref.

Paragraph No.5(iv) of the judgment dated 04.06.2021; Muhammad Arshad Mahmood v. Chief Executive Officer/District Education Authority, Faisalabad and others (I.C.A. No.58940 of 2019) and Vice-Chancellor Agriculture University, Peshawar and others v. Muhammad Shafiq and others 2024 SCMR 527 rel.

Mahar Saqib Mahmood for Petitioner.

Muhammad Saad Bin Ghazi, Assistant Advocate General along with Abdul Sattar, Litigation Officer, Office of C.E.O. Education Faisalabad for Respondents.

2024 P L C (C.S.) 1167

[Lahore High Court]

Before Anwaar Hussain, J

QADEER ALI and others

Versus

PROVINCE OF PUNJAB through Chief Secretary and 2 others

Writ Petitions Nos.41334 and 86015 of 2023, heard on 20th May, 2024.

(a) Civil service---

----Project posts---Contract employees---Conversion from development side to non-development side---No right of regularization in service---Policy matter---Judicial review---Scope---Rights of the petitioners had already been safeguarded in lieu of a uniform policy by way of giving them extra marks for their services rendered during the currency of projects---Safeguards were in place for the benefit of the project employees including the petitioners, which was essentially a policy matter falling within the domain of the executive---High Court in exercise of judicial review could not navigate beyond and above the policy set out by the executive limb of the State, for project employees, as this would surely amount to the judicial overreach, therefore, a direction could not be passed to the respondents for regularization of service of the petitioners, as of right, without advertising the posts for general public---Any organization aims at continuity in its working and functions which may run into difficulty if the serving employees are ousted from the service and asked to compete in the process---Petitioners, who were admittedly in service, were allowed to continue to work till the completion of the process of recruitment, on regular basis, through competitive process and further continuation of the petitioners would be determined only if they qualify and stand on the merit list---Constitutional petition was disposed of accordingly.

Government of the Punjab through Secretary Environment Protection Department, Lahore, and another v. Maqsood Ahmed and others Civil Appeals Nos. 275 and 276 of 2014 distinguished.

Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Younas 2021 SCMR 1045 rel.

Mst. Samrana Nawaz and others v. M.C.B. Bank Ltd. and others PLD 2021 SC 581 ref.

Abuzar Salman Khan Niazi and Zain Sheikh for Petitioners.

Muhammad Saad Bin Ghazi, Assistant Advocate General, Punjab along with Tariq Ismail, Litigation Officer and M. Suleman Akash, Law Officer, Social Welfare and Bait-ul-Maal Department for Respondents.

2024 P L C (C.S.) 1260

[Lahore High Court]

Before Anwaar Hussain, J

MUHAMMAD SHEHZAD

Versus

PROVINCE OF PUNJAB through Secretary, Primary and Secondary Healthcare Department and others

Writ Petition No.27923 of 2024, decided on 21st May, 2024.

(a) Civil service---

----Transfer order---Concealment of fact as to submission of joining report---Effect---Grant of interim relief on the analogy that in identical petition similar relief had been granted in view of the fact that transfer order had not been acted upon---Fraud---Effect---Contention of the petitioner was that respondent had also committed forgery while preparing the forged relieving order---Validity---Concealment on the part of the petitioner and its effect was the moot point as it went to the very inception and basis of the present petition---Two wrongs do not make a right---Wrong doing on part of the respondents, if any, did not justify the concealment on the part of the petitioner in order to obtain interim relief while approaching High Court---Concealment of fact is a serious issue, which amounts to playing fraud upon the Court---Fraud vitiates the most solemn proceedings---Fraud and justice never dwell together---Constitution petition was dismissed with costs.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Nature and scope---Jurisdiction of High Court, under Art. 199 of the Constitution, is extraordinary, equitable and discretionary and the prerogative writs, contemplated therein, are issued for enforcement of fundamental rights and/or, as the case may be, to inhibit and/or rectify any illegality and unlawfulness on part of the executive.

(c) Administration of justice---

----Concealment of facts from the Court---Effect---Two wrongs do not make one right---Wrong doing on part of the respondents, if any, does not justify the concealment on the part of the petitioner in order to obtain interim relief while approaching High Court.

(d) Administration of justice---

----Concealment of facts from the Court---Fraud---Courts of law are meant for imparting justice between the parties and a party approaching the Court with unclean hands renders the stream of justice sullied---Process of the Court is being abused by unscrupulous persons from all walks of life and such abuse of process is considered by such litigants as a convenient device to achieve and retain their illegal objectives and designs---Unfortunately, this practice is spreading its tentacles on wider planes primarily on account of leniency exhibited towards such litigants as they generally go off scot-free---Person, whose case is based on concealment and falsehood, has no right to approach the Court and such litigant must be summarily thrown out at any stage of the litigation, with costs.

Muhammad Javaid Iqbal Qureshi for the Petitioner along with the Petitioner.

2024 P L C (C.S.) 1325

[Lahore High Court]

Before Asim Hafeez, J

ASHBA KAMRAN

Versus

FEDERATION OF PAKISTAN through Secretary to the President, President's Secretariat, Islamabad and others

Writ Petition No.12091 of 2024, decided on 6th September, 2024.

(a) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Constitutional petition---Quo warranto---Scope---'Eligibility test' and 'Competence test'---Jurisdiction conferred under Art. 199(1)(b)(ii) of the Constitution essentially empowers Court to inquire into and determine legality or otherwise of claim to public office, which inter alia includes power to determine claim of competence-cum-eligibility of holder of the Office [the "eligibility test"]---Jurisdiction extends and enables the Court to test whether appointing authority possessed competence to make appointment under challenge ["competence test"].

(b) Precedent---

----Foreign judgments---Applicability---Foreign judgments have persuasive / non-binding effect but their analysis provides effective tool for comprehending the proposition of law and assists in interpreting legal concepts / jurisdictional issues.

(c) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Expression "authority of law"---Connotation---Expression "authority of law" means official right or permission to act, specially to act legally on another's behalf by virtue of authority, derived from, or granted by, or under the prevalent legal system - aggregate of legislation, judicial principles and accepted legal principles.

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

----Ss.3 & 8---National Database and Registration Authority (Appointment and Emoluments of Chairman and Members) Rules, 2020, R. 7A---Constitution of Pakistan, Art. 199---Constitutional petition---Writ of quo warranto, issuance of---National interest---Authority of law---Scope---Petitioner assailed appointment of respondent as Chairman National Database and Registration Authority on the plea that Federal Government lacked authority under National Database and Registration Authority Ordinance, 2000, to appoint a serving officer of Armed Forces as Chairman---Plea raised by authorities was that respondent was appointed in national interest---Validity---For the purposes of assumption and exercise of "quo warranto" jurisdiction scope of inquiry could not be extended to include determination of authority / competence of legislature or for that matter embarking upon examining vires / constitutionality of law--- Federal Government under S.3(3) of National Database and Registration Authority Ordinance, 2000, appoints Chairman and Members to the Authority---Wisdom of legislature could not be adjudged in guise of "quo warranto" jurisdiction to delegate such authority to delegatee---Provision of R.7A of National Database and Registration Authority (Appointment and Emoluments of Chairman and Members) Rules, 2020, is a specie of delegated legislative authority subordinate to the parent enactment---Legality and extent of exercise of delegated authority can be adjudged under "quo warranto" action---High Court was empowered to inquire and determine exercise of authority by the Executive / Federal Government, in the guise of R. 7A of National Database and Registration Authority (Appointment and Emoluments of Chairman and Members) Rules, 2020---Such close-door approach entailed reduced competitiveness, exacerbated social inequalities and had curtailed professional opportunities, which resulted in intense brain-drain--- Seeking refuge behind plea of national interest was non justiciable, which in fact had violated principle of separation of powers, where in fact the Executive had exceeded or over-stepped delegated authority and proceeded to introduce an incompatible rule vis-à-vis primary enactment---Claim of national interest failed as the same was un-plausible---Discretion was necessarily needed to be exercised to end usurpation of the office---High Court declared act of confirming appointment of respondent as unauthorized, inconsistent with the (parent) enactment and without requisite "authority of law"---High Court further declared that the appointment, confirmation and continuing holding of the office of Chairman NADRA by respondent was without authority of law---Constitutional petition was allowed in circumstances.

Mushtaq Ahmad Mohal and others v. Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Zafaran Khan and others v. Nizam Ullah and others PLD 2023 SC 371; Jawad Ahmad Mir v. Prof. Dr. Imtiaz Ali Khan, Vice-Chancellor, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others 2023 SCMR 162; University of Mysore v. C.D. Govinda Rao AIR 1965 SC 491; Malik Nawab Sher v. Ch. Muneer Ahmad and others 2013 SCMR 1035; Florida House of Representatives, et al. v. The Honourable Charles J. Crist, Jr., etc. (999 So.2d 601 (2008); West Flagler Associates, Ltd., et al., v. RON D. DESANTIS etc., et al. 573 F.Supp.3d 260 (D.D.C. 2021); Whiley v. Scott, 79 So.3d 702 (Fla.2011); Elvin L. Martinez, Etc. v. Bob Martinez, Etc. 545 So.2d 1338 (1989); Black's Law Dictionary 11th Edition Bryan A. Garner; Pir Illahi Baksh v. Muhammad Ayoob Khuhro' PLD 1956 Sindh 101; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; Waris Meah v. The State and another PLD 1957 SC (PAK) 157 and Jibendra Kishore and others v. The Province of East Pakistan PLD 1957 SC Pak 9 rel.

(e) Maxim---

----'Expressio unius est exclusio alterius'---Meaning---Expression of one thing implies the exclusion of others---Where a statute has conferred a power to do an act and prescribed a mechanism for exercise of that power, such power cannot be exercised for the purposes of performing the act by adopting a different method, other than what has been prescribed.

Taylor v. Taylor 1875 (1) Ch D 426 and GVK Industries Ltd. and another v. Income Tax Officer and another 2011 (4) SCC 36 rel.

Petitioner in person.

For Respondents.

Mirza Nasar Ahmad, Additional Attorney General for Pakistan.

Asad Ali Bajwa, Deputy Attorney General for Pakistan.

Ch. Imtiaz Ellahi, Deputy Attorney General for Pakistan.

Mohsin Raza, Ch. Najam-ul-Hassan and Ijaz Rehmat Basra, Assistant Attorney General for Pakistan.

Imran Muhammad Naeem, Zeeshan Ghani, Munib Cheema, Hamid Rafique and Jamail Khan for Respondent No.6 / NADRA.

2024 P L C (C.S.) 1391

[Lahore High Court]

Before Shujaat Ali Khan, J

SARFRAZ AHMED

Versus

MEMBER (VI), PUNJAB SERVICE TRIBUNAL, LAHORE and 2 others

Writ Petition No.38694 of 2023 and C.M. No.3 of 2023, decided on 13th June, 2023.

Provincial Service Tribunals (Extension of Provisions of the Constitution) Act (XXXII of 1974)---

----S.2---Constitution of Pakistan, Arts. 212(2) & 199---Order passed by the Provincial Service Tribunal, challenging of---Constitutional petition---Maintainability---Question as to whether Cl. 2 of Art. 212 of the Constitution extended to the Provincial Service Tribunal or not to see as to whether remedy of appeal before Supreme Court of Pakistan against "any" order passed by it was available to an aggrieved party or not---Petitioner (Junior Clerk in the Office of Chief Executive Officer, District Education Authority), was transferred to a Government School against which he filed departmental appeal before the concerned Director Public Instructions (DPI) /respondent); since said appeal was not being decided, he filed appeal before the Punjab Service Tribunal ('the Tribunal') which was decided directing DPI/respondent to decide his departmental appeal---Petitioner filed constitutional petition against said order passed by the Tribunal---Petitioner while referring to the case reported as Dean/Chief Executive Gomal Medical College, Medical Teaching Institution, D.I. Khan v. Muhammad Armaghan Khan and others (PLD 2023 SC 190) submitted that since appeal before the Supreme Court of Pakistan was not maintainable against an order passed by the Service Tribunal, he had been left with no option but to file the constitutional petition---Validity---In said case referred to by the petitioner, while dealing with question regarding maintainability of appeal against order of a Tribunal, the Supreme Court of Pakistan had, inter alia, held that the remedy of appeal before the apex Court of the country against an order of Administrative Tribunal, established through a provincial enactment, was not available until and unless the Parliament, by law, extended the provisions of Art. 212(2) of the Constitution to include a Court or Tribunal established under provincial law---In the present case, admittedly, the impugned order had been passed by Punjab Service Tribunal, established pursuant to adoption of a bill by the Provincial Assembly of the Punjab which was assented to by the Governor of Punjab, on 20.06.1974---According to the enactment of S. 2 of Provincial Service Tribunals (Extension of the Provisions of Constitution) Act, 1974, promulgated on 02.05.1974, the provisions of Art. 212(2) of the Constitution had been extended to Provincial Service Tribunal, hence, the present case stood distinguished from the referred case inasmuch as the Tribunal, whose order was subject matter of the referred case, was not extended the provisions of Art. 212(2) of the Constitution---Since remedy of appeal before Supreme Court of Pakistan was available to the petitioner against an order passed by Punjab Service Tribunal and remedy of appeal was also available against Transfer Order, The constitutional petition was not maintainable---Constitutional petition was dismissed.

Dean/Chief Executive Gomal Medical College, Medical Teaching Institution, D.I. Khan v. Muhammad Armaghan Khan and others PLD 2023 SC 190 distinguished.

Ch. Shahzad Hussain Sangla for Petitioner.

2024 P L C (C.S.) 1444

[Lahore High Court]

Before Ch. Muhammad Iqbal and Ahmad Nadeem Arshad, JJ

LAHORE COLLEGE FOR WOMEN UNIVERSITY through Vice-Chancellor and others

Versus

Dr. REHANA KAUSAR and others

I.C.A. No.39471 of 2024, decided on 12th September, 2024.

Civil service---

----Recruitment---Qualification and eligibility criteria---Courts power to interfere in the selection process---Scope---Divergence of views as to relevancy of previous external expert evaluation report---Effect---Advertisement for selection post of Professor (BS-21)---Respondent applied along with another candidate against said post and after obtaining external expert evaluation reports and the interview, both the candidates were not found upto the mark---Upon re-advertisement of the said post initially the previous report was considered, however, subsequently the said report was ousted from consideration and post was again re-advertised---Petitioner filed writ petition, which was accepted, thus, Intra-Court Appeal was preferred by the respondent-University---Held, that under Cls. 7(2) of the Service Statutes of Lahore College for Women University the matter was referred to the Chancellor, who finally directed to re-advertise the post---In response to first advertisement respondent was not appointed on the basis of the external expert evaluation report and thereafter, when the post was re-advertised, the Sub-Committee while relying on the earlier external expert evaluation report, recommended the respondent for the said post, which was patently illegal, thus, the Syndicate decided to re-advertise the post---Under Cls. 7(2) of the First Statutes appended as Schedule with the Lahore College for Women University, Lahore, Ordinance, 2002, when there is difference of opinion between Selection Board and Syndicate, the matter shall be referred to the Chancellor and the Chancellor was the final authority in such like matters whose decision could not be questioned through a Constitutional petition---It is not the domain of the Courts to examine the qualification and the eligibility criteria in the recruitment process and such matters could be best resolved by the institution itself according to the suitability and requirements of a certain post---Courts are not the substitute of a Selection Board or Syndicate and cannot direct an appointing authority to issue appointment letter in favour of any candidate rather can only direct the said authorities for reconsideration of a matter if any illegality or irregularity is found---Recommendation for appointment of a candidate against a certain post exclusively falls within the domain of the concerned authority and interfering in that domain would amount to committing judicial overreach which is unwarranted by law---Chancellor was the final authority in the matter in question who directed to re-advertise the post, as such no prejudice was caused to anyone including the respondent---Appeal was allowed, in circumstances.

Gohar Mustafa Qureshi for Appellant.

Hafiz Tariq Nasim for Respondent No.1.

Ch. Awais Ahmad Qazi, Additional Advocate General for Respondent No.2.

2024 P L C (C.S.) 1507

[Lahore High Court (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD TARIQ KHAN

Versus

The NATIONAL BANK OF PAKISTAN through President/CEO and 4 others

Writ Petitions Nos.2832 and 3243 of 2021, decided on 27th March, 2024.

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

----S.11---National Bank of Pakistan (Staff) Service Rules, 2021, R.2---Re-instatement in service with back benefits---Petitioners were employees of National Bank of Pakistan who were proceeded departmentally and were dismissed from service---Prosecution case was that when the petitioners were posted as joint custodian/Manager (Operations) and Cashier respectively, an incident of robbery took place which also resulted in the assassination of security guard of the bank and a criminal case was registered, wherein petitioners were arrayed as accused---In addition to criminal proceedings, the petitioners were also proceeded departmentally---Petitioners were ultimately exonerated from the criminal proceedings but were dismissed in departmental proceedings---Held, that there was no legal impediment in conducting criminal and departmental/disciplinary proceedings side by side---Even in case of acquittal in criminal proceedings, employee could not claim immunity from being proceeded departmentally---Fate of departmental proceedings is always to be adjudged from the incriminating material placed in support of the charges against the delinquent employee---At the same time, one cannot keep himself aloof from the fact that if an employee is precluded to claim the premium of his acquittal in the departmental proceedings, he cannot be vexed merely on account of his conviction in the criminal case---In the process of inquiry, though the petitioners were associated and process was completed on 16h July, 2018, but it appeared from the inquiry report that later on the complainant sent further documents in support of the charges through courier under cover of his letter dated 13th September, 2018, which as per Inquiry Officer were routed to the petitioners so as to give a fair chance of defence for their response/reply with regard to the documents/evidence---Inquiry report was thus revised after taking into consideration the documents submitted by the complainant and the response received from the petitioners in terms thereof---Admittedly, one of the petitioners was absolved from rest of the charges except charge No.1, which too was proved partly to the extent of passing bogus late receipt of Rs. 5,700,000/- in respect of c/a 870-8 and authenticated late cash receipt in Branch Cash Balance Book (B-52)---From the bare reading of nature of the charges, it was manifestly clear that charges Nos.1 and 2 were clearly interlinked and dependent to each other---Charge No.2 was directly relatable to bogus receipts---It was quite strange that on the one hand it was opined by the Inquiry Officer that charge No.2 was not proved but on the contrary, the petitioner was held guilty of charge No. 1 partly to the extent of passing bogus late receipts---Findings of guilt with regard to charge No.1 were not tenable as per Inquiry Officer's own comments---Nature of charges against the other petitioner was almost the same---Inquiry Officer though absolved him from charge No.1 but found him guilty of charge No.2 partly, which findings on the face of it were not reconcilable in view of non-proving of charge No.1, being the main charge---Evidently, the petitioners were held guilty of the charges on the basis of additional material, which was later on purportedly received by the Inquiry Officer from the complainant with regard to which it was specific stance of the petitioners that it was never confronted to them---Though inquiry report stated that said material was confronted to the petitioners but there was no cogent evidence to that effect---Apparently for forming an opinion of guilt of the petitioners, statement of person "MP" recorded under S.164, Cr.P.C., and his affidavit was made basis but his statement under S.164, "Cr.P.C" could not be used against the delinquent employee without even affording him an opportunity to conduct cross-examination upon the person, who made such statement---Even otherwise, for the use of statement under S.164, "Cr.P.C", there is a mode provided under said Code, which was not adopted at all---Furthermore, in his statement as well as affidavit, "MP" nowhere named the petitioners as his culprits---In departmental proceedings, standard of proof of the allegations could not be equated with the standard of evidence against an accused in a criminal trial but one could not ignore the principle of natural justice while inflicting even meagre penalty upon a person as it amounted to depriving him from the right of earning---Right of fair trial, even otherwise, had been guaranteed by the "Constitution"---Petitions were allowed and as a sequel, the petitioners were reinstated in service with all permissible back benefits.

The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434; Muhammad Naeem v. Federation of Pakistan and others 2023 SCMR 301; Federation of Pakistan through Chairman Federal Board of Revenue FBR House, Islamabad and others v. Zahid Malik 2023 SCMR 603 and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498 ref.

The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Muhammad Naeem v. Federation of Pakistan and others 2023 SCMR 301; National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434 and Habib Bank Limited v. Gulzar Khan and others 2019 SCMR 946 rel.

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

----S.11---National Bank of Pakistan (Staff) Service Rules, 2021, R.2---Constitution of Pakistan, Art. 199---Jurisdiction of High Court---Non-statutory rules of service---Dismissal from service---Petitioners were employees of National Bank of Pakistan who were proceeded departmentally and were dismissed from service---Though jurisdiction of High Court under Art. 199 of the "Constitution" to some extent is limited with respect to the orders ensuing from the departmental proceedings determining the guilt or otherwise of an employee but High Court being custodian of the rights of citizens cannot shut its eyes when patent illegalities are floating on the surface of the record---Right of earning is right to life and no one can be allowed to take away such right in a clandestine manner---Petitioners were proceeded against in a non-transparent and haphazard manner in the departmental proceedings, which culminated into their dismissal from service---Impugned orders were apparently suffering from patent illegalities and were against the principles of natural justice---Petitions were allowed and as a sequel, the petitioners were reinstated in service with all permissible back benefits.

Ch. Imran Hassan Ali for Petitioner.

Muhammad Arshad Tabrez for Petitioner (in corrected Writ Petition No.3243 of 2021).

Malik Muhammad Siddique Awan for Respondents.

2024 P L C (C.S.) 53

[Peshawar High Court (Abbottabad Bench)]

Before Kamran Hayat Miankhel and Muhammad Ijaz Khan, JJ

EJAZ AHMAD ASSISTANT OFFICE OF DISTRICT FOOD CONTROLLER, MANSEHRA

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary Food, Khyber Pakhtunkhwa, Peshawar and 31 others

Writ Petition No.485-A of 2023, decided on 9th May, 2023.

Provincial Service Tribunals (Extension of Provisions of the Constitution) Act (XXXII of 1974)---

----S.2---Constitution of Pakistan, Art.212(2)---Constitutional petition---Service appeal---Jurisdiction of Supreme Court---Principle---Petitioner / civil servant invoked jurisdiction of Provincial Service Tribunal with regard to seniority list---Petitioner / civil servant assailed judgment passed by Provincial Service Tribunal before High Court in constitutional jurisdiction---Plea raised by petitioner / civil servant was that under proviso to Art. 212(2) of the Constitution, direct appeal to Supreme Court could only be made when the Parliament had extended provisions of Art. 212(2) of the Constitution to such Court or Tribunal established under an Act of Provincial Assembly---Validity---Any Administrative Court or Tribunal established under an Act of a Provincial Assembly had come under the purview of Art. 212(2) of the Constitution when Majlis-e-Shoora (Parliament) had given its approval and enacted necessary legislation for extension of provisions of Art.212(2) of the Constitution to such Court or Tribunal and that too on the request / resolution of Provincial Assembly---If both the stages had surpassed, the proviso to Art. 212(2) of the Constitution would become applicable and its effect was the same as that of Federal Legislation, so all judicial remedies were closed and the only avenue left open for redressal was an appeal to Supreme Court in terms of Art.212(3) of the Constitution---High Court declined to interfere in the judgment passed by Service Tribunal---Constitutional petition was dismissed, in circumstances.

Civil Appeal No.1474 of 2021 distinguished.

2024 P L C (C.S.) 123

[Peshawar High Court (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Dr. Khurshid Iqbal, JJ

Dr. MEHMOOD JAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health, Peshawar and others

Writ Petition No.203-D of 2023 with Interim Relief, decided on 10th April, 2023.

Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S.4---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition---Maintainability---Remedy available under ordinary law---Terms and conditions of service---Petitioner was a civil servant who assailed his transfer order issued by authorities---Validity---When law provided remedy to another authority fully competent to give relief, any indulgence to the contrary by High Court was likely to produce sense of distrust in those authorities and to cause underserved reflection on their integrity and competency and could defeat legislative intent---If remedy sought for was in substance a remedy which was available under ordinary law, then resort was to the proper forum and not to extraordinary remedy provided by Art.199 of the Constitution---High Court declined to interfere in the matter in view of bar contained in Art. 212 (2) of the Constitution---Constitutional petition was dismissed, in circumstances.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Chief Secretary Government of Punjab, Lahore and others v. Ms. Shamim Usman 2021 SCMR 1390; Messrs OPI Gas (Private) Limited v. Government Holding (Pvt.) Limited and others 2021 MLD 1916; Messrs Gandapur Construction Company v. Government of Khyber Pakhtunkhwa through Secretary (C & W) and 3 others 2014 YLR 399; Federation of Pakistan through Secretary Establishment Islamabad v. M.Y. Habib ur Rehman and others 2021 SCMR 1554 and Kalimullah Kakar and others v. Provincial Police Officer, Bolochistan and others 2021 SCMR 1168 rel.

Muhammad Waqar Alam for Petitioner.

Khalid Mahmood for Respondents.

2024 P L C (C.S.) 158

[Peshawar High Court]

Before Lal Jan Khattak and Musarrat Hilali, JJ

MUHAMMAD ISRAR

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education, Peshawar and 3 others

Writ Petition No.5715-P of 2019 with I.R., decided on 14th December, 2021.

Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S.10(3)---Appointments---Disability quota, allocation of---Two (2) percent quota reserved for disabled persons, calculation of---Petitioners/ candidates (two in number) filed constitutional petitions separately praying for directions to the respondent (Education authorities) to appoint them as teachers---Contention of the respondents was that, in case of one of the petitioners, 49 posts of Teachers had already been filled on merit and for appointment of the 50th one, the 2% quota reserved for the disabled persons would be observed by appointing one disabled person; and, in case of other petitioner, two (2) disabled persons had been appointed against total of 146 appointees on open merit and that when strength of the appointees on open merit would reach 150 then a seat would be reserved for the appointment of third (3rd) disabled person against the quota---Held, that the contention of the respondents was not correct as S.10(3) of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 ('the Ordinance 1981') stipulated that while calculating the percentage of the posts in an establishment for the purpose of employment of disabled persons, the fraction of 0.5 and above would be counted as a whole number---Record revealed that, in case of first petitioner, so far 49 posts of Teaches had been filled on merit and none had gone to disabled persons while, in case of second petitioner, 146 posts had been filled on open merit against the two (2) for disabled persons, which was not justifiable in view of S.10(3) of the Ordinance, 1981---High Court directed the respondents to appoint the petitioners as teachers respectively against the 2% disabled persons quota---Constitutional petitions were allowed, in circumstances.

Civil Petition No.140-L of 2015 and Writ Petition No.2121 of 2006 ref.

Barrister Kamran Qaiser for Petitioner.

Barrister Babar Shehzad Imran, A.A.G. for Respondents.

2024 P L C (C.S.) 218

[Peshawar High Court (Abbottabad Bench)]

Before Wiqar Ahmed and Fazal Subhan, JJ

UBAID-UR-REHMAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Education Khyber Pakhtunkhwa, Peshawar and 2 others

Writ Petition No.1477-A of 2022, decided on 29th March, 2023.

Khyber Pakhtunkhwa (Appointment, Depuatation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011)---

----S. 3---Post of Primary School Teacher---Appointment under the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 ('the Act 2011')---Validity---Section 3 of the Act, 2011 prescribed that the post of Primary School Teacher was to be filled from the candidates of union council of their permanent residence mentioned in their CNIC and domicile, on merit---Petitioner had obtained fresh CNIC after the cut-off date and the permanent residence certificate from Secretary Union Council and Chairman Village Council were also issued much later than the cut-off date while his old CNIC, issued much earlier, showed different address---Thus, the petitioner was not eligible to be appointed as Primary School Teacher on the closing date, for having different permanent address, hence he could not claim his appointment against the post of Primary School Teacher falling in Union Council advertised for ---Petitioner had failed to convince his eligibility for the appointment-in-question---Constitutional petition was dismissed, in circumstances.

Dildar Ahmad Lughmani for Petitioner.

Sajid-ur-Rehman Khan, A.A.G. for Respondents.

2024 P L C (C.S.) 283

[Peshawar High Court (Bannu Bench)]

Before Fazal Subhan and Dr. Khurshid Iqbal, JJ

ZER AJAM KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.283-B of 2021, decided on 2nd May, 2023.

Constitution of Pakistan---

----Arts.212 & 199---Civil Service---Seniority list for the purpose of promotion, issuance of---Constitutional jurisdiction of the High Court---Scope---Petitioner (Drawing Master) invoked constitutional jurisdiction of the High Court contending that the respondents (Education Department) had wrongly issued the seniority list on the basis of date of taking over the charge instead of date of first appointment---Validity---Record revealed that the petitioner was a civil servant who was serving as Drawing Master in the Education Department, therefore, the question of seniority agitated before the High Court was covered by the terms and conditions of service, for which the relevant Tribunal had already been established and the jurisdiction of the High Court was barred under Art. 212 of the Constitution---Any petition or proceedings relating to the terms and conditions of service should not be entertained by the High Court in its constitutional jurisdiction under Art. 199 of the Constitution---In view of the facts and circumstances of the present case, entertaining and then proceeding with the constitutional petitions amounted to defeating the express constitutional mandate under which Tribunal was vested with jurisdiction to deal with the matters of civil servants---Petitioner, being a civil servant, could not be granted any relief in constitutional jurisdiction of the High Court---Constitutional petition was dismissed, in circumstances.

Khalil Ullah Kakar and others v. Provincial Police Officer, Balochistan and others 2021 SCMR 1168 and Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

Matiullah Jan Khan for Petitioner.

Umer Qayum Khan, Assistant Advocate General for Respondents.

2024 P L C (C.S.) 302

[Peshawar High Court (Bannu Bench)]

Before Sahibzada Asadullah and Shahid Khan, JJ

Hafiza BUSHRA GUL

Versus

UNIVERSITY OF SCIENCE AND TECHNOLOGY, BANNU through Vice Chancellor, Bannu and 6 others

Writ Petition No.451-B of 2015, decided on 4th October, 2022.

Civil service---

----Post of Lecturer---Appointment---Evaluation of candidate by the University panel---Non-interference by Courts---Petitioner assailed the appointment of private respondents on the ground that their appointments were result of violation of statutes, rules and regulations and sought a direction for her appointment instead of private respondents---Validity---Relevant record that right from the merit list prepared by the National Testing Service to the recommendations made by the Selection Board, no illegality or irregularity had either been committed nor the petitioner could succeed in bringing on record any substantial evidence/documents to substantiate her claim---Admittedly, at the time when the posts were advertised, the university had no rules and when it had no rules, then the rules available must be the determining factor---Competent authority could press into service the law/rules for appointment, which were in vogue at the time of appointment, however, it was not the date of advertisement, rather the determining factor was the date of appointment and without ambiguity the university statutes were fully operational by that time---When such was the state of affairs, the Selection Board was competent to make marking and evaluation strictly in accordance with the procedure provided for the purpose---Respondent university fully complied with the procedure chalked out for the purpose---Petitioner participated in the process, and right from her appearance in the NTS test till her demonstration and interview, she never resisted the procedure nor she protested, rather she surrendered to the process, which impliedly conveyed her full confidence in the entire selection process---On one hand, petitioner surrendered to the process, but on the other, when she could not succeed in being appointed against the posts, she expressed her dissatisfaction---Case of the petitioner was hit by the principle of approbation and reprobation, and the maxim 'quod approbo non reprobo' fully applied to the case of the petitioner and as such, her willful surrender disentitled her of the claim she was claiming---Marks awarded by a panel, which interviewed a candidate, could not be assessed by the Court in its constitutional jurisdiction, as that was the subjective analysis of the interviewer, which by no stretch of imagination could be interfered with by the Court of law---Only the respondent university could determine the competency of all who applied for the posts, as it was the university which had to keep in view the conditions, requirements, importance of the post and suitability and competency of a person to be selected and appointed---Court should not step into the shoes of the university, that too, to determine the suitability and competency of a person for a particular post---Constitutional petition was dismissed accordingly.

Mushtaq Ahmad Moral and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Sh. Muhammad Sadiq v. Federal Public Service Commission and others 2013 SCMR 264; Dr. Alyas Qadeer Tahir v. Secretary Ministry of Education (Now Ministry of CADD), Islamabad and others 2014 SCMR 997; Sajid Mehmood Raja and another v. Federation of Pakistan and others 2013 PLC (C.S.) 864; Muhammad Ashraf Sangri v. Federation of Pakistan and others 2014 SCMR 157; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960 and Miss Gulnaz Baloch v. Registrar, Balochistan High Court, Quetta and others 2015 PLC (C.S.) 393 rel.

Anwar-ul-Haq and Farid Ullah Khan for Petitioners.

Masood Iqbal Khattak for Private Respondents.

Hameed Khan for respondent university.

2024 P L C (C.S.) 369

[Peshawar High Court]

Before Musarrat Hilali and Ijaz Anwar, JJ

WAHEED ULLAH and others

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Home and Tribal Affairs Department, Peshawar and others

Writ Petition No.4749-P of 2020, decided on 31st March, 2022.

Constitution of Pakistan---

----Art. 25---Civil service---Up-gradation/re-designation of posts---Discrimination---Admittedly, petitioners were discriminated in the matter of grant of up-gradation, because, their counterparts / colleagues, performing same duties with the same designations, were allowed up-gradation to BPS-16---Even minutes of the up-gradation Committee did not speak or refer to their respective computer related qualifications and merely relied upon their designation as Computer Operators/Constables while the petitioners were holding the prescribed qualifications ever since their appointments---Principle of equal protection of law was applicable to the case of petitioners---Moreover, it was the fundamental right of the petitioners that they being equally placed, were treated alike and no intelligible differentia could distinguish the petitioners from those who were allowed up-gradation---Constitution petitions were allowed.

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

Khushdil Khan for Petitioners.

Malik Akhtar Hussain Awan, A.A.G. for Respondents.

2024 P L C (C.S.) 386

[Peshawar High Court]

Before Mohammad Ibrahim Khan and Ijaz Anwar, JJ

MUHAMMAD IDRIS

Versus

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

Writ Petition No.679-P of 2022, decided on 25th May, 2023.

Civil service---

----Retrived officer---Pro forma promotion---Promotion of the officer with effect from the date when vacancy occurred---Scope---Petitioner after having served the Pakistan Academy for Rural Development ('Academy') retired from service on 31-08-2022 as Personal Secretary to Director General (BS-17)---Petitioner claimed promotion with effect from the date when he was the only eligible candidate for promotion---Validity---Promotion was the only mode on the basis of which the post of Personal Secretary to Director General was to be filled in---Record revealed that the post of Personal Secretary to Director General (BS-16) was vacant since 01-10-2001 in view of the retirement of its incumbent---At said relevant time, the petitioner was at Serial No.3 after two Senior Scale Stenographer (BS-16), while petitioner was holding the post of Stenographer (BS-15)---However, the senior most Stenographers had given written consent to forego the promotion, but, instead of filling the post-in-question by promotion, said post was filled in through deputation and some official was posted/transferred to the post of Personal Secretary to Director General w.e.f 01-01-2002---Later, one of the officers, who had earlier given written consent of foregoing promotion , was promoted to the post of Personal Secretary to Director General w.e.f 23-06-2004---Said officer stood retired from service w.e.f. 06-02-2015 and at the relevant time, the petitioner was on the top of the seniority list, however, he was not allowed promotion and on his repeated representations, ultimately, on 12-06-2020, he was allowed promotion to the post of Personal Secretary to Director General (BS-17) with immediate effect---Interestingly, promotion case of the petitioner was not processed in time on the only ground that he had failed to appear in the short hand proficiency test, however, the record (note-sheet etc.) spoke otherwise---In the year 2001, when the petitioner was the only eligible candidate and was recommended for promotion, he was deprived illegally by filling the post of Personal Secretary to Director General through deputation---Subsequently again when his immediate senior who opted for promotion and was allowed promotion and retired from service in the year, 2015, the promotion of the petitioner was unnecessarily delayed for five long years which was violative of his vested rights which had matured by dent of his service record, seniority and consistent recommendations for his promotion by his immediate officers---On the retirement of petitioner's immediate senior Personal Secretary to the Director General, on 06-02-2015, the said post became vacant and as such, the necessary exercise for consideration for promotion of the petitioner should have been carried out urgently, but by not doing the same he was deprived from the pay etc. of the higher post and thereby deprived higher pay scale---Since the petitioner had ultimately been promoted, the High Court directed that the petitioner be allowed proforma promotion with all arrears and back benefits from the date when the vacancy occurred (the date of availability of the post of Personal Secretary to Director General) i.e. 07-02-2015---Constitutional petition filed by the retired officer, for his proforma promotion, was allowed accordingly.

Syed Sultan Shah v. Government of Balochistan and another 1985 SCMR 1394; Mrs. Aqeela Asgar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118; Khalid Mehmood v. Chief Secretary, Government of Punjab and others 2013 SCMR 544 and Askari Hasnain v. Secretary Establishment and others 2016 SCMR 871 ref.

Bashir Khan Wazir for Petitioner.

Obaidullah Anwar, DAG and Aimal Khan Barkandi along with Mansoor Ahmad, Superintendent Establishment for Respondents.

2024 P L C (C.S.) 439

[Peshawar High Court]

Before Ijaz Anwar and Dr. Khurshid Iqbal, JJ

ABBAS KHAN

Versus

The DIRECTOR GENERAL, NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA) and 3 others

Writ Petition No.2513-P of 2022, decided on 12th August, 2022.

Civil service---

----Departmental inquiry---Inquiry Committee, constitution of---Scope---Petitioner sought direction to the respondents to constitute a fresh inquiry committee comprised of independent and honest members---During working hours, some altercation had ensued between the petitioner, who was an Assistant Superintendent, and a Deputy Director (Operations)---In that background, the Director General initiated disciplinary proceedings against the petitioner---Petitioner was issued a charge sheet, statement of allegations and an inquiry was initiated for which a Committee was constituted---Contention of the petitioner that members of the inquiry committee were subordinates of the Director General warranted no interference for the simple reason that the proceedings against the petitioner were of departmental nature, as such, the inquiry had to be conducted through some officials of the same department---Official regarding whom disciplinary proceedings had been initiated was not part of the inquiry proceedings---Constitutional petition was dismissed, in circumstances.

Asim Jan Chamkani for Petitioner.

Qazi Babar Irshad, D.A.G. for Federation.

Shahid Imran Gigyani NADRA.

2024 P L C (C.S.) 505

[Peshawar High Court (Abbottabad Bench)]

Before Shakeel Ahmad and Kamran Hayat Miankhel, JJ

MUHAMMAD AQIB IRSHAD

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education, Peshawar and 2 others

Writ Petition No.205-A of 2023, decided on 10th October, 2023.

Civil service---

----Recruitment---Waiting list---Delay in decision---Petitioner was placed at serial No.4 of merit list and despite two vacancies he was not appointed---Validity---Authorities admitted position of petitioner in merit list and forwarded his case as next meritorious---Competent authority rejected appointment on the only pretext that waiting list had expired, as it was only for three months---It was imperative duty of authorities to have sent name of petitioner to appointing authority for his appointment as the post could not be kept vacant till next process of recruitment---Petitioner could not be punished for laxity of authorities---High Court directed the authorities to appoint petitioner on the post in question---Constitutional petition was allowed, in circumstances.

Government of N.-W.F.P through Secretary, Education Department, Peshawar and others v. Qasim Shah 2009 SCMR 382 and Government of Punjab through Secretary Cooperation Department, Lahore and others v. Asad Abbas 2022 SCMR 739 ref.

Muhammad Arshad Khan Tanoli for Petitioner.

Syed Wajahat Hussain Shah, Asstt: A.G. for Respondents.

2024 P L C (C.S.) 547

[Peshawar High Court]

Before Muhammad Arshad Ali and Dr. Khurshid Iqbal, JJ

Mst. MUHAMMAD BIBI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Director Education School (Female) Peshawar and others

Writ Petition No.3259-P of 2022, decided on 31st March, 2023.

Constitution of Pakistan---

----Art.9---Civil service---Pensionary benefits, entitlement to---Fundamental right---Question of payment of pensionary benefits is purely a matter pertaining to fundamental rights---Daughter of the petitioner was appointed against a regular vacant post purely on temporary basis in Basic Pay Scale 07---Unfortunately, the employee was murdered along with her sister---After the death of employee, the petitioner being her mother, sought to receive her pension---Question was whether Rr. 2.2 and 2.3 of the relevant Pension Rules read with Art. 371-A of the Civil Service Regulation, the service rendered on contract basis/fixed pay could be counted towards regular service after completion of the service necessary for the purpose of pensionary benefits---Civil servant must have completed 10 years of regular service first?---In other words, temporary service couldn't be counted for the purpose of pensionary benefits---However, once the 10 years regular service completion was established, the temporary service, then, could be added up towards pension---Record showed that deceased employee rendered her service on contract basis from the year 2000 (initial appointment) till the 2014 (reappointment against a regular position)---Said employee couldn't render the qualifying 10 years service as a regular civil servant---Hence, her almost 14 years service on contract basis couldn't be counted for the purpose of her pension---In other words, had deceased employee been able to render regular service for the prescribed period of 10 years, her contract service would have been countable for the purpose of pension---Petition was accordingly dismissed.

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; Mir Ahmed 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, Nowshera and 05 others (Writ Petition No.339-P/2016, decided on 22/06/2017); 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) rel.

Tariq Kakar for Petitioner.

Mujahid Ali Khan, Addl. Advocate General for Respondents.

2024 P L C (C.S.) 607

[Peshawar High Court (Abbottabad Bench)]

Before Wiqar Ahmad and Fazal Subhan, JJ

MUHAMMAD SALEEM AWAN and another

Versus

NATIONAL BANK OF PAKISTAN through President and 2 others

Writ Petition No.558-A of 2019, decided on 22nd March, 2023.

(a) Constitution of Pakistan---

----Art. 199---National Bank of Pakistan (Staff) Service Rules, 1973---Bank employees---Annual Performance Appraisal Policy/System of Bank---Criteria---Constitutional jurisdiction of the High Court, invoking of---Scope---Rating , expunging / altering of---Vested rights of bank officer(s)---Scope---Petitioners (bank employees serving as AVP, OG-I) invoked constitutional jurisdiction of the High Court seeking directions against the respondents (Bank/Employer) to expunge their Rating-C from the Annual Performance Appraisals (APRs), and to upgrade / restore Rating-A---Validity---Record revealed that the grading of petitioners had been lowered by the countersigning authority but while lowering their grading, they had not been given any adverse entries in their APRs---It was just a matter of grading good or excellent for which they had provided Grades from 1 to 5 in their APR System---None of the entries in the APRs of both the petitioners could be termed as adverse entry---How much better performance had been delivered by which of the employees was supposed to be judged by the Institute itself---Immediate Appraisal Officer had, no doubt, given better grading to both the petitioners but the countersigning authority also had its due role in the APR devised and adopted by the Bank---While adopting APR they had provided a sort of competitive mechanism, where employees in the bank were supposed to be tested on the touchstone provided therein---Bank/respondents had given structured policy for APR of their officers wherein different Bank Officers (General Managers, Regional Head, Group Chiefs) had been assigned different roles/responsibilities, and in such process/roles, none of the fundamental rights of the petitioners were found violated---Petitioners did not have vested right to be retained in same category in which report of the immediate supervisor had placed them---Criteria devised was of such a nature that the same had been competitive and performance was to be comparatively evaluated at functional levels---In such a process, finality would naturally be attached to the valuation conducted at the office of functional Group Chiefs at Head Office---No mala fide or ill-will could be pointed out by the petitioners---None of their fundamental or legally justiciable right was found violated---Categorization of petitioners had also been according to APR System---Appraisal of the bank officers was internal matter of the bank in which the High Court could not interfere in exercise of its constitutional jurisdiction---Constitutional petition filed by the bank Officers , was dismissed, in circumstances.

