' AKHTAR ZAMAN MALGHANI, J.---This appeal is directed against the order of Competent authority issued vide Notification dated 10th August 1999, whereby; services of the appellant were not further extended.
2. Briefly stated, facts of the case are that in the year 1997 the High Court of Balochistan, Quetta issued an advertisement inviting applications for filling one of the vacant posts of District and Sessions Judge on ad hoc basis. The appellant along with nine other advocates filed applications, out of whom seven appeared for oral interview and the appellant was found suitable for the post as District and Sessions Judge. On the recommendation of the High Court, the Provincial Government through Notification dated 12th August, 1997 appointed the appellant as District and Sessions Judge on ad hoc basis for a period of six months or till the time the regular appointment was made by the Balochistan Public Service Commission, which ever was earlier. It appears from the record that during such period an amendment was made in rule-4 of the Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules 1980 on 18th September, 1997, whereby; the word "Government" was substituted with the word of "High Court".
The record further reveals that after expiry of six months, a notification was issued by the High Court of Balochistan extending the ad hoc appointment of the appellant as District and Sessions Judge for further period of six months with effect from 12th February, 1998. The said period was further extended vide notification dated 29th July, 1998 till 11th February, 1999. The record further reveals that the ad hoc appointment of the appellant was extended for a further period of six months with effect from 12th February, 1999 to 11th August, 1999. On 10th August, 1999 the impugned notification was issued whereby the period of ad hoc appointment of the appellant was not further extended.
3. The appellant after issuance of said notification filed a review petition before the Hon'ble Chief Justice on 9th September, 1999 and after waiting for the prescribed period and receiving no information about the decision of his review petition, preferred the instant appeal.
4. We have heard the learned counsel for the appellant as well as Mr. Raja M. Afsar Advocate appearing for the respondents and learned Advocate General. The learned counsel for the appellant raised following contentions:--
(1) That on 12th August, 1997 the appellant was appointed as District and Sessions Judge on ad hoc basis by the Government of Balochistan vide notification dated 12th August, 1997 on the recommendation of Selection Committee, whereas; amendment in the relevant Rules was brought on 18th September, 1997 by substituting the word "Government" with "High Court" appearing in rule- 4, therefore; the newly amended rule was not applicable to the case of the appellant, as Rules are always prospective in nature and not retrospective.
(2) According to the Rules there was no distinction between ad hoc appointment and other appointments in respect of District and Sessions Judge, therefore; it would be deemed that the appellant was appointed on regular basis and his services could not be terminated on the ground that he was an 'ad hoc appointee.
(3) The appellant was a civil servant within the meaning of section-2(b) of the Balochistan Civil Servants Act, 1974 and his case does not fall within any of the exclusion clauses as his appointment was made by Government of Balochistan and his status was of a civil servant, therefore; the objection taken by the respondents about competency of appeal was unfounded. Under Article 212 of the Constitution of Pakistan in service matters no Court including High Court has jurisdiction except the Tribunal setup for such purpose. In the instant case this Tribunal was setup to decide the service matters relating to the lower Sub-ordinate judiciary, as such; appeal filed by the appellant against the impugned notification was competent.
(4) Powers were to be exercised by the High Court which was competent authority and not by the Hon'ble Chief Justice, who had issued notification or the administrative committee on whose recommendation the impugned notification was issued.
(5) The Hon'ble Chief justice at the time of issuing notifications, was influenced by the recommendation of the administrative committee which decided not to extend the period of appointment on the ground that there were serious allegations against the appellant and notification is to be read with such recommendation. Same was stigma on the appellant and not a simple removal from the services.
(6) The appellant remained posted as a District and Sessions Judge for about two years and under rule-8 the probation period was two years, therefore; his services could not have been terminated on the ground that the same were found unsatisfactory when the vacant posts were available and no person was appointed by the Public Service Commission.
(7) That serious allegations were levelled against the appellant regarding misconduct, in consequence whereof he had been terminated from service, therefore; there should have been regular departmental inquiry for proving the allegations or otherwise.