(b) Employment---

----Bank employees---Annual Performance Appraisal Policy /System of National Bank of Pakistan, vires of---Contention of the petitioners (bank officers of the National Bank) was that Annual Performance Appraisal Policy (APR Policy) was in contravention with National Bank of Pakistan (Staff) Service Rules, 1973 ('the Rules, 1973')---Held, that contention of the petitioners was misconceived as no conflict could be found between the Rules, 1973 and the APR Policy , and competitive appraisal of human resource could not be called to be irrational , unreasonable or illogical---Constitutional petition filed by the bank Officers, was dismissed, in circumstances.

Mirza Waqas Qayyum for Petitioners.

Mukhtiar Ahmad Muneri for Respondents.

2024 P L C (C.S.) 653

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Ijaz Anwar, JJ

IJAZ HUSSAIN

Versus

GOVERNMENT OF PAKISTAN through Secretary Interior, Islamabad and others

Writ Petition No.5090-P of 2021, decided on 13th January, 2022.

(a) Civil service---

----Deputation---Relieving / repatriating of deputationist before completion of deputation period---Deputationist, rights of---Scope---Petitioner assailed the order whereby he was relieved from borrowing department before completion of deputation period---Held, that it is within the domain of the borrowing department to relieve the civil servant at any time if they are not satisfied with his performance and for relieving such deputationist, no departmental proceedings are required---Even otherwise, the petitioner can only be proceeded departmentally by his parent department, if there is any allegation even in the office of borrowing department against him---Depuationist has no vested right to remain on the post, as deputationist, forever or for the stipulated period, and he can be ordered to be repatriated to the parent department at any time without assigning any reasons---In absence of any specific provision of law, deputationist could not ask to serve total period of deputation and he could be repatriated being a deputationist by competent authority in the interest of exigencies of service as and when so desired and such order of competent authority could not be questioned---Constitutional petition, filed by the deputationist, was dismissed, in circumstances.

S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 ref.

(b) Civil service---

----Deputation---Period of deputation---Deputationist, rights of---Scope---Period of deputation could , at the best, be equated to that of an expression of a maximum period; which(period) could be curtailed or extended by competent authority and no legal or vested rights are available to a deputationist to serve his entire period of deputation in borrowing department.

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

(c) Civil service---

----Deputation, recalling of---Deputationist, rights of---Scope---It is a matter of practice and common experience that officers of the Provincial Cadres deputed for service at the Centre are frequently recalled by their Province, by the Provincial Government, in the exigencies of public service---Against such a recall they have no right of any kind to object , being substantively officers of the Provincial Government and only on deputation to the Centre---Constitutional petition, filed by the deputationist against recalling his deputation before completion of deputation, was dismissed, in circumstances.

Federation of Pakistan v. Fazal Rahman Khundkar and another PLD 1959 SC (Pak) 82 ref.

(d) Civil service---

----Deputation---Relieving / repatriating of deputationist before completion of deputation period ---Deputationist, rights of---Scope---Resort to deputation can only be made in extreme cases of exigencies of service on account of non-availability of relevant expertise in the department---Deputationist does not have any vested right to remain posted for an indefinite period---Employer has the right and authority to terminate the deputation period or repatriate the employee back to his parent department, and he can be ordered to be repatriated at any time without assigning any reason.

Chief Secretary and others case 2013 SCMR 1752; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Senate Secretariat through Chairman and another v. Miss Faiqa Abdul Hayee 2014 SCMR 522 and S. Masood Abbas Rizvi v Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 ref.

Noor Muhammad Khattak for Petitioner.

2024 P L C (C.S.) 972

[Peshawar High Court]

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

JANAT KHAN

Versus

CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA

Writ Petition No.4181-P of 2018, decided on 24th April, 2020.

(a) Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011---

----R.4(1)(b)(iii)---Land Record Manual, Paras 3.6 & 3.12---Constitution of Pakistan, Art.199---Patwari, appointment of---Patwar course---Removal from service---De novo proceedings---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---Record transpired that on the basis of clashes between petitioner and respondent No.7, pertaining to inter se seniority, the latter submitted an application wherein he questioned appointment of the former, which, according to him, was not in accordance with the provisions of paragraphs 3.6 and 3.12 of the Land Record Manual---Proper enquiry was conducted by respondent No. 5, the Assistant Secretary (Stamp), who was appointed as an Enquiry Officer, and he submitted his recommendations---Deputy Commissioner filed the recommendations---Order for filing of the enquiry was passed on 03.07.2018 by Deputy Commissioner which was never challenged by respondent No.7 and astonishingly, on 17.07.2018 another application was submitted to respondent No.2 by mentioning the same allegations, who, on receipt of the application, directed respondent No.6 for taking further step in the light of recommendations of the Enquiry Officer and submission of compliance report---Admittedly, the matter in respect of inter se seniority became the cause for submitting the application and initiation of proceedings against the petitioner to the extent that he should be removed from service for the reasons the Enquiry Officer conducted the enquiry, and suggested that major penalty of removal from service under the provisions of sub-rule (b)(iii) of R. 4 of the Khyber Pakhtunkhwa Government Servants (E&D) Rules, 2011---Not only the application but appeal was also filed by respondent No.7 by impleading the present petitioner in the array of respondent; the said appeal was from the year 2017, thus, when the earlier application was filed by respondent No.7 to respondent No. 2 for initiating proceedings the appeal before the Khyber Pakhtunkhwa Service Tribunal was pending---Record further revealed that Service Appeal No. 603 of year 2017 was decided by the tribunal on 26.11.2019, wherein the dispute pertaining to the seniority of respondent No.7 with the petitioner and others was resolved---Contents of appeal filed before the Tribunal also contained the same allegations as narrated in the application which was submitted to respondent No.2---Animosity between the petitioner and respondent No.7 was of such extent that respondent No.7 could not stop himself from dragging the petitioner whereby he faced the enquiry as well as appeal which remained pending adjudication in the competent forum---Competent authority was not bound to accept the recommendations/suggestions as submitted by the Enquiry Officer---As such, the respondent No.6, while going through the entire facts of the dispute and while confronted with the proceedings of appeal before the Tribunal, had filed the enquiry, thus, if respondent No.7 was feeling aggrieved form the order of respondent No.6, the same should have been assailed before the competent forum but in no case he could submit another application to respondent No.2 with the same allegations---Likewise, respondent No.2, while considering the contents of the application so mentioned in it, had to apply his prudent mind with respect to the allegation and the fate of enquiry but he, while putting aside all the facts, either by ignorance of the basic provisions of law or intentionally, forwarded the matter with the direction to respondent No.6 to decide it in accordance with the recommendations of the Enquiry Officer---Authorized Officer in no way could impose his own findings or direct the competent authority to decide the matter in a particular manner as the competent authority was not his personal servant---Authorized Officer had to obey the law in its true spirit---So, initiating de novo enquiry or directing the competent authority to recommend the enquiry was not only misconception of law but also resulted into miscarriage of justice---Respondent No.2 was not supposed to direct respondent No.6 to comply with recommendation of the Enquiry Officer which order of respondent No.2 was nullity in the eye of law, as it was an excess of power and misuse of his authority---Petition was accordingly allowed.

(b) Administration of justice---

----When a thing is required to be done in a particular mode and manner then it must be done in that particular manner and not otherwise.

Muhammad Asif Hameed Qureshi for Petitioner.

Mujahid Ali Khan, A.A.G, for Official Respondents.

Noor Muhammad Khattak for Private Respondents.

2024 P L C (C.S.) 1087

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Shahid Khan, JJ

Dr. NOMAN SIDDIQUI and 4 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petition No.1078-M of 2023 with Interim Relief and C.Ms. Nos.1653-M and 2423-M of 2023, decided on 27th February, 2024.

Civil service---

----Appointment---Zonal allocation---Case of the petitioners was that they had been deprived by the respondents/K.P Public Service Commission from their due right of appointment against the subject posts of DVM, as 16 candidates of Zone-3---Held, that admittedly the zonal allocation formula was aimed to protect and secure the rights of the people of backward areas as compared to settled areas in a limited pool of vacancies---Petitioners on one hand had not even impugned the notification on the basis of which the zonal allocation formula was notified by the provincial government and on the other hand they could not take benefit of the meritorious candidates of Zone-3 when admittedly their own merit position was standing in vacuum---Government had full authority and mandate to up-lift the people of the backward areas who had been left behind in terms of lack of socio economic resources as compared to individuals of advanced settled areas---Petitioners could not make out a case for interference---Petition was accordingly dismissed.

Syed Abdul Haq, Advocate Supreme Court for Petitioner.

Khawaja Muhammad Salah-ud-Din, Additional Advocate General and Sabir Shah, Advocate Supreme Court for the newly impleadd private for Respondents i.e. 7 to 11.

2024 P L C (C.S.) 1160

[Peshawar High Court (Mingora Bench)]

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

KHAN ZEB

Versus

GOVERNMENT OF KHYBER Pakhtunkhwa through Secretary Local Government and Rural Development Department, Khyber Pakhtunkhwa and others

Writ Petition No.912-M of 2017, decided on 19th October, 2022.

(a) Civil Service Regulations (CSR)---

----Art.371-A---West Pakistan Civil Services Pension Rules, 1963, R.2.3---Temporary service in temporary/autonomous departments for more than 5 years as contingent staff---Entitlement to grant of pensionary benefits and appointment of his son against 25% quota reserved for retired class-IV employees within the meaning of Art. 371-A of CSR---Scope---Reliance on a judgment per incuriam---Effect---Employee in service of temporary establishment or whose services are on contract basis and are not later regularized or confirmed cannot be benefited in terms of Article 371-A of C.S.R for pensionary benefit---Petitioner's service had never been regularized nor his earlier writ petition was allowed for regularization of his contingent services, therefore, he could not be held entitled for any such benefit on the basis of the principle laid down in the case reported as Mir Ahmad Khan v. Secretary to Government and others (1997 SCMR 1477)---Neither the petitioner could be held entitled for pensionary benefits nor his second prayer for appointing his son against 25% quota reserved for children of retired Class-IV civil servants could be entertained---Principles for grant of pension to employees in temporary service for more than 5 years under Art. 371-A of CSR and Rule 2.3 of the West Pakistan Civil Services Pension Rules, 1963, are analogous to each other---Constitutional petition was dismissed.

(b) Civil Service Regulations (CSR)---

----Art.371-A---West Pakistan Civil Service Pension Rules, 1963, R.23--Pension---Principles for grant of pension to employees in temporary service for more than 5 years under Art. 371-A of CSR and R. 2.3 of the West Pakistan Civil Services Pension Rules, 1963, are analogous to each other.

Mir Ahmad Khan v. Secretary to Government and others 1997 SCMR 1477 distinguished.

Chairman, Pakistan Railway, Government of Pakistan Islamabad and others v. Shah Jehan Shah PLD 2016 SC 534 and W.P. No.640/2002, dated 15-12-2003 rel.

Umar Farooq for Petitioner.

Haq Nawas Khan, A.A.G. for Official Respondents.

Sabir Shah for Respondent No.5.

2024 P L C (C.S.) 1172

[Peshawar High Court]

Before Musarrat Hilali and Mohammad Ibrahim Khan, JJ

TASAWAR IQBAL and others

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Writ Petition No.2901-P of 2020 with I.R. with C.M. No.446-P of 2022, decided on 16th June, 2022.

(a) Khyber Pakhtunkhwa Civil Secretariat (Private Secretaries) Service Rules, 2012---

----Rr.3 & 4---Civil service---Second upgradation---Now permissible---Criteria for upgradation, determination of----Successive upgradations in presence of promotion channel---Legality---Posts of Junior Scale Stenographers, Senior Scale Stenographers, Private Secretaries, etc. had been upgraded and according to Upgradation Policy successive upgradations were not allowed, therefore, petitioners were not entitled to the second upgradation---When there is no chance of promotion in that eventuality a person can be upgraded, however, petitioners had a proper promotion channels as contemplated in Schedule of the Government of Khyber Pakhtunkhwa Civil Secretariat (Private Secretaries) Service Rules, 2012---Petitioners had not only been upgraded once, but they had also a channel of promotion, therefore, they were not entitled to subsequent upgradation---Constitutional petition was dismissed accordingly.

Muhammad Amjad v. The Director General, Quetta Development Authority and another 2022 SCMR 797; Fida Muhammad v. Government of Khyber Pakhtunkhwa 2021 SCMR 1895; Federal Public Service Commission Through Secretary v. Anwar-ul-Haq (Private Secretary) Islamabad and others 2017 SCMR 890 and Azad Government through Chief Secretary and another v. Raja Habibullah Khan and another 2013 PLC (C.S.) 1031 rel.

Muhammad Asif Yousafzai for Petitioners.

Syed Asif Jalal, A.A.G for Respondents.

2024 P L C (C.S.) 1197

[Peshawar High Court]

Before Rooh-ul-Amin Khan and Ijaz Anwar, JJ

SAFDAR KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Writ Petition No.5407-P of 2019, decided on 16th December, 2021.

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

----Rr.10(2) & 10(4)---Civil service---Illegal and irregular appointments of favourites on the intervention of political figures---Legislative constraints on public representatives to interfere in the executive or administrative domain---Scope---Contentions of the petitioner was that appointments were made in a non-transparent manner in violation of Rr.10(2) & (4) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 as the posts of Class-IV were not advertised and by ignoring that private respondents were not registered with Employment and Exchange Commission---Validity---Appointments to the public posts were not made in a transparent manner---Such practice had eroded the public confidence on the selection process and it had become a general perception that appointments in the departments were not made on merit but either on the direction of the political figures or some influential in the department---No law had given authority to public representatives to interfere into the executive and administrative domain even to the extent of recommendation and proposal, and the appointments so made were classic examples of such interference---Superior courts of the country has time and again stressed upon the Executives not to accept any kind of pressure in the matter of appointments and postings and to go by the book what come may, however, either the respondent authorities were adamant enough not to follow the law or they were so insecure that they always succumbed to extraneous interference---Inquiry report pointed out illegality and irregularity in the process of appointments, therefore, the matter was referred to the Special Secretary, Health Department, to form a committee and after giving personal hearing to each of the appointee, decide their fate in light of their inquiry after hearing all the officers involved in the appointments, and after fixing responsibility their case shall be forwarded for initiation of departmental proceedings against them---Constitution petition was disposed of accordingly.

Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530; Roshan Khan, v. Director Schools and Literacy NWFP, Peshawar and 4 others 2007 SCMR 599 and Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876 rel.

Kashif Jan for Petitioner.

Khalid Rehman, A.A.G. for Respondents.

Malik Ahmad Javed for Dr. Fayaz, Ex. DHO.

Shah Nawaz, Superintendent, Health Department, Dr. Farhad Khan, M.S W&C Hospital, Dr. Aftab Ahmad, Litigation Officer, Dr. Ali Shah, Acting Litigation Officer for Respondents.

2024 P L C (C.S.) 1232

[Peshawar High Court]

Before Muhammad Ibrahim Khan and Muhammad Ijaz Khan, JJ

MUHAMMAD GUL KHALIL and another

Versus

MANAGING DIRECTOR KTH, PESHAWAR and others

Writ Petition No.6585-P of 2018, decided on 21st July, 2022.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Upgradation of post---Policy decision---Grant of up-gradation is not a vested right and as the same is based on a policy decision of the competent authority/Executive, the High Court in writ jurisdiction under Art.199 of the Constitution cannot interfere in the policy matter of the Provincial Government/Executive---Constitution petition was dismissed accordingly.

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 Abdul Hameed and others v. Water and Power Development Authority through Chairman Lahore and others 2021 SCMR 1230 rel.

(b) Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S.4(b)(i)---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R.7(3)---Promotion---'Eligibility' and 'fitness'---Distinction---Determination of 'eligibility' and 'fitness'---Scope---Where a civil servant is considered and he is found as "ineligible for promotion" in terms of qualification/experience or for any other pre-requisite requirements for promotion to the next scale, then he will have a remedy of service appeal before the Service Tribunal, however, if he is considered by the Departmental Promotion Committee (DPC) DPC for promotion and found as eligible but "un-fit for promotion" then the Service Tribunal will have no jurisdiction in view of the bar contained in S.4(b)(i) of the Khyber Pakhtunkhwa Service Tribunals Act, 1974 and as such he can maintain a writ petition before High Court---Petitioners had not been considered by the Departmental Promotion Committee (DPC) for their promotion to the next grade, therefore, their "eligibility for promotion" and their "fitness for promotion" were yet to be determined by the DPC, and as such they had no locus standi either to approach the Service Tribunal or the High Court, as the case may be, for the redressal of their grievances---Constitution petition was dismissed accordingly.

Bashir Ahmad Badini, D&SJ Dera Allah Yar and others v. Hon'ble Chairman and Member of Administration Committee Balochistan and others 2022 SCMR 448; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Rahim Khan v. The Chief Secretary, N.W.F.P. and 4 others 1999 SCMR 1605; Muhammad Amjad v. The Director General Quetta Development Authority and another 2022 PLC (C.S.) 594; Abdul Sattar Jatoi v. Chief Minister Sindh through Provincial Secretary and others 2022 SCMR 550; Ghulam Abbas v. Chief Secretary and 2 others 2016 PLC (C.S.) 87 and Muhammad Azam v. Muhammad Tufail and others 2011 SCMR 1871 rel.

Muhammad Amin Khattak Lachi for Petitioners.

Zartaj Anwar for Respondents Nos.1 and 2.

Syed Sikandar Hayat Shah, A.A.G. for Respondents Nos.3 and 4.

2024 P L C (C.S.) 1302

[Peshawar High Court]

Before Lal Jan Khattak and Ijaz Anwar, JJ

SOFIA WAQAR KHATTAK

Versus

The Hon'ble PESHAWAR HIGH COURT, PESHAWAR through Registrar and another

Service Appeal No.53-P of 2019, decided on 3rd October, 2020.

(a) Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011---

----Rr.5(1) & 11---Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (VIII of 1991), S.5---Departmental inquiry---Dispensing with the requirement of regular inquiry---Scope---Allegation of illegal/irregular appointment---Issuance of second show cause notice after amendment in the earlier show-cause notice---Ambiguity in the record about assessing the eligibility of the appointee and none of the accused officers found involved in the fact finding inquiry---Deficiency of documentary evidence and procedural fairness---Effect---Appointment, the domain of appointing authority---Appointing Authority did not have sufficient material available on record to have formed an opinion that there was no need of initiation of regular enquiry into the case of the appellant---Competent Authority was within its right to dispense with departmental enquiry in terms of R.5(1) of the Khyber Pakhtunkhwa Government Servants (E&D) Rules, 2011 (Rules) when there was sufficient material available which prima facie connected the accused with the commission of misconduct; while in the instant case, the material, so produced, was deficient in all respects and an opinion could not be legally formed to justify the dispensation of regular enquiry---Powers of the Competent Authority could not be called in question to dispense with the enquiry, however, in the instant case, neither there was documentary evidence against the appellant, nor any satisfactory reasons had been recorded, thus, the appellant was not provided sufficient chance to vindicate herself against the allegations---Penalty imposed upon the appellant was set aside with the observation that if respondents had sufficient material against the appellant they may proceed against her after following the procedure as provided in R.11 of the Rules---Service Appeal was allowed accordingly.

Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603; Province of Punjab through Additional Chief Secretary, Government of Punjab and another v. Muhammad Siddique Khan 2000 SCMR 1321; Zahoor Ahmad v. WAPDA and others 2001 SCMR 1560; Rashid Mehmood v. Additional Inspector General of Police and 02 others 2002 SCMR 57; Registrar Peshawar High Court and others v. Shafiq Ahmad Tanoli and others PLD 2015 SC 360 and Chief Postmaster Faisalabad, GPO and others v. Muhammad Afzal 2020 SCMR 1029 rel.

Federation of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmad Malik 2020 SCMR 1154; Ghulam Mustafa Shehzad v. Lahore High Court, Lahore through Registrar 2007 SCMR 1786 and Executive Engineer v. Zahid Sharif 2005 SCMR 824 ref.

(b) Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011---

----R.5(1)---Departmental inquiry, dispensing with---Aim and object of the Efficiency and Disciplinary Rules is to maintain administrative and financial discipline in the Department---similarly, the procedure so prescribed is aimed to give to the accused officer/official a proper chance of proving his/her innocence and mere issuance of charge sheet/Show Cause Notice or enquiry cannot be allowed to be used as a device to do away with the services of an employee.

Ghulam Mohy-ud-Din Malik for Appellant.

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

2024 P L C (C.S.) 1378

[Peshawar High Court (Abbottabad Bench)]

Before Lal Jan Khattak, S M Attique Shah and Syed Arshad Ali, JJ

UBAID KHAN and others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others

Writ Petitions Nos.684-A of 2021, 587-M and 4949-P of 2020 (with interim relief), decided on 24th March, 2022.

Constitution of Pakistan---

----Arts. 189 & 199---Police Force in Khyber Pakhtunkhwa---Out of turn promotions---Implementation of judgments of Supreme Court qua out of turn promotion in cases of accelerated promotions in the Province of Khyber Pakhtunkhwa---Out of turn promotion and accelerated promotion---Distinction---Withdrawal of accelerated promotion given to the petitioners as incentives in pursuance of statutory law---Legality---Contention of the petitioners was that since history and background for grant of accelerated promotion was different from out of turn promotion, therefore, accelerated promotion could not be equated with out of turn promotion---Validity---Decisions/orders showed that respondents intended to implement the judgments of the Supreme Court without peeping into the background and without analyzing the situations in which the out of turn promotions were given to the police personnel of the other two Provinces and the accelerated positions secured by the police officials/officers performing their duties in the Province of Khyber Pakhtunkhwa---Proceeding against the petitioners by the respondents through the impugned decisions/orders by looking at the case issue superficially instead of resolving the same with deep thoughts and in a probing manner and without having a look at the history and background of both the situations would not be a fair step as they were holding the accelerated positions since long which had come to them through a merit based laid down criteria and in a structured manner and not for any braveness---Supreme Court has repeatedly declared out of turn promotions as illegal by directing the Provincial Governments to streamline policy relating to the grant of out of turn promotions but uptill now the Government of Khyber Pakhtunkhwa had not taken any step in that direction---Indecisiveness and the lethargic conduct of the Government to this effect was very lamentable which had created chaos and caused unrest in the entire Police Force of the Province which situation could not be countenanced---Constitution petition was disposed of accordingly.

Barrister Adnan Khan, Imtiaz Ali, Malik Muhammad Siddique Awan and Junaid Anwar Khan for Petitioners.

2024 P L C (C.S.) 1411

[Peshawar High Court]

Before Ijaz Anwar and Shakeel Ahmad, JJ

SHAHID GUL

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others

Writ Petition No.2433-P of 2024, decided on 15th May, 2024.

(a) Civil service---

----Deputation---Repatriation of deputationist before completing the normal period of deputation---Deputationist, rights of---Scope---Deputation is an administrative arrangement between the borrowing and lending departments for utilizing the services of an employee in the public interest and exigency of services against a particular post, and such deputationist cannot be allowed to remain on deputation for an indefinite period or stipulated period by his own whims and wishes---Deputationist has no right to remain on a post as such, he can be repatriated at any time without assigning any reason---Mere repatriation of the petitioner to his parent department before the completion of his tenure on deputation was not a vested right to agitate before High Court in its Constitutional jurisdiction---Petition was dismissed accordingly.

S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799; Dr. Shafi-ur-Rahman Afridi v. CDA Islamabad through Chairman and others 2010 SCMR 378 and Muhammad Ali Zahoor v. Government of Pakistan through Secretary Benazir Income Support Programme Islamabad and 3 others 2023 PLC (C.S.) 826 rel.

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

----S.9---Transfer and Posting---Deputationist, who is specialist in teaching, posted against an administrative post---Propriety---Civil servant is liable to serve anywhere throughout the province or throughout Pakistan as the case may be, he cannot claim posting of his own choice at a particular post---Expertise of civil servants is spoiled when they are specialists in teaching and are posted against an administrative post---Such deputationists often opt for deputation to other departments once they complete their normal tenure.

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

(c) Civil service---

----Deputation---Filling of a post through deputation without any recruitment rules---Effect---Where recruitment rules do not permit the filling of a post through deputation, sending a civil servant to such post, is heart-burning for servants serving in the organization, on one hand, and on the other, it militates the statutory law of that organization.

Khalid Rahman for Petitioner.

Nemo. for Respondents (In motion stage).

2024 P L C (C.S.) 1419

[Peshawar High Court]

Before Ijaz Anwar and Fazal Subhan, JJ

FAZAL RAZIQ

Versus

The GOVERNMENT OF PAKISTAN through Secretary Establishment Division, Islamabad and others

Writ Petition No.3771-P of 2021, decided on 18th August, 2022.

(a) Civil service---

----Retired officer---Proforma promotion---Withholding of promotion on the ground of adverse entries in Performance Evaluation Reports (PERs) by the reporting officer---Disagreement by the Countersigning Officer---Effect---Non-communication of adverse Annual Confidential Report (ACRs) in which petitioner had been rated as "average"---Effect---Contention of the petitioner was that promotion of the petitioner could not be withheld on the basis of adverse entries in the Annual Confidential Report (ACRs), which were neither endorsed by the Countersigning Officer nor communicated to the petitioner---Validity---Case of the petitioner was not properly considered by the Selection Committee while observing that "his PERs for the last two years reflect that he is unfit for promotion", because, the record spoke otherwise and the remarks recorded by the Countersigning Officer were to be given weight, and the entries pertained to 'unfit for promotion' given by the Reporting Officer, lost their efficacy---Promotion case of the petitioner had not been dealt with even handedly, because the moment High Court directed the respondents for decision of his departmental representation, average ACRs were recorded thereafter for the years 2016 and 2017, which were even against the PERs Instructions, which required finalization of such ACRs by Reporting Officer on 20th July and by Countersigning Officer on 31st July, while in the instant case, the ACRs were belatedly written, which spoke volumes about the treatment meted out to the petitioner---Promotion cannot be withheld on the basis of earning average ACR---Constitution petition was allowed accordingly.

Pakistan Broadcasting Corporation v. Vasiruddin 1997 PLC (C.S.) 931; Muhammad Anwar v. Secretary, Establishment Division PLD 1992 SC 144; Muhammad Sadiq v. Post Master, Central Punjab, Lahore and others 2007 PLC (C.S.) 511 and 2000 T.D. (Service) 374 rel.

(b) Civil service---

----Adverse Annual Confidential Report (ACR), communication of---Ultimate authority---Ultimate authority, whose observations are conveyed to the civil servant in the matter of adverse entries, is the Countersigning Officer.

(c) Civil Service---

----'Average' Annual Confidential Report (ACR), non-communication of---Effect---Average ACR, under no circumstances, can be considered as 'adverse' unless the same is conveyed as adverse.

Pakistan Broadcasting Corporation D.G.H.O v. Nasiruddin 1997 SCMR 1303; Province of the Punjab v. Noor Ilahi Khan Leghari 1992 SCMR 1427 and Muhammad Zayauddin v. Deputy Collector (Locust), Department of Plant Protection, Sukkur 1995 PLC (C.S) 373 rel.

(d) Civil service---

----Annual Confidential Report (ACRs), non-communication of---Effect---ACRs, not communicated to the civil servants, cannot be utilized to their prejudice.

Muhammad Saleem Khan v Secretary, Ministry of Defence, Government of Pakistan 2009 SCMR 117; Asghar Ali Shah v. Government of N.W.F.P. 1998 PLC (C.S) 1402; Ali Zaman, Quarter Master, DHO Office, Muzaffarabad v. Director General, Health Department, Azad Government of the State of Jammu and Kashmir, Muzaffarabad 2003 PLC (C.S.) 1092 and Abdul Jabbar Khan v. Government of Sindh 1996 SCMR 850 rel.

(e) Civil service---

----Annual Confidential Report (ACRs)---Conflicting remarks of Reporting and Countersigning Officers---Preference---In case of conflict between the remarks of the Reporting Officer and the Countersigning Officer, the remarks given by the Countersigning Officer, shall be given weight.

Engineer Jameel Ahmed Malik v. Pakistan Ordinance Factories Board, Wah Cantt. 2004 SCMR 164 rel.

Muhammad Asif Yousafzai for Petitioner.

Muhammad Habib Qureshi, DAG and Aimal Khan Barkandi for Respondents.

2024 P L C (C.S.) 1501

[Peshawar High Court]

Before Sahibzada Asadullah and Wiqar Ahmad, JJ

HAZOOR ALI KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others

Writ Petition No.2225-P of 2023, decided on 23rd May, 2024.

(a) Khyber Pakhtunkhwa Public Service Commission Regulations, 2003---

----Regln. 33---Appointment---Quota allocation---Quota reserved for women not exhausted---Placement in general quota in exclusion of quota reserved for women---Eligibility of respondent owing to reduction in minimum threshold score in test---Petitioner and respondent obtained equal marks, but respondent scored higher in interview---Contention of the petitioner was that respondent applied in women quota and was also called for interview in women quota, therefore, Commission should not have appointed the respondent in general quota in place of the petitioner in violation of zonal allocation formula---Validity---Commission opted for placing respondent in general quota seat of Zone-IV and relied on the instructions of the Establishment Department regarding filling of 10% quota seat fixed for female candidates---Ten percent (10%) quota was construed to give it effect over and above the already available seats in the general quota to the female candidates and only through that way purpose of reserving such quota for female candidates might be achieved, otherwise reservation of such quota for female would not be meaningful in most of the cases---Act of Commission, whereby it had placed respondent in the general quota seats of Zone-IV so as to afford an opportunity to another female from the female quota seats, was found to be in accordance with the instructions of the Establishment Department and best served spirit of the legal instrument, where-under 10% quota had been reserved for women folk---If a person is called for interview by keeping in view the respective lower threshold against quota seat for which he or she is called but if during the interview she/he obtains goods marks and is placed on such position of the merit that placement of such person is required in general quota seats, then mere fact that the person has initially been called for interview in reserve quota would not divest the Commission of the authority to make a placement in accordance with Regln. 33 of the Khyber Pakhtunkhwa Public Service Commission Regulations, 2003---Constitutional petition along with its connected petition was dismissed, in circumstances.

(b) Interpretation of statutes---

----Purposive construction of instrument---While interpreting the instrument, its purpose cannot be lost sight of, particularly when there is an ambiguity in the text---Such instrument shall be construed in such meaning so as to advance for which the instrument has been issued.

Nasir Mahmood for Petitioner.

Niaz Muhammad, A.A.G. with Mahtab Gul, Law Officer, KP PSC.

Respondent No.6 in person.

Javed Iqbal Gulbela for Respondent No.7.

2024 P L C (C.S.) 198

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman and Muhammad Sajid Mehmood Sethi, Member MUHAMMAD ANWAR ALI

Versus

LAHORE HIGH COURT, LAHORE through Registrar

Service Appeal No.27 of 2015, heard on 16th September, 2022.

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

----S.12---Government Servants (Efficiency and Discipline) Rules), 1973, R.4(b)(i)---Compulsory retirement---Object, purpose and scope---Civil servant was aggrieved of notification issued by authorities retiring him from service pre-maturely---Validity---Object of S.12 of Punjab Civil Servants Act, 1974, is to develop efficiency and discipline and achieve good governance in civil service---Civil servant who has served a considerable length of 20 years with a minimum level of efficiency, loses legitimate expectancy to perform better in future and only wants to stay with the sort of performance, which may be in his / her interest but certainly not in the interest of public---Basic difference between retirement under S. 12(i) of Punjab Civil Servants Act, 1974 and Government Servants (Efficiency and Discipline) Rules, 1973, is that retirement in terms of former provision is not a punishment and civil servant gets all service benefits without any stigma, whereas compulsory retirement under the latter provision is a punishment---Order under S. 12 of Punjab Civil Servants Act, 1974, is not interfered with as satisfaction of competent authority regarding efficiency and performance of an employee is not to be substituted by Court or Tribunal with its own opinion on the basis of analysis of record---In the present case first condition of completion of twenty years' service was not satisfied, thus, impugned retirement Notification could not have been issued---Justiciability of S. 12 of Punjab Civil Servants Act, 1974, without satisfying requirement mentioned therein were not proper to deprive a person from his / her legitimate right of service as source of earning---High Court reinstated the civil servant into service by setting aside show cause notice and retirement notification---Appeal was allowed accordingly.

Muhammad Qadeer and 2 others v. Secretary, Defence Production Division, Government of Pakistan and others 2003 SCMR 1804; Chairman, Central Board of Film Censors, Islamabad and another v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707; Atta Rabbani v. Secretary Education, Government of the Punjab, Lahore and 3 others 2006 SCMR 978; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Faisal Jameel v. The State 2007 MLD 355; Secretary Communication and Works Department Government of Balochistan and others v. Dad Baksh and another 2013 CLC 343; Muhammad Iqbal v. Muhammad Ahmed Ramzani and 2 others 2014 CLC 1392; Sohail Ahmed Usmani v. Director-General Pakistan Civil Aviation Authority and another 2014 SCMR 1843; Inspector General of Police, Punjab v. Tariq Mahmood 2015 SCMR 77 and Muhammad Sharif and others v. Inspector General of Police, Punjab, Lahore and others 2021 SCMR 962 rel.

Appellant in person.

Zawar Ahmad Sheikh Barrister Ameer Abbas Ali Khan, Assistant Advocate General for Respondent.

2024 P L C (C.S.) 279

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman,Muhammad Sajid Mehmood Sethi and

Sardar Muhammad Sarfraz Dogar, Members MUHAMMAD AFZAL KHAN

Versus

LAHORE HIGH COURT, LAHORE through Registrar

Service Appeal No.09 of 2022, decided on 4th November, 2022.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----Ss.5 & 6---Proforma promotion after retirement---Scope---Delay in decision of service matter not attributed to the Judicial Officer---Adverse remarks in Performance Evaluation Reports ('P.E.Rs')---Scope---Plea of the appellant (retired Judicial officer) was that he was entitled to promotion from Additional District and Sessions Judge ('ADSJ') to District and Sessions Judge ('DSJ') from the time one other Judicial officer (ADSJ) junior to him was promoted to DSJ---Held, that the Performance Evaluation Committee ('P.E.C') declined pro forma promotion to the appellant for the reason that he had filed representation in said regard after his retirement---Record revealed that the appellant had been pursuing the matter before the department, the Tribunal and even the Supreme Court since long---Previously a decision was passed in his favour while he was in service but later the matter was directed to the P.E.C which passed impugned order after many years, so the delay in rendering decision was attributable to the respondent, which could not be construed to adversely affect the appellant---Adverse remarks in appellant's (Performance Evaluation Reports) ('P.E.Rs') stood expunged by the Tribunal in earlier round of proceedings a long time ago and, admittedly, there was no question as to merit and eligibility of appellant for proforma promotion as District and Sessions Judge - Appellant had unblemished career as a Judicial Officer and no other legal impediment in way of granting proforma promotion to appellant had been advanced by the respondent---Since the appellant stood retired and at that time, matter was pending before P.E.C, therefore, he was entitled to proforma promotion as District and Sessions Judge from the date when a judge junior to him was granted such promotion and consequential benefits as per law---Impugned order was set-aside---Appeal was allowed, in circumstances.

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

Pervaiz Inayat Malik for Appellant.

Zubda tul Hussain along with Irfan Ahmad Saeed, Registrar for Respondent.

2024 P L C (C.S.) 620

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman and Muhammad Sajid Mehmood Sethi, Member

ALI ASHTAR NAQVI

Versus

LAHORE HIGH COURT, LAHORE through Registrar and another

Service Appeal No.10 of 2018, heard on 20th June, 2023.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 6 (1)---Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, R. 3---Judicial Officer---Misconduct---Dismissal from service---Term "resignation"---Resignation, voluntariness of---Withdrawal of resignation---Scope---Appellant (Civil Judge-cum-Judicial Magistrate) tendered his resignation after two months of the report of the Inquiry Officer who recommended the imposition of major penalty in the shape of dismissal from service against him---Contention of the appellant that there were serious threats to his life due to which he tendered his resignation, which was not voluntary, rather on account of compelling circumstances---Validity---No such contention/reason was mentioned in the resignation itself having been tendered by the appellant---It was also evident from the relevant notification that the resignation of the appellant was accepted on account of droppage of disciplinary proceedings initiated against him on the charge of misconduct---It was also manifestly clear that despite the fact that matter of acceptance of resignation remained under consideration for a considerable period but no effort was made by the appellant to move for its withdrawal---Even after acceptance of the resignation the appellant remained mum for a considerable period and finally he moved the representation after more than one year and nine months (from date of Notification), which was rejected by the respondents (Registrar High Court) after six months or so---Definitions of the term "resignation" as given in various law dictionaries leads to an irresistible conclusion that resignation means "formal renouncement or relinquishment of an office", which must be intentional and voluntary, and for drawing a conclusion as to whether the resignation is voluntary or otherwise facts and circumstances in toto have to be taken into consideration---Once a resignation is accepted by the competent authority, the employee tendering the same is precluded to recall it---High Court viewed that the resignation of the appellant was voluntary without any hint of doubt and as such he was precluded to ask for its withdrawal and reinstatement in service---Appeal filed by the ex-Judicial Officer, being devoid of any merits, was dismissed, in circumstances.

Muhammad Salim Khan v. Director-General, Bureau of Emigration and Overseas Emloyment and another 1991 SCMR 440 and Muhammad Zahoor v. Registrar Lahore High Court, Lahore and another 2005 SCMR 1194 ref.

Muhammad Zahoor v. Registrar Lahore High Court, Lahore and another 2005 SCMR 1194; Dr. Muhammad Munir-ul-Haq and others v. Dr. Muhammad Latif Chaudhry and others 1992 SCMR 2135; Nabeela Kiran v. Government of Punjab and others 2020 PLC (C.S.) 560 and Syed Faisal Raza Gillani v. Lahore High Court, Lahore through Registrar and others 2015 PLC (C.S.) 137 distinguished.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----Ss. 5(a) & 6 (1)---Punjab Civil Servants Act (VIII of 1974), S. 21---Judicial Officer---Imposition of major penalty, assailing of---Limitation---Appeal, right of---In terms of S.21 of the Punjab Civil Servants Act, 1974, right of appeal or representation is available to a Judicial Officer in respect of any order relating to terms and conditions of service, which is to be moved within sixty days of communication of such order to him---Appellant preferred departmental appeal after more than two years and two months of acceptance of his resignation , which was clearly beyond the prescribed period of limitation---When departmental appeal or representation is barred by time even if the appeal before the Service Tribunal is filed within time it would be hit by limitation---In terms of S.5(a) of the Punjab Subordinate Judiciary Service Tribunal Act, 1991, where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974 , or any rules against any such orders, no appeal shall lie to the Tribunal unless the aggrieved person has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application, or representation is so preferred---On account of time barred representation/departmental appeal, the present appeal against the order of rejection of appellant's representation though apparently seemed to be in time but actually it was barred by time---Appeal filed by the ex-Judicial Officer was dismissed, in circumstances.

Sajjad Hussain v. Secretary, Ministry of Railways, Islamabad and others 2012 SCMR 195 and Muhammad Aslam v. WAPDA and others 2007 SCMR 513 ref.

Abid Saqi and Sabahat Rizvi for Appellant.

Jawwad Tariq Nasim for Respondents.

2024 P L C (C.S.) 773

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman and Muhammad Sajid Mehmood Sethi, Member

Mian SHAHID MEHMOOD-II

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.15 of 2015, decided on 21st July, 2023.

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

----S. 12---Retirement from service---Pre-requisites, observance of---Appellants /Ex-Judicial Officers assailed vires of the show-cause notices and subsequent notification issued by the respondent / Registrar, High Court, whereby they were retired from service in terms of S. 12 of the Punjab Civil Servants Act, 1974---Validity---In the present cases, proper show cause notices with reference to applicable provisions of law with full detail of allegations, pending complaints and remarks in PERs, were served upon the appellants to which they furnished their respective written replies---Element of public interest had also been rightly evaluated by the competent authority keeping in view the service record of appellants and nothing contrary had been presented before the Tribunal---Order of retirement had been passed after due process of law and fulfilling the pre-requisites to invoke S. 12 of the Act, 1974---Record revealed that all the appellants had completed the requisite twenty years' service---Ordinarily, Tribunal or Court is not supposed to substitute reasons for public interest and order under S. 12 is not interfered with as satisfaction of the competent authority regarding efficiency and performance of an employee is not to be substituted by the Court or Tribunal with its own opinion on the basis of analysis of the record---Justifiability of S.12 is restricted to the fulfillment of necessary conditions contained therein---Appeals were dismissed, in circumstances.

Muhammad Qadeer and 2 others v. Secretary, Defence Production Division, Government of Pakistan and others 2003 SCMR 1804; Chairman, Central Board of Film Censors, Islamabad and another v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707; Atta Rabbani v. Secretary Education, Government of the Punjab, Lahore and 3 others 2006 SCMR 978 and Atta Rabbani v. Secretary Education, Government of the Punjab, Lahore and 3 others 2007 P L C (C.S.) 608 ref.

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

----S. 12---Retirement from service---Expression 'public interest'---Scope----Said expression implies a matter relating to the people at large, nation or a community as a whole and if the interest of general public or community is not involved in a matter, it cannot be brought within the purview of public interest---Requirement of public interest may vary from case to case, however, an order passed by the competent authority under S. 12(1)(i) of the Act, 1974 must have reasonable nexus with the public interest---Assessment of the performance of a civil servant to judge his suitability must not be based on personal reasons or considerations not related to public interest.

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

----S. 12---Punjab Civil Servants (Directory Retirement from Service) Rules, 2021---Notification No. SOR-I(S&GAD)4-11/2020 dated 16.02.2021---Retirement from service---Punjab Civil Servants (Directory Retirement from Service) Rules, 2021---Prospective effect---Punjab Civil Servants (Directory Retirement from Service) Rules, 2021 ('the Rules, 2021') were introduced through Notification No. SOR-I(S&GAD)4-11/2020 dated 16.02.2021---As per the general rules of interpretation, the Rules, 2021 would have a prospective effect for the reason that no express provision to the contrary is available therein---Consequently, the cases already pending and decided before enactment of the Rules, 2021 would remain unaffected by the new legislation---Statutes, notifications, executive and administrative orders operate prospectively unless retrospective operation was expressly provided therein---Notification which is duly published in the official gazette takes effect from the date on which it is published except if otherwise is provided in the notification itself---Disciplinary proceedings once initiated against a civil servant under a specific law shall be culminated under the same law that and not under the law that came into existence on the same subject subsequently.