(8) On 28th January, 1999, eleven persons escaped after breaking Jail, whereupon; two cases were registered, one against the Jail Authorities and other against the escapees vide F.I.R. Nos.1 of 1999 and 2 of 1999 respectively in Police Station, Nushki. At the same time Federal Government also directed for conducting inquiry in the incident, whereupon, committee constituted for such purpose gave its findings, on the basis whereof reference was made to the Government of Balochistan with certain recommendation for taking against the officials, which also included a clause recommending for referring matter against the appellant to the High Court of Balochistan for necessary action. According to the learned counsel, on the basis of said reference the services of the appellant were suspended on 10th June, 1999 and a show-cause notice was issued to him. After receiving reply to the show-cause notice, the competent authority did not find the same satisfactory and appointed an authorized officer to, conduct inquiry. A charge-sheet was also issued to the appellant during inquiry proceeding. Meeting of the administrative committee comprising of Hon'ble Chief Justice and two other Hon'ble Judges of the High Court was held on 7th August, 1999, wherein; it was decided not to extend the period of ad hoc appointment of the appellant after 12th August, 1999, in view of pendency of inquiry in respect of allegations contained in show-cause notice. He further contended that 'though afterwards the said charge-sheet issued to the appellant was withdrawn and the inquiry was dropped, yet his services were not extended on the basis of said allegations, as such; same was illegal and unjust, being passed without waiting for the result of the inquiry.
(9) Before refusing to further extend the period of appointment of the appellant it was necessary to give an opportunity of hearing to the appellant, which is a fundamental right of every citizen. The appellant was condemned un-heard.
(10) The appointment of the appellant could not be treated as ad hoc appointment as he has already completed two years, which is otherwise provided as probation period for the persons appointed through initial recruitments. According to the first appointment order, the appellant was appointed as District and Sessions Judge because a regular vacancy was available due to non- appointment through Public Service Commission, therefore; his services could not have been terminated till the filling of such vacancy by appointment of suitable person through Public Service Commission, as such; the termination of the services of the appellant was contrary to the terms and conditions of initial appointment order/notification.
(11) In view of the allegations contained in recommendation of the administrative committee and notification, the impugned order amounts to removal or dismissal from service, which could not have been done without a proper inquiry as contained in E&D Rules 1992.
5. The learned counsel in support of his contention referred to the judgments reported in PLD 1974 SC 291 and 293, PLD 2003 SC 420, 1994 PLC (C.S) 1339, 1995 PLC (C.S) 765, and 938, 1993 PLC (C.S)
243, 1997 SCMR 1552, PLD 1971 SC 677, 1984 SCMR 65, 1997 SCMR 1581, PLD 2001 SC 176, PLD 2001 SC 555,2002 SCMR 82, PLD 2002 SC 101 and 1996 SCMR 413.
6. On the other hand, the learned counsel for the respondents contended that the appellant was appointed on ad hoc basis which is crystal clear from the initial appointment order and all subsequent notifications. He can not be termed as a regular employee or at par with those incumbents serving on probation. He further contended that an ad hoc appointee has not right in service and can not claim to be treated in accordance with the rules and regulations applicable to the regular appointees nor such term is synonymous with probation. According to learned counsel it is within the competency of the competent authority to terminate the services of an ad hoc appointee notwithstanding non-appointment of a regular candidate through prescribed procedure. The learned counsel relied on the judgment reported in 1982 SCMR 408, PLD 1982 Lah.
42, 1977 PLC (C.S.) 80, 1975 PLC (C.S.) 40 and 1997 SCMR 1514.
7. We have carefully considered the contentions put forth by the parties' learned counsel in the light of record made available to us and the relevant provisions of law and rules. It may be seen that at the time of appointment of appellant on ad hoc basis, under rule 4 of the Balochistan Additional District and Sessions Judge and District and Sessions Judges Service Rules, 1980, the Government was the Appointing Authority as such the Notification in respect of the appointment of the petitioner was made by the Government. However, on 18-9-1997 an amendment was brought in the Rules 1980 whereby the word "Government" appearing in rule 4 was substituted by "High Court".
No doubt the Rules are always of prospective nature and it can not be made retrospective but it does not mean that the person appointed under the old rules would continue to be governed by the previous rules and amendment brought in the rules would not be applicable during the incumbency of his service unless a different intention is shown in the amended rules itself. The appellant was initially appointed vide Notification dated 12-8-1997 as District and Sessions Judge on ad hoc basis for a period of six months or till the regular appointment by the Balochistan Public Service Commission, which ever is earlier. Admittedly no person was appointed on regular basis by the Public Service Commission till 11-2-1998 i.e. The date of expiry of the terms of six months while there was nothing adverse against the appellant, therefore, the ad hoc appointment of the appellant was extended by the High Court vide Notification dated 4-2-1998 for a further period of six months. It is noteworthy that in the above said Notification, the condition 'till the regular selection is made by the Public Service Commission', was not incorporated. Similarly the subsequent two notifications issued extending his terms of ad hoc appointment, also did not contain above said condition. According to last Notification issued on 6-2-1999, the period of ad hoc appointment of appellant was extended for a period of six months expiring on 11-8-1999.
Thereafter the impugned notification was issued refusing to extend the ad hoc appointment further. Thus the appellant was never appointed on regular basis nor his services were ever regularized as such, the period spent by him in service can not be termed as probation period as contended by the learned counsel because rule 5 was amended vide Notification No.SOR(2)62/S&GAD-79 dated 21st July, 1982 and the Honourable Chief Justice was authorized to select the suitable candidate and recommend to the Government for appointment on ad hoc basis, after advertising the posts and inviting the applications. We find it expedient to reproduce the rule 5 substituted in place of old rules vide Notification dated 21st July, 1982.
"Method of recruitment.
(1) Appointment to the posts of Additional District and Sessions Judges shall be made:--
(a) by initial recruitment against one third of the posts on the recommendation of the Commission with association of the Chief Justice.
(b) by promotion against one third of the posts on the recommendation of the Chief Justice of the High Court from amongst the Senior Civil Judges and Judicial Magistrates at the ratio of 50:50.
(c) by transfer against the remaining one third of the posts from the Officers belonging to Central and Provincial Governments on the recommendations of the Chief Justice: ' Provided that if no suitable officers are available for transfer, the appointment against the reserved quota as mentioned in clause (b) may be made by promotion on the recommendation of the Chief Justice of the High Court from amongst the Senior Civil Judges.
(2) Appointment to the posts of District and Sessions Judges shall be made:--
(a) by promotion against 50% of the posts on the recommendation of the Chief Justice of High Court from amongst the Senior Additional District and Sessions Judges.
(b) by transfer against 25% of the posts from the officers belonging to Central and Provincial Governments on the recommendation of the Chief Justice:- ' Provided that if no suitable officers are available for transfer the appointment against the reserved quota as mentioned in clause (b) may be made by promotion on the recommendation of the Chief Justice of the High Court, from amongst the Senior Additional District and Sessions Judges.
(c) by initial recruitment against the remaining 25% of the posts on the recommendation of the Commission with association of the Chief Justice.
(3) In case of ad hoc appointment, the Chief Justice shall advertise the posts and invite applications and after selecting suitable candidates, shall recommend to the Government the names of the candidates, to be appointed on ad hoc basis;".
' Similarly the appointment on probation has not been considered synonymous with ad hoc appointment which is a temporary and stop-gap arrangement pending recruitment in accordance with prescribed method. Such appointment remained ad hoc for all intends and purpose and could not be treated as regular appointment. In this regard we are fortified by the judgment of the Honourable Apex Court reported in 1997 SCMR 1514. Relevant observations are reproduced herein below: "According to section 6 of the Civil Servants Act, an initial appointment to a service or post referred to in section 5, not being an ad hoc appointment, shall be on probation as may be prescribed. This shows that an ad hoc appointment cannot be on probation and an appointment on probation cannot be ad hoc".
8. The question whether an ad hoc appointee can claim absorption as matter of right as contended by the learned counsel came up for consideration in the judgment reported in 1977 PLC (C.S.)
80. It would be advantageous to reproduce the observations in this regard which read as follows: "It is admitted that appellant was class II Officer on ad line basis and has no right whatsoever to claim right of absorption of seniority. Ad hoc appointment is defined by Civil Servants Act in its clause 2(1)(a). It means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending recruitment in accordance with such method. Thus the appellant has no claim whatsoever till he is regularly appointed to claim induction into service. Moreover, the question so put clearly is hit by the mischief of section 4(1) (b) of the Service Tribunals Act, 1973 which debars rights of appeal to the Tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."