Commissioner, Sindh Employees Social Securities Institution and another v. Messrs E.M. Oil Mills and Industries Ltd., S.I.T.E., Karachi and 2 others 2002 SCMR 39; Muhammad Nawaz v. District and Sessions Judge and others 2003 SCMR 1720; Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Controller General of Accounts v. Fazil Ahmad, DAO EC (C&W Division Hangu) and others 2021 SCMR 800 and Muhammad Faheem Zafar v. Government of the Punjab through Accountant General, Punjab and 3 others 2022 PLC (C.S.) 1156 ref.

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

----S. 12, Explanation---Punjab Judicial Service Rules, 1994, Rr. 3 & 4---Punjab Judicial Service---Retirement order, passing of---Competent Authority---Scope---Argument of appellants, Judicial Officers who were retired from service by the High Court, was that competent authority for civil servants in Grade-19 and above, in terms of Explanation to S.12 of the Punjab Civil Servants Act, 1974, was the Chief Minister, thus impugned retirement order had been passed by an incompetent authority---Validity---Argument of the appellants was totally misconceived as the Punjab Judicial Service Rules, 1994 ('the Rules, 1994'), regulate recruitment of the Punjab Judicial Service and prescribe conditions of service---Rule 3 of the Rules, 1994 provides that the service shall comprise the post of:- a) District and Sessions Judges; b) Additional District and Sessions Judges; c) Civil Judges-cum-Judicial Magistrates---Rule 4 of the Rules 1994 provides that appointments to the service shall be made by the High Court---Admittedly, appellants were appointed by the High Court, thus the competent authority to pass their retirement order in terms of S. 12 of the Act of 1974 was the High Court, which was comprised of the Chief Justice and Judges---Appeals filed by the retired Judicial Officers were dismissed, in circumstances.

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

----R. 2.1---Punjab Civil Servants Act (VIII of 1974), S. 12---Retirement from service---Scope---Argument of appellant (retired Judicial Officer) was that he had not secured twenty years of service and infact his judicial service was 16 years, 04 months 21 days, therefore, his retirement within contemplation of S. 12 of the Punjab Civil Servants Act, 1974, could not have been made---Validity---Before entering into judicial service, the appellant had more than seven years' service at his credit in Federal Investigation Agency (F.I.A.), therefore, as per Rule 2.1 of the Punjab Civil Services Pension Rules, 1955, the said period of service shall be added into twenty years of qualifying service for pension as contemplated under S. 12(i) of the Punjab Civil Servants Act, 1974---Appeal was dismissed, in circumstances.

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

----Ss. 12 & 13---Section 13 of Punjab Civil Servants Act, 1974, vires of---Supreme Court in the case reported as Muhammad Qadeer and 2 others v. Secretary, Defence Production Division, Government of Pakistan and others (2003 SCMR 1804), observed that S.13 of the Civil Servants Act, 1973, was in line with the principles laid down by the Shariat Appellate Bench of Supreme Court in case reported as Pakistan and others v. Public at Large and others (PLD 1987 SC 304), thus, validity and proprietary of S. 13 of the Punjab Civil Servants Act, 1974, was not disputed---Undeniably, S. 12 of the Act of 1974 is pari materia to S. 13 of the Civil Servants Act, 1973, therefore it is intra vires the Constitution---Appeal was dismissed, in circumstances.

Muhammad Qadeer and 2 others v. Secretary, Defence Production Division, Government of Pakistan and others 2003 SCMR 1804 and Pakistan and others v. Public at Large and others PLD 1987 SC 304 ref.

Hafiz Tariq Naseem, Talaat Farooq Shaikh, Syed Ijaz Qutub and Abdul Haseeb Sheikh for Appellants

Mian Shahid Mehmood-II, Muhammad Riaz Chopra, Anwar Ali and Pervaiz Inayat Malik Appellants in person.

Zubta-tul-Hassan, Zawar Ahmad Sheikh and Ishfaq Qayyum Cheema for Respondents.

2024 P L C (C.S.) 1114

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Sajid Mehmood Sethi, Chairman Rasaal Hassan Syed and Abid Hussain Chattha, Members

SYED FAIZAN E RASOOL

Versus

LAHORE HIGH COURT, LAHORE through Registrar

Service Appeal No.15 of 2013, decided on 25th April, 2024.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.5---Appeal before the Punjab Subordinate Judiciary Service Tribunal---Master of Laws from a foreign University---Judicial officer, entitlement of---Authority, discretion of---Judicial officer preferred appeal against declining of permission to apply for a Master's Degree in Law from a foreign university---Held, that grant of permission to apply for higher education, and that too from a foreign university, is not a rule of thumb for every judicial officer and the same is also not backed by any express provisions of law or rules or policy instructions or prevalent practice---Matter-in-hand pertained to discretion of the authority which was to be exercised in the light of attending facts and circumstances of each case, saddled with certain requirements / qualifications---In the present case, the authority was not persuaded to exercise discretion for a number of reasons---Authority cannot be compelled to exercise the same in each and every case, especially when there is scarcity of Judicial Officers as compared to bulk of pending cases and in view of the prevalent policy of the authority---In matters of grant of leave, such discretion cannot be claimed as of right, but for seeking such relief the applicant must follow the proper procedure provided under the rules and he is not supposed to avail any kind of leave entirely in his discretion and choice in departure of the rules and service discipline---Leave cannot be claimed as a matter of right---Under exigent circumstances, the leave sanctioning authority has the discretion to refuse, postpone, curtail or revoke leave of any description and/or to recall to duty any employee on leave---No grounds for interference in the impugned order by the Punjab Subordinate Judiciary Service Tribunal were made out---Appeal filed by judicial officer, being merit-less, was dismissed.

Muhammad Ali Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 SCMR 214; Allah Ditta v. Director of Education, Colleges, Bahawalpur Division, Bahawalpur and another 1992 PLC (C.S.) 571; Anita Malik v. A.I.I.M.S. and another 2006 (129) DLT 136 and P. Geetha v. Kerala Livestock Development Board Ltd. and another (2015) (1) Ker L.J. 494 ref.

Appellant in person.

Muhammad Nauman Sarwar for Respondent.

2024 P L C (C.S.) 1130

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Sajid Mehmood Sethi, Chairman, Rasaal Hasan Syed and Abid Hussain Chattha, Members

MUHAMMAD ANAYET GONDAL

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.03 of 2022, heard on 25th April, 2024.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.5---Appeal before the Punjab Subordinate Judiciary Service Tribunal---Reinstatement into service---Back benefits---Entitlement to---Judicial officer was reinstated from the date of his dismissal---Representation of the appellant (reinstated judicial officer) for grant of back benefits, while treating the intervening period as period spent on duty, was declined---Stance of the appellant was that he was not employed for gain during the intervening period, rather his request to practice as an Advocate was also declined by the authority, therefore, he was entitled for grant of back benefits---Validity---Appellant had been reinstated into service from the date of his dismissal, however, the Authority did not pass any order regarding intervening period and consequent benefits---Back benefits were to be granted for the intervening period, during which an employee remained out of service and did not engage in any gainful profession---Concept of reinstatement into service with original seniority and back benefits is based on the established principle of jurisprudence that if an illegal action/wrong is struck down by the Court, as a consequence, it is also to be ensured that no undue harm is caused to any individual due to such illegality/wrong or as a result of delay in the redressal of his grievance---If, by virtue of a declaration given by the Court, a civil servant is to be treated as being still in service, he should also be given the consequential relief of the back benefits (including salary) for the period he was kept out of service as if he was actually performing duties---Grant of back benefits, in such situation, is a rule and denial of such benefits is an exception on the proof that such a person had remained gainfully employed during the intervening period---Punjab Subordinate Judiciary Service Tribunal directed the respondent (Registrar High Court) to disburse the financial back benefits of appellant---Appeal for grant of back-benefits, was allowed, in circumstances.

Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415; Inspector General of Police Punjab v. Tariq Mahmood 2015 SCMR 77 and Muhammad Sharif and others v. Inspector General of Police, Punjab, Lahore and others 2021 SCMR 962 ref.

(b) Constitution of Pakistan---

----Art. 25---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S. 5---Appeal before the Punjab Subordinate Judiciary Service Tribunal---Reinstatement into service---Back benefits---Entitlement to---Scope---Judicial officer was reinstated from the date of his dismissal---Representation of the appellant (reinstated judicial officer) for grant of back benefits, while treating the intervening period as period spent on duty, was declined---Stance of the appellant was that other similarly placed judicial officers were granted service/ financial back benefits---Validity---Record (relevant Notifications qua reinstatement of other judicial officers) revealed that the appellant had been subjected to gross discrimination in the matter, which was in violation of equality clause contained in Art. 25 of the Constitution---Punjab Subordinate Judiciary Service Tribunal directed the respondent (Registrar High Court) to disburse the financial back benefits of appellant---Appeal for grant of back-benefits, was allowed, in circumstances.

(c) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Appeal before the Punjab Subordinate Judiciary Service Tribunal---Limitation, condonation of---Claim of the appellant, acceptance of---As the appellant's claim (of back benefits) was found to be valid and his entitlement had been established, the impediment of limitation could not be allowed to come in his way---Appeal for grant of back-benefits, was allowed, in circumstances.

Abdul Hameed and others v. Water and Power Development Authority through Chairman, Lahore and others 2021 SCMR 1230 ref.

Mian Tariq Hussain for Appellant.

Zawar Ahmad Sheikh for Respondent.

2024 P L C (C.S.) 1566

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Sajid Mehmood Sethi, J/Chairman Abid Hussain Chattha and Rasaal Hasan Syed, Members

NAZIR AHMED LANGAH

Versus

LAHORE HIGH COURT, LAHORE through Registrar

Service Appeal No.14 of 2021, heard on 24th April, 2024.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Judicial officer---Proforma promotion---Using government money, allegation of---Public functionaries, act of---Appellant assailed order passed by respondent (Registrar High Court), whereby his request for grant of proforma promotion as District and Sessions Judge was declined---Validity---Perusal of record revealed that appellant was considered for promotion as District and Sessions Judge in the meeting of the then Provincial Judicial Selection Board, however he was ignored on the charges of using government money, and not returning the same, which were pending against him ; said money was in possession of concerned Civil Nazir---Appellant could not be penalized by the act of the public functionaries---Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the Appellant was entitled to the grant of proforma promotion and consequent monetary benefits---Appeal, was allowed.

Muhammad Yasin v. Secretary, Government of Punjab and others 2007 SCMR 1769 ref.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Judicial officer---Proforma promotion---Disciplinary or departmental proceedings, pendency of---Appellant assailed order passed by respondent(Registrar High Court ) , whereby his request for grant of proforma promotion as District and Sessions Judge was declined---Validity---Record revealed that the disciplinary proceedings initiated on the orders of the Administration Committee culminated in passing order of appellant's compulsory retirement from service, which was finally converted into censure , and the intervening period (till appellant's retirement on attaining the age of superannuation) was declared as on duty and back benefits of the said period (as Additional District and Sessions Judge) were granted---Promotion cannot be deferred on the ground of pendency of some disciplinary or departmental proceedings, if otherwise he has fulfilled the criteria for consideration of promotion---Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the appellant was entitled to the grant of proforma promotion and consequent monetary benefits---Appeal was allowed.

Mohammad Tarique Khan v. Trading Corporation of Pakistan (Pvt.) Ltd. through Chairman and 5 others 2024 PLC (C.S.) 91 ref.

(c) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.5---Judicial officer---Proforma promotion---Vested right---Scope---Appellant assailed order passed by respondent (Registrar High Court), whereby his request for grant of proforma promotion as District and Sessions Judge was declined---Validity---Record revealed that appellant was considered for promotion as District and Sessions Judge in the meeting of the then Provincial Judicial Selection Board, however he was ignored on basis of some charges, keeping in view the working paper prepared by the respondent reflecting number of allegations and pendency of disciplinary proceedings---Record further revealed that all the hurdles which prevailed upon the then Provincial Judicial Selection Board had vanished---Thus, the appellant had vested right to be considered for proforma promotion with consequential seniority and monetary benefits even after his retirement---It is an inalienable right of every civil servant that he be considered for promotion along with his batch mates when he fulfills eligibility criteria---Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the appellant was entitled to the grant of proforma promotion and consequent monetary benefits---Appeal, was allowed.

Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and 5 others 1996 SCMR 850 and Wadhu Mal v. Province of Sindh through Principal Secretary Chief Minister and 3 others 2023 PLC (C.S.) 1310 ref.

(d) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S.5---Judicial officer---Proforma promotion---Entitlement---Limitation---Appellant assailed order passed by respondent (Registrar High Court), whereby his request for grant of proforma promotion as District and Sessions Judge was declined---Validity---Argument of respondent (Registrar High Court) was that appellant's representation was time barred---Validity---Record revealed that disciplinary proceedings were started against appellant in the year 2009 and remained pending when he attained the age of superannuation, however, culminated into judgment passed in the year 2017 by way of conversion of compulsory retirement into censure, and regarding back benefits ; and the Supreme Court of Pakistan vide order passed in the year 2017 directed the authority to decide the same, and ultimately, back benefits were granted---As the appellant was entitled to the grant of proforma promotion, the objection qua limitation was not tenable---Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the Appellant was entitled to the grant of proforma promotion and consequent monetary benefits---Appeal, was allowed.

Appellant in person.

Zawar Ahmad Sheikh for Respondent.

2024 P L C (C.S.) 65

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ

JAVED IQBAL

Versus

FEDERATION OF PAKISTAN through Secretary Communication, Civil Secretariat, Islamabad and 2 others

C.P. No.807 of 2022, decided on 29th August, 2022.

Constitution of Pakistan---

----Art. 199---National Highway Authority Administrative Regulations, 2002, Reglns. 4.10 & 4.12---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Transfer and posting---Reasons for decision---Scope---Petitioner assailed the notification of his transfer on the ground that it was in violation of Reglns. 4.10 & 4.12, National Highway Authority Administrative Regulations, 2002---Validity---Impugned notification did not demonstrate any special circumstances, due to which, the Reglns. 4.10 & 4.12(3) were deviated and bypassed---Section 24-A of the General Clauses Act, 1897, imposed a mandatory obligation upon every executive and public authority, that the order passed by such authority must not be brief and non-speaking---Though the Regln. 4.10 did not prescribe a minimum period during which an employee/officer of NHA must serve at his post, however, it did not mean that the Authority without assigning any reason could move an officer from the place he was posted just after eight months or subject the officer to successive transfers in a short period for this would amount to punishment---Such transfers also affected the public interest and resulted in the wastage of public resources and constituted bad governance---Impugned notification was declared to have been issued without lawful authority and of no legal effect---Constitutional petition was allowed.

Khan Muhammad v. Chief Secretary, Government of Balochistan, Quetta and others 2018 SCMR 1411 rel.

Syed Muhammad Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 ref.

Sultan Khalid for Petitioner.

Najeebullah Kakar for Respondents Nos.2 and 3.

2024 P L C (C.S.) 107

[Balochistan High Court]

Before Zaheer-ud-Din Kakar and Gul Hassan Tareen, JJ

Mst. MALALA BIBI

Versus

INSPECTOR GENERAL OF POLICE, BALOCHISTAN, QUETTA and another

C.P. No.1537 of 2022, decided on 27th March, 2023.

(a) Balochistan Civil Servants' and Employees' Benefits and Death Compensation Policy, 2020---

----S. 4---Constitution of Pakistan, Art. 199---Constitutional petition---Payment of benefits and death compensation---Scope---Petitioner claimed benefits under the Balochistan Civil Servants' and Employees' Benefits and Death Compensation Policy, 2020, as her husband had died during service---Validity---Policy provides a compensation package to the families of civil servants and employees who die or are injured as a result of terrorist activities, as well as death compensation approved by the Government of Balochistan to the family of a deceased civil servant---It also offers one-time financial assistance to the bereaved family of a Government of Balochistan employee who dies during service due to natural causes---Policy is prospective in nature, meaning it does not apply retrospectively---Provisions of the policy do not indicate that it has been given a retrospective effect---Petitioner's husband passed away on June 2, 2020, while the policy was promulgated on August 11, 2020---Since the policy was not in effect when the petitioner's husband died, it cannot be applied retrospectively to cover cases of individuals who died prior to August 11, 2020---As no right had accrued to the petitioner at the time of her husband's death, she was not an 'aggrieved person' under Art. 199(1)(a)(i) of the Constitution---Constitutional petition was dismissed, in circumstances.

(b) Notification---

----It is a proposition in jurisprudence and the principle of interpreting a notification and/or an executive order that they operate prospectively and not retrospectively.

Government of Pakistan through Secretary Establishment Division, Islamabad v. Muhammad Ismail and another 2021 SCMR 1246 rel.

Hushwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 ref.

Syed Ayaz Zahoor for Petitioner.

Changaiz Dashti, State Counsel for Respondents.

2024 P L C (C.S.) 151

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

Prof. Dr. NAHEED HAQ

Versus

PROVINCE OF BALOCHISTAN through Secretary Governor/Chancellor of Balochistan and 2 others

Constitution Petition No. 1639 of 2022, decided on 27th June, 2023.

(a) Balochistan Protection Against Harassment of Women at the Workplace Act (I of 2016)---

----Ss.2(j) & 12---Protection Against Harassment of Women at the Workplace Act (IV of 2010), S. 2(h)---Harassment complaint under Balochistan Protection Against Harassment of Women at the Workplace Act, 2016---'Harassment'---Petitioner was assigned acting charge of the Pro Vice-Chancellor in absence/removal of the Vice-Chancellor/respondent---Contention of the petitioner was that, after resuming the charge of Vice-Chancellor, the respondent (Vice-Chancellor) having developed personal grudge against her, started taking adverse steps against her including summoning her in a false and baseless case of harassment filed by one Chairperson of Department---Validity---Vice-Chancellor/respondent as well as members of the Harassment Committee had failed to apply their mind while entertaining the complaint-in-question and summoning the petitioner as the complaint-in-question did not certain any allegation of sexual orientation and nature---Any misdemeanor, behavior or conduct unbecoming of an employee or employer at workplace towards a fellow employee or employer, may it be generically classifiable harassment, is not actionable per-se, unless such behavior or conduct is shown to be inherently demonstrable of its 'sexual' nature---On the contrary, complaint-in-question showed that the same contained general allegations i.e. calling of complainant by petitioner in her office, treating her in allegedly undignified manner or giving verbal orders while very harsh, poor and contemptuous language, that too against petitioner (a teacher/pro-vice chancellor), had been used in the complaint---Petitioner, who also happened to be a female, had also a right to perform her duties as Pro-Vice Chancellor in a safe and inclusive work environment, whereas it seemed that she had been made scape goat, harassed and discriminated merely on linguistic basis by a local inhabitant---Similarly, the removal of the petitioner from several committees being Pro-Vice Chancellor was also flat defiance of law and illegal---High Court declared the summoning of the petitioner in the complaint-in-question as illegal, mala fide and void ab-intio---Constitutional petition filed by the lady professor was allowed, in circumstances.

Nadia Naz v. The President of Pakistan and others PLD 2021 SC 784 ref.

(b) Balochistan Protection Against Harassment of Women at the Workplace Act (I of 2016)---

----Ss. 2(J) & 12---Protection Against Harassment of Women at the Workplace Act (IV of 2010), S. 2(h)---harassment complaint under Balochistan Protection Against Harassment of Women at Workplace, 2016---"Harassment"---Scope---Though the Act of 2016, enacted by the Provincial Assembly of Balochistan is ditto copy of the federal legislation i.e. the Act of 2010, however, departure has been made while defining the term of "harassment" where the words "any kind of threats, blackmailing, mental and physical torture, attempt for defamation or defamation through modern techniques" have been added---Said definition and its interpretation by the heads of some organizations is a serious matter because it undermines the intent of the legislation and has detrimental effects on both individuals and the overall workplace environment---There are a number of instances of misuse of the said law, however, the main cause is the novel definition of term 'harassment'---Although the Act, 2016 is/was a legislative measure aimed at providing a safe and harassment-free working environment for women and to prevent sexual harassment at workplaces, however, due to the novel definition of 'harassment' in the Act of 2016, the same is /was being misused and the present case is/was one such example---It is also worth mentioning that under S. 12 of the Act of 2016, the provisions of the Act are in addition to and not in derogation of any other law---Act of 2016 is basically a myopic piece of legislation that focused only on a minute faction of harassment and it confines or limits its application to sexualized forms of harassment---High Court declared the summoning of the petitioner in the complaint-in-question as illegal, mala fide and void ab-intio---Constitutional petition was allowed, in circumstances.

Nadia Naz v. The President of Pakistan and others PLD 2021 SC 784 ref.

Ahmed Rehman Bazai for Petitioner.

Shai Haq Baloch, Additional Advocate General (AAG) for Respondent No.1.

Muhammad Akram Shah assisted by Ms. Nafisa Rehman Shahwani, representative of Mehrgarh for Respondents Nos.2 and 3.

2024 P L C (C.S.) 246

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Shoukat Ali Rakhshani, JJ

BAYAZID KHAN KHAROTI

Versus

CHIEF SECRETARY GOVERNMENT OF BALOCHISTAN CIVIL SECRETARIAT, ZARGHOON ROAD, QUETTA and 2 others

C.P. No.390 of 2023, decided on 29th May, 2023.

Civil service---

----Chief Secretary of Province---Perks and privileges---Scope---Notification No.13-25/70/SO-1(S&GAD) dated 15-03-2010---Petitioner assailed Notification No.13-25/70/SO-1(S&GAD) dated 15-03-2010 issued by Balochistan Government extending extra facilities to Chief Secretary of the Province---Validity---Chief Secretaries are not posted merely on merits but it is the sweet will of Chief Executive to post any one among the equals---Extension of facilities referred to in Notification No.13-25/70/SO-1 (S&GAD), dated 15-03-2010, only to those who had been posted as Chief Secretary while depriving his batch fellows was discriminatory, arbitrary and unjustifiable---Notification in question had a limited legal standing being issued without backing of law---Notification often derived authority from specific law or regulations and the notification in question was person-specific, targeted or individualized legislation---High Court set aside notification in question as the same was issued by S&GAD Government of Balochistan, without approval of the Provincial Cabinet---Initial Notification No.13-25/70/SO-1(S&GAD) dated 15-03-2010 was issued illegally and without legal backing and authority, therefore, issuance of all subsequent steps and notifications based on the same were also invalid---Constitutional petition was allowed, in circumstances.

Mustafa Impex's case PLD 2016 SC 808 fol.

Nemo for Petitioner.

Shai Haq Baloch and Amjad Khan, Additional Advocate General (A.A.Gs) for Respondents.

2024 P L C (C.S.) 297

[Balochistan High Court]

Before Rozi Khan Barrech, J

ABDUL RAUF

Versus

GOVERNMENT OF BALOCHISTAN, through Chief Secretary and 3 others

C.P. No.12 of 2022, decided on 12th January, 2022.

Constitution of Pakistan---

----Arts. 199 & 212---Civil service---Constitutional petition---Bar to jurisdiction---Maintainability---Transfer and posting---Scope---Petitioner challenged the notification of his posting/transfer---Validity---Jurisdiction of the High Court was ousted in matters which fell within the jurisdictional domain of the Balochistan Service Tribunal---Article 199 of the Constitution was "subject to the constitution", while Art. 212, being a non-obstante Article, prevailed over Art. 199---Article 212 clearly stated that "no court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends", therefore, High Court had no jurisdiction to entertain a matter which stood barred under Art. 212 of the Constitution---In fact, Art. 199 of the Constitution could not be set in motion due to the jurisdictional bar; therefore, question of alternate remedy or mala fide consideration or the nature of grievance did not even begin to arise---Such distinction between the bar of jurisdiction and the exercise of judicial power must be clearly understood---Petitioner was directed to approach relevant forum---Constitutional petition, being not maintainable, was dismissed.

Adnan Ejaz Sheikh for Petitioner.

2024 P L C (C.S.) 393

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

ABDUL HAYEE EX-SST(G)

Versus

The ACCOUNTANT GENERAL BALOCHISTAN SARIAB ROAD, QUETTA and another

C.P. No.741 of 2021, decided on 20th June, 2022.

General Clauses Act (X of 1897)---

----S.21---Civil service---Pension---Locus poenitentiae, principle of---Applicability---Petitioners were aggrieved of notice issued by respondent authorities seeking recovery of excess pension paid to their predecessor-in-interest---Validity---Respondent authorities issued pay-slip to predecessor-in-interest of petitioners, who had received the amount---There was no allegation that predecessor-in-interest of petitioners had obtained fake pay-slip and received the amount fraudulently---Respondent authorities paid salary creating vested right which could not subsequently be taken away on mere assumption and supposition or on the whim of executive authority---Such right once vested could not be withdrawn as legal bar would come into play under the doctrine of locus poenitentiae---High Court declared the notice issued by authorities as ab-initio illegal, void and of no legal effect---Constitutional petition was allowed, in circumstances.

Shams-ur-Rehman v. Military Accountant General, Rawalpindi 2020 SCMR 188 rel.

Siraj Munir Marvi for Petitioner.

Muhammad Ali Rakhshani, A.A.G. for Respondents Nos.1 to 3.

2024 P L C (C.S.) 428

[Balochistan High Court (Sibi Bench)]

Before Naeem Akhtar Afghan, CJ and Abdul Hameed Baloch, J

SULEMAN KHAN

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs

Department and 3 others

Constitution Petition No.(S)201 of 2019, decided on 8th November, 2021.

Civil service---

----Appointment on "Shaheed Quota"---Scope---Petitioner filed the constitutional petition for his appointment against any suitable post in the police department under "Shaheed Quota"---Validity---Perusal of notification issued by Provincial Government revealed that if the Shaheed employee was married, either spouse or one child or nominee of the spouse could be given employment against vacant post in the department provided he/she qualified for the post---Both the widows of the Shaheed had appeared before the court and had confirmed their recommendation for the petitioner (brother of Shaheed) for his appointment against Shaheed Quota in the police department---Constitutional petition was accepted and the respondents were directed to appoint the petitioner in police department as per his qualification.

Kamran Ahmed Umrani for Petitioner.

Zahoor Ahmed Baloch, A.A.G. for Respondents.

2024 P L C (C.S.) 482

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ

FAIZ MUHAMMAD

Versus

PROVINCE OF BALOCHISAN through Chief Secretary, Civil Secretariat, Quetta and others

C.P. No.1242 of 2022, decided on 22nd August, 2022.

Civil service---

----Post, upgrading of---Principle---Doctrine of laches---Applicability---Petitioner sought upgrading of the post in which he was serving---Validity---Petitioner could not claim up-gradation as a matter of right, nor it could be made to benefit a particular individual i.e. the petitioner, in terms of promoting him to a higher post---Issue of need of restructuring, reform or to meet exigency of service in public interest and absence of isolated post was not involved in the matter---In absence of such pre-conditions, up-gradation was not permissible to petitioner---Notification of posting of respondent official was issued on 22-04-2019, whereas petitioner assailed the same on 04-08-2022, i.e. after 3 - 4 years---Petitioner did not explain delay caused in filing of petition, which suffered from laches and was not maintainable---Constitutional petition was dismissed, in circumstances.

Regional Commissioner Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali and others 2016 SCMR 859; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Federal Public Service Commission through Secretary v. Anwar-ul-Haq (Private Secretary) Islamabad and others 2017 SCMR 890; Fida Muhammad v. Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others 2021 SCMR 1895; Muhammad Amjad v. The Director General, Quetta Development Authority and another 2022 PLC (C.S.) 594; 2022 SCMR 797; Hafiz Khalid Irshad v. Ahmed Khan Wattoo 1997 SCMR 1124 and Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 rel.

Inamullah Khan Kakar for Petitioner.

2024 P L C (C.S.) 516

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Muhammad Aamir Nawaz Rana, JJ

NAJEEBULLAH and others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others

Constitution Petitions Nos.1488 and 1556 of 2022, decided on 1st March, 2023.

Balochistan Prosecution Service (Constitution, Functions and Powers) Act (VI of 2003)---

----S.5---Constitution of Pakistan, Art. 175(3)---Administration, control and supervision of the Balochistan Prosecution Service---Members of service under the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003---Transfer and posting---Prosecutor General or the Secretary, Prosecution Department, Government of Balochistan ('GoB')---Petitioners (who were performing their duties in the Prosecution Department, GoB) were aggrieved from a letter addressed to the District Public Prosecutors of Quetta etc. wherein it was mentioned that the Prosecutor General had no authority to issue transfer/posting orders of officers of BPS-17 and above, which authority, according to the impugned letter, vested exclusively with the Secretary, Prosecution Department, GoB---Question was as to whether the powers for transfer and posting of the members of service under the Balochistan Prosecution Service (Constitution, Function and Powers) Act, 2003, vested in the Prosecutor General or the Provincial Government?---Held, that "Prosecutor General" has been defined in S.2(l) of the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003, which holds the Prosecutor General responsible for management of prosecution and control over the Prosecutors and in the same manner, according to S. 5(2) of the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003, the administration of the service has been vested in the Prosecutor General---Intent of the legislature is to create independent and uninfluenced Prosecution Department so that the trust of general public be restored---Independent and fair prosecution is indispensible for any civilized criminal justice system---Constitution of Pakistan is based upon trichotomy of powers---Article 175 (3) of the Constitution envisages separation of judiciary from the executive---On the same analogy separation of prosecution from the executive is also necessary for transparent and fair prosecution of cases---For the administration, control and supervision under Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003, the intent of legislature while enacting the Balochistan Prosecution Service (Constitution, Functions and Powers) Act, 2003 was to formulate independent, impartial and fair prosecution services free from external influences and ulterior considerations of any kind---For this very purpose, the Prosecutor General was authorized with management and administration of Prosecutors independently and the Secretary, Prosecution Department GoB had no role in said regard---High Court set-aside the impugned letter dated 08.09.2022---Constitutional petition was allowed, in circumstances.

Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat v. Prosecutor-General Sindh, Criminal Prosecution Department 2012 of PLC (C.S.) 263 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

Muammar Qazafi Khan for Petitioners (in C.P. No.1488 of 2022).

Muhammad Ali Rakhshani, Additional Advocate General for Respondents Nos.1 and 2 (in C.P. No.1488 of 2022).

Munir Ahmed Khan Kakar, Sanaullah Ababki and Abdul Ghani for Respondent No.3 (in C.P. No.1488 of 2022).

Naeem-ul-Haq Kulachi for Petitioner (in C.P. No.1556 of 2022).

Muhammad Ali Rakhshani, Additional Advocate General for Respondents Nos.1 and 2 (in C.P. No.1556 of 2022).

Munir Ahmed Khan Kakar, Sanaullah Ababki and Abdul Ghani for Respondent No.3 (in C.P. No.1556 of 2022).

2024 P L C (C.S.) 535

[Balochistan High Court]

Before Naeem Akhtar Afghan, CJ and Gul Hassan Tareen, J

ZAFAR ALI

Versus

PROVINCE OF BALOCHISTAN through Secretary Food and another

C.P. No.1184 of 2022, decided on 2nd August, 2022.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 11---Civil service---Constitutional petition---Res judicata---Scope---Petitioner's appointment was declared to be illegal by the High Court---Such order was assailed before the Supreme Court through Civil Petition for Leave to Appeal, which was dismissed and the review filed met with the same fate---Petitioner through present petition sought reinstatement with back benefits---Validity---Appointment of the petitioner had since been declared illegal by a Division Bench of the High Court, which was further upheld by the Supreme Court of Pakistan, therefore, High Court had no authority to render a conflicting opinion on any ground whatsoever---Matter fell within the definition of "finally heard and decided"---Petition was barred by the principle of "res judicata"---Constitutional petition was dismissed.

Humair Altaf v. Federation of Pakistan and 3 others 2018 CLC 1632 and Muhammad Asif Iftikhar v. Zila Nazim Kasur (Ex-Chairman) and 4 others PLD 2005 Lah. 381 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---High Court cannot, in exercise of its constitutional jurisdiction, interfere with an order passed by another Judge on another Bench of the same Court---One Bench of the High Court cannot sit as a court of appeal over an order or a judgment of another Bench---No writ can be issued by a High Court against itself in exercise of jurisdiction under Art. 199 of the Constitution.

Muhammad Ikram Chaudhry v. Federation of Pakistan and others PLD 1998 SC 103 and Muhammad Nadeem and 3 others v. Government of Balochistan and 3 others 2015 PLC (C.S.) 1143 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Civil proceedings---Scope---Civil proceeding in a High Court is also governed by the provisions of the Code of Civil Procedure, 1908, save the provisions which have been specially excepted.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

Rahib Khan Buledi for Petitioner.

2024 P L C (C.S.) 564

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

MUHAMMAD YOUSAF

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs and 2 others

C.P. No.80 of 2022, decided on 30th June, 2022.

Civil service---

----Balochistan Levies Force---Post of Wireless Operator---Recruitment---Legitimate expectation, doctrine of---Successful candidate(s), non-appointment of---Scope---Petitioner was one of those candidates having been recommended as successful, however, his appointment order was not issued despite lapse of considerable period---Contention of the respondent (Government departments) was that there was public outcry over alleged irregularities /favoritism, and due to lapse of considerable time the posts had been re-advertised---Validity---Respondent in the para-wise comments had not mentioned any reason for not approving the names of recommended candidates---Mere bald assertion on the part of officials / respondents could not be termed as gospel truth---There was no specific allegation against the recruitment committee that it had favoured some candidates---Respondent was under obligation to prove the allegation with record, and had not annexed any document in regard of any action taken against the recruitment committee for conducting the test and interview in a non-transparent manner---Contention of the respondent was misconceived as after completion of recruitment, the process could not be cancelled on sweet-will or in capricious manner---When a right has accrued the same cannot be taken away without due process of law---Petitioner, and others, were expected to be appointed---Doctrine of legitimate expectation was applicable in the present case---Recommendation of the petitioner and others could not be brushed aside on the whim of the respondents---There seemed absolutely no justification for delaying the matter for about two years which had caused harm, mental agony to the candidates---High Court directed the respondent that as per recommendation of the recruitment committee, the order of appointment of successful candidates be issued within one month---Constitutional petition was allowed, in circumstances.

Uzma Manzoor v. Vice-Chancellor Khushal Khan Khattak University, Karak, 2022 SCMR 694 and Munir Ahmed v. Minister for Home and Tribal Affairs, Government of Balochistan, Quetta, 2007 PLC (C.S.) 679 ref.

Nadir Ali Chalgari for Petitioner.

Muhammad Ali Rakhshani, Additional Advocate General, Abdul Ghaffar Magsi, Director Levies Force and Asadullah, Tehsildar for Respondents.

2024 P L C (C.S.) 849

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Iqbal Ahmed Kasi, JJ

Syed TAQVEEM SHAH

Versus

GOVERNMENT OF BALOCHISTAN, CHIEF SECRETARY, QUETTA and 3 others

C.P. No.1911 of 2022, decided on 12th December, 2022.

Constitution of Pakistan---

----Art. 199---Writ petition---Maintainability---Civil service---Transfer and posting---Petitioner contended that government be directed not to make transfers/postings of civil servants as such act of the government had caused public exchequer a huge loss---Validity---Clause 1(a) of Art. 199 of the Constitution clearly postulates that High Court can make an order only on the application of any aggrieved party---Petitioner, being not an aggrieved party, could not competently make a resort to the High Court under its constitutional jurisdiction---Petitioner had no locus standi for availing such jurisdiction---Neither had the petitioner any nexus with the transfers/postings, nor had he any concern with it, rather it was the sole prerogative of the concerned department of the government to transfer/post any suitable person from one place to another---Constitution petition was dismissed in limini.

Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income Tax PLD 1978 SC 151 rel.

Zaheer Ahmed for Petitioner.

2024 P L C (C.S.) 863

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

NIAZ ALI

Versus

PRESIDENT ZARAI TARAQIATI BANK LIMITED and 2 others

C.P. No.1403 of 2021, decided on 20th June 2022.

Constitution of Pakistan---

----Art. 9---Civil service---Pensionary benefits, withholding of---Allegation after retirement---During service of the petitioner (retired AVP from Zarai Taraqiyati Bank) in respect of misplacement of 29 loan files, the Inquiry Officer had held another employee (ex-Manager) responsible, who (ex-Manager) was dismissed from service---Respondent /Bank withheld the pension of the petitioner on the basis of audit objection---Validity---Record revealed that no inquiry was pending against the petitioner but after lapse of 18 months no progress had been made in regard of audit objection---Under Art. 9 of the Constitution, no person shall be deprived of his life and liberty save in accordance with law---Word "life" used in Art. 9 of the Constitution carries with the right of life, where all fundamental rights are guaranteed---Pensionary benefit are fundamental rights of petitioner and he cannot be deprived from such fundamental right without any valid and just reasons ---After retirement of petitioner the respondent/bank had no lawful authority to withhold the pensioner benefits of employee---Prolong delay in releasing pension had definitely caused great hardship to the petitioner and his family---High Court directed the respondents / bank to release the pension and other benefits---Constitutional petition, filed by retired bank employee, was allowed in circumstances.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Government of N.W.F.P. v. Muhammad Said Khan PLD 1973 SC 514 and Muhammad Ismail Memon's case PLD 2007 SC 35 ref.

Tariq Ali Tahir for Petitioner.

Muhammad Ali for Respondents.

2024 P L C 1079

[Balochistan High Court]

Before Naeem Akhtar Afghan, CJ and Rozi Khan Barrech, J

MUHAMMAD ISHAQUE NOTEZAI

Versus

GOVERNMENT OF PAKISTAN, ESTABLISHMENT DIVISION, CABINET SECRETARIAT, ISLAMABAD through Secretary and 3 others

C.P. No.384 of 2020, decided on 18th March, 2022.

Constitution of Pakistan---

----Art. 25---Member National Industrial Relation Commission---Perks and privileges---Discrimination---Petitioner was Member National Industrial Relation Commission and aggrieved of his perks and privileges fixed by authorities, which were less than that of Member National Industrial Relation Commission officiating in Multan Bench---Validity---Petitioner was discriminated against with a person similarly placed in another province---Petitioner was appointed on same terms and conditions of service as that of Members of National Industrial Relation Commission of other provinces---High Court directed the authorities to pay to petitioner pay and allowance equivalent to that paid to the Member of Multan Bench of National Industrial Relation Commission---Constitutional petition was allowed accordingly.

Tahir Humayun and others v. High Court of Balochistan through Registrar and others PLD 2016 Bal. 56 rel.

Tahir Ali Baloch for Petitioner.

Sanaullah Ababaki, A.A.G. for Respondent/State.

2024 P L C (C.S.) 1109

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

BIBI HAJIRA and others

Versus

The SECRETARY HEALTH, GOVERNMENT OF BALOCHISTAN and others

C.Ps. Nos.38 and 118 of 2022, decided on 26th April, 2022.

Civil service---

----Recruitment---Recruitment Committee---Test and interview---No vested right---Petitioners assailed recruitment process for posts in question on the plea of vested right---Validity---It was prerogative of Provincial Government to constitute committee for recruitment---Candidates had no choice to raise objection over the committee unless members had grudge or enmity with petitioners---There was no allegation of bias and malice against any member of committee nor there was any allegation that committee members favoured particular candidates due to any relationship or for other reasons---Mere bald allegation on the part of petitioners without any proof could not be a ground to declare that the recruitment process was not transparent---Vested right is a right that has occurred to possessor with no condition and cannot be taken away arbitrarily---Test and interview do not create vested right to a candidate, as it is never a final result of recruitment process---High Court declined to interfere in recruitment process for the posts in question---Constitutional petition was dismissed, in circumstances.

Prem's Judicial Dictionary (Vol. IV, 1964); Salmond's Jurispruduence (12th Edition); J.S. Yadav v. State of U.P. and another (2011) 6 SCC 570; Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599; Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 and Secretary Finance v. Ghulam Safdar 2005 SCMR 534 rel.

Basit Shah and Mehrullah Kakar for Petitioners (in Constitutional Petition No.38 of 2022).

Atta Muhammad Tareen for Respondents Nos.4, 5 and 6 (in Constitutional Petition No.38 of 2022).

Muhammad Ali Rakhshani, A.A.G. along with Muhammad Anwar, DHO Ziarat for Official Respondent (in Constitutional Petition No.38 of 2022).

Ahsan Rafiq Rana for Petitioner (in Constitutional Petition No.118 of 2022).

Muhammad Ali Rakhshani, A.A.G. for Respondents (in Constitutional Petition No.118 of 2022).

2024 P L C (C.S.) 1125

[Balochistan High Court]

Before Naeem Akhtar Afghan, CJ and Gul Hassan Tareen, J

MUHAMMAD ARIF and 4 others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others

C.P. No.1052 OF 2023, decided on 26th July, 2023.

Balochistan Civil Servants Act (IX of 1974)---

----Ss. 2(1)(b), 4 & 17---Constitution of Pakistan, Arts. 212 & 199---Civil servant---Release of pay---Constitutional petition---Maintainability---Terms and conditions of service---Balochistan Service Tribunal, powers of---Petitioners (having been recruited against different positions lying vacant in the Health Department/respondents) sought a writ of mandamus directing the respondents for release and payment of their due salaries for last three years or so---Validity---Petitioners, admittedly, were initially recruited against different positions lying vacant in the respondents /Health Department; they submitted their respective joining reports and started performing official duties---Petitioners were, thus, members of civil service of the Province (of Balochistan) and held civil posts in connection with the affairs of the Province and therefore, for all intents and purposes, were civil servants within the meaning of S. 2 subsection (1), clause (b) of the Balochistan Civil Servants Act, 1974 ('the Act 1974')---Petitioners claimed payment of monthly pays---Like any other term and condition of service of a civil servant, pay is likewise a term and condition of service of a person in the service of the Province of Balochistan---According to Preamble of the Act, 1974, said piece of legislation was enacted to regulate by law the appointment of persons to and the terms and conditions of service of persons in the service of Balochistan and to provide for matters connected therewith or ancillary thereto---Terms and conditions of service of a civil servant in the service of the Province of Balochistan are contained in Chapter II of the Act, 1974 and the Rules framed thereunder---As S.17 of the Act, 1974, relates to the term 'pay', therefore, a civil servant in the service of the Province of Balochistan, aggrieved by any final order, whether original or appellate made by Departmental Authority in respect of any of the terms and conditions of his service, may prefer an appeal to the Balochistan Service Tribunal established under Art.212(1) of the Constitution read with S. 4 of the Balochistan Service Tribunals Act, 1974---Article 212(2) of the Constitution imposes a complete clog on the jurisdiction of the High Court under Art. 199 of the Constitution where a matter relates to the terms and conditions of service of a civil servant in the service of the Province of Balochistan---Article 199 of the Constitution starts with an expression i.e. 'subject to the Constitution' whereas, Art. 212(1) thereof with an obstante clause i.e. 'notwithstanding anything hereinbefore contained'---Therefore, Art.212(1) of the Constitution supersedes Art. 199(1) of Constitution in respect of a matter relating to the terms and conditions of a civil servant---Since 'pay' is a term and condition of the service of the petitioners therefore, they should have preferred service appeal before the Balochistan Service Tribunal after exhausting the remedy of a department appeal---High Court under Art. 199 of the Constitution could not exercise jurisdiction in respect of the grievance of petitioners in relation to their monthly pay---Petitioners were civil servants and their alleged grievance related to the terms and conditions of their service, therefore, the jurisdiction to entertain the present petition was barred by Art.175(2) read with Art. 212(2) of the Constitution---Balochistan Service Tribunal had exclusive jurisdiction to entertain the alleged grievance of the petitioners---Constitutional petition was dismissed in limine, in circumstances.