' Similarly view was also expressed in the judgment reported in 1975 PLC (C.S.) 40 wherein following observation has been made:-- "Person promoted in officiating capacity against permanent post, held, not same as ad hoc appointee devoid of any right in appointment--Provisions of F.R. 9(22) and 9(28), held, not relevant to question whether officiating appointment carry same disqualification and right as ad hoc appointment."
9. There is no cavil with the proposition that if the services of any incumbent during period of probation or incumbency of temporary or ad hoc employment are terminated on the charge of misconduct that would amount to dismissal or removal being stigmatized and in such event services are not liable to be terminated until and unless show-cause notice is served upon the effectee and he has been afforded opportunity of hearing but if the services are terminated on account of un-satisfactory work, it can not be termed as dismissal or removal from service. In this regard we are fortified by the judgment of the Honourable Supreme Court reported in PLD 1974 SC
393. It would be advantageous and instructive to reproduce the relevant observations:-- "In the light of the above discussion, it appears to me that a probationer is a person who is taken in, service subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained in service. I agree with the view expressed in Muhammad Afzal Khan v. The Superintendent of Police, Montgomery and Riaz Ali Khan v.
Pakistan, that a person who is on probation is subject to all checks to which a permanent servant is subject. He cannot, for example, refuse to obey orders, keep his own hours of duty, or indulge in any malpractice. In my opinion if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government but if the service of a probationers is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour."
' The above said view was reiterated in the judgment reported in 1990 SCMR 1510 wherein the services of Additional District and Sessions Judge were terminated during probation period and it was held as under:-- .
"The law on the probationers' right while in service has been dealt with extensively and authoritatively by this Court in the case of Muhammad Siddique Javed Chaudhry and others PLD 1974 SC 393. Judged by the law laid down in that case it is clear that the petitioner can make out no case for successfully challenging the order of termination of his service while on probation. The order has been passed by the competent authority against whom no grudge or malice is alleged.
It contains no stigma and required no show cause procedure, as such."
10. In order to see as to whether the impugned notification where by the appellant was refused extension of period would amount of dismissal or removal from service containing element of stigma, it would be expedient to reproduce the same: "The Hon'ble Chief Justice, High Court of Balochistan, Quetta has been pleased to decide not to extend the period of ad hoc appointment (under suspension) of Mr. Muhammad Wassay Tareen after 11th August, 1999 as District and Sessions Judge on account of dissatisfactory conduct and performance of incumbent officer during ad hoc period of appointment".
By Order (Sd.)
Registrar."
11. The bare perusal of the above notification makes it clear that the appellant was not allowed extension as competent authority did not find his conduct and performance satisfactory. There is no allegation of misconduct or any other charge against the appellant in the said notification as such, same can not be termed removal or dismissal from service.
12. The learned counsel laid much stress on the minutes of meeting whereby the Administrative Committee of the High Court recommended for not extending the period. The perusal of same shows that though reference was made to the inquiry being conducting at that time, which was eventually dropped later on and the show-cause notice was discharged, yet the Administrative Committee has not based its recommendation exclusively on such allegations but had shown its dissatisfaction regarding conduct and performance of the appellant. The very words "without prejudice to the result of the inquiry proceedings incorporated in the minutes are very significant and support our this conclusion. Moreover, the services of the petitioner were not terminated during the coutinuancy of the extended period of ad hoc appointment but it was a simplicitor refusal to extend his appointment for further period which wad to be extended entirely on the satisfaction of the competent authority and the appellant could not claim such extension as matter of right on the basis of other relevant rules applicable to the regular employees or who have been appointed by initial recruitment through Public Service Commission. The Honourable Supreme Court of Pakistan in the judgment reported in 1982 SCMR 408 while dealing with rights of ad hoc appointee vis-a-vis rules governing the services observed as under:-- "We propose taking up the question of the nature and effect of ad hoc appointment first because it is common to the first three appellants and to some of the respondents. Their appointments as Assistant Engineers were expressed to be ad hoc, temporary, not conferring any right to seniority etc. The word "ad hoc" as the dictionary meaning of "for a particular object". The object as appearing from the appointment of the appellants as well as that of some of the respondents was that their appointments were made and were to last only as long as regular appointments in accordance with the prescribed Rules were not made. The moment the regular appointments in accordance with the procedure prescribed were made, such appointments were to terminate. Ad hoc appointments truly so called being not in accordance with the Rules applicable to the service cannot receive either recognition or protection by reference to any of the Rules because they do not imply appointments to the service as such. Such appointments being outside the purview of the Rules cannot for any purpose be treated as conferring a benefit under the rules. It follows that if the appellants and some of the respondents were truly ad hoc appointees for a certain period they cannot on the basis of Rules claim their seniority from that date whether it was continuous or not."