Punjab Textbook Board Lahore and others v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032 and National Assembly Secretariat through Secretary v. Manzoor Ahmed and others 2015 SCMR 253 ref.

Naimatullah Achakzai for Petitioners.

2024 P L C (C.S.) 1190

[Balochistan High Court]

Before Abdullah Baloch and Muhammad Aamir Nawaz Rana, JJ

Dr. MUSADIQ AZIZ and 6 others

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Health Department Civil Secretariat, Quetta and another

Constitution Petition No.1208 of 2023, decided on 11th September, 2023.

(a) Civil service---

----Advertised posts---Eligibility---Pre-requisite educational qualification (degree) not attained / finalized by the aspirants till cutoff date for submissions of applications---Question was, whether or not, a candidate who did not possess the requisite qualification at the relevant time could apply for the post---Petitioners who were awaiting result of their Master's Degree (in Public Health) from Medical University had applied for the said advertised posts despite the fact that result of their 4th (final) Semester had not been announced---Petitioners appeared in the test and according to them they had passed the written test---Balochistan Public Service Commission ('the Commission'), on verification, disqualified the petitioners from appearing in the interview on the sole ground that at the time of submissions of application and cutoff date provided in said regard by the Commission, the petitioners had not passed the exam of their 4th Semester---Petitioners filed constitutional petition contenting that though the result was announced subsequently (after about a month of cut-off date) they had obtained the Degree of Master in Public Health, therefore they were eligible to appear in viva voce---Validity---Admittedly, on the last date for submissions of applications provided by the Commission the petitioners had not obtained the relevant degree rather they passed their semester subsequently---Petitioners for all intents and purposes were not qualified to apply for the posts-in-question on or before the cut-off date as they lacked the basic qualifications for the said posts as they obtained their degree subsequently---A candidate, who does not possess the requisite qualification at the relevant time , cannot apply for the post on the basis of practice of issuing "hope certificate" by the relevant university as it is not understandable as how a university, in such a certificate, can make a categorical statement that the aspirant "would pass his final examination"---The very concept of "hope certificate" is beyond comprehension---If for a particular job / position, certain educational qualification are required, these have to be met before the candidate applies for the same---Constitutional petition was dismissed, in circumstances.

Nasir Mehmood v. Director Education (Colleges), Balochistan, Quetta and others 2013 PLC (C.S.) 1143 ref.

(b) Civil service---

----Advertised posts---Eligibility---Pre-requisite educational qualification (degree) not attained / finalized by the aspirants till cutoff date for submissions of applications---Vested right to appointment---Scope---Question was, whether or not, a candidate who did not possess the requisite qualification at the relevant time could apply for the post---Argument of the petitioners was that since the petitioners had passed the written test, therefore, a vested right had been created in their favor---Held, that said argument was misconceived as the petitioners were not qualified even to submit application for the advertised post having not obtained the relevant degree at the given time---Since the petitioners themselves committed misrepresentation by posing themselves eligible for the said post, therefore, at subsequent stage petitioners could nto ask for any premium on account of their own fault---Constitutional petition was dismissed, in circumstances.

Dr. Shamim Tariq v. Internationl Islamic University Islamabad 2020 SCMR 568; Asif Hassan and others v. Sabir Hussain and others 2019 SCMR 1720; Wasim Shahzad v. Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and others 2018 PLC (C.S.) Note 168; Muhammad Muneer Malik and others v. Allama Iqbla Open University and others 2016 PLC (C.S.) 896 and Shazia Munawwar v. Pubjab Public Service Commission through Secretary, Lahore PLD 2010 Lah. 160 ref.

(c) Civil service---

----Advertised posts---Eligibility---Pre-requisite educational qualification (degree) not attained / finalized by the aspirants till cutoff date for submissions of applications---Question was, whether or not , a candidate who did not possess the requisite qualification at the relevant time could apply for the post---Held, that eligibility criteria expressly mentioned in the advertisement could not be ignored, altered or deviated from during the selection process, particularly when the cut-off date for the submission of applications had expired---Constitutional petition was dismissed, in circumstances.

Ashok Kumar Sharma and others v. Chander Shekhar and another 1997 (4) SCC 18 ref.

Ameer Muhammad Tareen for Petitioners.

Nusrat Baloch, A.A.G. along with Javed Manan Secretary Public Service Commission Balochistan Dilawar Khan Kaji Deputy Director and Muhammad Awais Asstt. Director Legal Public Service Commission Balochistan for Respondent.

2024 P L C (C.S.) 1362

[Balochistan High Court]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

ABDUL GHAFOOR KAKAR

Versus

Honorable BALOCHISTAN HIGH COURT, through Registrar and others

Service Appeal No.02 of 2018, decided on 30th July, 2020.

(a) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989)---

----S. 5---Judicial Officer relieved from Judicial Service of one province placed at disposal of Judicial Service of Islamabad Capital Territory---Ante-dated promotions, entitlement to---Scope---Judicial Officer, who earlier served in Balochistan Subordinate Judiciary, was presently posted at Islamabad under Islamabad High Court---Judicial Officer (Additional District and Sessions Judge) was deniedante-dated promotion, when he was Judicial Officer on the payroll of Balochistan High Court (BHC)---Plea of the Appellant (Judicial Officer) was that he was entitled to ante-dated promotions in the light of the judgment of the Balochistan High Court /Balochistan Subordinate Judiciary Services Tribunal (SJT) dated 25th April 2016 reported as PLD 2016 Bal. 56---Question was whether the appellant being employee of the Islamabad High Court (IHC), and when his services were being run by Islamabad Judicial Service Rules, 2011, could be extended benefit of said Judgment of the Balochistan High Court (BHC)---Held, that Record revealed that the appellant was permanently appointed as Judicial Officer by the IHC within the Islamabad Capital Territory and he had also been granted promotion and presently was working as Additional Sessions Judge---After being relieved by the BHC, his services were placed at the disposal of the IHC---Admittedly, the appellant was neither transferred by BHC nor he was posted on deputation basis, nor he had obtained any lien from BHC---Appellant was already appointed by IHC in Islamabad, by clearly mentioning that his services would be governed by the Islamabad Judicial Service Rules 2011, thus no order in favour or against the appellant could be passed when he was no more the employee of the District Judiciary of Balochistan---Pertinently, the appellant was appointed as Civil Judge-cum-Judicial Magistrate Islamabad and he had already been promoted to the post of Additional District and Sessions Judge---Appellant had failed to make out a case in his favour---Appeal, filed by judicial officer, being merit-less, was dismissed, in circumstances.

Engineer Hafeezullah v. C.E.O. (PTCL) and others 2011 SCMR 442 ref.

(b) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989)---

----S.5---Judicial Officer relieved from Judicial Service of one province placed at disposal of Judicial Service of Islamabad Capital Territory---Ante-dated promotions, entitlement to---Scope---Judicial officer who earlier served in Balochistan Subordinate Judiciary, was presently posted at Islamabad under Islamabad High Court ---Judicial officer (Additional District and Sessions Judge) was denied ante-dated promotion, when he was judicial officer on the payroll of Balochistan High Court (BHC) on the plea that he was entitled to the such ante-dated promotions in the light of the judgment of the Balochistan High Court / Balochistan Subordinate Judiciary Services Tribunal (SJT) dated 25th April 2016 reported as PLD 2016 Bal. 56 ('judgment-in-question')---Appellant had sought promotion from the date when the other Judicial Officers of BHC were given promotion, as he claimed that he was the permanent employee of BHC---Validity---Stance of the appellant did not carry any weight, on the ground that at the time of passing of the judgment-in-question, he was no more part of the Balochistan Subordinate Judiciary, rather his services being a Judicial Officer at Islamabad were under the IHC and run by the Islamabad High Court Rules, 2011---This appointment was made after his appearance before the Judicial Selection Board and thereafter being relieved by the BHC, thus, he had relinquished all his right, if any, and could not press his right for promotion before the Balochistan High Court either with back date or on a strength of implementation of the judgment-in-question retrospectively in his favour---Appellant had failed to make out a case in his favour---Appeal, filed by judicial officer, being merit-less, was dismissed, in circumstances.

(c) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989)---

----S.5---Judicial Officer relieved from Judicial Service of one province placed at disposal of Judicial Service of Islamabad Capital Territory---Ante-dated promotions, entitlement to---Scope---Judicial Officer who earlier served in Balochistan Subordinate Judiciary, was presently posted at Islamabad under Islamabad High Court---Judicial Officer (Additional District and Sessions Judge) was denied ante-dated promotion, when he was Judicial Officer on the payroll of Balochistan High Court (BHC)----Plea of Appellant Judicial Officer was that he was entitled to the such ante-dated promotions in the light of the judgment of the Balochistan High Court / Balochistan Subordinate Judiciary Service Tribunal (SJT) dated 25th April 2016 reported as PLD 2016 Bal. 56 ('judgment-in-question')---Validity---Even if the stance of the appellant was accepted, and his case was ordered to be placed before the Administrative Committee and Promotion Committee, even then his case could not be considered, as the promotion of an office is made on the basis of one's Performance Evaluation Report (PER) or Annual Confidential Report (ACR), and observing his judicial work, but in the case in hand after his appointment in the IHC, neither his PER/ACR since 2011 was available on record nor he had performed as Judicial Officer in the province of Balochistan---It was also the verdict of judgment-in-question, that the cases of the Judicial Officers be referred to the Administrative Committee and on referring the same, the Administrative and Promotion Committees decided the cases on the basis of their performance report and judicial work---Appellant had failed to make out a case in his favour---Appeal, filed by judicial officer, being merit-less, was dismissed, in circumstances.

(d) Balochistan Civil Servants (Confirmation) Rules, 2012)---

----Rr.2(g) & 6(2)---Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989), S. 5---Judicial Officer relieved from Judicial Service of a Province placed at disposal of Judicial Service of Islamabad Capital Territory---"Lien"---Scope---Termination of Lien---Pre-requisites---Judicial officer who earlier served in Balochistan Subordinate Judiciary, was presently posted at Islamabad under Islamabad High Court---Judicial Officer (Additional District and Sessions Judge) was denied ante-dated promotion, when he was Judicial Officer on the payroll of Balochistan High Court (BHC)---Plea of Appellant (Judicial Officer) that he was entitled to such ante-dated promotions in the light of the judgment of the Balochistan High Court / Balochistan Subordinate Judiciary Services Tribunal (SJT) dated 25th April 2016 reported as PLD 2016 Bal. 56 ('judgment-in-question')---Validity---Record revealed that the appellant had not availed any lien from the BHC, rather in the concerned relieving notification, it was clearly mentioned that "they were hereby relieved without lien in parent Department/High Court of Balochistan"---"Lien" means the title of a civil servant to hold substantively a post on which he has been confirmed under R. 2(g) of Balochistan Civil Servants (Confirmation) Rules, 2012---Under R.6(2) of Balochistan Civil Servants (Confirmation) Rules, 2012 , an employee on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post---For termination of lien of a permanent civil servant from his original department, three prerequisites have to be satisfied which are (i) the civil servant concerned has joined other department on regular basis; (ii) joining the other department is result of his selection; (iii) the selection is through a regular selection process---If the said conditions are satisfied and a civil servant has consented for such joining, he would have no claim about his lien in the previous department after expiry of probationary period---Subordinate-Judiciary Service Tribunal, on examination of the case of appellant on said touchstone of the criterion for termination of lien, viewed that the appellant could not retain lien in BHC after joining the services under the IHC on regular basis---He was neither transferred on temporary basis nor was on deputation, whereupon, he would be entitled to the benefit as permissible to an employee on lien---Appellant had failed to make out a case in his favour---Appeal, filed by judicial officer, being merit-less, was dismissed.

Muhammad Ishaq Nasar for Appellant.

Shai Haq Baloch, Additional Advocate General for Respondents.

2024 P L C (C.S.) 57

[Punjab Subordinate Judiciary Service Tribunal]

Before Mirza Viqas Rauf, Chairman, Muhammad Sajid Mehmood Sethi and Sardar Muhammad Sarfraz Dogar, Members

GULZAR HUSSAIN

Versus

The REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.08 of 2015, heard on 17th November, 2021.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 2(e)---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S. 5---Judicial officer---Misconduct---Dismissal from service converted to reduction to three lower stages in pay scale---Interaction of Judicial Officer with the litigant(s)---Penalty and magnitude of the misconduct committed, commensuration of---Allegation upon Civil Judge-cum-Judicial Magistrate was of receiving illegal gratification for dismissal of the bail application he was hearing---Validity---Oral as well as documentary evidence adduced by the prosecution showed that the prosecution though had established link of appellant-judge with the complainant, but had failed to establish the charges of receiving of illegal gratification or other gains and criminal intimidation---Record of as many as 96 incoming and outgoing calls exchanged between appellant and complainant/litigant was revealed---Judge could not develop terms/liaison with the litigants---Ethics prevalent globally specifically prohibited the judges from maintaining any contact with the parties appearing in their Courts---Speaking privately to the litigants by a judge, even when the conversation was on an unrelated topic, was against the propriety of his office---Practice of a Judge having contact with the litigant through social media was also deprecated---In the present case, interaction of the appellant (being a judicial officer) with litigant was against service discipline---Such conduct unbecoming of a Judicial Officer came within the definition of 'misconduct' stipulated in R. 2(e) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---Authority could, in its discretion, award major or minor penalty but this power must be exercised reasonably which was also justifiable---Penalty should commensurate with the magnitude of the misconduct committed---Extreme penalty for an act of a lesser degree would definitely defeat the reformatory concept of punishment in administration of justice---While punishing an employee found guilty of misconduct, the competent authority was required to take into account, inter alia, the gravity of misconduct found proved and its impact on the organization/department---As allegations of receiving illegal gratification and criminal intimidation have not been established against the appellant and he was also ready not to claim back benefits, therefore, major penalty of removal from service did not commensurate with the gravity of misconduct---Tribunal converted the penalty of dismissal from service into major penalty of reduction to three lower stages in pay-scale of the appellant---Appeal was partly allowed, in circumstances.

Timothy W. Miller v. Angela L. Carroll 925 N.W.2d 580 (2019); Timothy W. Miller v. Angela L. Carroll 944 N.W.2d 542 (2020); M. C. Jena v. Commandant, Central Industrial Security Force Unit, VSP, Visakhapatnam and others 2008 (4) SLR 138; Muhammad Akbar Sajid Chaudhary v. Lahore High Court, Lahore through Registrar and others 2016 PLC (C.S.) 560; Shakir Ali and another v. National Accountability Bureau through Chairman, Islamabad and another 2021 PLC (C.S.) 683 and Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others PLD 2019 SC 189 ref.

Appellant in person.

Zawar Ahmad Sheikh for Respondent.

2024 P L C (C.S.) 18

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

FEDERAL PUBLIC SERVICE COMMISSION through Chairman, Islamabad and another

Versus

SHIRAZ MANZOOR and others

Civil Petitions Nos. 2347 to 2360 of 2022, decided on 24th November, 2022.

(Against the judgment dated 17.3.2022 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 1111(R)CS/2017 to 1124(R)CS/2017)

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

----R. 7---Civil Servants Act (LXXI of 1973), S. 5---SRO No.338(I)/2009 dated 14.4.2009 ('SRO of 2009')---Post of 'Reader' in Federal Services Tribunal ('the Tribunal')---Appointment---Federal Service Tribunal ('Tribunal') directed that the rules whereby conditions were prescribed regarding the method, qualifications and manner for appointment against various posts, including the post of the 'Reader' [notified and published in the official gazette vide SRO No.338(I)/2009 dated 14.4.2009 ('SRO of 2009')] may be amended so that appointments made against the post of a Reader are exclusively through the mode of promotion from amongst those holding the post of Assistant---Legality---Appointment to the post of the Reader was not governed under any rules before framing and notifying the 'SRO of 2009' which had, for the first time, prescribed the criteria, conditions, qualifications and mode for filing the five sanctioned posts of Readers in the Tribunal---There was no vested right that had accrued in favour of the respondents, working against the post of Assistant, to be appointed to the post of the Reader through promotion nor to take away the prerogative of the competent authority to formulate a recruitment and selection process relating to the post of the Reader---Question of alteration of a right to their detriment or disadvantage did not arise---Tribunal had transgressed its jurisdiction by questioning the policy formulated by the competent authority and substituting it by its own---Rules notified vide the SRO of 2009 were competently framed, without prejudicing vested rights and, therefore, they could not have been ordered to be modified by the Tribunal---Impugned judgment of the Tribunal was set aside with the direction that the Commission shall be at liberty to fill the vacancies in accordance with the mode of appointment prescribed under the SRO of 2009---Petitions for leave to appeal were converted into appeals and allowed.

Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forest and others PLD 1988 SC 155 distinguished.

(b) Civil service---

----Promotion---No vested right---There is no vested right in promotion nor the rules which determines the eligibility criteria for promotion---Promotion is neither a vested right nor could it be claimed with retrospective effect---Employee may claim under the relevant law/rules to be considered for promotion when cases of other similarly placed employees are taken up but cannot compel the employer department to fill the promotion post nor to keep it vacant or under consideration---Question of promotion exclusively falls within the domain and jurisdiction of the competent authority and, ordinarily, a court or tribunal would not interfere, except when the designated competent authority has acted in violation of law, excess of jurisdiction or without jurisdiction---Competent authority is empowered to prescribe criteria and conditions relating to eligibility for promotion.

Muhammad Umar Malik and others v. Federal Service Tribunal and others PLD 1987 SC 172; Abid Hussain Sherazi v. Secretary Ministry of Industries and Production 2005 SCMR 1742 and Muhammad Iqbal and others v. Executive District Officer (R) and another 2007 SCMR 682 ref.

Malik Javaid Iqbal Wains, Additional A.G.P. and Muhammad Abdullah, A.D. (Legal) FPSC for Petitioners.

Muhammad Shoiab Shaheen, Advocate Supreme Court for Respondents.

2024 P L C (C.S.) 45

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Athar Minallah, JJ

MANZAR ABBAS and another

Versus

DISTRICT POLICE OFFICER, SARGODHA and others

Civil Petitions Nos. 3041 and 3105 of 2020, heard on 15th June, 2023.

(Against the judgment dated 30.09.2020 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 2340 and 2341 of 2020)

Per Yahya Afridi, J; Athar Minallah, J agreeing; Sayyed Mazahar Ali Akbar Naqvi, J. dissenting.

(a) Civil service---

----Concurrent departmental and criminal proceedings---Acquittal in criminal proceedings---Effect---Acquittal in a criminal trial does not serve as an embargo against disciplinary proceedings---Departmental and criminal proceedings may proceed concurrently, and the result of one does not impinge upon the other---Nonetheless, an acquittal in a criminal case may be considered during disciplinary proceedings but cannot be the sole determining factor in deciding the fate of the disciplinary proceedings.

Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534 ref.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 4(1)(b)(iv)---Police officials---Dismissal from service---Allegation of travelling in a private car without appropriate permission; abusing official position for the purpose of extortion; tarnishing the reputation of the police department, and fabricating information to conceal misconduct---[Per Yahya Afridi, J. (Majority view): Convincing material was available on record to show that the petitioners (whilst in police uniform) were travelling on a motorway in a private car without either informing or seeking permission from the appropriate authority---Petitioners were arrested pursuant to a call of the complainant to the Motorway Police, indicating a premeditated and deliberate violation of procedure on their part---Overall conduct of the petitioners, including unauthorized travel in police uniform and the subsequent abuse of their official position, painted a clear picture of gross misconduct---Such actions were not only in violation of the trust placed in them by virtue of their positions but also signaled a disregard for the laws and procedures they were entrusted to uphold---Such conduct necessitated a thorough examination and underscored the importance of maintaining integrity within the police force---Gravity of the petitioners' actions stood independently of the outcome of the criminal proceedings and was sufficient to justify disciplinary action---Robust response in the form of disciplinary action against the petitioners was not only justified but essential to deter similar conduct in the future]---[Per Sayyed Mazahar Ali Akbar Naqvi, J. (Minority view): Neither the Inquiry Officer made an attempt to probe into the allegations leveled by the petitioners against the complainant nor the complainant and his witness were associated with the inquiry proceedings---When the petitioners had taken a specific stance that the complainant and his witness were narcotics smugglers, the Inquiry Officer ought to have collected evidence either to accept or rebut the defence evidence of the petitioners---Petitioners had unblemished service record whereas it was a fact that they booked drug peddlers in narcotics cases, who were eventually convicted by the courts---Surprisingly no prosecution evidence was presented to the petitioners nor they were afforded any opportunity of cross-examination---Petitioners claimed that on the day of their arrest, they were visiting different areas of the city/tehsil for checking attendance of police personnel posted there and duly informed the operator of the concerned District Police Officer (DPO)---Inquiry Officer did not bother to collect evidence in this regard and he just denied the petitioners' stance by saying that they could not give a satisfactory answer---Even if this allegation is believed to be true even then the award of major penalty of dismissal from service was not warranted]---Petitions for leave to appeal were dismissed and leave was refused.

Habib Bank Limited v. Mehboob Rabbani 2023 SCMR 1189; Zahoor Ahmed v. WAPDA 2001 SCMR 1566; D.G. Emergency Rescue Service 1122 KPK v. Nizakat Ullah 2019 SCMR 640 and Attaullah Sheikh v. WAPDA 2001 PLC (C.S.) 316 ref.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioners (in both cases).

Barrister Muhammad Mumtaz Ali, Additional A.G. Punjab with Rauf Ahmad, DSP for Respondents (in both cases).

2024 P L C (C.S.) 77

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

Dr. MUHAMMAD SALEEM

Versus

GOVERNMENT OF BALOCHISTAN and others

Civil Petition No. 1532 of 2022, decided on 20th January, 2023.

(Against the judgment dated 27.04.2022 of the Balochistan Service Tribunal, Quetta passed in Service Appeal No. 62 of 2022)

Civil service---

----Transfer and posting---Interference in transfer and postings by Tribunals or Courts---Encroachment upon domain of Executive---Transfer of a government official from one place or post to another to meet the exigencies of service was within the exclusive domain and competence of the competent authorities of the executive organ of the State and, ordinarily, it is not amenable to interference except in extraordinary circumstances---Said principle is subject to the condition that the terms and conditions of service are not adversely affected---Moreover, an official has no vested right to claim to be posted/transferred to any particular place of his choice, nor is there a vested right to continue to hold a particular post at a particular place---Transfer and posting of a government servant is limited to the given tenure, if any, or at the pleasure of the competent authority---Question of whether the posting and transfer made by the competent authority was in the public interest is not open to judicial review by a tribunal or court and utmost caution and restraint ought to be exercised in interfering with or encroaching upon the exclusive domain of the executive authorities---Decisions in connection with posting and transfer of government servants must not be subjected to judicial scrutiny unless a law has been clearly violated or mala fide and malice is established without the need for making an inquiry---Interference of the Tribunal or courts in matters relating to postings and transfers is, therefore, an encroachment upon the executive domain and in breach of the seminal principle of separation of powers embedded in the Constitution.

Fida Husain Shah and others v. Government of Sindh and others 2017 SCMR 798 ref.

Kamran Murtaza, Senior Advocate Supreme Court for Petitioner.

M. Ayaz Swati, Additional A.G. Balochistan for Respondent No. 1.

Ms. Gulzar Butt, Advocate Supreme Court for Respondent No. 3.

2024 P L C (C.S.) 99

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

PARINA HARESH and 19 others

Versus

The GOVERNMENT OF BALOCHISTAN and 16 others

Civil Petition No. 178-Q of 2023, decided on 26th July, 2023.

(On appeal from the judgment of the High Court of Balochistan Quetta dated 05.06.2023 passed in C.P. No. 1860 of 2022)

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----Rr. 5(1) & 9(1)(b)---Balochistan Public Service Commission (Functions) Rules, 1982, R. 3(1)(b)---Appointment of persons in the Service of the Government of Balochistan (BPS 1 to BPS 15)---Selection criteria for Members of the Departmental Selection Committee, and the mechanism for conducting tests and interviews of candidates stated.

The Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 (the "AP&T Rules") do not provide any mechanism nor criteria to adjudge the competence, experience, calibre, independence, integrity, and undisputed impartiality of the Members and Chairperson of the Departmental Selection Committee ("the Committee") responsible for the initial recruitment in BPS 1 to 15. The majority of the posts in BPS-4 and/or above are meant to regulate the affairs of the department, therefore, the performance of the department depends on the person appointed against each post. One of the most vital decisions the Government of Balochistan ("GoB") makes is who it names as Members of the Committee(s). Thus, to focus on finding the right people for the role, it is necessary that the Chairperson and Members must be of eminence, experience, knowledgeable, competent, able, most significantly of good character, integrity, and sound enough to ensure their independence. Additionally, caution must be adhered to in order to avoid any conflict of interest of the Members, including any prior knowledge of and in relation to any candidate to make the best decision possible. To achieve such goal, the unlimited power of the competent authority in selecting the Committee members needs to be structured.

As per Rule 12 of the AP&T Rules, a candidate for initial appointment must possess educational qualifications and experience, but at present there were no rules, specifying job description, the necessary educational qualifications, and experience, if any required, for each post. However, if any job description, qualification, and experience was indeed prescribed in any rules, regulations, or instructions, it is required to be adopted and followed strictly and with due diligence to ensure transparency of the process. The AP&T Rules do not specify any objective selection procedure, criteria, mechanism, or guidelines for a particular post, nor do they provide the procedure and/or method to be adopted for the purpose of assessing the competence, ability, technical skills, behaviour, and strength of the candidates through the tests and interviews, if so conducted, in order to put the right person in the right job which is of utmost importance. In the absence of such determination, it is impossible to adjudge suitability, maintain merit, fairness, and ensure open competition amongst the candidates. It will also result in choosing the wrong person for the job which can produce a considerably negative outcome. For determination of such characteristics of the candidates, a fool proof mechanism and guidelines are required to be evolved and implemented.

At present, since there is no mechanism provided for tests and interviews to be conducted by the Committee to know the skills of a person for their initial recruitment in BPS 1 to 15, therefore, rushing for appointment without any mechanism can be a disaster. However, if any vacant post(s), is/are urgently required to be filled, the GoB may requisition the posts to the Balochistan Public Service Commission (the "Commission") as provided by Rule 3(1)(b) of the Balochistan Public Service Commission (Functions) Rules, 1982 (the "BPSC Functions Rules") or may engage the services of a reputable institution having a faculty and expertise in human resources, preferably a statutory institution such as the Institution of Business Administration, Karachi ("IBA") for the purpose of conducting tests and interviews. While doing so, the GoB must evolve a yardstick approach for selection of such an institution. Furthermore there is no set procedure for the purpose of making papers, checking of answer papers by person(s) competent to do so, and conducting tests and interviews, therefore, the Committee may continue to perform its functions only with regard to inviting applications through publication, the scrutiny process, and shortlisting of the eligible candidates for their appearance in the tests and interviews by following the applicable rules. Besides, the process of requisitioning the posts, if any, to the Commission or any other reputable institution, be routed through the already notified Committee. The Committee must strictly observe the quota reserved under the law, rules, and policy for regions/districts/union councils, wards, minorities, women, persons with disabilities, etc., notwithstanding anything contained in Rules 15 and 16 of the AP&T Rules. After completion of the entire selection process and compiling of the result received from the testing authority/institution, it is the responsibility of the Committee(s) to recommend candidates for their appointments to the competent authorities.

The appointing authority must not misuse its powers, neither should it be influenced by any other factors while giving effect to the recommendations for selection of the candidates. It is, therefore, the constitutional and legal obligation of the authorities concerned to follow the law, rules, policy and procedure in their letter and spirit while appointing candidates to their respective posts. The GoB is required to address all the stated issues by suitably amending the AP&T Rules so as to promote and guarantee selection of candidates on merits, in order to appoint persons who are best qualified.

Abdul Rahim Mengal, Advocate-on-Record for Petitioners.

Muhammad Asif Reki, Advocate General, Muhammad Ali Rakhshani, Additional A.G. and Irfan Bakhtiari, DG Agriculture for Respondents.

2024 P L C (C.S.) 111

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

MUHAMMAD YASEEN and others

Versus

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

Civil Petitions Nos. 903, 904, 905, 906 and 907 of 2023, decided on 3rd August, 2023.

(Against the judgment dated 28.11.2022 passed by High Court of Sindh, Sukkur Bench in Constitutional Petitions Nos. D-1813, D-2159, D-3442 and D-3716 of 2013 and D-69 of 2014)

Constitution of Pakistan---

----Art. 10A---Civil service---Appointment---Right of civil servant to be heard before declaring his appointment as illegal---Scope---Purported appointment letters did not mention that the petitioners were employed on contract basis, which fact was also verified from the appointment letters attached with the petitions and the advertisement inviting applications---Admittedly the petitioners had joined service, but their appointment letters were not issued by the competent authority, therefore, their appointments were subsequently withdrawn---Petitioners were never associated in any inquiry for the purpose of verifying the appointment letters or the appointment process, rather an inquiry was conducted against the former District Education Officer (DEO) who was allegedly responsible for managing the illegal appointments; but even with regard to him, there was no mention if any punitive action was taken against him for being involved in making the fake appointments whereby he fleeced and defrauded the department and petitioners both---Before declaring the appointments illegal or taking any drastic action against the petitioners, a drastic action should have been taken against the responsible person who committed illegality, if any, at the departmental level---Beneficiaries of the appointments could not be blamed alone because primarily the authority who had issued appointment letters in the recruitment process was bound to be punished first rather than the petitioners who had commenced their duties in view of the appointment letters---Keeping in mind all the attending circumstances, the department was bound to issue notice to the petitioners to show cause as to why their services should not be terminated and, in response, the petitioners might have appeared with the defence that the appointments were not illegal but issued after due process---Petitioners should have been afforded an opportunity of hearing, which was a fundamental right enshrined under Article 10A of the Constitution---Provincial Law Officer as well as the Deputy Secretary (Law) proposed that an inquiry committee may be constituted to consider/examine the appointment process of the present petitioners and to verify their credentials/antecedents to determine whether they were rightly appointed or appointed on the basis of fake appointment letters---Counsel for the petitioners agreed to such proposal---Petitions for leave to appeal were converted into appeals and allowed with relevant directions to examine the entire appointment process of the petitioners.

Malik Mumtaz Hussain Jai, Advocate Supreme Court for Petitioner No. 14 (in C.P. No. 904 of 2023) and (Hamadullah Jatoi) in person.

Suresh Kumar, Additional A.G., Sindh, Jawed Ali Khawaja, Dy. Secy. (Law), School Education and Literacy Dept., Government of Sindh (via Video Link from Karachi) for Respondents.

2024 P L C (C.S.) 129

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

IJAZ AKBAR

Versus

The DIRECTOR GENERAL (EXT.) L&DD, PUNJAB, LAHORE and others

C.P. No. 4835 of 2019, decided on 30th January, 2023.

(Against the judgment of the Punjab Service Tribunal (at Rawalpindi), dated 21.10.2019, passed in Appeal No. 3087 of 2019)

Civil service---

----Period of absence from duty after imposition of penalty---Such period has no bearing on the penalty and it does not undo the penalty imposed.

In view of the legal consequence of the absence from duty, a disciplinary authority, or an appellate authority, tribunal or court, when imposes a penalty lesser than dismissal or removal from service on a delinquent civil servant for his misconduct of being absent from duty, it has to make an incidental order as to what treatment should be given to the period of his absence for the purpose of giving continuity to his service; otherwise, the whole past service of the civil servant will stand forfeited, which would be the imposition of an additional penalty neither prescribed by the law nor imposed by the authority. The best possible incidental order, which may be made in such a situation, is therefore to make a fictional arrangement to account for such period of absence from duty in the service record of the civil servant by treating (deeming) the same as an extraordinary leave without pay, rather than any other kind of leave; as in case of treating the said period as a leave of some other kind of leave (even if found due), the delinquent civil servant may claim pay of that period also, which would amount to awarding him a benefit rather than awarding a penalty for his fault. Thus, after imposing a penalty other than dismissal or removal from service, the making of an incidental order as to treating (deeming) the period of absence from duty as an extraordinary leave without pay, in no way, washes out the misconduct committed.

LDA v. Nadeem Kachloo 2006 SCMR 434; Director-General, I.B. v. Muhammad Javed 2012 SCMR 165 and Sharif Abbasi v. WAPDA 2013 SCMR 903 over ruled.

NAB v. Muhammad Shafique 2020 SCMR 425 agreed with.

Imtiaz Lali v. Returning Officer PLD 2008 SC 355; Muhammad Ali Bukhari v. Federation of Pakistan 2008 SCMR 214; Federation of Pakistan v. Mamoon Malik 2020 SCMR 1154 and NBP v. Zahoor Mengal 2021 SCMR 903 ref.

Where the civil servant who is unauthorizedly absent does not resume duty and offer any satisfactory explanation, or where the explanation offered by him is not satisfactory, the departmental authority is to initiate the disciplinary proceedings and impose an appropriate penalty, which may range from a major penalty of dismissal or removal from service to a minor penalty of censure or withholding of increment for a specific period, mainly depending upon the nature of service, the position (duty) of the civil servant in that service, the period of absence and the cause for the absence. Where the penalty imposed on the delinquent civil servant is dismissal or removal from service, it may not be necessary to pass any incidental order relating to the period of absence, unless it is deemed necessary to recover any amount of pay, or other service benefits, received by the civil servant during the period of his absence from duty; but where any other penalty is awarded for the unauthorized absence from duty, it will be necessary to pass some incidental order as to how the period of absence should be accounted for and dealt with in the service record of the civil servant. If the unauthorized absence from duty remains unaccounted for, it will result in an interruption in service of the civil servant, thereby forfeiting his whole past service and affecting his seniority, pension etc. Such incidental order directing how the period of absence should be treated in the service record of the civil servant is thus an administrative arrangement, which does not affect or supersede the order imposing the penalty. [p. 134] B

State of Punjab v. P.L. Singla AIR 2009 SC 1149 ref.

M. Bashir Khan, Advocate Supreme Court for Petitioner.

Sanaullah Zahid, Additional A.G., Punjab, Dr. Farooq, Additional Director, L&DD, Punjab and Wasim Ahmed, Superintendent, L&DD, Punjab for Respondents.

2024 P L C (C.S.) 139

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Athar Minallah, JJ

MUHAMMAD SULEMAN

Versus

CHIEF SECRETARY, GOVERNMENT OF KHYBER PAKHTUNKHWA, CIVIL SECRETARIAT, PESHAWAR and others

Civil Petition No. 4424 of 2021, decided on 17th August, 2023.

(Against the judgment dated 03.06.2021 of the Peshawar High Court, Peshawar passed in Writ Petition No.962-P of 2020)

(a) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(b), 2(c), 2(d) & 3--- Employee not appointed by the Government or Government department--- Eligibility for regularization---Petitioner had not been appointed through a competitive transparent process---Moreover, the appointment was made by the Principal of the (Government) College against a fixed remuneration paid from the Agency Development Fund---Appointment had not been made by the "Government" nor a "Government Department" as defined under clauses 'c' and 'd' of section 2 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('Act of 2009')---Expression 'employee' has been defined in clause 'b' of the Act of 2009 as meaning an ad hoc or a contract employee appointed by the Government on ad hoc or contract basis or second shift/night shift but excluded the employees of project post or appointed on work charge basis or who were paid out of contingencies---Petitioner, therefore, did not fall within the definition of the expression 'employee' for the purposes of section 3 of the Act of 2009---Petitioner was not eligible to be regularized under the Act of 2009---Petition for leave to appeal was dismissed and leave was refused.

(b) Civil service---

----Appointment---Transparency and competitive process---Appointments of any nature, whether initial or ad hoc, permanent or temporary, if made in violation of the principle of transparency and competitive process, inter alia, without inviting applications from the public is in violation of the Constitution and are, therefore, void.

(c) Civil service---

----Appointment---Selection of candidates---Principles---Selecting a qualified, eligible and most deserving person is a sacred trust which is to be discharged honestly and fairly in a just and transparent manner and in the best interest of the public.

Government of NWFP and others v. Muhammad Tufail Khan PLD 2004 SC 313; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 and Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 ref.

Muhammad Umair Baloch, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2024 P L C (C.S.) 147

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Musarrat Hilai, JJ

CHIEF MINISTER through Secretary Government of Punjab, Irrigation Department, Lahore and others

Versus

MUHAMMAD AFZAL ANJUM TOOR

C.P. No. 2456-L of 2022, decided on 24th July, 2023.

(Against the order dated 22.02.2022 passed by Punjab Service Tribunal, Lahore in Appeal No. 5342 of 2021).

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

----S. 21, proviso--- Punjab Civil Services Pension Rules, R. 1.8(a)---Disciplinary proceedings initiated three years after retirement of employee (respondent)---Violation of proviso to section 21 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Major penalty of recovery of Rs. 5.5 million from the respondent's pension---Legality---Proviso to section 21 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA Act, 2006) imposes a mandatory obligation on the competent authority to finalize proceedings against a retired employee not later than two years from the date of his retirement---Proviso to section 21 contains a negative phrase that has an imperative effect, making it mandatory to conclude the proceedings against a retired employee within the prescribed timeframe---Additionally, section 20 of the PEEDA Act, 2006, explicitly provides that the provisions of the Act shall have an overriding effect contrary to any other law for the time being in force---This effectively nullifies any other law that may contradict or seek to supersede the provisions of the PEEDA Act 2006---This negates the argument of the petitioner department that the disciplinary proceedings against the respondent could be initiated under the Punjab Civil Services Pension Rules---In the instant case, the disciplinary proceedings against the respondent initiated under Rule 1.8(a) of the Punjab Civil Services Pension Rules were in violation of section 21 of the PEEDA Act 2006, which is a mandatory provision---Service Tribunal had rightly set aside the departmental order and directed the petitioner authority to grant all pensionary benefits accrued to the respondent---Petition for leave to appeal was dismissed and leave was refused.

Province of Punjab through Conservator of Forest, Faisalabad v. Javeed Iqbal 2021 SCMR 328 ref.

Baleegh-ur-Rehman, Additional A.G. Punjab, Malik Waseem Mumtaz, Additional A.G. Punjab and Ms. Sehr Chaudhary, Law Officer Irrigation Department Punjab for Petitioners.

Mudassar Khalid Abbasi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

2024 P L C (C.S.) 161

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Shahid Waheed, JJ

SANAULLAH SANI

Versus

SECRETARY EDUCATION SCHOOLS and others

Civil Petition No. 1276 of 2020, decided on 17th August, 2023.

(Against the order dated 11.10.2019 passed by the Punjab Service Tribunal in Appeal No. 4309 of 2012)

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

----Ss. 5(1) & 7(1)---Charges of inefficiency, misconduct and corruption---Show cause notice---Purpose of a show cause notice and essential elements to which a show cause notice must conform stated.

A show-cause notice is not an accusation made or information given in abstract but an accusation made against an employee in respect of an act committed or omitted, cognizable thereunder. As such, the law intends that a show-cause notice must conform to at least seven essential elements, and these include:

(i) it should be in writing and should be worded appropriately;

(ii) it should clearly state the nature of the charge(s), date, and place of the commission or omission of acts, along with apportionment of responsibility;

(iii) it should clearly quote the clause of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ('PEEDA') under which the delinquent is liable to be punished;

(iv) it should also indicate the proposed penalty in case the charge is proved;

(v) it should specify the time and date within which the employee should submit his explanation in writing. It is also preferable to add in the show cause notice that if no written explanation is received from the accused within the prescribed date, the enquiry will be conducted ex-parte;

(vi) it should be issued under the signature of the competent authority; and

(vii) it should contain the time, date and place of the inquiry and the name of the inquiry officer.

Strict compliance of the above conditions is vital so that the principle of natural justice is not violated. The charges made in the show cause notice should not be vague. All the acts of commission or omission constituting the charge, and also forming the ground for proceeding against the employee, should be clearly specified because otherwise, it will be difficult for an employee, even by projecting his imagination, to discover all the facts and circumstances that may be in the contemplation of the competent authority to be established against him, and thus, it will not only frustrate the requirement of giving him a reasonable opportunity to put up a defence but also amount to a violation of his fundamental right to a fair trial.

State of Andhra Prdesh and others v. Sree Rama Rao AIR 1963 SC 1723; Surath Chandra Chakravrty v. The State of West Bengal AIR 1971 SC 752; Sawai Singh v. State of Rajasthan (1986) 3 SCC 454 and Anil Gilurker v. Bilaspur Raipur Kshetria Gramin Bank and others (2011) 14 SCC 379 ref.

In the present case the first charge levelled against the petitioner (retired employee) was corruption, but the alleged acts of omission and commission stated in the notice/order lacked material particular to that charge. It did not mention that the petitioner had accepted a huge bribe from anyone. Therefore, the Inquiry Officer could not have read this charge in the show cause notice/order, and it appears that this is why the Inquiry Officer did not mention this charge in his report. The Inquiry Officer, in his report has not referred to any statement of witness which says the taking of bribe by the petitioner. This charge, therefore, fails on two counts: one, assuming the alleged acts of omission and commission are correct, no case of corruption is made out from there, and two, no evidence has been brought on record to prove the same. So, this charge could not have led to any punishment.

Mian Abdul Qadeer v. Government of Pakistan and others 2005 SCMR 1560 and Muhammad Alamzeb Khan v. Registrar, Peshawar High Court, Peshawar and another 2008 SCMR 1406 ref.

The petitioner was also charged with misconduct and inefficiency on the basis that he allowed three absentee teachers to join duty without checking the office records and genuineness of their appointment orders and thus, caused a heavy loss to the government exchequer. A perusal of the inquiry report indicates that the Inquiry Officer, instead of proving the charges of misconduct and inefficiency, had put in his energy to establish that the appointment orders of the teachers were not genuine. This fact alone is sufficient to conclude that when the petitioner allowed the teachers to join duty, no complaint or adverse material against them was available. In such a situation, the petitioner was not expected to have checked the genuineness of the appointment orders of the teachers while allowing them to resume duty. So, again, the charges were vague, which vitiates the inquiry proceedings and the resultant punishment.

Lal Muhammad and another v. Government of Sindh 1980 SCMR 850 ref.

The charges levelled against the petitioner were laconic, and the Inquiry Officer has taken into consideration non-existing material, and findings of all facts recorded by him cannot be sustained in the eye of law. And so, the punishment awarded also loses the backing of the law.

Allah Bakhsh, Foodgrain Supervisor (Retd.) v. Director Food, Punjab, Lahore and others 2006 SCMR 403 ref.

Petition for leave to appeal wass converted into an appeal and allowed, the judgment of the Service Tribunal was set aside, the punishment order was quashed, and the department/respondents were directed to restore the full pension of the petitioner, and refund the amount of Rs.963,467/- along with the amount so far recovered from the pension of the petitioner.

(b) Public functionaries---

----Acts performed and orders made by public authorities---Such acts and orders deserve due regard by Courts, and every possible explanation for their validity should be explored, and the whole field of powers in pursuance of which the public authorities act or perform their functions should be examined, and only then if it is found that the act done, order made or proceedings undertaken is without lawful authority should the Courts declare them to be of no legal effect.

The Chairman, East Pakistan Railway Board, Chitta Gong and another v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railway, Laksam PLD 1966 SC 725 and Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others and University of the Punjab, Lahore v. Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811 ref.

(c) Administration of justice---

----Judicial order---Proper adjudication---Judicial order must be a speaking order manifesting by itself that the Court or Tribunal has made an effort to resolve the questions involved for their proper adjudication---If the final order does not bear an imprint of such effort and, on the contrary, discloses arbitrariness of thought and action, the inescapable result would be that justice had neither been done nor seemed to have been done.

Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 ref.

Ch. Afrasiab Khan, Advocate Supreme Court and M. Mehmood Chaudhry, Advocate Supreme Court along with Petitioner (in person) for Petitioner.

Sanaullah Zahid, Additional A.G., Punjab and Muhammad Imran, Law Officer, School Education Department, Government of Punjab for Respondents.

2024 P L C (C.S.) 189

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

GHANSHAM DAS

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Pakistan Forest Institute, Peshawar and others

Civil Petition No. 546 of 2021, decided on 14th September, 2023.

(Against the judgment dated 21.12.2020 of the Khyber Pakhtunkhwa Service Tribunals Islamabad in Appeal No.876 of 2020)

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

----R. 20A---Deputation---Duration of term---Principles relating to duration of term of a deputationist stated.

Deputation within a government department holds a significant role, necessitating recruitment under exceptional circumstances when there is a lack of expertise within the department in the relevant subject or field. In such situations, the prescribed procedure outlined in Rule 20-A of the Civil Servants (Appointment, Promotion, and Transfer) Rules, 1973, must be adhered to. However, it is imperative to emphasize that deputation should not entail an indefinite period of service but should conform to the specified duration for the deputation. The normal period of deputation is three years and the concerned officer has to report back after completion of his three years period unless it has been extended to further two years and the maximum period is five years in terms of Serial No.27 (iv) of ESTA Code Volume-I (Civil Establishment Code), whereby both the borrowing and lending organization should ensure immediate repatriation of the deputationist. Furthermore, the period of deputation has to be defined specifically and after expiry of the said period, the officer should automatically be relieved from his office duties, unless his period has been extended.

A deputationist in the absence of any specific provision of law can not ask to serve the total period of deputation and he can be repatriated being a deputationist by the Competent Authority in the interest of exigency of service as and when so desired and such order of the competent authority cannot be questioned. The Civil Servants Act, 1973 and the rules made thereunder as well as ESTACODE are silent about the fact that a deputationist must serve his entire period of deputation and this omission seems deliberate enabling the Competent Authority to utilize the service of an employee in the manner as it may deem fit and proper. The period of deputation can at best be equated to that of an expression of the maximum period which can be curtailed or extended by the Competent Authority and no legal or vested rights whatsoever are available to a deputationist to serve his entire period of deputation in the borrowing Department.

Zain Yar Khan v. Chief Engineer 1998 SCMR 2419; Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Pakistan v. Fazal-ur-Rehman PLD 1959 SC (Pak.) 82; Ashraf Khan Niazi v. Chairman Board of Governors Allama Iqbal Medical College 2003 PLC (C.S.) 243; Dr. Shafi-ur-Rehman Afridi v. C.D.A 2010 SCMR 378 and S. Masood Abbas Rizvi v. Federation of Pakistan 2014 SCMR 799 ref.

On the last date of the period specified for deputation, the officer automatically stands relieved of his duties unless the orders of the competent authority have been obtained in advance for extending the period of deputation [Serial No.28-A of the ESTACODE, Volume-I (Civil Establishment Code].

Dr. G.M. Chaudhry, Advocate Supreme Court for Petitioner along with petitioner in person.

Sultan Mazhar Sher Khan, Additional A.G. Khyber Pakhtunkhwa and Atif Majeed, Dy. Director Technical Pakistan Forest Institute for Respondents Nos. 1 - 3.

Malik Javed Iqbal Wains, Additional Attorney General and Mohsin Saleem Ullah, A.D. (Legal) Ministry of IT & T for Respondents Nos. 4 - 6.

2024 P L C (C.S.) 211

[Supreme Court of Pakistan]

Present: Yahya Afridi and Muhammad Ali Mazhar, JJ

JUNAID WAZIR

Versus

SUPERINTENDENT OF POLICE, PRU/ DOLPHIN POLICE, LAHORE

Civil Petition No.3186 of 2020, decided on 5th October, 2023.

(Against the Order dated 07.10.2020 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1641 of 2020)

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

----S. 21---Punjab Service Tribunals Act (IX of 1974), S. 4---Police Rules, 1934, R. 12.21---Police official---Order of discharge from service under Rule 12.21 of Police Rules, 1934---Departmental appeal---Whether a departmental appeal could be filed against the order of discharge from service under Rule 12.21 of Police Rules, 1934---After the petitioner was discharged from service under the Rule 12.21, he filed a departmental appeal, which was rejected being not maintainable under said Rule---Petitioner filed an appeal before the Service Tribunal, which was dismissed on the point of limitation---Entire emphasis of the Tribunal was on the fact that, instead of filing a service appeal before the Tribunal, the petitioner filed a departmental appeal before the DIG of Police, which was not appealable before the department in terms of Rule 12.21---Validity---Although no right of appeal against the ,discharge from service is provided under Rule 12.21 of the Police Rules, 1934 but at the same time, one cannot ignore the niceties of section 21 of the Punjab Civil Servants Act, 1974 wherein it is clearly spelled out that if no provision for appeal or review exists, a civil servant aggrieved by any such order may make a representation to the authority next above the authority which made the order---Likewise, the nitty-gritties of Section 4 of the Punjab Service Tribunals Act, 1974 explicate that where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules, against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal of application for review or representation to such departmental authority---In the present case the petitioner filed the departmental appeal and was only non-suited on the ground that no appeal lies against the discharge, but the departmental authority failed to consider that against the order of discharge, representation was maintainable---Departmental Authority should have seen the pith and substance of the grievance lodged by the petitioner rather than focusing solely on the nomenclature of the representation---Both the departmental authority and the Tribunal failed to take into account that if a right of appeal or review was not provided in Rule 12.21 then, in unison, it does not debar or prohibit the civil servant from electing the remedy of filing a representation as of right, which could not be turned down on hyper-technical grounds but should have been decided on merits, rather than rejecting it being non-maintainable as an appeal instead of representation---Petition for leave to appeal was converted into appeal and allowed; the impugned judgment was set aside and the matter was remanded to the appellate authority (department) where petitioner's appeal shall be deemed to be pending, which shall be treated as a representation under section 21(2) of the Punjab Civil Servants Act, 1974, and the same shall be decided strictly in accordance with law after due notice to the parties.

(b) Civil service---

----Incorrect provision of law cited---Even mentioning an incorrect provision of law does not debar or relieve the competent authority from examining the case according to the remedy provided under the law to an aggrieved civil servant.

(c) Administration of justice---

----Maxim 'ex debito justitiae'---Meaning and scope---Legal maxim "ex debito justitiae" means as a matter of right or what a person is entitled to as of right---This maxim 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 courts to act ex debito justitiae is an inherent power of courts to fix procedural errors.

(d) Public functionary---

----Public functionaries are supposed to execute and perform their duty in good faith, honestly and within the precincts of their legally recognized powers so that the person concerned may be treated in accordance with law.

(e) Civil service---

----Natural justice, principles of---Right of accused to be heard---Rational and impartial decision making---Principles of natural justice require that the delinquent should be afforded a fair opportunity to converge, explain and contest the claims against him before he is found guilty and condemned---Principles of natural justice and fair-mindedness are grounded in the philosophy of affording a right of audience before any detrimental action is taken, in tandem with its ensuing constituent that the foundation of any adjudication or order of a quasi-judicial authority, statutory body or any departmental authority regulated under some law must be rational and impartial and the decision maker has an adequate amount of decision making independence and the reasons of the decision arrived at should be amply well-defined, just, right and understandable.

Tariq Aziz-ud-Din, Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P and 14306-G to 14309-G of 2009 2011 PLC (C.S.) 1130; Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101 and Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997(7) SCC 622 ref.

Mahmood Ahmad Qazi, Advocate Supreme Court (Through video link from Lahore) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sanaullah Zahid, Additional A.G., Punjab and Syed Intikhab Hussain, DSP for Respondents.

2024 P L C (C.S.) 228

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

RAFAQAT ALI

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and others

Civil Petition No. 460 of 2022, decided on 21st November, 2023.

(On appeal from the Order dated 05.01.2022 passed by the Punjab Service Tribunal, Lahore in Appeal No. 2547 of 2020)

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

----S. 19(2)---Punjab Technical Education and Vocational Training Authority Act (X of 2010), S. 20---Appeal before the Service Tribunal---Limitation---Petitioner (employee) filed a Departmental Appeal before the Chairman, TEVTA on 26.02.2020 which remained pending---During the intervening period, the petitioner also filed a representation before the Chief Secretary, Government of Punjab which remained undecided and according to him, in the same period of time, there was also a lockdown due to COVID-19 pandemic---Though the petitioner approached the learned Tribunal on 16.06.2020, record showed that during the pendency of appeal before the Tribunal, the Chairman TEVTA decided the pending departmental appeal of the petitioner vide order dated 30.11.2020---Tribunal dismissed the service appeal of the petitioner predominantly on the ground of limitation and observed in the impugned order that, according to section 19(2) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("PEEDA Act") the petitioner was required to approach the Tribunal between 26.04.2020 and 26.05.2020, but he filed the appeal in the Tribunal on 16.06.2020 with a delay of 20 days, hence appeal filed by the petitioner was dismissed being barred by time---Validity---Before non-suiting the petitioner on the ground of limitation, the fundamental question with regard to the competent authority should have been determined by the Tribunal vis-à-vis the claim and assertion of the petitioner whether being a civil servant, he rightly approached the Chief Secretary and, if he was not competent, then which was the competent authority for deciding his departmental appeal under the Punjab Technical Education and Vocational Training Authority Act, 2010 (TEVTA Act)---Tribunal should have also determined another crucial aspect of lockdown due to COVID-19 pandemic which had direct nexus with the plea of limitation in view of the notification, if any, issued from time to time by the Service Tribunal, relaxing the period of limitation during the lockdown period or following any other notification issued by the Federal Government or Government of Punjab and/or the Lahore High Court during the COVID-19 pandemic and then the appeal should have been decided where obviously the question of limitation could also be adverted to by the Service Tribunal whether any relaxation for freezing or immobilizing the period of limitation for filing appeal was available to the petitioner during interacted period attributable to lockdown as a result of COVID-19 or not?---Petition for leave to appeal was converted into an appeal and allowed, the impugned order of the Tribunal was set aside and the matter was remanded to decide the appeal afresh, preferably within a period of 60 days.

Petitioner in person.

Barrister Muhammad Mumtaz Ali, Additional Advocate General, Punjab for Respondents.

2024 P L C (C.S.) 242

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT, QUETTA and others

Versus

ADEEL-UR-REHMAN and others

Civil Appeal No.441 of 2020, decided on 1st December, 2023.

(On appeal against the judgment dated 30.09.2019 passed by the High Court of Balochistan, Quetta, in C.P. No.1120 of 2017)

(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 9(1)(a)---Balochistan Public Service Commission (Functions) Rules, 1982, Rr. 3(i)(a) & 3(i)(b)---Contract employees for a project---BPS-16 and above posts---Regularization in service---Case of the Provincial Government/competent authority was that a summary of 43 contract employees into regular service was approved while for BPS-17 and above, the competent authority was not competent to appoint or regularize any contract employee as the same came within the domain of the Balochistan Public Service Commission, however, the High Court incorrectly allowed the writ petition of the respondents (contract employees seeking regularization) purely on the ground of discrimination---Validity---Posts in BPS-16 and above were to be filled through the Public Service Commission---Rule 9(1)(a) of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 (the AP&T Rules) clearly provides that the appointment to posts in BPS-16 and above or equivalent, if falls within the purview of the Commission, shall be made on the basis of a test and interview to be conducted by the Balochistan Public Service Commission (the Commission)---Similarly, Rule 3(i)(a) of the Balochistan Public Service Commission (Functions) Rules, 1982 (the BPSC Functions Rules), provides that the Commission shall conduct tests and examinations for initial recruitments to civil posts in BPS 16 to 22 connected with the affairs of the province, except those specified in the Schedule appended to the Rules---Sub clause (b) of Rule 3 (i) of the BPSC Functions Rules further empowers the Commission to conduct a test and interview for initial recruitment to any other post which may be referred to it by the Government, which may otherwise not fall within the purview of the Commission---Present respondents fell within the purview of Rule 9(1)(a) of the AP&T Rules and Rules 3(i)(a) and 3(i)(b) of the BPSC Functions Rules---Decision given by the High Court was without any basis and was not sustainable in the eye of law, therefore, the same was set-aside with the directions that the Provincial Government shall refer the posts in question to the Commission for recruitment in accordance with the law through fresh publication on open merit basis; that the respondents shall participate in the fresh recruitment process to be undertaken by the Commission and the Commission shall entertain their applications, and that in the peculiar circumstances of the case, the question, if any, of any age limit shall not be a hurdle in the way of the respondents---Appeal was disposed of accordingly.

Province of Sindh and others v. Muhammad Taqi Shah 2018 SCMR 1607 ref.

(b) Constitution of Pakistan---

----Art. 25---Equality of citizens---Negative equality---Scope---Article 25 of the Constitution does not envisage negative equality---Such right can only be claimed when decision is taken in accordance with law---Wrong concession in favour of one person does not entitle any other person to claim benefit of a wrong decision.

(c) Civil service---

----Contract employees appointed against project posts---Regularization in service---Scope---As far as the regularization of contract employees subsequent to creation of posts on regular side is concerned, the mere creation of posts on regular side does not confer, in the absence of any statutory support, an automatic right of regularization in favour of the contract employees working against project posts.

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

Muhammad Ayaz Swati, Additional Advocate General, Balochistan for Appellants.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Muhammad Ali Kanrani, Advocate Supreme Court for Respondents.

2024 P L C (C.S.) 252

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

PAKISTAN RAILWAYS through Chief Executive Officer/ Senior General Manager, Lahore and another

Versus

MUHAMMAD ASLAM

Civil Petition No. 3501 of 2021, decided on 12th July, 2023.

(Against the Judgment dated 16.04.2021 passed by the Federal Service Tribunal, Islamabad, in Appeal No.2137(R)CS/2018 with MPs Nos.2262 of 2018 and 215 of 2019)

(a) Civil service---

----Absorption---Valuable right in favour of employee, accrual of---Locus poenitentiae, doctrine of---Respondent was absorbed as Guard Grade-I in Pakistan Railways vide notice dated 06.08.2012, but, after a lapse of six years, he was denied the absorption vide another notice dated 02.08.2018 when certain valuable rights had already accrued in his favour which could not be denied keeping in mind the principle of locus poenitentiae---Record reflects that the department before the Service Tribunal failed to justify the action of rescinding the earlier order issued in favour of respondent, therefore, the Tribunal reached the correct conclusion that the respondent was discriminated against and the action taken against him was illegal and as a consequence thereof, the service appeal was allowed---Petition for leave to appeal was dismissed and leave was refused.

(b) Locus poenitentiae, doctrine of---

----Power of rescission---Scope---Such power remains with the relevant authorities to undo the action till a decisive step is taken or as long as certain rights are not created or the action is found to be patently illegal.

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

----O. XXII, R. 1---No abatement by party's death, if right to sue survives---Scope---Deceased person cannot be a party to any legal proceeding and, on his death, legal proceedings are suspended until and unless his legal representatives are impleaded and swapped as party provided that the cause of action survives which is indeed a prime consideration to declare any legal proceedings abated before the final adjudication---By and large, the right to sue survives except the right to sue which is closely associated with the individual or is a personal right of action.

Umer Sharif, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

2024 P L C (C.S.) 276

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Jamal Khan Mandokhail and Shahid Waheed, JJ

NATIONAL BANK OF PAKISTAN through President, Karachi

Versus

SAJJAD ALI KAKAKHEL and another

Civil Petition No. 370 of 2021, decided on 11th September, 2023.

(Against judgment dated 15.12.2020 of the Peshawar High Court, Peshawar passed in W.P. No. 1312-P of 2013)

Constitution of Pakistan---

----Art. 199---Employee of National Bank of Pakistan---Proforma promotion---Disallowed---Interference by the High Court in its constitutional jurisdiction---Not warranted---Respondent-employee had been superseded in 2010 which supersession was not challenged within a reasonable time---Constitutional petition filed by the respondent before the High Court suffered from laches---Further, there was no provision in the relevant service rules of the petitioner-Bank for the right to be granted proforma promotion---This was coupled with fact that the respondent had already retired from service and received all his benefits due to him under the law---As such, interference by the High Court in the matter at the stage that it interfered was not supported either by the relevant law or by any of the service rules which governed the terms and conditions of employees of the Bank---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the High Court was set-aside.

Faisal Mahmood Ghani, Advocate Supreme Court for Petitioner.

Zartaj Anwar, Advocate Supreme Court for Respondent No.1.

2024 P L C (C.S.) 290

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and others

Versus

MASOOD AHMED and another

Civil Appeal No. 40-Q of 2018, decided on 26th July, 2023.

(On appeal from the judgment of the Balochistan Service Tribunal, Quetta dated 25.02.2015 passed in S.A. No. 394 of 2013)

Balochistan Service Tribunals Act (V of 1974)---

----S. 5(1)---Service Tribunal, powers of---Scope---Pro forma promotion---Tribunal directed the Provincial Government to create a new post and grant pro forma promotion to a civil servant against such post---Legality---Creation of a new post for the purpose of pro forma promotion is a policy decision and the Service Tribunal(s) cannot exercise such executive authority.

Creation of a post is a policy decision, based upon the requirements of a department and involves economic factors, which is the sole discretion and executive authority to be exercised by the Government alone. The Tribunal cannot assign to itself such executive function, nor can it grant relief not provided under the law.

2023 SCMR 803 and (2008) 1 SCC 683 ref.

Even otherwise, promotion of an officer in selection grades is based upon the principle of fitness-cum-seniority, which depends upon multiple factors, as per the service rules based upon the service record of the incumbent. These factors can only be determined by the Board and upon its recommendations, it is the prerogative of the Government to agree or disagree with such recommendations. However, in case of disagreement, reasons must be assigned by the competent authority. Consequently, directing the Government to create a new post and grant pro forma promotion to a civil servant amounts to exercise of power in excess of the Tribunal's authority, which is without jurisdiction.

Muhammad Ali Rakhsahani, Additional A.G. and Gohar Yaqoob Yousafzai, Advocate Supreme Court for Appellants.

Respondents ex parte.

2024 P L C (C.S.) 323

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

VICE-CHANCELLOR AGRICULTURE UNIVERSITY, PESHAWAR and others

Versus

MUHAMMAD SHAFIQ and others

C.Ps. Nos.2270, 4783 and 4784 of 2019, C.Ps. Nos.1228 to 1230, 1295 to 1298, 1555, 1781 to 1783, 1807, 456-P and 496-P of 2020, C.P. No. 5871/2021, C.P. No. 5872/2021, C.P. No. 2291/2022, C.P. No. 2782/2022, C.P. No. 3811/2022 to C.P. No. 3813/2022 and C.P. No. 1438/2019, decided on 17th January, 2024.

(Against the order(s)/judgment(s) of Peshawar High Court Peshawar dated 02.04.2019, passed in W.P. No. 956-P of 2018 dated 11.02.2020, passed in W.P. No.3799-P/2019 dated 13.02.2020, passed in W.P. No.4433-P/2019 dated 13.02.2020, passed in W.P. No.4088-P/2019 dated 06.02.2020, passed in W.P. No.3253-P/2019 dated 06.02.2020, passed in W.P. No.4507-P/2019 dated 06.02.2020, passed in W.P. No. 1568-P/2019 dated 06.02.2020, passed in W.P. No. 1512-P/2019 dated 12.03.2020, passed in W.P. No.3091-P/2019 dated 12.03.2020, passed in W.P. No.3582-P/2019 dated 12.03.2020, passed in W.P. No.3583-P/2019 dated 12.03.2020, passed in W.P. No. 5318-P/2019 dated 12.03.2020, passed in W.P. No. 5893-P/2018 dated 04.06.2020, passed in W.P. No.4875-P/2019 dated 29.06.2020, passed in W.P. No. 3538-P/2019 dated 23.09.2021, passed in W.P. No. 1762-P/2020 dated 14.10.2021, passed in W.P. No.3788-P/2020 dated 10.05.2022, passed in W.P. No.2699-P/2020 dated 01.06.2022, passed in W.P. No. 1561-P/2021 dated 12.03.2020, passed in W.P. No.4526-P/2019 dated 12.03.2020, passed in W.P. No.4729-P/2019 dated 12.03.2020, passed in W.P. No.3679-P/2019 dated 07.03.2019, passed in W.P. No.3125-P/2017)

(a) Civil service---

----Contractual employees---Regularization in service---Principles---Once the contractual services are regularized, the appointment can become substantive or permanent and cannot be terminated without due process---Therefore, the regularization of a contractual employee is a fresh appointment into the stream of regular appointment.

Province of Punjab through Secretary, Livestock and Dairy Development, Government of Punjab v. Dr. Javed Iqbal 2021 SCMR 767 ref.

(b) Civil service---

----Contractual employees---Regularization in service---Parameters for regularization in service---Institutional autonomy---Scope---Any institution opting for regularization of its employees must be either mandated by law or must carry out regularization through a well-thought out policy of the institution concerned laying down the criteria and the process for regularization; performance evaluation of the contractual employee must be assessed to determine if the employee meets the standards required for a regular position; there must be availability of positions that match the skills and experience of the contractual employee; the budgetary considerations and financial implication of a regular employee be weighed and considered---There must be a fair assessment of the employee's qualifications, performance and merit, so as to ensure only competent and committed employees be granted permanent employment status---Regularization is, therefore, not a ritualistic and mechanical exercise---It requires fresh assessment of the candidature of the contractual employee by the competent authority before he is made a regular employee as any such act carries long term financial implications on the institution concerned---Process of regularization is grounded in principles of fairness, openness, transparency, non-discrimination and public interest---Regularization therefore has a close nexus with institutional policy and autonomy.

Hadayat Ullah v. Federation of Pakistan 2022 SCMR 1691; Syed Mubashir Raza Jaffri v. Employees of Old Age Benefits Institution 2014 PLC 428 and Ikhlaq Ahmed v. Chief Secretary, Punjab 2018 SCMR 1120 ref.

(c) Civil service---

----Contractual employees---Regularization in service---Principles---There is no vested right to seek regularization for employees hired on contractual basis unless there is any legal or statutory basis for the same---Process of regularization requires backing of any law, rules or policy---It should adhere to the relevant statutory provisions and government policies---In the absence of any of the same, a contractual employee cannot claim regularization---Any regularization without the backing of law offends the principles of fairness, transparency and meritocracy and that too at the expense of public exchequer.

Faraz Ahmed v. Federation of Pakistan 2022 PLC 198; Government of Khyber Pakhtunkhwa v. Sher Aman and others 2022 SCMR 406; Vice Chancellor, Bacha Khan University Charsadda, Khyber Pakhtunkhwa v. Tanveer Ahmad 2022 PLC (C.S.) 85; Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah 2021 SCMR 998; Messrs Sui Northern Gas Company Ltd. v. Zeeshan Usmani 2021 SCMR 609; Khushal Khan Khattak University v. Jabran Ali Khan 2021 SCMR 977; Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah 2021 SCMR 998; Government of Khyber Pakhtunkhwa v. Saeed-ul-Hassan 2021 SCMR 1376; Muzaffar Khan v. Government of Pakistan 2013 SCMR 304; Government of Balochistan, Department of Health v. Dr. Zahid Kakar 2005 SCMR 642; Government of Khyber Pakhtunkhwa, Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068; Government of Khyber Pakhtunkhwa v. Intizar Ali 2022 SCMR 472 and Pir Imran Sajid v. Managing Director Telephone Industries of Pakistan 2015 SCMR 1257 ref.

(d) Constitution of Pakistan---

----Art. 25---Civil service---Contractual employees---Regularization in service---Principle of similarly placed employees---Scope---Where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such a claim, in the absence of which, relief cannot be granted solely on the principle of "similarly placed persons"---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---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.

Deputy Director Finance and Administration FATA v. Dr. Lal Marjan 2022 SCMR 566 and Muhammad Yasin v. D.G. Pakistan, Post Office 2023 SCMR 394 ref.

(e) Civil service---

----Contractual employees---Regularization in service---Policy matter---Non-interference by Courts---Institutional autonomy---Process of regularization is a policy matter and the prerogative of the Executive which cannot be ordinarily interfered with by the Courts especially in the absence of any such policy---It does not befit the courts to design or formulate policy for any institution, they can, however, judicially review a policy if it is in violation of the fundamental rights guaranteed under the Constitution---Wisdom behind non-interference of courts in policy matters is based on the concept of institutional autonomy.

Waqas Aslam v. Lahore Electric Supply Company Limited 2023 SCMR 549 and Province of Punjab through Chief Secretary, Lahore v. Prof. Dr. Javed Iqbal 2022 SCMR 897 ref.

(f) Civil service---

----Public sector University---Contractual employees---Regularization in service---Policy matter of the University---Non-interference by Courts---Institutional autonomy, concept of---Wisdom behind non-interference of courts in policy matters is based on the concept of institutional autonomy which is defined as a degree of self-governance, necessary for effective decision making by institutions of higher education regarding their academic work, standards, management, and related activities---Institutional autonomy is usually determined by the level of capability and the right of an institution to decide its course of action about institutional policy, planning, financial and staff management, compensation, students, and academic freedom, without interference from outside authorities---Autonomy of public institutions is not just a matter of administrative convenience, but a fundamental requirement for the effective functioning of a democratic society, as public sector organizations are guardians of the public interest---Democracy, human rights and rule of law cannot become and remain a reality unless higher education institutions and staff and students, enjoy academic freedom and institutional autonomy---Courts must sparingly interfere in the internal governance and affairs of educational institutions i.e., contractual employments; this is because the courts are neither equipped with such expertise, nor do they possess the relevant experience that would allow for interference in such policy matters---Under this autonomous realm, educational institutions are entitled to deference when making any decisions related to their mission---At the same time, any transgression by Courts would amount to the usurpation of the power of another, which would be against the spirit of Article 7 of the Constitution as it is not the role of the Courts to interfere in policy decisions.

Chapter V, Recommendation concerning the Status of Higher-Education Teaching Personnel (1997) UNESCO < https:// en.unesco. org/about-us/legal-affairs/recommendation-concerning - status - higher-education-teaching-personnel?>; OECD, Governance and Quality Guidelines in Higher Education: A Review of Governance Arrangements and Quality Assurance Guidelines (2005); Khyber Medical University v. Aimal Khan PLD 2022 SC 92; Principles, Values and Responsibilities, Magna Charta Universaitum (2020); Waqas Aslam v. Lahore Electric Supply Company Limited 2023 SCMR 549; Hafsa Habib Qureshi v. Amir Hamza and others 2023 SCP 388; Abdul Hameed and others v. Water and Power Development Authority 2021 PLC (C.S.) 1439; Regents of University of Michigan v. Ewing 474 U.S. 214 (1985); Healy v. James 408 U.S. 169 (1972); R v. Dunsheath; Ex parte Meredith [1950] 2 All ER 741; Thorne v. University of London [1966] 2 All ER 338; Neelima Misra v. Harinder Kaur Paintal (1990) 2 SCC 746; Bhushan Uttam Khare v. Dean, B. J Medical College (1992) 2 SCC 420 and Basavaiah v. H. L. Ramesh AIR (2010) 8 SCC 372 ref.

(g) Void order---

----When the basic order is without lawful authority, then the entire superstructure raised thereon falls to the ground automatically.

Pakistan People's Party Parliamentarians v. Federation of Pakistan PLD 2022 SC 574 and Atta-ur-Rehman v. Sardar Umar Farooq PLD 2008 SC 663 ref.

(h) Civil service---

---Contractual employees---Regularization in service---Prospective effect---Regularization takes effect prospectively, from the date when a regularization order is passed---This is because regularization is based on several considerations which help guage not only the competence and ability of the employee, proposed to be regularized, but also the financial impact and long term legal obligations on the employer institution---It is a conscious decision to be taken by the employer institution at a particular time and therefore cannot be given a retrospective effect.

Province of Punjab through Chief Secretary, Lahore v. Prof. Dr. Javed Iqbal 2022 SCMR 897 and Province of Punjab through Secretary, Livestock and Dairy Development, Government of Punjab v. Dr. Javed Iqbal 2021 SCMR 767 ref.

Naveed Akhtar, Advocate Supreme Court along with Jahan Bakht, V.C. and Muhammad Rizwan, Registrar for Petitioners.

Ms. Tahmina Ambreen, Advocate Supreme Court, Hafiz S.A. Rehman, Senior Advocate Supreme Court, Shahid Saleem Khel, Advocate Supreme Court, Jehanzeb Mahsud, Advocate Supreme Court, Niaz Wali Khan, Advocate Supreme Court, Ijaz Ahmad, Advocate Supreme Court, Muhammad Asif Yousafzai, Advocate Supreme Court, Zartaj Anwar, Advocate Supreme Court, Nasrum Minallah, Advocate Supreme Court, Waseem ud Din Khattak, Advocate Supreme Court, Amjad Ali, Advocate Supreme Court, Khaled Rehman, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record, Wakeel Khan in person, Shafique, in person and Sultan Mazhar Sher, Additional A.G. Khyber Pakhtunkhwa for Respondents.

Umer A. Ranjha, Law Clerk, Research Assistance.

2024 P L C (C.S.) 344

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Sayyed Mazahar Ali Akbar Naqvi and Irfan Saadat Khan, JJ

PERVAIZ HUSSAIN SHAH and others

Versus

SECRETARY TO GOVERNMENT OF PUNJAB FOOD DEPARTMENT LAHORE and another

Civil Petitions Nos. 1007 and 1112-L of 2022, decided on 14th November, 2023.

(Against the judgment dated 14.1.2022 passed by Punjab Service Tribunal, Lahore in Appeal No.4490 of 2014)

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

----S. 3--- 'Negligence' and 'gross negligence'--- Distinction---Expression "negligence" fact connotes a dearth of attentiveness and alertness or disdain for duty--- Genus of accountability and responsibility differentiates and augments an act of gross negligence to a high intensity rather than an act of ordinary negligence---To establish gross negligence, the act or omission must be of a worsened genre whereas ordinary negligence amounts to an act of inadvertence or failure of taking on the watchfulness and cautiousness which by and large a sensible and mindful person would bring into play under the peculiar set of circumstances.

The Postmaster General Sindh Province, Karachi v. Syed Farhan 2022 SCMR 1154; Hunter v. Hanley 1955 S.L.T 213 and Stroud's Judicial Dictionary of Words and Phrases, 10th Edition, Volume 2, (pp. 816) ref.

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

----S. 4(1)(c)(i)--- District Food Collector---Embezzlement of food stock---Case of 'negligence' as opposed to 'gross negligence'---Withholding of part of pension for a certain period---Proportionality of punishment---Scope---Petitioner's absence from the site of embezzlement, albeit due to the nature of his job, could not be used as a handy excuse to absolve himself of the loss caused to the public exchequer---Nevertheless, the petitioner's negligence was not 'gross negligence' given that the petitioner's conduct was not so marked a departure from the normal standard of conduct of a professional man as to infer a lack of that ordinary care which a man of ordinary skill would display---Thus, Inquiry Committee's decision to impose major penalty of withholding 100% of petitioner's pension failed the tests of proportionality (of punishment), suitability, and necessity---Petition for leave to appeal was converted into appeal and partly allowed by modifying the impugned judgment in the terms that the petitioner's pension shall be confined to 50% from the period of service ranging from the year 2014 to 2016 only; whereas pension for the remainder of his service, apart from the aforementioned period of service, shall be paid in its entirety i.e. 100% by the department.

Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 and Auditor-General of Pakistan v. Muhammad Ali 2006 SCMR 63 ref.

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

----S. 4---Penalty---Proportionality---Penalty should be proportionate to the guilt---Notion of proportionality requires that the punishment ought to reflect the degree of moral culpability associated with the offence for which it is imposed.

Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189; Auditor-General of Pakistan v. Muhammad Ali 2006 SCMR 63 ref.

(d) Civil service---

----Pension---Scope---Pension is not a bounty; it should be considered as a recognition of the satisfactory service of the retiring person.

The Federation of Pakistan through the General Manager/ Operations Pakistan Railways v. Shah Mohammad 2021 SCMR 1249 and 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 PLD 1973 SC 514 ref.

(e) Interpretation of statutes---

----Curative Act---Scope and retroactive effect---Curative Act is generally passed to provide some correction or omission made in an existing statute---Acts of such character are obviously retroactive, and hence entitled, as a general rule, to retrospective operation.

Understanding Statutes, 4th Edition, S.M. Zafar, (pp. 234) and Rajby Industries Karachi v. Federation of Pakistan 2023 SCMR 1407 ref.

Muhammad Aftab Alam Rana, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Petitioner in person (in C.P. No. 1112-L of 2022).

Barrister Mumtaz Ali, Additional A.G., Abdul Majid, DFC, M. Rizwan, Assistant and M. Nawaz, Assistant for Respondents.

Respondent in person (in C.P. No. 1112-L of 2022).

2024 P L C (C.S.) 463

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Amin-ud-Din Khan, Jamal Khan Mandokhail, Ayesha A. Malik and Athar Minallah, JJ

Syed ASGHAR ALI SHAH and another

Versus

KALEEM ARSHAD and others

Civil Petitions Nos. 167-P and 391 of 2022, decided on 15th January, 2024.

(Against the judgment dated 18.12.2021 passed by Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal in Service Appeal No.06-P of 2021)

Per Syed Mansoor Ali Shah, J; Amin-ud-Din Khan, Jamal Khan Mandokhail and Athar Minallah, JJ. agreeing; Ayesha A. Malik, J. also agreeing with regard to maintainability of present petitions but not with the reasons given for the same [Majority view]

Constitution of Pakistan---

----Arts. 212(2), proviso, 212(3) & 142---Order of a Tribunal created by a Provincial law---Appeal to the Supreme Court under Article 212(3) of the Constitution---Maintainability---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 Article 212 has not been made applicable---[Per Syed Mansoor Ali Shah, J. (Majority view): Proviso to clause (2) does not apply to clause (3) of Article 212 of the Constitution---Appeals against orders of the Provincial Administrative Tribunals are competent before the Supreme Court under Article 212(3) of the Constitution---Supreme Court over ruled the law declared in such regard in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190)]---[Per Ayesha A. Malik, J. (Minority view): As Article 212(1) of the Constitution itself confers jurisdiction on the Provincial Legislature to establish the Provincial Tribunal under Article 212(1), the Constitution also confers appellate jurisdiction to the Supreme Court from a judgment, decree, order or sentence of the said Provincial Tribunal---Discussion of the majority opinion in the instant matter on Entry 55 of the Federal Legislative List (FLL), is not relevant to the dispute at hand]

Per Syed Mansoor Ali Shah, J. (Majority view)

Clause (2) of Article 212 of the Constitution is merely an ouster clause and not a jurisdiction clause. In case of Federal Tribunals, it provides that no other court can take jurisdiction over any matter which falls under the subject matter of the Administrative Tribunal established under Article 212(1). If clause (2) has not been made applicable to a Provincial Tribunal, it at best means that there are other forums also available to redress the grievance of the officers, e.g., the High Court under Article 199 or the Civil Courts under section 9 of the Civil Procedure Code, 1908. In the absence of clause (2), all the judicial forums in a Province have concurrent jurisdiction along with the Provincial Administrative Tribunal. Once a civil servant invokes the jurisdiction of the Provincial Tribunal, the remedy of an appeal by leave against any decision of the Provincial Tribunal before the Supreme Court becomes alive. Remedy of appeal under clause (3) will not be available if the civil servant approaches the High Court or the Civil Court for the redressal of his grievance. Applicability of clause (2) to a Provincial Tribunal is totally insignificant as it has no effect on the remedy of appeal against the decision of the Provincial Tribunal before the Supreme Court which is ensured under clause (3).

Clause (3) is the third part of Article 212, which provides than an appeal shall lie to the Supreme Court from a judgment, decree order or sentence of the Administrative Tribunal, and the Supreme Court shall grant leave if the Supreme Court is satisfied that a substantial question of law of public importance arises in the case. Clause (3) has no correlation whatsoever with the ouster clause of clause (2). Whether a Provincial Tribunal enjoys the ouster clause or not, does not affect the appellate jurisdiction of the Supreme Court. Clause (3) is independently connected with all the administrative Tribunals, including Provincial Tribunals, established under Article 212(1). The appeal to the Supreme Court is available against orders of both the Federal and Provincial Administrative Tribunals by a special constitutional scheme provided under Article 212, which due to the non obstante clause is over and above any sub-constitutional legislation under the regular constitutional scheme.

The law declared in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190) that unless and until the proviso to Article 212(2) of the Constitution is activated, appeal against an order of a Provincial Tribunal is not available before the Supreme Court under Article 212(3) of the Constitution, and that in the absence of such a law passed by the Parliament, the decision of a Tribunal established under the Provincial law is to be challenged under Article 199 of the Constitution, is not correct and is therefore overruled. [p. 475] C

Dean/Chief Executive, Gomal Medical College, Medical Teaching Institution, D.I. Khan v. Muhammad Armaghan Khan PLD 2023 SC 190 overruled.

Per Ayesha A. Malik, J. (Minority view)

Article 212(3) of the Constitution is the constitutional mandate which prescribes that leave to appeal before the Supreme Court for the Tribunal established under Article 212(1) of the Constitution can be filed directly, meaning thereby, the Constitution itself provides for the remedy of appeal before the Supreme Court. Both Sub-Articles (1) and (3) of Article 212 of the Constitution are exceptions to the legislative authority contained in Article 142 of the Constitution as the Constitution itself authorizes and permits the Federal and Provincial Legislature, irrespective of the authority given in Article 142 of the Constitution read with the Federal Legislative List (FLL), to establish the Tribunal and to allow its leave to appeal directly before the Supreme Court. Article 212(2) merely ousts the jurisdiction of other courts or fora. Resultantly, even though the Tribunal is established under Article 212(1), the ouster of jurisdiction of other courts is automatically triggered by Article 212(2) of the Constitution and with respect to federal courts but for the provincial courts it is necessary that the Provincial Assembly activate the proviso to Article 212(2) of the Constitution. In such case, the Tribunal will be an exclusive forum, which totally and completely ousts the jurisdiction of all other courts or fora with respect to the special subject-matters contained in sub Articles (a), (b) and (c) of Article 212(1) of the Constitution. However, if the proviso is not activated, meaning there is no resolution by the Provincial Legislature (followed by an Act of Parliament) the ouster of jurisdiction will not be triggered. Consequently, a litigant will have the option to avail its remedy before any other forum including the remedy before the Supreme Court.

The law declared in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190) appears to read exclusivity and ouster as synonymous, because it relies on the principle that the Provincial Legislature cannot act upon the jurisdiction of the Supreme Court without intervening Federal legislation, hence, in order for the Tribunal to have exclusive jurisdiction, the proviso must be activated. This in turn means that if the proviso is activated, then the exclusivity of the Tribunal will mean ouster of the jurisdiction as well. However, exclusivity will not per se oust the jurisdiction of other courts without an express provision stating so as exclusivity of jurisdiction does not imply the ouster of jurisdiction. For ouster of jurisdiction to take effect an express provision is required which is precisely what Article 212(2) of the Constitution does. In other words, the proviso does not act as a bridge between Sub-Articles (1) and (3) of Article 212, rather it allows and empowers the Provincial Legislature to decide whether, for the purposes of the establishment of the Provincial Tribunal, remedy should lie exclusively to the Supreme Court or, in the alternate, giving more options to the litigant.

The discussion of the majority opinion in the instant matter on Entry 55 of the Federal Legislative List (FLL), is not relevant to the dispute at hand. The issue before the Court in this matter is simply whether the remedy of appeal as provided in Article 212(3) of the Constitution is available to the petitioners. The answer to this question is in the affirmative as this remedy has been provided, specifically and categorically, by the Constitution itself, and not by way of any ordinary legislation. Therefore, there is no issue pertaining to legislative competence under Entry 55 of the FLL.

Petitioner in -person (in C.P. No.167-P of 2022).

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Petitioners (in C.P. No.391 of 2022).

Syed Hamid Ali Shah, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents (in C.P. No.391 of 2022).

Hasan Nawaz Makhdoom, Additional A.G.P., Ch. Amir Rehman, Additional A.G.P., Ayyaz Shoukat, A.G. (Islamabad), Khalid Ishaq, A.G. (Punjab), Sanaullah Zahid, Additional A.G. (Punjab), Baleeghuzzaman, Additional A.G. (Punjab), Malik Waseem Mumtaz, Additional A.G. (Punjab), Sultan Mazhar Sher Khan, Additional A.G. (Khyber Pakhtunkhwa), M. Ayyaz Khan Swati, Additional A.G. (Balochistan) and Barrister Zeeshan Adhi, Additional A.G. (Sindh) for Respondents.

2024 P L C (C.S.) 493

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

IKRAMUDDIN RAJPUT

Versus

INSPECTOR GENERAL OF POLICE, SINDH and others

Civil Petition No. 940-K of 2022, decided on 19th December, 2023.

(Against the Judgment dated 31.03.2022 passed by the Sindh Service Tribunal at Karachi in Appeal No. 473 of 2020)

(a) Civil service---

----Departmental inquiry---Object and purpose---Standard of proof---Object of a departmental inquiry is to investigate allegations of misconduct in order to maintain discipline, decorum, and efficiency within the institution, and strengthening and preserving public confidence---In a departmental enquiry, the standard of proof is that of balance of probabilities or preponderance of evidence but not proof beyond reasonable doubt, which is a strict standard required in a criminal trial, where the potential penalties are severe.

(b) Sindh Police (Efficiency and Discipline) Rules, 1988---

----S. 4(b)(v)---Police official---Allegation of unfair and dishonest investigation in a rape case involving a minor girl---Dismissal from service---According to the statement of allegations, the Medico-Legal Report declared that the hymen of the victim was freshly torn and bleeding, the chemical analysis report confirmed the presence of human sperm in the vaginal swab and shalwar of the victim---In the disciplinary proceedings, the competent authority concluded that there was no justification for the petitioner (police official) to insert section 511, P.P.C. based solely on the statement of a seven-year-old minor girl, recorded under section 164, Cr.P.C., while ignoring the ocular testimony of the victim's father who caught the accused with the help of neighbors committing the act of rape and handed him over to the police---Even the victim in her recorded statement under section 164, Cr.P.C. did not absolve the accused but the petitioner prematurely added section 511, P.P.C to provide advantage to the accused during his prosecution---Police force is a disciplined force with significant accountability and the responsibility of maintaining law and public order in the society---Therefore, any person who wants to be part of the disciplined force should be a person of utmost integrity and uprightness with an unimpeachable, spotless character, and clean antecedents---In the case in hand, disciplinary action was taken against the petitioner after complying with due process of law and on the basis of self-evident and self-explanatory documents---Enquiry officer, rightly found the petitioner guilty in his report for further necessary action---Dismissal from service order passed against the petitioner was maintained---Petition was dismissed and leave was refused.

Sughra Bibi v. State PLD 2018 SC 595; Gajoo v. State of Uttarakhand (2012) 9 S.C.C. 532; Babubhai v. State of Gujrat and others (2010) 12 SCC 254 and State of Gujarat v. Kishanbhai (2014) 5 SCC 108 ref.

Javed Ahmed Chhtari, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Saleem Akhtar, Additional P.G., Sibtain Mehmood, Additional A.G. and Malik Qasim, S.P. for Respondents.

2024 P L C (C.S.) 508

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

SENIOR GENERAL MANAGER, PAKISTAN RAILWAYS and others

Versus

MUHAMMAD PERVAIZ

Civil Appeal No. 512 of 2021, decided on 20th November, 2023.

(Against the Judgment dated 17.09.2018 passed by Federal Service Tribunal, Islamabad in Appeal No.848 (R) CS/2016)

(a) Civil service---

----Employee of Pakistan Railways---Advance increments to officials for possessing/attaining higher education qualifications, entitlement to---Federal Service Tribunal held that the respondent (employee) was entitled to receive advance increments from the date of acquiring the higher qualification of L.L.B. (Legum Baccalaureus/Bachelors in Law)---Legality---Perusal of the relevant Standing Instruction (SI.) No.32, available at page 1043 of the Estacode (2007 Edition), Volume-II and the two relevant Office Memorandums (O.M.) pertaining to the advance increments policy of the appellant-department showed that the policy of granting advance increments on acquiring L.L.B. degree was only available to the employees of the courts, and two advance increments were allowed on acquiring L.L.B. degree, being equal to a M.A./M.Sc. degree, to all the officials working in the organizations which were either dispensing justice or directly connected with the work of dispensing justice, with immediate effect---Counsel for the respondent neither argued that the respondent was ever engaged in or assigned any duty which was directly related to court work or directly connected with the work of dispensing justice, nor was she able to highlight that any other persons were granted advance increments on qualifying L.L.B. in addition to, or in spite of already having been granted advance increments on qualifying M.A./M.Sc.---Admittedly the respondent had been allowed the benefit of two increments on attaining the qualification of M.A. in accordance with the instructions contained in SI. No.32---Scheme conferring advance increments to law graduates was introduced purposely keeping in view the assignment of jobs in the field of law, and with the rider that if advance increments had been granted on Master Degrees then no further increment shall be allowed on law graduation---Appeal was allowed and judgment of Federal Service Tribunal was set-aside.

(b) Judicial review---

----Policy decisions of the Executive---Interference by Courts---Scope of judicial review of Government policies stated.

The ambit and purview of judicial review of government policies is now well settled and defined and thereunder the Court can neither act as an appellate authority with the aim of scrutinizing the propriety, suitability, and/or adequacy of a policy, nor may it act as an advisor to the executive on matters of policy which they are entitled to formulate. The object of judicially reviewing a policy is to ascertain whether it violates the fundamental rights of the citizens, or is at variance to the provisions of the Constitution, or opposed to any statutory provision, or demonstrably arbitrary or discriminatory. The court may invalidate laws, acts and governmental actions that are incompatible with a higher authority, or an executive decision for being unlawful which maintains a check and balance. Such a declaration can be sought on the ground that the decision-maker misdirected itself in law, exercised a power wrongly or improperly or purported to exercise a power that it did not have, which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it, or due to a failure to observe the statutory procedures. The dominance of judicial review of the executive and legislative action must be kept within the precincts of the constitutional structure so as to avoid any misgivings or apprehension that the judiciary is overstepping its bounds by engaging in unwarranted judicial activism.

Jawad Mehmood Pasha, Advocate Supreme Court (Via video-link from Lahore) for appellants.

Ms. Shireen Imran, Advocate Supreme Court for Respondent.

2024 P L C (C.S.) 540

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

RAHIMULLAH KHAN

Versus

DEPUTY POSTMASTER GENERAL, SOUTHERN POSTAL REGION, KHYBER PAKHTUNKHWA and others

Civil Petition No. 1066 of 2022, decided on 24th November, 2023.

(Against the Judgment dated 28.01.2022 passed by Federal Service Tribunal, Islamabad in Appeal No. 848(P)CS/2019)

Fundamental Rules---

----F.R. 54---Civil Service Regulations (C.S.R.), Art. 417-A---Pensionary benefits---Pensionary benefits for intervening period before reinstatement into service---F.R. 54 of the Fundamental Rules provides that in the case of reinstatement of dismissed or removed employee, only the revising or appellate authority may grant him his pay for the period of his absence from duty, and if he is honourably acquitted then, the full pay to which he would have been entitled to, and his period of absence from duty will be treated as a period spent on duty---Though this Rule is not germane to the present controversy, but at the same time, it is a ground reality that neither the department placed anything on the record to show that the Divisional Superintendent, Postal Service Kohat, was actually the revising or appellate authority, nor any document was submitted to show that he was authorised to issue any such letter or take any such decision in the capacity of a revising or appellate authority under the exactitudes of F.R. 54---Petitioner was deprived of his pay for the intervening period, from 01.09.2013 to 17.05.2015, in view of F.R. 54(a) merely on the ground that he was not honourably acquitted by the Tribunal, and the major penalty was modified in view of the judgment passed on 25.05.2016---Still, in tandem, the department is ignoring that the same Tribunal in the same judgment also set aside the impugned orders, and the petitioner was reinstated into service with consequential back benefits---In another judgment in the case of the same petitioner by the same Tribunal on the very next date, i.e., 26.05.2016, the major penalty of withholding of two steps increment for two years without future effect was modified into withholding one increment for one year only---However, in the judgment dated 25.05.2016, the reinstatement order was passed with consequential back benefits, which order is in the field---When the Tribunal has passed the reinstatement order with consequential back benefits, then, in this particular situation, the revising or appellate authority cannot undo or make ineffective the order or judgment passed by the Tribunal for the payment of consequential back benefits---Penalty imposed on the petitioner was only confined to withholding of an increment for a certain period, which does not otherwise mean to withhold his pay for the period he actually rendered his services to the department, and the principle of "no work, no pay" is not applicable when consequential back benefits have been accorded by the Tribunal---Petitioner retired on 18.05.2015 and the letter for withholding his emoluments from 01.09.2013 to 17.05.2015 was issued to him on 14.02.2019, whereas, under Article 417-A of the Civil Service Regulations (C.S.R.), the pending disciplinary proceedings could not continue if the officer attains the age of superannuation before the completion of the inquiry---Therefore, in that context too, the pending proceedings if any were abated and there was no justification to issue the letter after considerable period of retirement for withholding the salary with retrospective effect which was totally unjustified and unwarranted---Petition was converted into an appeal and allowed, impugned judgment of the Federal Service Tribunal and the directions issued by the Divisional Superintendent, Postal Service Kohat for withholding the pay of the petitioner were set aside, and he was held entitled to be paid for the period from 01.09.2013 to 17.05.2015 accordingly.

Misbah Ullah Khan, Advocate Supreme Court for Petitioner.

Malik Javed Iqbal Wains, Additional A.G.P. and Shahid Akhtar, D.S. Kohat for Respondents.

2024 P L C (C.S.) 554

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Elementary and Secondary Education Department, Peshawar and others

Versus

AMJAD UR RAHMAN and others

Civil Petition No. 225-P of 2023, decided on 11th December, 2023.

(Against the judgment dated 22.02.2023 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat passed in W.P. No. 657-M of 2020)

Civil service---

----Appointment---Candidate on top of merit list not selected on the grounds that he was over qualified for the post advertised---Propriety---Frivolous litigation initiated by the Provincial Government---Petitioners had advertised in the year 2018 for the selection of two computer teachers in basic pay scale of 12 and had prescribed the minimum qualification as Intermediate with one year diploma in computer sciences---Respondent held a B.Sc. and M.Sc. degree in computer science and came on the top of the merit list but still was not appointed for the reason that he was over-qualified---Held, that it appeared that those in charge of educating the children of the province were bereft of common sense by disqualifying a person who was more qualified and thus better placed to impart computer science education and favoured one less qualified---Not only the respondent was made to suffer but the children, who would have benefited from his knowledge, were condemned---Leave to appeal was declined and the petition was dismissed with costs incurred by the respondent, that is two hundred thousand rupees to be paid to the respondent---Supreme Court directed that judgment regarding appointment of respondent will also be implemented, and if it is not complied with, the Provincial Secretary, Elementary and Secondary Education, may be proceeded against for contempt of Court, and that copy of present order be sent to the petitioners and the respondents, to the Advocate General, Provincial Chief Secretary and Secretary Law who will undoubtedly ensure that the government does not generate such unnecessary litigation and then, for no valid legal reason, challenge the decisions of the High Court which also drains the resources of the government, paid for by the taxpayers.

Sultan Mazhar Sher Khan, Additional Advocate General, Khyber Pakhtunkhwa along with Mehmood Ghaznavi, D.E.O. (Male) Chitral for Petitioners.

Respondent No.1 in person.

2024 P L C (C.S.) 569

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

GHULAM ABBAS SOOMRO

Versus

The PROVINCE OF SINDH and others

Civil Appeal No. 84-K of 2023, decided on 7th February, 2024.

(Against the order dated 28.01.2021 passed by the Sindh Service Tribunal, at Karachi in Appeals Nos. 19 and 20 of 2020).

Pakistan Engineering Council Act, 1975 (V of 1976)---

----Ss. 2(x), 2(xii) & 2(xiv)---Constitution of Pakistan, Art. 25---Persons working in the Government departments, autonomous bodies, local authorities and private firms or companies---Whether provisions of Pakistan Engineering Council Act, 1975 ['PEC Act'] are applicable to such persons---Conflicting judgments of the Supreme Court---Post of Executive Engineer (BS-18)---Case reported as Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad (PLD 1995 SC 701) ['Fida Hussain's case'] provides that if the Government employs a professional engineer as defined in the PEC Act for performing professional engineering work as envisaged by the PEC Act in section 2, the provisions of the PEC Act would be attracted and not otherwise---Whereas the case reported as Maula Bux Shaikh v. Chief Minister Sindh and others (2018 SCMR 2098) ['Maula Bux Shaikh's case'] introduces a cautionary note and explicitly dictates the Government regarding postings and transfers of Executive Engineer (BS-18) and directs that the Government shall not allow or permit any person to perform professional engineering work as defined in the PEC Act, who does not possess accredited engineering qualification from the accredited engineering institution and his name is not registered as a registered engineer or professional engineer under the PEC Act---This cautionary note raises critical concerns about the permissibility of employing engineers not licensed by the PEC for professional engineering tasks, which, according to the PEC Act, should only be undertaken by licensed professionals---Effect of these cases creates a scenario: where a person, on the one hand, is eligible to be promoted to the post of Executive Engineer (BS-18), but on the other hand, is denied to perform professional engineering works entailed for an Executive Engineer (BS-18)---This raises a very serious issue that may lead to creating different classes of employees within the same cadre, one who is eligible to perform professional engineering works, while the other is denied the same, and thus, exposing the current position to be against the principle of equality and nondiscrimination provided under Article 25 of the Constitution---Accordingly, it would be safe to hold that, while both cases, Fida Hussain's case and Maula Bux Shaikh's case, affirm that it is the domain of the Government concerned to decide, whether a particular academic qualification of a civil servant employee is sufficient for promotion from one Grade to another higher Grade---However, the questions which still alludes a definite determination are: whether any governmental policy regarding promotion can be given effect if the same can lead to the violation of the PEC Act or any other statute or expose the person who benefited from such policy to a criminal liability; and whether denying an Executive Engineer (BS-18) to perform professional engineering works entailed for an Executive Engineer (BS-18) creates different classes of employees within the same cadre, thereby violating the principle of equality and nondiscrimination provided under Article 25 of the Constitution---In the circumstances, the present case warrants further consideration but before a larger bench of the Supreme Court---Supreme Court directed Office to place the present case before the Committee constituted under section 2 of the Supreme Court (Practice and Procedure) Act, 2023 for fixation of the case before an appropriate bench.

Abdul Salam Memon, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Appellant.

Sibtain Mehmood, Addl. A.G., Ms. Abida Parveen Channar, Advocate-on-Record, M. Nawaz, Secretary, Works and Altaf Hussain Memon, D.S. for Respondents.

2024 P L C (C.S.) 587

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

WAQAS SHAHZAD

Versus

INSPECTOR GENERAL POLICE PUNJAB, LAHORE and others

Civil Petition No. 152 of 2022, decided on 23rd November, 2023.

(Against the judgment dated 17.11.2021 passed by Punjab Service Tribunal, Lahore in Appeal No. 1674/2021).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 12---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S. 17---Punjab Service Tribunals Act (IX of 1974), S. 4---Revision---Scope---No vested right to file a revision is available under Section 17 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and Rule 12 of Punjab Police (Efficiency and Discipline) Rules, 1975---Powers of revision in both the aforesaid provisions are suo motu i.e. on its own motion and not on application 'of any aggrieved person'---However, one thing is common in both the aforesaid provisions that in the case of any enhancement of sentence or punishment intended in exercise of revisional powers, the said authority may provide opportunity of showing cause to such person as to why the punishment should not be enhanced---In case of any adverse findings or punishment or enhancement of punishment imposed in exercise of suo motu powers of revision within the time frame, the aggrieved person may approach the service tribunal for redress but the fact remains that revision cannot be filed as a matter of right and in case of rejection or dismissal of departmental appeal, the aggrieved employee should file the appeal before the Tribunal rather than filing revision petition or waiting for the decision of revision by the competent authority which is in fact detrimental and prejudicial to the own interest of such person who despite having in hand an adverse order passed against him in the departmental appeal, prefers to file revision petition which is not a vested right but such provision is provided to exercise suo motu powers and is not based on the condition of application 'of any aggrieved person'---In case any adverse order is passed under suo motu powers of revision against any person then obviously, he can approach the Tribunal against the adverse order being an original one but it is not meant as a remedy to cure the orders passed by the competent authority in the departmental appeal to hear it as a second appeal for which the direct remedy in the form of appeal is already provided before the concerned Service Tribunal.

Ahmad Ali v. Inspector-General, Punjab Police and others 1990 SCMR 1450 and Muhammad Yaqoob v. District Police Officer, District Sahiwal and others 2006 SCMR 310 ref.

M. Shahid Tasawar, Advocate Supreme Court for Petitioner (Via Video Link from Lahore).

Malik Waseem Mumtaz, Addl. A.G., Punjab and Ata-ul-Mustafa, Office Superintendent for Respondents.

2024 P L C (C.S.) 611

[Supreme Court of Pakistan]

Present: Yahya Afridi and Jamal Khan Mandokhail, JJ

MUHAMMAD SALEEM

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another

C.M.A. No.145-Q of 2022 in Civil Petition No. 61-Q of 2018, decided on 21st December, 2023.

(For restoration of C.P. No. 61-Q of 2018 against the judgment dated 13.12.2017 of the Service Tribunal Balochistan, Quetta passed in S.A. No. 273 of 2016).

(a) Civil service---

----'Lien' against a post---Meaning and scope---In the context of service law, the term "lien" has a statutory connotation and refers to a legal right of a civil servant to hold a particular post, typically a higher one, to which they have been promoted or transferred, while still retaining a right on their original post, based on provisions provided for the same under the rules or regulations framed by the appropriate Government---Hence, simply put, lien in service law is a right of a civil servant to return to his original position, based on the fulfilment of the conditions set out in the rules or regulations framed by the appropriate Government.

(b) Civil Servants (Confirmation) Rules, 1993---

----Rr. 6(2) & 5---Balochistan Civil Servants (Confirmation) Rules, 2012, R. 7(2)---Acquiring and termination of lien against a post---Reading of Rules 5 & 6(2) of the Civil Servants (Confirmation) Rules, 1993 ("Rules of 1993") clearly stipulates that a civil servant shall forfeit his lien against a post, when accepting an appointment in an autonomous body under the control of Federal Government, as is the situation with the petitioner in the present case---As per Rule 6(2) of the Rules of 1993, a civil servant who takes up an appointment on selection, other than by way of transfer on deputation, to a position in an autonomous body under the control of Federal Government, Provincial Government, local authority or a private organisation, effectively undergoes a change of status from that of a civil servant to a different employment category---Crucially, this transition results in the forfeiture of his lien against the post in his parent department or authority---Lien, representing the legal right to return to his former position within the civil service, is thus relinquished when he moves, on his own accord, to a non-governmental body and accepts an appointment therein on selection---While transfers within various Government departments (whether Federal or Provincial) do not alter the fundamental status of a civil servant, a move to an autonomous body under the control of Government, except by way of transfer on deputation, signifies a substantive change in the nature of employment---This change is of such a magnitude that it necessitates the relinquishment of specific rights and privileges inherent to his previous civil service position, including the lien---As to the subject office order, wherein the petitioner was to retain his lien against the post of Junior Scale Stenographer in S&GAD till his confirmation in NADRA is concerned, the same is blatantly in violation to the then applicable Rules of 1993, and in particular, the provisions of Rule 6(2)---Petitioner in this case was appointed in NADRA, an autonomous body under the control of Federal Government, and therefore, this would lead to the cessation of any lien against a previously held position in the S&GAD, Government of Balochistan---This conclusion aligns with the stipulations of Rule 6(2) of the Rules of 1993 and Rule 7(2) of the Balochistan Civil Servants (Confirmation) Rules, 2012---Given the subject office order is devoid of any legal sanction, it could not be made an anchor sheet for the petitioner to claim his lien against the post in the parent Department---Petition was dismissed.

Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284; Muhammad Israrullah v. Assistant Director, Manpower 2005 SCMR 716 and Government of N.W.F.P v. Syed Zafarmand Ali 2005 SCMR 1212 distinguished.

Farid Muhammad v. Secretary, Ministry of Food 1996 SCMR 818 ref.

Muhammad Usman Yousafzai, Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record for Applicant.

Amir Zaman Jogazai, Addl. AG and Noor Hussain Baloch, Addl. Secretary for Respondents.

2024 P L C (C.S.) 634

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

MUHAMMAD ISHAQUE and others

Versus

Messrs ZEAL PAK CEMENT FACTORY LTD.

Civil Petitions Nos. 175-K, 176-K and 177-K of 2022, decided on 22nd December, 2023.

(Against order dated 30.11.2021, passed by the High Court of Sindh, Circuit Court, Hyderabad on M.A. No. 1719 of 2020 moved in C.P. No.D-217 of 2001).

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

----Ss. 3 & 4---Constitution of Pakistan, Art.204---Contempt of High Court---Employees of a company---Termination from service---Judgment issued by the High Court directing reinstatement in service with all consequential benefits---Non-compliance by the company (employer)---Whether company (employer) made substantial compliance with the judgment of the High Court?---Held, that seemingly, the directions issued by the High Court for reinstatement in service with all benefits, which the petitioners (employees) were entitled to at the date of termination of their services, were not complied with---Therefore, the petitioners filed an application in the High Court for initiating contempt proceedings for the non-compliance of judgment---However, the High Court declined to initiate contempt proceedings based on the statement of the alleged contemnors (company) that substantial compliance of the judgment had been made---Impugned order of the High Court did not reflect whether any verified statement of accounts was filed in the High Court by the alleged contemnors to demonstrate compliance and payments, if any, made to the petitioners---Additionally, no due diligence was made by the High Court to ensure compliance with its own judgment---Despite the High Court passing various harsh and deterrent orders on different dates of hearing for ensuring compliance and implementation of its judgment, the contempt application was disposed of precipitously and inconsiderately, and the sole observation was that substantial compliance had been made---What substantial compliance was allegedly made should have been reflected in the order to determine whether due compliance had been achieved or not---So, in all fairness, it was not enough for the High Court to dispose of the contempt application on the ground that if the petitioners had any substantial claim against the respondent (company), they were at liberty to seek a remedy, if any, under the law---Court has to assess the contempt and its gravity and may also purge it if an unqualified apology is tendered by the contemnor; however, there is no concept or parameter to relieve or emancipate the contemnors on the notion that substantial compliance has been made, which had not been demonstrated in the present case---Court has to evaluate the compliance of its judgment in its entirety and not the ratio or percentage of compliance---In the present case denial of exercising jurisdiction proactively in the contempt proceedings for revitalising and assuring the compliance of judgment not only rendered the main judgment worthless and inconsequential, but for all practical purposes, also undermined the writ of the Court and watered down the efficacy of the orders passed by different benches in the same proceedings for ensuring compliance---Petitions were converted into an appeal and allowed; the impugned Order of the High Court was set aside and the matter was remanded back to the High Court for deciding the contempt application afresh and for examining whether the judgment had been implemented as per the directions issued by the High Court or not.

Petitioners in Person.

Respondent not Represented.

2024 P L C (C.S.) 657

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar and Musarrat Hilali, JJ

PROVINCE OF PUNJAB through Secretary, Population Welfare Department, Lahore and others

Versus

SHEHZAD ANJUM and others

Civil Petition for Leave to Appeal No.1974-L of 2020, decided on 1st February, 2024.

(Against the order dated 22.09.2020 passed by the Lahore High Court, Lahore in I.C.A. No.128925 of 2018).

Civil Procedure Code (V of 1908)---

----O.II, R. 2---Constitution of Pakistan, Art. 199---Civil service---Regularization in service---Second constitutional petition filed on the basis of the same cause of action which was decided in the first constitutional petition---Maintainability---Respondents (employees) had sought their regularization from the date of their appointment in the first constitutional petition ('the first petition') filed before the High Court, which was disposed of by the High Court directing that the respondents be regularized in terms of the said judgment---If the respondents were not satisfied with the said judgment they should have appealed the same or if the same was not implemented they should have sought its implementation, which could have been by invoking the contempt jurisdiction of the High Court---In any event on the same cause of action, and one which had been decided pursuant to the judgment in the first petition, another constitutional petition ('the second petition') was not maintainable, and as no fresh cause of action had accrued to the respondents---This critical aspect of the case was overlooked by the Single Judge of the High Court who passed the order in the second petition---Though this is not the respondents' case, if for the sake of argument it is assumed that in the first petition the respondents had only sought their regularization, and after they were regularized they wanted the regularization to take effect from the date of their initial appointment on contract basis, they could not seek this relief subsequently in the second petition because of the restriction in Order II, Rule 2 of the Civil Procedure Code, 1908---Petition for leave to appeal was converted into appeal and allowed, and the second petition filed by the respondents was dismissed.

Barrister M. Mumtaz Ali, Addl. AG Punjab for Petitioners.

Nemo for Respondents Nos. 1 to 21.

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record for Respondents Nos.22 to 29 and 31 to 35.

Junaid Jabbar Khan, Advocate Supreme Court for Respondent No.30.

2024 P L C (C.S.) 677

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

The PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION, LAHORE through Commissioner and others

Versus

JAVED IQBAL and others

Civil Petition No. 2007-L of 2023, C.M.A. No. 2782-L of 2023 in

C.P. No.2007-L of 2023, C.P. No.2008-L of 2023 and C.M.A. No.4417-L of 2023 in C.P. No.2008-L of 2023, decided on 18th January, 2024.

(Against judgment dated 30.03.2023, passed by the Lahore

High Court, Lahore in Writ Petitions Nos.33961 of 2022 and 178510 of 2018)

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

----S. 4(1)(b)(vi)---Contractual employee of Punjab Employees Social Security Institution, Lahore (the PESSI)---Reinstatement in service from date of dismissal with all back benefits---With regard to the allegation levelled against the respondent (employee) regarding his poor performance from 06.11.2011 to 21.08.2020, the fate of the said allegation could only be decided after conducting a thorough probe/regular enquiry---Said allegation stood belied from the remarks recorded by the Reporting Officer in the Personal Evaluation Reports of the respondent from the years 2009 to 2020, wherein his performance had been shown as satisfactory---Conduct of the petitioners (departmental authorities) established mala fide on their part to dispense with the services of the respondent as all penal actions against the respondent were initiated by them after filing of writ petitions and contempt petitions/applications by the respondent---As regards the allegation against the respondent of not following duty timings properly, it was apparent from the record that without specifying days when the respondent did not attend the office on time supported the plea of the respondent that he performed his duties to the entire satisfaction of his superiors---Moreover, the Reporting Officer while recording the remarks in the column of "Punctuality" did not give any adverse remarks against the respondent---Last allegation in the show cause notice that despite previous enquiries initiated against the respondent his behaviour remained very irresponsible during his service, no incident or untoward situation during the service of the respondent had been pointed out or referred to by the petitioners---High Court rightly reinstated the respondent in service from the date of his dismissal with all back benefits, and gave directions to the departmental authorities to take up the matter regarding regularization of services of the respondent with the relevant authority and upon fulfilment of codal formalities to ensure decision within a period of six months positively---Petitions were dismissed and leave was refused.

Aftab Raheem, Advocate Supreme Court and Muhammad Shoaib Tabish, Law Officer (via video link from Lahore) for Petitioner/ Applicants (in both cases).

M. Irian Khan Ghaznavi, Advocate Supreme Court for Respondent No. 1 (in both cases).

2024 P L C (C.S.) 687

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar and Musarrat Hilali, JJ

PROVINCE OF PUNJAB through Secretary (Primary and Secondary Healthcare Department), Lahore and others

Versus

Hafiz MUHAMMAD KALEEM-UD-DIN

Civil Petition No.1893-L of 2021, decided on 17th January, 2024.

(Against the judgment dated 13.09.2021 passed by the Lahore High Court, Bahawalpur Bench, in W.P. No.3963 of 2021).

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

----S. 8(6)(a)---Constitution of Pakistan, Art. 212(1)---Retired civil servant---Pro-forma promotion on a selection post sought---Ouster of jurisdiction of the High Courts and Civil Courts---Post to which the respondent wanted (pro-forma) promotion was a selection post and such post according to Section 8 (6) (a) of the Punjab Civil Servants Act, 1974 could only be filled on the basis of merit and not on seniority---Furthermore Article 212 of the Constitution ousts the jurisdiction of the High Courts and Civil Courts in the matters relating to the terms and conditions of a civil servant as the bar in the Constitution is absolute---Petition was converted into appeal and allowed.

Barrister Muhammad Mumtaz Ali, Addl. AG, Punjab along with Ms. Saima Jehan, Sr, Law Officer and Nasir Ali, Law Officer for Petitioners.

Muhammad Naveed Farhan, Advocate Supreme Court for Respondent.

2024 P L C (C.S.) 746

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar and Musarrat Hilali, JJ

Civil Appeal No. 1471 of 2013 and Civil Appeal No.53 of 2014

(Against the judgments dated 21.02.2013 passed in W.P. No.1124 of 2006 and dated 07.10.2013 in F.A.O.71 of 2011 by Peshawar High Court, Peshawar).

Civil Appeals Nos.187 to 191 of 2018

(Against the judgments dated 17.01.2017 passed in I.C.As. Nos.157 and 275 of 2011 by Lahore High Court, Multan Bench, Multan).

C.M.A.5008/ 2014 in C.A.1471 / 2013

(Impleadment)

PAKISTAN ENGINEERING COUNCIL through Chairman and others

Versus

MUHAMMAD SADIQ and others

Civil Appeal No. 1471 of 2013 and Civil Appeal No.53 of 2014, Civil Appeals Nos. 187 to 191 of 2018 and C.M.A.5008 of 2014 in C.A. No.1471 of 2013, decided on 15th February, 2024..

(a) Educational institution---

----Admissions policy---Eligibility criteria---Judicial review---Scope---In the affairs of admission and examination in educational institutions, the concerned authorities are vested with the powers and jurisdiction to lay down the eligibility criteria in their own rules, regulations, or prospectus---They are independent to follow their own policy for admission, and in other affairs, therefore, the academic, administrative, and disciplinary autonomy of a university must be respected---Interference by the courts in the admission policy would give rise to glitches for the said institutions to administer the matters harmoniously and efficiently---Educational institutions are competent to manage their own affairs without any outside intervention from executive or judicial organs unless they contravene or disregard the compass of their authority or act in breach of applicable statutes or admission policies as laid down in the prospectus.

Noor Muhammad Khan Marwat v. Vice Chancellor, Gomal University PLD 2001 SC 219; Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961; Secretary Economic Affairs Division, Islamabad v. Anwarul-Haq Ahmed 2013 SCMR 1687; Murad Ali Khan v. Vice Chancellor, University of Health Sciences, Lahore 2016 SCMR 134 and Khyber Medical University and others v. Aimal Khan and others PLD 2022 SC 92 ref.

(b) Pakistan Engineering Council Act, 1975 (V of 1976)---

----Ss. 10 & 14---Regulations for Engineering Education in Pakistan, 1985 (issued via Notification S.R.O.1142(I)/85 dated 20-11-1985), Art. 2(c)(ii)---B.Tech. (Hons.) degree and B.Sc. Engineering degree---Distinction---B.Tech. (Hons.) qualification is not equivalent to B.Sc. Engineering degree---According to Pakistan Engineering Council (PEC), B.Tech. courses are implementation oriented and B.Sc. engineering courses are design and research oriented---Both qualifications are also regulated internationally through two separate accords---Bachelor of Science in Engineering emphasizes theories and advanced concepts, while an Engineering Technology degree emphasizes hands-on application and implementation with the major difference that B.E. is more knowledge based while B.Tech. is skill-oriented.

Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad PLD 1995 SC 701 and Maula Bux Shaikh and others v. Chief Minister Sindh and others 2018 SCMR 2098 ref.

(c) Civil service---

----Appointment--- Eligibility criteria--- Judicial review--- Scope---Discretion of employer---Essential qualifications for appointment to any post is the sole discretion and decision of the employer---Employer may prescribe required qualifications and the preference for appointment of candidate who is best suited to his requirements---Court cannot set down the guidelines or conditions of eligibility or fitness for appointment or promotion to any particular post---In no case can the Court, in the garb of judicial review, seize the chair of the appointing authority to decide what is best for the employer and impose conditions in internal recruitment matters, unless there is a grave violation of applicable law, rules and regulations---In the private sectors, the employer is free to decide the criteria of appointment and promotions and other terms and conditions of employment and for this purpose, may set down its business strategy, H.R. policies, and progression plans---Whereas for the appointment, transfer and promotion in the civil service, the Appointment, Promotion and Transfer Rules framed by the Federal Government and Provincial Governments separately under their Civil Servants Acts prevail and are followed, and in case of statutory bodies, appointments and promotions are made in accordance with their statutory requirements, rules and regulations; but in all such circumstances, it is within the domain of the competent authority to prescribe required qualification and experience in the recruitment and promotion process---Courts cannot force to accept or interchange any other qualification equivalent to the specific post with specific qualification advertised for inviting applications for recruitment or setting benchmark for promotion of employees to any particular post or grade on attaining any particular length of service.

Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad PLD 1995 SC 701 and Maula Bux Shaikh and others v. Chief Minister Sindh and others 2018 SCMR 2098 ref.

For the Appellants:

Waseem-ud-Din Khattak, Advocate Supreme Court (in C.A. No. 1471 of 2013).

Rashdeen Nawaz Qasoori, Addl.AGP (in C.A. No. 53 of

2014).

Abdul Razzaq Raja, Advocate Supreme Court (in C.As. Nos. 187 and 188 of 2018).

Hafiz Hafiz ur Rehman, Advocate Supreme Court (in C.As. Nos. 189 and 190 of 2018).

Muhammad Akram Shaikh, Senior Advocate Supreme Court (in C.A. No. 191 of 2018).

For the Applicants:

Farooq Malik, Advocate Supreme Court (in C.M.A. No. 5008 of 2014).

For the Federation:

Rashdeen Nawaz Qasoori, Addl.AGP

For FPSC:

Haroon Rasheed, Dy. Dir. FPSC

For Respondent No. 1:

Aftab Alam Yasir, Advocate Supreme Court (in C.As. Nos. 187 and 189 of 2018).

For Respondents Nos. 1-2:

Dr. Khalid Ranjha, Senior Advocate Supreme Court (in C.As. Nos. 188, 190 and 191 of 2018).

For Respondents Nos. 5-9:

Abdul Razzaq Raja, Advocate Supreme Court (in C.A. No. 189 of 2018 and for Respondents Nos. 7-10 in C.A. Nos. 190 of 2018 and for Respondent No. 5 (in C.A. No. 191 of 2018).

2024 P L C (C.S.) 770

[Supreme Court of Pakistan]

Present: Munib Akhtar and Shahid Waheed, JJ

ALI RAZA

Versus

REGIONAL POLICE OFFICER and another

C.P.L.A. No.1593-L of 2020, decided on 14th March, 2024.

(Against the order dated 01.09.2020 passed by the Punjab Service Tribunal, Lahore in Appeal No.2313 of 2020).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 14 & 12 [as existed prior to being amended by Notification No.6206-EXEC-II dated 16th of March, 2023, issued by the Provincial Police Officer]---Punjab Civil Servants Act (VIII of 1974), S. 21---Police official---Dismissal from service---Departmental appeal, filing of---Limitation---Notwithstanding Rule 14 of the Punjab Police (Efficiency and Discipline) Rules, 1975, where no time period for filing an appeal has been provided, the time frame specified under section 21 of the Punjab Civil Servants Act, 1974, is to be followed, which is sixty days.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Baleegh-uz-Zaman Ch., Addl. A.G., Punjab along with Nasrullah Khan, DSP for Respondents.

2024 P L C (C.S.) 782

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

CHAIRMAN, BOARD OF CONTROL, CANTEEN STORES, HQ, RAWALPINDI and others

Versus

MUHAMMAD AZAM KHAN and others

Civil Appeal No.515 of 2015, decided on 22nd November, 2023.

(Against the judgment dated 15.12.2014 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in I.C.A. No. 127 of 2013 in W.P. No. 1516 of 2011).

(a) Constitution of Pakistan---

----Art. 199(3)---Employees of Canteen Stores Department (CSD)---Not in the service of the Armed Forces---Bar contained under Article 199(3) of the Constitution does not apply - In the present case the letters of appointment of the employees of CSD showed that the posts offered to them were private, and they were not subject to any law relating to Armed Forces of Pakistan---With respect to the terms and conditions of its employees, the CSD cannot put forward the bar contained in clause (3) of Article 199 of the Constitution before the High Court.

General Manager, Canteen Stores Department, Karachi v. Abdul Rashid 1983 SCMR 487 ref.

(b) Constitution of Pakistan---

----Art. 199(5)---Employees of Canteen Stores Department (CSD)---CSD does not comewithin the meaning of "person" provided in clause (5) of Article 199 of the Constitution---CSD is neither a body politic nor corporate nor an authority; as such, a petition against it by its employees before the High Court in its constitutional jurisdiction is not competent.

Canteen Stores Department (CSD) is not a body politic or corporate. It has not come into being by a statute or under a statute. Entire capital of CSD belongs to it and does not form part of the government money or government funds. It has independent financial resources and is run by its own funds, receives no funds from any source of the Government and is completely autonomous in its internal administration. The Public Accounts Committee does not scrutinise its accounts to include the same in the Public Fund Account of the Federal Government. It is a private commercial organization and does not perform any function of the Government. CSD cannot be held as an authority of the Government.

The list of Government Departments is provided in Schedule III to the Rules of Business, 1973. It is important to note that only that can be termed a (Government) Department whose name is mentioned in Schedule III. Since CSD is not mentioned in Schedule III to the Rules of Business, 1973, it cannot be called a government department.

It is clear that CSD is neither a body politic nor corporate nor an authority or Government Department; as such, a petition against it by its employees before the High Court in its constitutional jurisdiction is not competent.

The rules contained in the CSD Revised Instructions and Procedures Manual (2006) are non-statutory because these have not been framed under the authority of the Constitution or any statute. In the present case since the respondents were employed when the CSD had ceased to be a government department or undertaking, the inter se relationship of the respondents and CSD was governed by the ordinary law of Master and Servant, and, as such, it follows that respondents being employees of CSD, which does not come within the meaning of clause (5) of Article 199 of the Constitution, could not maintain their writ petition before the High Court to obtain an order of their reinstatement. Under Article 199 of the Constitution, their petition was incompetent. Appeal was allowed.

Ch. Sultan Mansoor, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Brigadier (Retd.) Farasat Ali Khan, Legal Consultant for Appellants.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondents Nos.1-10.

Raja Shafqat Mehmood Abbasi, Deputy Attorney General for Federation.

2024 P L C (C.S.) 803

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ

Civil Review Petition No. 835 of 2018 in HRC No. 3654 of 2018

(For review of order dated 8.11.2018 of this Court passed in HRC No.3654 of 2018)

AND

Civil Review Petitions Nos. 866, 867 and 868 of 2018

(Appointment of Managing Director, Pakistan Television Corporation).

In

C.M.As. Nos. 11306 and 11172 of 2018

PERVAIZ RASHEED and 3 others

Versus

PAKISTAN TELEVISION CORPORATION

Civil Review Petition No. 835 of 2018 in HRC No. 3654 of 2018, Civil Review Petitions Nos. 866, 867 and 868 of 2018, C.M.As. Nos. 11306 and 11172 of 2018, decided on 21st March, 2024.

Constitution of Pakistan---

----Arts. 184(3) & 188---Chairman and Managing Director of Pakistan Television Corporation ("PTV")---Appointment, salary and allowances---Legality---Purported financial loss caused to PTV, recovery of---By way of judgment under review [which was heard and decided under Article 184(3) of the Constitution) the appointment of petitioner as Chairman and Managing Director of PTV was declared illegal and directions were given to recover the purported loss to PTV from four persons, i.e., the petitioner, the then Minister for Information, Minister for Finance and Secretary to the Prime Minister---Validity---Article 184(3) of the Constitution is an extraordinary power bestowed by the Constitution on the Supreme Court and it may be invoked when Fundamental Rights of the people are under attack or are being undermined---It is questionable whether the emoluments of a single individual would justify invoking the jurisdiction of the Supreme Court under Article 184(3)---Applicability of the Articles 18 and 25 is also not self evident, and it has not been explained in the judgment under review, how either of these two provisions were attracted---Factual determination of the purported loss was arbitrary and also incorrect---Petitioner was paid just a little more than his predecessor, which if inflation is factored in would be justified---It was a material error to assume that petitioner's programme's air time was lost revenue; it could also be contended that his programme contributed towards PTV's earnings---It would not be fair to penalize someone on the basis of mere conjecture---There is no evidence to suggest that an amount of Rs.197,867,491 was paid to the petitioner or that he had caused such a loss to PTV---As regards the salary of one million and five hundred thousand rupees being paid to the petitioner is concerned, it was just a little over what was paid to the previous MD, which was an important fact which was overlooked and also the fact that the petitioner's increased salary a few years later could be justified on account of inflation---In these circumstances, to seek the recovery of an arbitrarily determined loss was neither legally permissible nor factually correct---Moreover, to make liable the then Minister for Information, Minister for Finance and the Secretary to the Prime Minister with regard to half the purported loss amount, and to pay it, had no legal basis, was without precedence and was not justified, and to do so when there was nothing on record to suggest that they had financially benefited from petitioner's appointment nor was there any proof of nepotism on the record---Review petitions were allowed and the judgment under review was recalled.

M. Zafar Ullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in C.R.P. No. 835 of 2018).

Salman Aslam Butt, Sr. Advocate Supreme Court and Shoaib Rashid, Advocate Supreme Court for Petitioner (in C.R.P. No. 866 of 2018).

Fawad Hassan Fawad, In-person (in C.R.P. No. 867 of 2018).

Muhammad Akram Sheikh, Sr. Advocate Supreme Court for Petitioner (in C.R.P. No.868 of 2018).

Muhammad Nazir Jawwad, Advocate Supreme Court (on behalf of PTV).

2024 P L C (C.S.) 821

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, ACJ, Syed Mansoor Ali Shah and Athar Minallah, JJ

The SECRETARY SCHOOL EDUCATION, GOVERNMENT OF THE PUNJAB, LAHORE and others

Versus

RIAZ AHMED and 2 others

Civil Petitions Nos. 928-L to 930-L of 2021, decided on 19th December, 2023.

(Against the judgment dated 12.02.2021 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 1137, 1138 and 1139 of 2020).

(a) Punjab Civil Servants Pay Revision Rules, 1977---

----R. 8(3)---Civil service---Graduate Primary Teachers regularized in service ('the respondents')---Selection grade, grant of---Legality---Respondents could not show any policy of the Government which entitled the 'Graduate Primary Teachers' for the grant of 'selection grade'---They solely relied on R. 8(3) of the Punjab Civil Servants Pay Revision Rules, 1977 and a notification---Rule 8 (3) of the Rules of 1977 provides that where, for a class of posts, apart from the ordinary pay scale, a higher pay scale has been sanctioned for a percentage of the number of said posts, then, in such an eventuality, the higher pay scale shall be admissible to the holders of the post in BS-1 to BS-16, subject to a minimum length of two years service in the ordinary pay scale of the said posts---Higher pay scale was never sanctioned for the post of 'Graduate Primary Teacher' and, therefore, Rule 8(3) was not attracted in the case of the respondents---Even the notification in question does not include the post of 'Graduate Primary Teacher' for the purposes of grant of selection grade---Government had not formulated any policy regarding the grant of selection grade for the post of 'Graduate Primary Teacher'---Tribunal, in the absence of a policy specifically covering the grant of selection grade for the post of 'Graduate Primary Teacher' was not competent to purportedly create a right in favour of the respondents---Petitions were converted into appeals and allowed, and the impugned judgment of the Tribunal was set aside.

(b) Civil service---

----Selection grade, grant of---Scope---Grant of selection grade is not an appointment against a post in the mode of promotion---Selection grade is thus not an appointment against a higher post but is meant to extend financial benefits of a higher grade---Selection grade is meant to financially compensate a civil servant who, despite serving against a particular post for a considerably long period, does not have the prospect of being promoted to a higher post---It is within the exclusive domain of the Government to consider and decide whether a civil servant is to be compensated for serving on a post without having the prospects of being promoted to a higher post---It is an executive function performed through formulating a policy in the case of each post---Grant of selection grade and its eligibility criterion is thus necessarily governed under a policy which has to be formulated by the Government---It is not one of the terms and conditions of the civil servant under the Punjab Civil Servants Act, 1974 nor the Punjab Civil Servants (Appointment and Conditions of Service) Rules,1974, or the Punjab Civil Servants Pay Revision Rules, 1977---A right, therefore, does not accrue in favour of a civil servant to claim selection grade in the absence of a specific policy that has been competently formulated by the Government---No court or tribunal has the power and jurisdiction to compel the Government to make a policy, or to interfere with a policy which has been competently made in relation to a specified post---As a corollary, the tribunal is bereft of jurisdiction to assume that a right exists in favor of a civil servant for the grant of selection grade unless the Government has formulated a policy.

Barrister Mumtaz Ali, Additional Advocate General, Punjab along with Akram, Litigation Officer and M. Zahid Aslam, DEO (SE), Khanewal for Petitioners (in all cases)

Respondents in person (in all cases)

2024 P L C (C.S.) 830

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

SECRETARY FINANCE, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and another

Versus

Syed JEHANGIR SHAH and others

Civil Appeal No. 894 of 2015, decided on 29th November, 2023.

(On appeal against the judgment dated 24.04.2015 passed by

the Peshawar High Court, Peshawar, in Writ Petition No.2095-P of 2008).

Constitution of Pakistan---

----Art. 25---Civil service---Employees of Solicitor Office, Law Department, Peshawar ('the respondents')---Special allowance and utility allowance, denial of---Discrimination---Two allowances in question were also drawn by the respondents but later payment of such allowances was discontinued by the Government on the ground that the employees of the Solicitor Office were not part of the Civil Secretariat, therefore, not entitled for such allowances---Legality---High Court rightly allowed said allowances to the respondent by holding that that the classification so made by the Government qua granting of said two allowances to specified employees while denying the same to other employees who were also posted inside the walled premises of the Civil Secretariat, could not be termed as reasonable and amounted to offend the principle of equity before the law---High Court correctly noted that the office of the Solicitor having a separate entity in the Law Department was situated within the premises of the Civil Secretariat, therefore, the employees of the Solicitor Office were similarly placed and were entitled to the grant of special allowance and utility allowance---Counsel for the Provincial Government could not point out any illegality or perversity in the impugned judgment of the High Court, which was maintained---Resultantly, appeal was dismissed.

Zahid Yousaf Qureshi, Advocate Supreme Court for Appellants.

Muhammad Asif Yousafzai, Advocate Supreme Court for Respondents.

2024 P L C (C.S.) 846

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Athar Minallah, JJ

NATIONAL BANK OF PAKISTAN through President and another

Versus

MUHAMMAD ADEEL and others

C.P.L.A. No. 1800-L of 2018 and C.P.L.A. No. 1364 of 2023, decided on 13th March, 2024.

(Against the judgment of Lahore High Court, Lahore dated 06.06.2018, passed in I. C.A. No. 179944 of 2018 and order dated 06.02.2023 passed in I.C.A. No. 17830 of 2021).

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

----S. 3(2), proviso---Intra Court Appeal (ICA)---Maintainability---Test to determine whether remedy of ICA is available---Main test to determine whether an ICA is available under the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 ('the Ordinance') is to see whether the proceedings, in which the original order has been passed, provide for an appeal, revision or review (collectively referred to as "appeal," for convenience) to any Court, Tribunal or authority against the original order---Applying this test what needs to be seen and verified is whether the proceedings provided for an appeal against the original order and not whether parties to the proceedings enjoyed the right to appeal against the original order---Proviso under Section 3(2) of the Ordinance is proceedings specific and not parties specific---So it matters less if one of the parties to the proceedings is not entitled to right of appeal against the original order passed in the said proceedings.

Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 ref.

(b) National Bank of Pakistan (Staff) Service Rules, 1973---

----R. 40---Law Reforms Ordinance (XII of 1972), S. 3(2), proviso---Intra Court Appeal (ICA) filed by the bank---Maintainability---In the instant case, the proceedings under the National Bank of Pakistan (Staff) Service Rules, 1973, provide for an appeal under Rule 40 against the original order---This is sufficient to disentitle the parties to maintain an intra-court appeal, irrespective of the fact that one or more of the parties to the proceedings did not have a right of appeal against original order---Therefore, ICA is not maintainable in the present case---Petition was dismissed and leave was declined.

National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Ltd. PLD 2015 Lah. 661 disapproved.

Umer Abdullah, Advocate Supreme Court (in C.P. No.1800-L of 2018) and Junaid Jabbar Khan, Advocate Supreme Court (in C.P. No.1364 of 2023) for Petitioners.

Umer Abdullah, Advocate Supreme Court (in C.P. No. 1364 of 2023) and Junaid Jabbar Khan, Advocate Supreme Court (in C.P. No. 1800-L of 2018) for Respondents.

2024 P L C (C.S.) 867

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

SIRAJ NIZAM

Versus

FEDERATION OF PAKISTAN and others

Civil Appeal No. 56-K of 2021, decided on 2nd April, 2024.

(Against the judgment dated 02.10.2019, passed by Federal Service Tribunal Islamabad (Karachi Bench) in Appeal No. 410(K)/CS of 2015).

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

----R. 8-A---Promotion---Past service rendered in another government department, benefit of---Appellant remained in the employment of National Highways and Motorways Police as a Senior Patrolling Officer (BS 16) with effect from 26.11.2001 to 01.03.2011---Subsequnetly he applied for the post of Assistant Executive Engineer (BS-17) in Pakistan Public Works Department (PWD) through proper channel and pursuant to the recommendations of Federal Public Service Commission, the appellant was appointed in PWD on 02.03.2011---Bone of contention relates to the promotion from Assistant Executive Engineer BS-17 to Executive Engineer BS-18 in terms of the criteria of promotion as set out in SRO No. 897(I)184 dated 11.10.1984, which was subsequently amended vide SRO No.855(I)/91 dated 25.07.1991 in which basic condition for promotion from Assistant Executive Engineer BPS-17 to Executive Engineer (BPS-18) was requirement of 05 years' service experience in BPS-17 with the qualification of passing Departmental Examination as well as the application of Statutory Instruction (SI) No. 157 of Chapter 2 of ESTACODE (Volume 1) [Edition 2013]---According to the appellant, having been appointed in BPS-17, the petitioner was entitled to the one half of his service in BPS-16 for consideration towards his promotion in BPS-18 in terms of Rule 8-A of the Civil Service (Appointment, Promotion and Transfer) Rules, 1973 and Statutory Instruction No.157 issued thereunder---However, despite attaining the sufficient years for consideration for promotion to BPS-18, the petitioner was not considered---Therefore, he submitted a representation, which was not answered, which compelled him to approach the Federal Service Tribunal ("Tribunal")---Tribunal held, through the impugned judgment, that service in another department cannot be taken into consideration---Contentions of the appellant were that the stated observation of the Tribunal was not contained in Statutory Instruction No. 157 and as such the Tribunal had erred in law; that though the petitioner was subsequently promoted in Grade 18 (without being granted the benefit of Statutory Instruction No.157) but the issue remains alive because he would be denied the benefit of Statutory Instruction No. 157 when he is considered for promotion to Grade 19 in view of the said determination in the impugned decision---Validity---Present case related to the appellate jurisdiction of the Tribunal which being an ultimate fact-finding forum was constituted to redress the lawful grievances of civil servants and ventilate their sufferings---So for all intent and purposes, the Tribunal had exclusive jurisdiction in the matter relating to the terms and conditions of service of the Civil Servants and could go into all the facts of the case and the relevant law for just and proper decision---Appeal was allowed, the impugned judgment was set aside and the matter was remanded to the Tribunal to decide the appeal afresh strictly in accordance with law preferably within a period of three months.

(b) Appeal---

----Scope---Appellate Court, jurisdiction of---Appeal is a continuation of the original proceedings---Under appellate jurisdiction the court is always obligated to delve into not only the questions of law but also questions of facts---Whole case reopens in the appellate jurisdiction to explore and consider all questions of fact and law, whether the same were rightly adjudicated by the lower fora or not---Therefore, the verdict of the appellate court either allowing or dismissing the appeal or modifying the order of lower fora, ought to bring to light conscious and proper application of mind.

Dr. Shah Nawaz, Advocate Supreme Court and Mrs. Abida Parveen Channar, Advocate-on-Record for Appellant.

Ziaul Haq Makhdoom, Additional Attorney General for Respondents Nos. 1 and 2.

Nemo for Respondents Nos. 3 to 5.

2024 P L C (C.S.) 883

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

The INSPECTOR GENERAL OF POLICE, PUNJAB and others

Versus

WARIS ALI (deceased) through LRs and others

Civil Appeal No.3-L of 2016, decided on 17th April, 2024.

(Against order dated 04.03.2015 passed by the Punjab Service Tribunal, Lahore in Appeal No.39 of 2014).

Police Rules, 1934---

----R. 19.25---Police force---Proforma promotion---Litigation by police officials for promotion and other service-related benefits---Propriety---As per Rule 19.25 of the Police Rules, 1934, officers have to undergo various courses (A, B, C and D) to qualify for promotion---Training of upper subordinates, being Inspector, Sub-Inspector (SI) and Assistant Sub-Inspector (ASI), is a mandatory requirement of law for the purposes of promotion in terms of Rule 19.25 of the Rules---Focus of Rule 19.25 of the Rules is capacity building in order to develop knowledge, skill and the necessary traits required for the post and rank---Being a disciplined force, the tendency to focus on promotions of juniors is totally irrelevant within the police department, where the primary focus and emphasis for promotion purposes should be training and capacity building---Hence, for all intents and purposes, promotion from the date of the promotion of juniors is not possible for upper subordinates in terms of the clear provisions of Rule 19.25---An officer must complete the required course(s) before seeking promotion---Furthermore, ante-dated promotion upsets the training requirement---Institution of police cannot thrive if it is consistently consumed in litigation for promotion and other service-related benefits---Hence, it is imperative that officers should focus on building institutional credibility and trust in the eyes of the public and develop an effective system of governance on service-related matters so as to end the trend of litigation on such matters.

Syed Hammad Nabi v. Inspector General of Police 2023 SCMR 584; Muhammad Amjad v. The Director General, Quetta Development Authority 2022 SCMR 797; Kashif Aftab Ahmed Abbasi v. Federation of Pakistan 2022 SCMR 1618 and Naveed Ahmed v. Federation of Pakistan 2012 SCMR 1133 ref.

Barrister M. Mumtaz Malik, Additional Advocate General, Punjab with Ms. Rubina, D.S.P. for Appellants.

Zafar Hussain Ahmad, Advocate Supreme Court/Advocate-on-Record for L.Rs. of Respondent No.1.

2024 P L C (C.S.) 900

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

ABDULLAH JUMANI and others

Versus

PROVINCE OF SINDH and others

Civil Appeals Nos. 26-K to 38-K of 2021, C.M.As. Nos. 7436 and 3498 of 2021 in C.P.L.A. No. Nil of 2021 decided on 29th December, 2023.

(Against the judgment dated 08.04.2021 passed by High Court of Sindh, Karachi in Constitutional Petitions Nos. D-6241, D-6229, D-2732, D-4271 of 2017, D-5995, D-9016 of 2018, D-4107, D-7376 of 2019, D-4292 and D-4902 of 2020).

(a) Constitution of Pakistan---

----Art. 199---Suo motu jurisdiction---High Court does not possess any suo motu jurisdiction under Article 199 of the Constitution.

Dr. Imran Khattak v. Ms. Sofia Waqar Khattak, PSO to the Chief Justice 2014 SCMR 122; Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others 2018 SCMR 414; Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab Al-Khairi and others 2000 SCMR 1046; Raja Muhammad Nadeem v. The State and another PLD 2020 SC 282; Mian Irfan Bashir v. The Deputy Commissioner, Lahore and others PLD 2021 SC 571 and Messrs Sadiq Poultry (Pvt.) Ltd. v. Government of Khyber Pakhtunkhwa through Chief Secretary and others PLD 2023 SC 236 ref.

(b) Constitution of Pakistan---

----Art. 199---Vires of law---Judicial review---Scope---If the constitutionality of any law is challenged in the High Court, the Court can scrutinize and survey such law and also strike it down if it is found to be offending the Constitution for absenteeism of law-making and jurisdictive competence or is in violation of fundamental rights---Where the vires of a law are challenged, the burden always rests upon the person making such challenge to show that the same was violative of any pf the fundamental rights or the provisions of the Constitution and where more than one interpretation is possible, the Court must prefer the interpretation which favours the validity without attributing mala fide to the legislature.

Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 ref.

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

----S. 3---Constitution of Pakistan, Arts. 10-A & 199---Deputy District Attorneys, posts of---Regularization in service---High Court exercised suo motu powers under Article 199 of the Constitution to declare the Sindh (Regularization of Ad-hoc and Contract Employees) Act, 2013 ('the 2013 Act')to be ultra vires---Constitutionality---Case record showed that neither the petitioners (contract employees) approached the High Court to challenge the vires of the 2013 Act nor did any other person challenge it---On the contrary, the 2013 Act was in field since 2013 and under the same law, various cases of numerous contractual or ad-hoc employees must have been dealt with by the government---In order to examine the competency and antecedents of the contractual employees, Scrutiny Committees were also constituted---It was also not disputed by the Government that the petitioners in the High Court claimed to have been performing their contractual obligations since 2009 regularly---Petitioners approached the High Court for regularization on the backing of the 2013 Act, therefore, the observation of the High Court deducing the relationship of master and servant is not the correct exposition of law---When a notice under Order XXVII-A, C.P.C., was issued to the Advocate General, Sindh, on the issue of maintainability, he allegedly argued that the 2013 Act is ultra vires despite knowing the fact that it is not a new law but is in field since 2013 and various employees have acquired the benefit of this law---High Court by striking down the 2013 Act in its suo motu jurisdiction has, in fact, passed a judgment in rem which literally binds the world as opposed to affecting only the rights and judgments inter parties---Importantly, High Court under Article 199 could not assume suo motu jurisdiction---Case before the High Court was to consider whether the petitioners are entitled for regularization of their services and obviously, if no case was made out, the petitions could have been dismissed---However, not only were the petitions dismissed but the law was also declared ultra vires which disturbed and traumatized a long chain of employees who are regularized or were being regularized since 2013 by the Government of Sindh in its different departments/ministries under the same law---Impugned judgment has deprived a long chain of employees and virtually made them jobless without providing any right of audience to them which was a grave violation of Article 10-A of the Constitution and also amounts to the contravention of the principle of natural justice and due process of law---Impugned judgment of the High Court was set aside and the matter was remanded to the High Court for deciding the Constitution Petitions afresh after providing opportunity of hearing to all the parties---Appeals were allowed.

(d) Jurisdiction---

----Judicial overreach---Jurisdiction of every Court is delineated and established to adhere to and pass legal orders---Transgressing or overriding the boundary of its jurisdiction and authority annuls and invalidates the judgments and orders---Courts commit judicial overreach when they exercise powers beyond the compass of powers and jurisdiction entrusted to the courts through the law and the Constitution.

Abid S. Zuberi, Advocate Supreme Court, Abdul Salam Memon, Advocate Supreme Court, Malik Naeem Iqbal, Advocate Supreme Court, Muhammad Shoaib Shaheen, Advocate Supreme Court Muhammad Iqbal Chaudhry, Advocate-on-Record, K. A. Wahab, Advocate-on-Record, Anjum Badar and Saba Wakeel, in-person for Appellants.

Soulat Rizvi, Addl. A.G. Sindh, Shafiq Ahmed, Advocate Supreme Court, Bhuromal, LO (Focal Person), Abdul Razzaq, Dy. Secretary, Abdul Samih, Dy. Dir. (L), Ahmed Ali, SO and Ms. Tehmina Rahman, F.P. (WDD) for Respondents.

2024 P L C (C.S.) 930

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

PROVINCE OF SINDH and others

Versus

MUHAMMAD TAHIR KHAN CHANDIO and others

Civil Appeal No. 928 of 2020 and C.M.A. No.500-K of 2023 in C.A. No.928 of 2020, decided on 15th April, 2024.

(Against Judgment dated 17.12.2019 passed by High Court of Sindh, Karachi in C.P. No. D-4329 of 2019).

Civil service---

----Technical Cadre and Executive Cadre of police department---IT cadre of police---Post of ASI (Computer)---Counsel for the respondents (police employees) stated that an advertisement was issued for the recruitment of candidates for the post of ASI (Computer) and pursuant thereto 113 individuals were appointed in the year 2004, however all the ASIs (Computer) were not assigned any computer related work, rather they served in the Executive Branch of the police; that the respondents underwent training of ASI courses, obtained practical training (A, B, C, D Courses), as was imparted to ASIs of Executive Police; that most of the ASIs had dealt with a number of criminal cases independently and out of 113 ASIs, presently 65 were in service; that some of them had even embraced martyrdom, and that the respondents should be treated at par with ASIs Executive Police keeping in view their experience of more than twenty (20) years while performing their duties as ASIs Executive---Validity---Supreme Court directed that the 65 ASls including the respondents who were appointed as ASI (Computer) in 2004 and filed the petition before the High Court shall continue to perform their service in the Executive Branch of the Police Department but this practice shall not be cited as a precedent in future---However, their seniority and promotion shall be dealt with strictly in accordance with law, rules and regulations---Appeal was disposed of accordingly.

Gul Hassan Jatoi and others v. Faqir Muhammad Jatoi and others 2016 SCMR 1254 ref.

Sibtain Mehmood, Additional Advocate General Sindh at Islamabad, Ghulam Rasool Mangi, Advocate-on-Record at Islamabad, Adil Memon, AIG Legal, Pir Muhammad Shah, DIG, Establishment (via video link from Karachi) for Appellants.

Malik Naeem Iqbal, Advocate Supreme Court for Respondents.

Abid Shahid Zuberi, Advocate Supreme Court (via video link from Karachi) for Applicants (in C.M.A. No.500-K of 2023).

2024 P L C (C.S.) 938

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Forest and Wildlife Department, Quetta and another

Versus

GHULAM RASOOL and others

Civil Petitions Nos. 183-Q to 195-Q of 2023, decided on 15th April, 2024.

(Against the judgment dated 03.05.2023 passed by Balochistan Service Tribunal, Quetta in S.As. Nos. 475, 524, 564, 569, 570, 582, 587 of 2018, 101, 484 of 2019, 96-98 of 2020, 222 of 2021).

Civil service---

----Appointment orders, withdrawal of---Legality---Drastic action of withdrawing appointment letters and terminating service was carried out without issuing any show cause notice and without affording any opportunity of hearing to the terminated employees---In the present case, nothing was articulated to allege that the respondents (employees) by hook and crook managed their appointments or committed any misrepresentation or fraud or they were not eligible for the posts on which their appointment was recommended by the Departmental Recruitment Committee of five members where each case was considered diligently, and after a burdensome exercise, the names were recommended by the Departmental Recruitment Committee---Therefore, it cannot be construed that the respondents were appointed without fulfilling the codal formalities---Rather, due to their appointments with due process, some vested rights had been created in their favour which could not have been withdrawn in a perfunctory manner---Record reflected that the advertisement was published on 30.07.2016; the last date of submission of the application was 22.08.2016; the date of test/interviews was fixed on 19th and 20th September, 2016, and the applicants were again informed through a notice published in the newspaper on 27.08.2016, and a meeting of the Departmental Recruitment Committee was convened on 29.08.2016---If the process was allegedly initiated wrongly, then why were the concerned government departments under a deep slumber or ignorance?; why, at very initial stage, was the entire recruitment process not scraped?; why was the Departmental Recruitment Committee constituted?; why were appointment orders issued with postings?; and why were service books made?---All of these questions were shrouded in mystery and no logical justification was pleaded as to why the entire recruitment process was undone suddenly----Petitions filed by the recruiting department were dismissed and leave was declined.

Inspector General of Police, Quetta and another v. Fida Muhammad and others 2022 SCMR 1583 ref.

M. Ayaz Khan Swati, Addl. A.G., Balochistan for Petitioners.

Nemo for Respondents.

2024 P L C (C.S.) 946

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

ABDULLAH CHANNAH

Versus

The ADMINISTRATIVE COMMITTEE and others

Civil Appeal No. 653-K of 2022, decided on 8th April, 2024.

(Against the order dated 05.03.2022 passed by Sindh Subordinate Judicial Service Tribunal, High Court of Sindh, Karachi, in S.A. No.15 of 2003).

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

----S. 3-B---Judicial officers of subordinate judiciary---Service appeal filed by judicial officer before the (Sindh) Subordinate Judiciary Service Tribunal against order of Administrative Committee of the (Sindh) High Court---Maintainability---When any issue crops up in respect of the terms and conditions of service of members of the subordinate judiciary including grievance against dismissal from service, compulsory retirement, wrong fixation of seniority, or grievance against any minor or major penalty, then recourse is to be made to the Subordinate Judiciary Service Tribunal, which is the ultimate fact-finding forum available and they are not supposed to file civil suits in the Civil Court or the writ petitions in the High Court to challenge the adverse departmental or disciplinary actions against them---Judicial officers who file Service appeals before the (Sindh) Subordinate Judiciary Service Tribunal against orders of Administrative Committee of the (Sindh) High Court cannot be non-suited on the ground of maintainability.

Gul Taiz Khan Marwat v. Registrar Peshawar High Court PLD 2021 SC 391 and Bashir Ahmed Badini, D&SJ and others v. Hon'ble Chairman and Member of Administration Committee and Promotion Committee of Hon'ble High Court of Balochistan 2022 SCMR 448 = 2022 PLC (C.S.) 610 ref.

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

----S. 3-B---Judicial officers of subordinate judiciary---Service appeals filed by judicial officers before the (Sindh) Subordinate Judiciary Service Tribunal---Appeals kept pending for many years---Adverse consequences---As a result of long pendency and no decision on the appeals, certain developments are made by the efflux of time which makes the entire purpose of filing of appeals infructuous and worthless---If appeals against minor and major penalties will remain pending for an indefinite period during the service tenure, it will also become a cause of mental stress and exasperation---Another possibility that cannot be ruled out is that when the matter is taken up for hearing for a final decision, though after several years, the appellant (judicial officer) may not be in judicial service anymore or may not be actively pursuing the case or may have passed away---In such eventuality, the second phase of litigation for impleading the legal heirs will be triggered keeping in mind the nitty-gritties of service appeal to decide the question of, firstly, whether the right to sue survives to the legal heirs or not?---With an eye to overcome and resolve this distressing and disquieting situation, it would be most advantageous and strategic if the Chief Justice, Sindh High Court, and the Chairman of the Tribunal, formulate any Standing Instructions to settle down a reasonable timeline for making decisions of pending service appeals before the Tribunal according to ageing from the date of institution.

Amer Raza Naqvi, Advocate Supreme Court for Petitioner.

Sibtain Mehmood, Addl. A.G. Sindh and Asim Majeed, Acting Registrar, SHC for Respondents.

2024 P L C (C.S.) 957

[Supreme Court of Pakistan]

Present: Munib Akhtar, Ayesha A. Malik and Shahid Waheed, JJ

Raja TANVEER SAFDAR

Versus

Mrs. TEHMINA YASMEEN and others

Civil Petition No.3644 of 2020, decided on 24th April, 2024.

(Against order dated 27.10.2020 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in W.P. No.3764 of 2019).

(a) Constitution of Pakistan---

----Art. 13(a)---Protection against double punishment---Double jeopardy---Scope---Protection given under Article 13(a) of the Constitution is against prosecution and punishment, which means the trial and its proceedings followed by a conviction---If the first prosecution results in an acquittal, so far as Article 13(a) of the Constitution is concerned, the second prosecution is not prohibited---Concept of double jeopardy essentially means that a person cannot be tried multiple times for the same offence on which there is a conviction based on the same set of facts as they should not be put in peril twice---It is based on the rule of conclusiveness and finality which requires that once a court has taken cognizance of an offence, tried a person and convicted them, then for the same offence that person cannot be tried again---So, the basic question is that in the case of double jeopardy, the second trial should be on the same set of facts of the first trial which resulted in a conviction for the same offence, which would require the same evidence before the court---Basically, this means that the case has to be the same as the one that has already resulted in a conviction but if the proceedings are different in substance and law then it will not be a case of double jeopardy.

Muhammad Ashraf v. The State 1995 SCMR 626; Sohail Ahmad v. Government of Pakistan 2022 SCMR 1387; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316 and Lord Hailsham, 9 Halsbury's Laws of England (2nd ed. 1931), 152-153, Para [212] ref.

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

----S.4---Protection against Harassment of Women at the Workplace Act (IV of 2010), S.8---Defamation Ordinance (LVI of 2002), S. 9---Constitution of Pakistan, Art. 13(a)---Protection against double punishment---Double jeopardy---Non-applicability of---Petitioner wrote a letter addressed to the concerned authorities wherein he made certain allegations against the respondent (lady)----On the basis of the said Letter, an inquiry was initiated against the respondent, who was exonerated from the complaint---In the meantime, respondent filed a suit for recovery of damages against the petitioner under the Defamation Ordinance, 2002 (2002 Ordinance) on the grounds that the petitioner defamed and damaged her reputation on the basis of the letter---Said suit was decreed in favour of respondent---Meanwhile, respondent also filed a complaint against the petitioner under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA), which was inquired into and the petitioner was found guilty of misconduct as he had levelled false and fabricated allegations against respondent in the letter, and, major penalty of forfeiture of past service for a period of two years was imposed upon him---During this time, respondent also filed a complaint against the petitioner under the Protection against Harassment of Women at the Workplace Act, 2010 ("2010 Act") on the grounds of sexual harassment before the Ombudsperson alleging therein that the petitioner came to her office unnecessarily on one pretext or the other---Petitioner was found guilty of harassment and major penalty of compulsory retirement from service was imposed upon him---Contention of the petitioner was that the orders under PEEDA, the 2010 Act and the 2002 Ordinance were hit by the principle of double jeopardy---Validity---There were three different decisions under three separate laws against the petitioner---Each of these laws are special laws which operate within their given jurisdiction and can result in penal consequences if the requirements of the law are fulfilled---Hence, a conviction under any of these laws will not prevent or bar a conviction under the other two laws which operate within their own domain for a specific purpose---Respondent initiated a claim of sexual harassment at the workplace against the petitioner based on instances and evidence of harassment, which was considered by the Ombudsperson, who concluded that he caused harassment to respondent---In the suit for defamation, the court determined that the contents of the petitioner's letter fell within the definition of defamation---So the court awarded her damages---Finally, so far as action under PEEDA was concerned, the inquiry was conducted against the petitioner on the basis of the letter, which he had specifically written in his official capacity and the said inquiry discovered that the same was false and incorrect, hence, punishment for his misconduct was awarded in the form of forfeiture of past service for a period of two years---Even though the parties were the same, the cause of action was separate in each case before different forums with distinct penal consequences emanating out of its respective statutory laws---Argument of double jeopardy was misplaced and without any basis---Petition was dismissed and leave was refused.

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

----S. 2(h)---Harassment---Scope and meaning---Harassment means gender-based harassment and discrimination, which can be sexual in nature---Any action that causes interference with work performance or creates an intimidating, hostile or offensive work environment falls within the definition of harassment under Section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010.

Nadia Naz v. The President of Islamic Republic of Pakistan PLD 2023 SC 588 ref.

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

----Ss. 2(h) & 8---Constitution of Pakistan, Art. 14---Right to work with respect and dignity---Scope---Protection against Harassment of Women at the Workplace Act, 2010 ("2010 Act"), objective of---Harassment under the 2010 Act goes to the basic and most fundamental of rights, that being the right to dignity, where a citizen must be able to live and work with respect and value---Dignity is an inherent right well-accepted in the international legal order, which ensures that everyone who works has the right to just and favourable remuneration ensuring an existence worthy of human dignity, which is supplemented by social protection---Respectability, acceptability, inclusivity, safety and equitability are the prerequisites for a safe and dignified workspace---This is a crucial objective of the 2010 Act being to uphold and protect the right of dignity of employees at the workplace by ensuring fair treatment, non-discrimination, mutuality of respect, and socio-economic justice.

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

----Ss. 8 & 9---Constitution of Pakistan, Art. 199---Ombudsperson and Governor---Final forums on factual side---Interference in orders of Ombudsperson or Governor by the High Court in its constitutional jurisdiction---Scope---Ombudsperson and the Governor both are forums of fact where parties can lead their evidence for a factual determination---Therefore, the Order of the Governor will be the final order on the factual side, which cannot be then challenged before the High Court in constitutional jurisdiction in the form and substance of a second appeal on the facts of the case---High Court cannot interfere in its constitutional jurisdiction on findings of fact recorded by the competent court, tribunal or authority unless the findings of fact are so perverse and not based on the evidence which would result in an error of law and thus, justified interference---Therefore, for all intents and purposes, the factual controversy comes to an end after the Order of the Governor, and if, there is any jurisdictional defect or error and procedural improprieties of the fact-finding forum only then the High Court can interfere.

Uzma Naveed Chaudhary v. Federation of Pakistan PLD 2022 SC 783; Fida Hussain Javed v. Director Food, Punjab 2004 SCMR 62; M. Hammad Hassan v. Mst. Isma Bukhari 2023 SCMR 1434; Qurat-ul-Ain v. Station House Officer 2024 SCMR 486; Commissioner of Inland Revenue v. Sargodha Spinning Mills (Pvt.) Ltd. 2022 SCMR 1082 and Assistant Collector, Central Excise and Sales

Tax Division, Mardan v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2514 ref.

Agha Muhammad Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Respondent No.1: (In person).

Sanaullah Zahid, Additional Advocate General Punjab with Muhammad Shahid Rana, Director (S.W.) Rawalpindi for Respondents Nos. 2-4.

2024 P L C (C.S.) 979

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

NASEEM KHAN and others

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Khyber Pakhtunkhwa, Peshawar and others

Civil Petitions Nos. 2074 to 2082 of 2023, decided on 17th April, 2024.

(Against the judgment dated 20-1-2023 passed by Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeals Nos. 534, 535, 538, 539, 540, 541, 542, 543 and 544 of 2020).

(a) Civil service---

----Appointment and promotion---Criteria and qualifications, setting of---Discretion and decision of the employer/appointing authority---Non-interference by Courts---Scope---Required qualifications for appointment to any post is the sole discretion and decision of the employer and it is in its realm to prescribe criteria and the preference for appointment of a candidate who is best suited to its requirements in which the court has no sphere of influence to arbitrate or set down the course of action or put forward the conditions of eligibility or fitness for appointment or promotion until and unless the relevant laws and rules prescribing the well-defined and straightforward benchmark of appointment or promotion seems to have been violated.

(b) Judicial review---

----Scope---No doubt, it is within the dominion of the Court to exercise its power of judicial review to evaluate and weigh upon the legislative and executive actions in order to maintain and sustain the rule of law, to check and balance and render null and void an unlawful action or decision, and with the same spirit and frame of mind, the Court may also invalidate and strike down laws, acts, and governmental actions if found unlawful and beyond the scope of power and jurisdiction---Judicial review can be sought if the decision maker was misdirected in terms of the law, exercised a power wrongly, or improperly purported to exercise a power that it did not have, which is known as acting ultra vires.

(c) Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973)---

----S. 9---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R. 3(2)---Promotion quota, amendment of---Discretion of employer/appointing authority---Non-interference by Courts---Scope---Petitioners were appointed as Soil Conservation Assistants (BPS-17)---Through the impugned notification, the 100% promotion quota reserved for the petitioners was reduced to 75% and the remaining 25% quota was allocated to the cadre of "Field Assistants" which allegedly affected seniority and promotion of the petitioners---Petitioners filed a Departmental Appeal but no response was received, hence they filed appeals before the Tribunal which were dismissed by means of the impugned judgment---Validity---Policy decision made up by dint of the impugned notification of reducing 25% promotion quota and allocating it for the progression of Field Assistants according to the exigency, was not ultra vires to the Khyber Pakhtunkhwa Civil Servants Act, 1973 or the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, but seemingly, with the aim of harmonizing the promotion criteria and path of progression, the department allocated a quota for accommodating the Field Assistants---Impugned notification did not infringe or contravene the fundamental rights nor was it against the public interest or the law---Neither the impugned notification was ex facie discriminatory nor was it capable of being administered in any discriminatory manner---It was also not unjust or oppressive---On the contrary, the competent authority was empowered to establish the yardsticks for determination of eligibility and fitness which was sine qua non for promotion, and devising and structuring the recruitment policy fell within its exclusive line of work and adeptness and in case of exigency and expediency, it may enact and amend the relevant rules---There was no illegality or perversity in the impugned judgment of the Tribunal which may warrant any interference---Petitions were dismissed and leave to appeal was refused.

Government of Punjab v. Muhammad Awais Shahid 1991 SCMR 696; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad PLD 1995 SC 701; Maula Bux Shaikh v. Chief Minister Sindh 2018 SCMR 2098; Government of Khyber Pakhtunkhwa v. Hayat Hussain 2016 SCMR 1021; Government of Khyber Pakhtunkhwa v. Muhammad Javed 2015 PLC (C.S.) 962; Zafar Iqbal v. Director Secondary Education 2006 SCMR 1427 and Federal Public Service Commission through Chairman, Islamabad and another v. Shiraz Manzoor and others 2024 PLC (C.S.) 18 ref.

(d) Civil service---

----Promotion---Scope---Though consideration for promotion is a right, yet promotion itself cannot be claimed as of right---There is no vested right in promotion or rules determining the eligibility for promotion.

Noor Muhammad Khattak, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2024 P L C (C.S.) 1001

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

CHIEF COMMISSIONER INLAND REVENUE, REGIONAL TAX OFFICE, BAHAWALPUR and others

Versus

BAQA MUHAMMAD LASHARI

Civil Petition No. 4513 of 2023, decided on 15th April, 2024.

(Against judgment dated 18.10.2023 passed by the Federal Service Tribunal, Lahore Bench, Lahore in Appeal No. 289 (L) of 2022).

Civil service---

----Two advance increments, entitlement to---Acquiring or possessing higher qualification---Office Memorandum No.F.1(9)-Imp.II/91-Pt.(G) dated 04.10.1992 ('Office Memorandum of 1992') issued by the Government of Pakistan, Finance Division (Regulations Wing), interpretation of---Dispute revolved around the applicability of the Office Memorandum of 1992 which granted advance increments on higher qualification to those employees who possessed or acquired higher .qualification over and above that prescribed qualification for the post---By way of the subsequent clarifications issued in 2011 and 2019, the Finance Division clarified that those employees who were promoted on seniority-cum-fitness basis to a higher post who did not necessarily possess the higher qualification of that post but acquired it during this time were entitled to advance increments---There was no dispute to the fact that the respondent's qualification was that of matriculation and he acquired his intermediate on 27.12.1994 while he was working with the petitioner-department---Respondent was promoted on seniority-cum-fitness basis in 1989 first to the post of UDC and then in 1994 to the post of Supervisor---During this time, he acquired the educational qualification of intermediate (F.A) which was the prescribed qualification for the post of UDC as per SRO.657(I)/82 issued in pursuance of sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (Rules) for the purposes of direct recruitment, hence, respondent's case squarely fell within the ambit of the Office Memorandum of 1992 read with clarifications of 2011 and 2019---Tribunal had rightly granted the two advance increments to the respondent vide the impugned judgment---Petition was dismissed and leave was refused.

Senior General Manager. Pakistan Railways v. Muhammad Pervaiz 2024 SCMR 581 distinginguished.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondent.

2024 P L C (C.S.) 1028

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

The GENERAL MANAGER, PUNJAB PROVINCIAL COOPERATIVE BANK, LTD. and others

Versus

GHULAM MUSTAFA and others

Civil Appeal No.795-L of 2012 and

(Against the judgment dated 16.12.2011 passed by Lahore High Court Lahore in W.P. No.3812 of 2005).

Civil Appeal No. 123-L of 2013 and

(Against the judgment dated 13.06.2012 passed by Lahore High Court Lahore in W.P. No.29117 of 2011).

Civil Petition No.2508-L of 2017

(Against the judgment dated 26.09.2017 passed by Lahore High Court Lahore in W.P. No.16193 of 2011).

Civil Appeals Nos. 795-L of 2012, 123-L of 2013 and Civil Petition No. 2508-L of 2017, decided on 15th April, 2024.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition filed by employees of Punjab Provincial Cooperative Bank---Maintainability---Master and servant relationship---Punjab Cooperative Bank Limited Staff Service Rules (2010) ["Rules"] were meant for internal consumption, but it was lucidly specified in the said Rules that the relationship between the Bank and its employees shall be that of a master and servant---Survey of the Bank's corporate structure or substratum of the Bank unambiguously connoted that the terms and conditions of the employees were not governed by any statutory rules of service but they were governed and regulated under the relationship of a "master and servant"---In absence of statutory rules of service, the aggrieved employee cannot invoke the writ jurisdiction of the High Court---Under the relationship of master and servant, the only available or applicable remedy is the filing of a civil suit in the civil court against actions detrimental to the interest of any such employee---In the present case writ petitions filed by the employees before the High Court were not maintainable owing to the relationship of master and servant and the absence of statutory rules of service.

PIAC v. Tanweer-ur-Rehman PLD 2010 SC 676; PIAC v. Syed Suleman Alam Rizvi 2015 SCMR 1545; Abdul Wahab v. HBL 2013 SCMR 1383; Pakistan Defence Officers' Housing Authority v. Lt.Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Syed Nazir Gilani v. Pakistan Red Crescent Society 2014 SCMR 982 ref.

(b) Master and servant---

----Fundamental rights of the employee---Scope---Relationship of master and servant cannot be construed as so sagacious that the master i.e. the management of a statutory corporation or the corporation and/or company under the control of government having no statutory rules of service or the private sector may exercise the powers at their own aspiration and discretion in contravention or infringement of fundamental rights envisioned under the Constitution---Therefore, in all fairness, even under the relationship of master and servant, fundamental rights should be respected and followed, as the same are an integral part of due process.

President, Zarai Taraqiati Bank Limited, Head Office, Islamabad v. Kishwar Khan and others 2022 SCMR 1598 ref.

(c) Master and servant---

----Remedies for employees under a master servant relationship---Proposal to establish special tribunals/courts to expeditiously decide cases of employees under the relationship of master and servant---According to the master's mindset, the employee can be dismissed or terminated outrightly with good, bad, or no reason at all, without providing any opportunity of fair hearing on the justification of having no statutory rules to regulate such employment---On account of no expeditious remedy or forum to challenge the adverse actions, such employees have to file civil suits and wait for a number of years for their decision, but if they are allowed a fast-track remedy under some legislation ensuring that some lawful justification for termination of contracts of employment is provided, and if such legislation also creates some rights and obligations for employers and employees with the formation of special courts or tribunals, then their cases will also be decided at a speedy pace, just as the cases of civil servants and workman/workers are decided by the Service Tribunal, NIRC, and labour courts within lesser time than the time normally consumed in civil courts---If any such tribunal or special court is constituted under some special law, it will not only ensure checks and balances but ardently and fervently ease and alleviate the sufferings of the aforesaid category of employees who presently have to go through the miseries and turmoil of the rigors and rigidities of procedure, and the backlog of cases, for a long time---It is expedient and pragmatic to plan some legislation and establish a special tribunal/court under a special law to approach the cases of employees under the relationship of master and servant, which would not only uphold the basic human values which are vital to our social and economic lives but would virtually be a milestone by the government in safeguarding the fundamental rights of an extremely large category of employees who are deprived of expeditious access to justice as a consequence of no backing of statutory rules of service in various statutory organizations, corporations, autonomous bodies and, in particular, the persons employed in private, industrial and commercial establishments who are excluded from the definition of worker or workman under the labour laws due to the nature of their job.

Salman Mansoor, Advocate Supreme Court, Hafiz M. Tariq Nasim, Advocate Supreme Court and Muhammad Raheel, Deputy Head (HR) PPCBL for Appellants (in C.As. Nos. 795-L of 2012, 123-L of 2013 and C.P. 2508-L of 2017).

Mian Ahmad Mahmood, Advocate Supreme Court, Talat Farooq Sheikh, Advocate Supreme Court and Junaid Jabbar Khan, Advocate Supreme Court for Respondents (in C.As. Nos. 795-L of 2012, 123-L of 2013 and C.P. No. 2508-L of 2017).

2024 P L C (C.S.) 1051

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

POSTMASTER GENERAL BALOCHISTAN

Versus

AMANAT ALI and others

Civil Appeal No. 2384 of 2016 and C.M.A. No. 3858 in C.A. No. 2384 of 2016 and Civil Appeal No. 2385 of 2016 and C.M.A. No. 3859 of 2016 in C.A. No. 2385 of 2016, decided on 17th April, 2024.

(Against the judgment dated 21.03.2016 and 24.3.2016 passed by Federal Service Tribunal Islamabad (Karachi Bench) in Appeals Nos.27(K) CS and 44(K) CS of 2011).

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

----R. 4(1)(b)(i)---Employees of Post Office---Allegation of defalcation and embezzlement---Dismissal from service---Service Tribunal converted major penalty of 'dismissal from service' imposed by the competent authority converted into reduction in time scale by two stages for a period of two years in terms of Rule 4(1)(b)(i) of the Government Servants (Efficiency and Discipline) Rules, 1973---Legality---Inquiry report showed that proper opportunity was afforded to the respondents (employees) to defend the charges---Allegations were mostly based on documentary evidence and the performance of duties by the respondents in accordance with the relevant rules and circulars encompassing their nature of duties---Findings and recommendations jotted down in the enquiry reports were properly considered by the competent authority with the proper application of mind and since the charges were found to be proved, the punishment was imposed in accordance with law, keeping in mind all attending circumstances, including the gravity and severity of the proven charges---Tribunal while converting the major punishment into minor punishment failed to evaluate both the inquiry reports wherein the allegations were proved, and without appreciating the reports, the Tribunal treated the cases of both the respondents in the appeal as a mere case of inefficiency and negligence which was without any rationale---Tribunal also failed to highlight any serious defect in the inquiry reports or procedure which became the cause of modifying or setting aside the original punishment of dismissal from service awarded by the competent authority---Where public money and its embezzlement is involved or at stake, the responsible persons cannot be let free or exonerated with only a minor penalty, so while converting the major penalty of removal from service into any minor penalty, it is an onerous obligation of the Service Tribunal to exercise its jurisdiction of conversion of punishment with proper application of mind which obviously connotes and necessitates that the quantum of punishment be proportionate and complementary to the charge of misconduct even for a minor act of negligence and inefficiency committed by the delinquent in his duties; so the punishment, even in the minor category as well, should also be of such kind that it may create at least some deterrence for the delinquent and other employees to be more vigilant and attentive to their duties in the future, rather than performing the tasks with callous attitude, which is highly prejudicial and detrimental to the effective functioning and performance of the department---Appeals were allowed, the impugned judgments passed by the Service Tribunal were set aside and the penalty (of dismissal from service) awarded by the department to the respondents was restored.

(b) Civil service---

----Punishment, award of---Interference by Tribunals/Courts in punishment awarded by the competent authority---Scope---Award of appropriate punishment under the law is primarily the function of the concerned administrative authority and the role of the Tribunal/Court is secondary---Court ordinarily would not substitute its own finding with that of the said authority unless the latter's opinion is unreasonable or is based on irrelevant or extraneous considerations or is against the law declared.

Postmaster General Sindh Province, Karachi v. Syed Farhan 2022 SCMR 1154; Government of Khyber Pakhtunkhwa v. Nargis Jamal 2022 SCMR 2114 and Divisional Superintendent, Postal Services, D.G. Khan v. Nadeem Raza 2023 SCMR 803 ref.

Ch. Aamir Rehman, Addl. AGP (In both cases) along with Hamid-ul-Haseeb, AD (Legal) for Appellant.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court (In both cases) along with Amanat Ali and Muhammad Azam for Respondent No.1

2024 P L C (C.S.) 1178

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

MUHAMMAD YOUSAF

Versus

PROVINCE OF SINDH and others

Civil Petition No. 982-K of 2021, decided on 12th June, 2024.

(Appeal against the order dated 19.04.2023 passed by the High Court of Sindh Bench at Sukkur in C.P. No. D-1289 of 2022).

(a) Constitution of Pakistan---

----Art. 10A---Due process and fair trial---Object, purpose and scope---Due process is a prerequisite that needs to be respected in all stratums---Right to fair trial is a fundamental right in case of stringency and rigidity in affording such right---It is the function, rather a responsibility of Court to protect such right, so that no injustice and unfairness is done to anybody---Concept of natural justice is intended to restrain arbitrary actions within the bounds of upholding and protecting supremacy of law---Such fundamental principle is consistently and squarely applicable to proceedings, whether judicial quasi-judicial or administrative, except where law specifically and unambiguously excludes its application in peculiar facts and circumstances of a case---Solitary pragmatic importance of rule of natural justice is to prevent injustice and miscarriage of justice and ensure that justice is not only done, but it is also manifestly and undoubtedly seen to be done.

(b) West Pakistan Civil Services Pension Rules, 1963---

----Rr. 1.8(a) & 2.11(c)---Pension---Object, purpose and scope---Withholding of benefits---Absent without leave---Petitioner/civil servant was aggrieved of order passed by authorities withholding pensionary benefits on the ground of his absence from duty without leave---Order of the authorities was maintained by High Court---Validity---Pension articulates payment of fixed amount, according to scheme of pension in accordance with law, rules and regulations, or pension scheme in vogue, which is recompensed on regular basis to a person on his superannuation---Foremost and predominant strength of mind is to afford and safeguard economic refuge and shelter and recuperate old age security---In general phenomena, superannuation or stepping down is considered a second innings in which a retired person aspires to live up to his highly anticipated imaginings or dreams and devote time to his kith and kin and friends---After retirement, timely payment of pension is considered as main source of income or livelihood---Despite serving for a long time with sheer commitment, if pensionary benefits are delayed or denied without any lawful justification or without assigning any reason or providing any opportunity of hearing, it would be a very sorry state of affairs, rather an appalling and deplorable situation for a person who performed his duties with utmost dedication and enthusiasm throughout his career but at the eve of his retirement, he was treated inhumanly, coldheartedly and gets nothing on the pretext of totally misconceived interpretation of some rule---Pension could not have been denied to petitioner/civil servant without issuing show cause notice and providing opportunity of hearing---Petitioner/civil servant was deprived of his pensionary benefits despite serving the department for at least 24 years, 05 months and 15 days without adjustment of his earned leaves---Payment of pensionary benefits are protected under the law, rules and regulations, even in private sector, where scheme of pension in vogue is according to the organizational/management policy---Where pension is payable, it is a vested right and not charity, alms or donation by the employer, but a compensation of services rendered assiduously by giving blood, sweat, toil and tears---Supreme Court set aside order passed by High Court and the authorities ensured payment of pension to petitioner/civil servant---Petition for leave to appeal was converted into appeal and allowed.

Shahla Zia v. WAPDA PLD 1994 SC 693 and Haji Muhammad Ismail Memon's case PLD 2007 SC 35 rel.

Petitioner in person.

Sagheer Abbasi, A.A.G., Hakim Ali Shaikh, A.A.G. along with Ghulam Muhammad, Accountant Local Government, Sukkur, Khursheed Ahmed, Section Officer, Finance Department and Sikandar Hassan, Chief Law Officer for the Respondents.

2024 P L C (C.S.) 1205

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

MUMTAZ UDDIN SHAIKH

Versus

CHIEF POST MASTER, GPO, HYDERABAD and others

Civil Petition No.516-K of 2022, decided on 19th July, 2024.

(Against the Judgment dated 09.02.2022 passed by Federal Service Tribunal Islamabad (Karachi Bench) in Appeal No.75(K)(CS) of 2020).

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

----S. 4---Limitation Act (IX of 1908), S. 3---Constitution of Pakistan, Art. 212(3)---Civil service---Dismissal from service---Departmental and criminal proceedings---Acquittal in criminal case---Effect---Delay in approaching Service Tribunal---Petitioner/civil servant was dismissed from service on the allegations of misconduct, inefficiency and corruption---Petitioner/civil servant sought his reinstatement in service on the plea of his acquittal in criminal case---Validity---Criminal proceedings address allegations of criminal conduct and determine legal culpability, while departmental proceedings are connected with matters of service discipline and conduct---Results of a criminal case do not necessarily impact issues related to departmental responsibilities and discipline---Delay in invoking lawful remedy by person or entity that was sleeping over their rights may be denied---Appeal of petitioner/civil servant, after his acquittal in criminal case was barred by time and he failed to justify such delay---Service Tribunal was correct in dismissing appeal of petitioner/civil servant on both grounds of limitation as well as merits, as his conduct throughout the proceedings had been questionable---Supreme Court declined to interfere in judgment passed by Service Tribunal, as it was well-reasoned and had considered all legal and factual aspects of the matter---Petition for leave to appeal was dismissed and leave was refused.

Dawood Ali v. Superintendent of Police and others 2005 SCMR 948; Khaliq Dad v. Inspector General of Police and others 2004 SCMR 192; Muhammad Ashraf Khan v. Director Food, Punjab Lahore and another 2004 SCMR 1472; Dr. Sohail Hassan Khan v. Director General (Research), Livestock and Dairy Development Department, Punjab, Lahore and others 2020 SCMR 1708; The District Police Officer, Mianwali and others v. Amir Abdul Majid 2021 SCMR 420; Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534; Province of Punjab v. Khadim Hussain Abbasi 2021 SCMR 1419 and Usman Ghani v. The Chief Post Master, GPO Karachi and others 2022 SCMR 745 rel.

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

----S. 3---Limitation---Determination---Principle---It is inherent duty of Court, under section 3 of Limitation Act, 1908 to delve into question of limitation, regardless of whether it is raised or not.

Petitioner in person.

Asif Sahito, Assistant Superintendent, GPO, Hyderabad for Respondents Nos. 1-2.

2024 P L C (C.S.) 1228

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

WAHEED GUL KHAN and another

Versus

PROVINCE OF SINDH and others

Civil Petitions Nos.154-K of 2022 and 166-K of 2022, decided on 26th July, 2024.

(Against the Order dated 15.12.2021 passed by the High Court of Sindh in C.P.No.D-756 of 2013 and C.P. No. D-3575 of 2013).

(a) Civil service---

----Advertised post---Qualifying for the interview---Merely qualifying for the interview (after passing the written test) does not create any vested right for appointment to a specific post in favour of the candidates.

Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534 ref.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Advertised post---Interview process following the written test---Challenging the interview process in Constitutional jurisdiction of the High Court---Permissibility---Written test measures a candidate's knowledge and expression skills but does not evaluate important personality traits like communication skills, leadership qualities, and decision-making abilities---These traits are assessed during the interview---Interview process allows evaluators to see how candidates interact and respond in real-time, offering a complete picture of their suitability for the job---An interview is inherently a subjective evaluation, and a Court of law does not have jurisdiction to substitute its opinion with that of the Interview Board to provide relief to anyone---Role of the Interview Board is to evaluate candidates based on a variety of subjective criteria, which may include interpersonal skills, presentation, and other intangible qualities that are difficult to measure objectively---These assessments are inherently qualitative and depend on the opinion of interviewers, who are appointed for their expertise and ability to make such evaluations---However, this does not mean that the decisions of the Interview Board are beyond scrutiny---If there are any indications of mala fides, bias, or significant errors in the opinion (of the Interview Board) that are apparent from the record, the Court would certainly be compelled to intervene---But where the candidates fail to pass the interview examination for not meeting the necessary standards in the interview, the Constitutional jurisdiction of the High Court cannot be invoked for challenging the interview process.

Muhammad Ashraf Sangri v. Federation of Pakistan 2014 SCMR 157 ref.

Qaim Ali, Advocate Supreme Court for Petitioners (in both cases).

Sibtain Mehmood, Additional Advocate General Sindh, Ms. Lubna Parvez, Advocate-on-Record along with Maqsood Ahmed Kalhoro, Additional Secretary Food Department and Nisar Ahmed Memon, SEO for Respondents Nos.1-3. (in both cases)

2024 P L C (C.S.) 1251

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ and Naeem Akhtar Afghan, J

CHAIRMAN FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD and others

Versus

Dr. HUMAIRA SIKANDAR and others

Civil Petitions Nos.2547 and 2640 of 2023, decided on 13th August, 2024.

(Against the judgment dated 09.03.2023 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1717(R)CS of 2018 and Appeal No. 1501(R)CS of 2021).

Service Tribunals Act (LXX of 1973)---

----Ss. 3A(2)(c) & 3(7)---Acting Chairman of Service Tribunal---Difference of opinion as to the decision to be given on any point between a Member and Acting Chairman of the Tribunal---Preference---Section 3A of Service Tribunals Act, 1973 ('the Act') states that whenever there is a difference of opinion on any point the same shall be decided according to the opinion of the majority---However, when members are equally divided weightage is given to the opinion of the Chairman, if he was a member of the Tribunal which had heard the matter---However, in the present case the appeals were heard by an acting Chairman, and not by the Chairman---Since the legislature in its wisdom did not mention an acting Chairman in section 3A(2)(c) of the Act the Court cannot insert such words therein or imply that a Chairman would also include an acting Chairman---Moreover, the general rule, and one of logic too, is that when there is a difference of opinion amongst adjudicators the matter is referred to a third adjudicator---However, the legislature created an exception to such a general rule, and having created the exception it must be construed strictly---By applying this rule of interpretation the weightage given to the opinion of the Chairman in clause (c) of section 3A(2) of the Act cannot be extended to include an acting Chairman.

Rashdeen Nawaz Qasuri, Additional Attorney-General for Pakistan along with M. Ibrahim, Advocate High Court, Asif Sohail, Director (Legal), Ministry of National Health Services, Regulations and Coordination, Islamabad for Petitioners (in both cases).

M. Aftab Alam Rana, Advocate Supreme Court for Respondent No. 1 (in both cases).

2024 P L C (C.S.) 1274

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

GHULAM MURTAZA SHEIKH and another

Versus

The CHIEF MINISTER, SINDH and others

Civil Petitions Nos. 646-K to 647-K of 2021, decided on 9th August, 2024.

(Appeal against the judgment dated 30.03.2021 passed by the Sindh Service Tribunal at Karachi in Appeals Nos. 867 and 823 of 2018).

(a) Civil service---

----Inquiry proceedings---No opportunity provided to accused official to cross-examine witnesses---Effect---Violation of principles of natural justice and due process of law---Senior Superintendent Prison and Deputy Superintendent Jail ('the petitioners')---Penalty of reduction to lower post for 5 years and dismissal from service respectively---Legality---In the case in hand, admittedly 20 witnesses were examined who deposed against the petitioners but the inquiry officer failed to provide any opportunity to the petitioners to conduct cross-examination of such witnesses to discredit their statement or testimony---Neither the inquiry report depicted that the statements of the alleged 20 witnesses were recorded in presence of petitioners nor any right of cross-examination was provided to them---No evidence which is accusatorial to the opposite party would be admissible unless such party is afforded an evenhanded opportunity of skimming its exactitudes by cross-examination---Right of proper defence and cross-examination of witnesses by the accused is a vested right---In the present case role of inquiry officer was to sift the grain from the chaff and actually establish that the petitioners violated their assigned duties which could only be proved through evidence and if the opportunity of cross-examination was afforded to the petitioners as their defence to disprove the allegations raised against them---Inquiry officer in the present case did not adhere to the principle of natural justice and due process of law, which destroyed the whole substratum of inquiry and the case of misconduct made out by the department against the petitioners---Petitions were converted into appeals and allowed, consequently the penalty of reduction to lower post awarded to Senior Superintendent Prison by the Original and Appellate Authority, and enhanced by the Tribunal from 3 years to 5 years was set aside, and he was restored to his original position with back benefits; whereas the punishment awarded to Deputy Superintendent Jail by the Original and Appellate Authority and conversion of his compulsory retirement into dismissal from service by the Tribunal was also set aside and he was reinstated in service with back benefits.

Federation of Pakistan through Chairman Federal Board of Revenue FBR, House, Islamabad and others v. Zahid Malik 2023 SCMR 603; Raja Muhammad Shahid v. The Inspector General of Police 2023 SCMR 1135 and Usman Ghani v. The Chief Post Master, GPO, Karachi 2022 SCMR 745 ref.

(b) Civil service---

----Departmental inquiry and criminal proceedings stemming from the same offence---Standard of proof---Standard of proof required in a departmental inquiry is not analogous to the standard of proof which is considered necessary in the criminal trial---Departmental inquiry stems from the charges of misconduct where the standard of proof depends on the balance of probabilities or preponderance of evidence but not a proof beyond reasonable doubt, which is a strict proof required in criminal trials.

(c) Civil service---

----Concurrent departmental inquiry and criminal proceedings stemming from the same offence---Acquittal in criminal proceedings---Effect---Where the accused official is acquitted by the Court in criminal proceedings and his conviction is set aside, it does not mean that he could not be called upon to face disciplinary proceedings on account of misconduct or dereliction of his duties.

M.M. Aqil Awan, Senior Advocate Supreme Court, assisted by Muhammad Arshad Khan Tanoli, Advocate Supreme Court and Danish Rashid Khan for Petitioners (in both cases).

Hakim Ali Shakh, Additional A.G., Sindh, Sagheer Ahmed Abbasi, Additional A.G., Sindh, Ms. Shazia Qazi, Special Secretary Prisons, Sindh, Muhammad Nasir Khan, D.I.G., Prisons, Sindh and Muhammad Channa, S.O., Prison-I for Respondents.

2024 P L C (C.S.) 1310

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Athar Minallah and Malik Shahzad Ahmad Khan, JJ

SUPERINTENDENT OF POLICE, HEADQUARTERS, LAHORE and others

Versus

IJAZ ASLAM and others

Civil Petitions Nos. 3105-L to 3114-L and 3119-L to 3122-L of 2023, decided on 7th August, 2024.

(On appeal against the judgment dated 16.05.2023 passed by the Punjab Service Tribunal, Lahore in Appeals Nos. 3482 to 3488, 4259, 4571 of 2022 and 435 to 439 of 2023).

(a) Civil service---

----Service matters---Punishment, award of---Institutional autonomy---Concept of institutional autonomy in matters relating to award of punishment and limited circumstances in which courts/tribunals can interfere in the same.

Courts are tasked with a delicate balancing act: respecting the institutional autonomy of public sector institutions, while ensuring these institutions operate within the bounds of the law and do not infringe upon individual rights or the public interest. The imposition of punishment under the law is primarily the function of the competent authority and the role of the Tribunal or Court is rather 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 underlying rationale is based on the concept of institutional autonomy which provides for a degree of self-governance and independence by a public sector institution. This autonomy is essential for ensuring that such institutions can function effectively, impartially, and according to their legal mandates. The autonomy of public institutions is not just a matter of administrative convenience, but a fundamental requirement for the effective functioning of a democratic society, as public sector organizations are guardians of the public interest. The role of the courts is not to second-guess institutions as certain matters are the province of institutions themselves. Thus, as long as the institutions pursue their institutional purpose and function, and as long as they abide by law, professional norms and best practices, they are largely entitled to regulate themselves. Institutional decisions are, however, subject to judicial oversight and can be corrected if they suffer from any illegality, irrationality or procedural impropriety. Other than that, the courts must give deference to the institutional decisions and desist from second guessing them on the basis of their own subjective standards of leniency, compassion or fairness. Such decisions are best left to the institutions owing to their policy-making prerogatives and expertise.

Divisional Superintendent v. Nadeem Raza 2023 SCMR 803; Secretary Government of Punjab v. Khalid Hussain 2013 SCMR 817; Vice Chancellor Agriculture University v. Muhammad Shafiq 2024 SCMR 527 and Randy J. Kozel, 'Institutional Autonomy and Constitutional Structure' 112 Michigan Law Review 957 (2014)https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1014&context=mlr accessed 21 August, 2024 ref.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 4(1)(b)(iv)---Driver constables in police department---Appointments made on basis of fake and bogus driving licenses---Dismissal from service---"Doctrine of unclean hands"---Scope and applicability---Admittedly the respondents were dismissed from service based on an established charge of misconduct after a proper regular departmental inquiry was conducted by the competent authority---Findings in the inquiry report were not only accepted by the competent authority but had also been affirmed by the appellate authority of the same department---In the instant case, the major penalty of dismissal from service was imposed by the competent authority in accordance with law and the relevant rules---Fact that the respondents procured their appointment based on bogus and fake driving licenses could not be condoned---Reasoning given in the impugned judgment justifying their reinstatement on the ground that the respondents worked for 14 years and had subsequently obtained new licenses was not sufficient and did not wash away their act of submitting fake and bogus licenses and thus managing their appointments fraudulently---Once the appointment was sought on the basis of bogus licenses, such appointment could not be legitimized---This was based on the principle referred to as the "doctrine of unclean hands."---This legal doctrine holds that a person who has acted unethically, deceitfully, or with dishonesty should not be entitled to the benefits derived from such actions---When applied to employment, particularly in sensitive roles like the police service, this principle asserts that someone who gains their position through fraudulent means-such as by falsifying documents-cannot be trusted to uphold the integrity and responsibilities of that position---Furthermore, discovering the fraud, even several years after the fact, could still be ground for disciplinary action because the initial appointment was obtained illegitimately---The rationale was that trust and integrity are foundational to public service roles, and a breach of this nature undermined the trust necessary for the role and could potentially have legal and institutional consequences---Said principle maintains that the integrity of the institution and the trust placed in its officials are paramount, and therefore, any breach, regardless of when discovered, must be addressed decisively---Respondents knew that they had submitted fake and bogus licenses during the recruitment process---Thus, the Tribunal had failed to take into consideration the fact that the basic qualification/eligibility to the post of driver constable was a genuine license which the respondents did not meet---In the absence of the same, the Tribunal acted in an arbitrary and whimsical manner overlooking the specific facts and circumstances by granting relief to the respondents in violation of the law---Petition was converted into an appeal and allowed; the impugned judgment was set aside and the dismissal orders of the respondents passed by the department were upheld.

Secretary Education v. Noor-Ul-Amin 2022 PLC (C.S.) 132 and Anwar Ali v. Chief Executive Officer HESCO 2009 PLC (C.S.) 963 ref.

(c) Void order---

----When the basic order is without lawful authority, then the entire superstructure raised thereon falls to the ground automatically.

Vice Chancellor Agriculture University v. Muhammad Shafiq 2024 SCMR 527; Pakistan Peoples Party Parliamentarians v. Federation of Pakistan PLD 2022 SC 574 and Atta-ur-Rehman v. Umar Farooq PLD 2008 SC 663 ref.

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

----S. 5---Service Tribunal---Relief, grant of---Parameters---Grounds of leniency and compassion---No court has the jurisdiction to grant arbitrary relief without the support of any power granted by the Constitution or the law---Any relief granted on the touchstone of subjective standards of leniency and compassion, rather than the law, cannot be sustained---Any such subjective decision disregards the importance of institutional autonomy; which rests on well-thought out values, ethos, policies and internal disciple of the institution.

Divisional Superintendent, Postal Services v. Zafarullah 2021 SCMR 400; Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656; Chief Postmaster v. Muhammad Afzal 2020 SCMR 1029 and Dr. A.Q. Khan Research Laboratories v. Hamid Ullah 2010 SCMR 302 ref.

(e) Constitution of Pakistan---

----Art. 25---Civil service---Discrimination---Relief sought on plea of discrimination---Scope---Article 25 of the Constitution has no application to a claim based upon other unlawful acts and illegalities---It only 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---But where a person gains, or is granted, a benefit illegally, other persons cannot plead, nor can the courts accept such a plea, that the same benefit must be allowed to them also in violation of law.

Muhammad Yasin v. D.G. Pakistan Post Office 2023 SCMR 394 ref.

Baleegh-uz-Zaman, Addl. A.G. and Riasat Ali, D.S.P. for the Petitioners.

Muhammad Arshad Bhatti, Advocate Supreme Court for Respondents (via video link from Lahore).

2024 P L C (C.S.) 1349

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

Rao MUHAMMAD RASHID and others

Versus

PROVINCE OF SINDH through Chief Secretary and others

Civil Petitions Nos. 525-K to 527-K of 2024 and Civil Petitions Nos. 477-K to 511-K of 2024, decided on 1st August, 2024.

(Against the Orders dated 19.03.2024 and 30.01.2024 passed by Sindh Service Tribunal, Karachi in Appeals Nos. 58, 59, 61, 760, 862, 902, 774, 805, 820, 776, 821, 864, 755, 803, 829, 742, 841, 804, 901, 759, 766, 831, 806, 822, 794, 761, 840, 747, 764, 746, 749, 817, 748, 744, 830, 743, 740 and 763 of 2023).

(a) Sindh Service Tribunals Rules, 1974---

----Rr. 8(b), 11 & 12---Sindh Service Tribunals Act (XV of 1973), S.5---Departmental appeal, filing of---Limitation, issue of---In the case at hand, all the service appeals were dismissed in limine on the ground that departmental appeals were time barred---Officials of the (employer) department present in court on their tentative assessment of the record submitted that certain departmental appeals were filed within time but they needed to thrash out the entire record which could not be done at the Tribunal stage because neither any notice was issued nor any comments were filed to handle each petitioner/ appellant individually, but the petitioners were non-suited in limine---In these peculiar circumstances of the case, such factual controversy could not be decided summarily, and in order to thrash out the assertion that departmental appeals were preferred-within time, notice to the department ought to have been issued for proper adjudication and verification by the department in each case regarding the exact dates of the different impugned departmental orders, receiving date of such orders by the petitioners, filing of departmental appeals/representations, decision of departmental appeals conveyed individually, if any, and finally, the date of filing service appeals by individuals for which painstaking scrutiny was required by the Tribunal as a first judicial fact-finding forum---Question of limitation apparently in this case did not seem to be in the plainest or purest form but on the face of it, emerged as a mixed question of law and fact which had congregated certain factual controversies that were neither based on facts virtuously nor unreservedly grounded in the law, thus required both legal and factual appraisal and exploration for the proper determination of the appeals---Petitions for leave to appeal were converted into appeals and allowed, the impugned orders of the Tribunal were set aside to the extent of present petitioners, and the matter was remanded to the Tribunal to consider all relevant questions afresh and decide the service appeals of the present petitioners in accordance with the law after affording a fair opportunity of hearing to the parties.

(b) Administration of justice---

----Procedural law---Scope---Procedure is a mere device with the object to facilitate and not to obstruct the administration of justice, therefore, to advance the cause of justice, any technical construction of law or rules that leaves no room for reasonable elasticity of interpretation should be guarded against and any construction which reduces the statute to a futility must be avoided.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

Sadar-ud-Din Buriro, Advocate Supreme Court for Petitioners.

Kafeel Ahmed Abbasi, Addl. A.G., Sindh, Javed Ali Khawaja, Focal Person (Litigation) and Syed Abid Ali, Director (HR), Education and Literacy Department, Government of Sindh for Respondents.

2024 P L C (C.S.) 1373

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ and Naeem Akhtar Afghan, J

Syed FAIZAN E RASOOL

Versus

The LAHORE HIGH COURT, LAHORE through Registrar

Civil Petition No. 2243 of 2024, decided on 29th August, 2024.

(Against the judgment dated 25.04.2024 of the Punjab Subordinate Judiciary Service Tribunal, Lahore passed in Service Appeal No. 15 of 2023).

Civil Service Rules (Punjab)---

----R. 8.129 & Appendix 20, Clause 7---Revised Leave Rules, 1981, Rr. 9 & 15---Civil Judge---Study leave for judicial officers---Policy---Admission in LLM programme at a foreign university---Petitioner, who was a Civil Judge, secured admission to the LLM programme of studies offered by two foreign universities---However, vide Lahore High Court's letter it was conveyed to him that the Administration Judge had declined to grant him requisite permission, and had instead advised that the petitioner may obtain the same degree from a local university---Against the decision of the Administration Judge the petitioner filed Service Appeal before the Punjab Subordinate Judiciary Service Tribunal ('the Tribunal'), which through the impugned judgment maintained the decision of the Administration Judge---Validity---No reason for declining permission to the petitioner was given---If, though it was not stated, his services were required then this was not stated; in any case this could not be a reason because he was advised to obtain the same degree from a local university---Impugned judgment upheld the decision of the Administration Judge, by stating that, "in this case the authority is not persuaded to exercise discretion for a number of reasons."---However, not a single reason was cited in the impugned judgment of the Tribunal nor in the decision of the Administration Judge and none had been cited by the Registrar of the Lahore High Court---Therefore, the said decision and the impugned judgment were not sustainable---Petitioner had been rendering service as a judicial officer for over ten years; he wanted to improve his legal qualification in his field of work by wanting to do an LLM, and had obtained admission and scholarship---Lahore High Court, therefore, would not have incurred any expenditure on his travel, lodging and payment of fees---Petitioner was also not close to retirement and was prepared to sign the requisite undertaking/bond---Undoubtedly, better qualified judicial officers would be an asset to the judiciary, and by utilizing their additional training and the knowledge they acquired, they would be better placed to dispense justice---Petition was converted into an appeal and allowed, and impugned judgment as well as the decision of the Administration Judge were set-aside with the direction that if the petitioner could no longer avail the admission and scholarship in the coming academic year he would be entitled to do so in the next, or any future year---Supreme Court observed that a clear, equitable and transparent policy with regard to study leave of judicial officers may be formulated by the High Court, which should then be applied uniformly, and if a judicial officer secured admission in a reputable foreign university on scholarship basis in the field of law or related discipline and fulfilled the stipulated criteria, including having served for the prescribed minimum number of years, was not close to retirement, there was no financial outlay by the High Court and was not facing disciplinary proceedings then permission should not be withheld, unless there was some good reason which was communicated to him/her.

Petitioner in person.

Shahid Latif, Deputy Registrar, Lahore High Court, Lahore for Respondent.

Muhammad Mumtaz Ali, Additional Advocate-General, Punjab on Court Notice for Government of Punjab.

2024 P L C (C.S.) 1397

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

JAVED ALI and another

Versus

INSPECTOR GENERAL OF POLICE, SINDH and others

Civil Petitions Nos. 499-K and 519-K of 2023, decided on 6th August, 2024.

(Against the order dated 27.02.2023, passed by the Sindh Service Tribunal, Karachi in Appeals Nos. 454 and 455 of 2020).

Civil service---

----Police officials---Dismissal from service---Allegation of being overage at the time of appointment---No opportunity of personal hearing provided---No enquiry conducted to establish deceitfulness on part of dismissed police officials---Admittedly neither any right of personal hearing was afforded nor was any inquiry conducted to prove whether the petitioners secured their appointments lawfully or unlawfully or in a deceitful manner, and whether they were solely responsible without any lapses or slip-ups of the personnel deployed in the recruitment process---Petitioners were awarded the major penalty of dismissal from service without any individual departmental inquiry and affording any right of audience---Moreover, a specific plea was taken by the petitioners before the Tribunal that their similarly placed colleagues were reinstated afterwards, but this benefit was not afforded to the petitioners who had been discriminated against---Neither this vital contention was appreciated nor the respondents were called upon to verify or comment on it to dislodge or disentangle the plea of discrimination---Petitioners were not appointed through any illegal or fake recruitment process, rather there was an issue of being overage, which was intimated to them after about 4 to 6 years from the date of their induction in service and they had been made the victims of this overage issue without being intimated of any such defect at the time of applying for the job, and after serving 4 and 6 years respectively in the Police Department, the drastic action of dismissal from service was taken without giving any opportunity of personal hearing and conducting enquiry---There was no explanation by the department as to why their own recruitment procedure was so weak and vulnerable that it detected such flaw or deficiency after 4 to 6 years---There was nothing on record with regards to the present petitioners which may show that they managed their appointment through some illegal means or committed any fraud---According to the petitioners, there was also a conflict and disagreement on the exact age of the petitioners at the time of making application for joining the recruitment process and the age intimated by the law officer during the course of arguments which also needed to be resolved---Furthermore, while dismissing the petitioners from service after they served a considerable length of service, the department also failed to advert to the possibility of age relaxation, if any, available under the law, in view of Government Policy or Notification in vogue for any ex-post facto approval---Petitions were converted into appeals and allowed, the impugned order was set-aside and the matter was remanded to the Tribunal to decide the appeals of petitioners on merits after providing equal opportunity of hearing to the parties.

Petitioners in person (in both cases).

Sibtain Mehmood, Additional Advocate General, Sindh, Mushtaq Ahmed Abbasi, A.I.G. (Legal) and Muhammad Ghaffar, D.S.P. Legal, Nawaz Ali, D.S.P. Legal, Benazirabad for Respondents.

2024 P L C (C.S.) 1437

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

FAROOQ AHMED

Versus

SECRETARY, BALOCHISTAN PROVINCIAL ASSEMBLY, QUETTA and others

Civil Petitions Nos. 268 of 2019 and 583 of 2021, decided on 6th December, 2023.

(Against the judgments dated 12.11.2018 the High Court of Balochistan Quetta, passed in C.P. No. 121/2017 and dated 24.12.2020 of the Balochistan Service Tribunal, Quetta passed in Appeal No. 322 of 2017).

(a) Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009---

----R. 1(n)---Balochistan Civil Servants Act (IX of 1974), S. 2(1)(b)---Employees of Balochistan Provincial Assembly Secretariat---Not civil servants---Officers and employees of the Balochistan Provincial Assembly Secretariat belong to the Balochistan Provincial Assembly Secretariat Service as defined under Rule 1(n) of the Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009 and they do not enjoy the status of a civil servant within the meaning of Balochistan Civil Servants Act, 1974.

(b) Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009---

----Rr. 6 & 8(a) & Sched. A---Balochistan Provincial Assembly Secretariat, appointment in---Non-transparency in appointment---Conflict of interest---Petitioner was appointed as Deputy Secretary BS-18 (Legislative Drafting) in the Assembly Secretariat while his father was serving as its Secretary---Mode of appointment adopted by the Secretariat was through initial recruitment---Qualifications and conditions described in the advertisement appear to have been tailored to restrict the eligibility criteria to a limited number of candidates which included the petitioner---High Court had rightly observed that there was no justifiable reason for such restriction and that it violated the principle of transparency---However, the petitioner was one of the very few candidates who met the restricted eligibility criteria described in the advertisement---Selection committee was reconstituted by the Secretary i.e. the petitioner's father, while under the Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009 ('Rules of 2009') the Speaker was the competent authority and there was nothing on record to show that the latter's approval was sought---Entire recruitment process i.e. approval for appointment through the mode of initial recruitment, setting out the qualifications and conditions regarding eligibility, reconstitution of the selection committee, failing to place the cases of Assistant Secretaries before the competent forum for assessing their eligibility and, subsequently, the petitioner's appointment were in clear breach of the Rules of 2009---It was not disputed that the method of recruitment explicitly prescribed to fill the post of Deputy Secretary BS-18 under Schedule A of the Rules of 2009 was by promotion from amongst the Assistant Secretaries (BS-17) on seniority cum fitness basis and possessing five years' service as such---No process was undertaken by the competent authority to assess whether Assistant Secretaries (BS-17) were eligible to be considered for promotion in accordance with the qualifications and conditions prescribed under the Rules of 2009---Entire process was adopted to benefit the petitioner who happened to be the son of the Secretary of the Assembly Secretariat---Latter had given approvals for undertaking the recruitment process and had only recused himself belatedly and that too to the extent of chairing the meeting of the selection committee---It thus raised profound questions in the context of conflict of interest---Present case was a classic example of abuse of public power in order to benefit a family member---Petitions were dismissed.

(c) Constitution of Pakistan---

----Arts. 4, 9, 25 & 27---Public sector posts---Appointment---Transparency---Appointments against posts in the public sector are to be made strictly in accordance with applicable rules/regulations and without any discrimination and in a transparent manner---It is essential that all appointments in the public sector are based on the process that is palpably and tangibly fair and within the parameters of its applicable rules---Appointment made in a nontransparent manner and in violation of the law offends the fundamental rights of the general public and the citizens under Articles 4, 9, 25 and 27 of the Constitution---Due diligence must be exercised while making appointments and in doing so a fair and transparent selection process ought to be adhered to---Adherence to a credible and transparent selection process with due diligence is the pre-requisite in order to ensure good governance---It is inevitable to observe highest standards of diligence, transparency and probity in selecting a person for a post---Public authority possessed with powers under the relevant laws can only use them for and to advance the public good---Choosing persons for public service is not just providing a job and the consequent livelihood to the one in need but is a sacred trust to be discharged by the ones charged with it, honestly, fairly, in a just and transparent manner and in the best interest of the public---Individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer and not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had the inherent right to be served by the best.

Syed Mubashir Raza Jafri and others v. Employees Old Age Benefit Institutions (EOBI) and others 2014 SCMR 949; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 and Chief Secretary Punjab and others v. Abdul Raoof Dast 2006 SCMR 1876 ref.

Ahsan Rafiq Rana, Advocate Supreme Court and Hafiz Hifz-ur-Rehman, Advocate Supreme Court for Petitioner.

M. Ayaz Swati, Addl. Advocate General, Balochistan for the Respondents.

2024 P L C (C.S.) 1483

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Shahid Waheed, JJ

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

Versus

Dr. MUHAMMAD SHAHID HUSSAIN

C.P.L.A. No.2753-L of 2023, decided on 25th September, 2024.

(Against the order dated 27.03.2023 passed by the Punjab Service Tribunal, Lahore, in Appeal No.816 of 2022).

Supreme Court Rules, 1980---

----O. XXIV, R.1, O. XIII, R. 1 & O.I, R. 4---Limitation Act (IX of 1908), S. 12---Punjab Service Tribunals (Procedure) Rules, 1975, R. 21---Constitution of Pakistan, Arts. 212(3) & 10-A---Petition under Article 212(3) of the Constitution, seeking leave to appeal against the judgment of the Punjab Service Tribunal---Filing of---Limitation---Impugned judgment of the Punjab Service Tribunal included a specific direction for its office to send a copy of the order to the relevant departmental authority---However, it is important to note that this direction was given following Rule 21 of the Punjab Service Tribunals (Procedure) Rules, 1975 ("Rules, 1975"), which mandates that a copy of every order of final adjudication on an appeal must be provided by a Tribunal, free of costs, to the competent authority---This direction does not determine the period of limitation---To find out the period of limitation for filing a petition for leave to appeal under Article 212(3) of the Constitution and how it is computed, one needs to consult the relevant law, which is the Supreme Court Rules, 1980 ("Rules, 1980")---Rule 1 of Order XXIV, read with Rule 1 of Order XIII of the Rules, 1980 prescribes a 60-days period for filing a petition for leave to appeal under Article 212(3) of the Constitution---Furthermore, Rule 4 of Order I of the Rules, 1980, states that the computation of any particular number of days should be by the provisions of the Limitation Act, 1908 ("Act, 1908")---This means that Section 12 of the Act, 1908, which governs the computation method of the limitation period for filing a petition for leave to appeal in the Supreme Court, is applicable, inter alia, in service matters---Government of Punjab filed the petition in the present case on the 1st of September 2023, which was 158 days after the announcement of the judgment and 44 days after receipt of the certified copy of the judgment sent by the Tribunal---Based on these facts, the Law Officer unsuccessfully sought to argue that the period of 114 days (spent on receiving the said judgment by the Department) has to be deducted from 158 days as required by Section 12 of the Act, 1908 and as such, the appeal, which was filed after 44 days of the receipt of the certified copy of the judgment, was well within the prescribed time---Period for filing a petition for leave to appeal under Article 212(3) of the Constitution is computed from the date when the Tribunal's judgment is announced in the presence of the parties, not from the date of receiving the certified copy of the judgment---According to Section 12 of the Act, 1908, only the time taken to obtain a certified copy of the judgment appealed from can be deducted---Act, 1908, does not take into account the time it takes for the Tribunal to send a copy of the judgment, which is announced in the presence of the parties, to the Department---It is important to note that Rule 21 of the Rules, 1975 does not specify a time frame for the Tribunal to send a copy of the judgment to the relevant competent authority after announcing it---This means that the Tribunal can send the judgment to the Department after the deadline for applying for leave to appeal has passed---In this situation, allowing this time to be excluded in the computation of the limitation period would potentially give the Department/Competent Authority the ability to create uncertainty about the rights of Civil Servants that have been established by the Tribunal and have become final over time---This could be unwholesome and violate the fair trial rights guaranteed under Article 10-A of the Constitution---Therefore, the provisions of Rule 21 of the Rules, 1975 do not apply to the present case---Consequently, the petitioner cannot benefit from it, especially since the petitioner did not argue that the Tribunal did not announce the judgment in the presence of the parties---Another important aspect of the present matter that needs to be considered is that the Tribunal announced its judgment in the presence of the parties on the 27th of March, 2023---Department applied for a certified copy of the judgment on the 25th of August, 2023, and received it the same day---However, the petition for leave to appeal was filed on the 1st of September, 2023---Based on the timeline, it appears that the petition was filed after the allowable time limit, as it had become barred by time when the petitioner applied for the certified copy of the judgment---Application for condonation of delay was dismissed as lacking merit; consequently, the main petition also stood dismissed due to being filed after the prescribed time.

Baleegh uz Zaman Ch., Addl. Advocate General, Punjab and Ms. Ayesha Yasmeen, Law Officer for Petitioners.

Nemo for Respondent.

2024 P L C (C.S.) 1530

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

AHMAD ULLAH and others

Versus

DISTRICT EDUCATION OFFICER (MALE), BUNER and others

Civil Petition No.6211 of 2021, decided on 27th October, 2023.

(Against the judgment dated 12.10.2021 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat passed in Writ Petition No.562-M of 2020).

(a) Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S. 3(2)---Constitution of Pakistan, Arts. 199 & 212---Promotion---Eligibility for promotion---Term and condition of service---Ouster of jurisdiction of the High Court---Scope---Eligibility (for promotion) purely relates to the terms and conditions of service, for example the prescribed length of service, quantification of the marks relating to performance evaluation reports (PERs), completion of training programs etc.---Only factor which is excluded from the exclusive jurisdiction and domain of the Tribunal is the decision of a designated authority/forum regarding 'fitness', while eligibility and all other matters relating to the terms and conditions of service are exclusively within the domain of the Tribunal---Exclusive jurisdiction conferred upon the Tribunal, pursuant to the clear constitutional command under Article 212 of the Constitution, ousts the jurisdiction of a High Court while exercising jurisdiction under Article 199 of the Constitution to decide, entertain or adjudicate upon any matter relating to the terms and conditions of service---Bar under Article 212 of the Constitution extends even when an order passed by the departmental authority is without jurisdiction, mala fide, coram non judice, or in breach of the fundamental rights guaranteed under the Constitution.

Superintending Engineer v. Muhammad Khurshid 2003 SCMR 1241; Peer Muhammad v. Government of Balochistan 2007 SCMR 54 and Asadullah Rashid v. Muhammad Muneer 1998 SCMR 2129 ref.

(b) Constitution of Pakistan---

----Arts. 199 & 212---Civil service---Terms and conditions of service---Ouster of jurisdiction of the High Court---Scope---Constitutional petition filed before the High Court by a civil servant---Maintainability---Before taking any decision regarding admission of a constitutional petition brought by a civil servant, the High Court is expected to first decide the question of jurisdiction, having regard to the bar contained under Article 212 of the Constitution---Plea taken by an aggrieved civil servant regarding violation of fundamental rights guaranteed under the Constitution also does not confer jurisdiction on a High Court under Article 199 of the Constitution.

I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041 ref.

Shamsul Hadi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Respondents not represented.

2024 P L C (C.S.) 1085

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

MASOODA IQBAL, ELEMENTARY TEACHER, GOVERNMENT GIRLS MIDDLE SCHOOL AAHI, DISTRICT BHIMBER and another

Versus

SECRETARY ELEMENTARY AND SECONDARY EDUCATION and 7 others

Civil Appeal No.23 of 2022, decided on 20th March, 2023

(On appeal from the order of the Service Tribunal dated

7-4-2022 in Service Appeal No.92 of 2022).

Civil service---

----Order of Services Tribunal to deposit security fee, non-compliance of---Effect---Dismissal of appeal---Appellants assailed order passed by the Services Tribunal whereby their appeal was dismissed for non-deposit of security fee---Validity---Appellants were directed to deposit security fee within a period of one week from first date of hearing---Till the next date, the appellants failed to deposit the security fee, where upon the Member Service Tribunal passed the order of depositing the fee on the same date and adjourned the case for the very next day---However, on next date of hearing i.e. on next day no body appeared on behalf of the appellants, whereupon the Service Tribunal dismissed the appeal for non-compliance of its orders---Fee depositing order was passed on initial date in presence of the Advocate, representing the appellants, whereby the appeal of the appellants was admitted for regular hearing and the appellants were directed to deposit the security fees at the concerned circuit while on the next date, the clerk of the counsel for the appellants was present before the Court, who was directed to deposit the security fee on the same day, but he failed to do so and on next date i.e. very next day, nobody appeared on behalf of the appellants---Thus, the Service Tribunal had no option except to dismiss the appeal due to non-compliance of its previous orders---Appellants had failed to furnish any plausible reason for not depositing the security fee, despite clear orders of the Service Tribunal---Appeal, having no force, was dismissed.

Sardar Hamid Raza Khan, Advocate for Appellant.

Ch. Shakeel Zaman, Additional Advocate General for Respondents.