13. Moreover, as ad hoc appointment does not create any right in the incumbent to remain in the service and the order of termination or refusal to extend if further would be un-exceptionable not withstanding incorrectness of roasons there for. In this regard we take support of the judgment reported in PLD 1982 Lahore 42.
' Likewise in the judgment reported in PLD 2003 SC 420, the Honourable Apex Court held that ad hoc appointment did not confer on appointee any right or interest to continuous appointment, seniority or promotion. It was further held that the services of ad hoc appointee could be dispensed with at any moment without assigning any reason and only safeguard provided in section 11(3) of the Civil Servants Act 1973 was that the services of such appointee would be liable to termination of fourteen days' notice or pay in lieu thereof. It was also held in the above referred to judgment that there is no concept of reinstatement of an ad hoc employee whose services were dispensed with in accordance with terms and conditions of offer of appointment.
14. The learned counsel has also objected on the notification on the ground that the same was issued by the Honourable Chief Justice on the recommendation of Administrative Committe which does not find place in the rules known as Balochistan Additional District and Sessions Judges and District and Sessions Judges Services Rule, 1980 as were applicable at the time of appointment of the appellant and issuance of impugned notification, wherein under rule-4 the appointing authority was "High Court". According to learned counsel "High Court" means the Chief Justice and all Judges of the High Court whereas the Administrative Committee was consisting of Honourable Chief Justice and two other Judges of High Court as such the decision of the Administrative Committee could not be termed that of High Court and same was corum non judice. Similarly the notification issued by the order of the Chief Justice was also illegal and without jurisdiction being based on the recommendation of Administrative Committee.
15. We have perused the relevant provisions. It may be noticed that the functioning of the High Court is governed by its own rules and orders framed from time to time and in this regard West Pakistan High Court Rules and Orders are being observed and acted upon by the High Court of Balochistan after it came into existence in 1976. It may also be noted that on the dissolution of Province of West Pakistan, a joint High Court for Sindh and Balochistan was created and by virtue of Article-19 of the Province of West Pakistan (Dissolution) Order 1970 the Rules governing the West Pakistan High Court were made applicable with necessary adaptation on the newly created High Courts. Likewise the High Court of Sindh and Balochistan was bifurcated vide Balochistan and Sindh (High Courts) Order, 1976 and vide Article-8 of the Order, the laws, rules and powers which were available to respective High Courts were made applicable on newly created High Courts of Sindh and Balochistan. Under Chapter-10-A of High Court Rules and Orders Volume-V, vide Para. No.1 the administrative business of the High Court is to be controlled by a committee of Judges known as the Administrative Committee and under Para. No.2 the committee is constituted for such administrative business. Thus the contention of the learned counsel that the Administrative Committee has no jurisdiction and its decision cannot be termed as decision of the High Court paled out in significance in view of above discussion.
16. In the instant case the decision not to extend the ad hoc appointment of the appellant was made by the Administrative Committee constituted under the High Court Rules and Orders.
17. The case-law referred by the learned counsel i.e. PLD 1971 SC 677 is distinguishable as in that case judicial decision of the High Court was in consideration and not the administrative work for which specific procedure has been prescribed in the High Courts Rules and Orders.
18. Though in the light of above discussion, we are of the view that the order of refusal to extend was passed by the High Court but are unable to withhold ourselves to observe the rule-4 whereby the High Court was made appointing authority, in our considered view, is applicable to the appointments on regular basis on substantive posts and not to appointment on ad hoc basis for which a separate procedure was provided under rule 5(3) of the Rules 1980 wherein the Hon'ble Chief Justice has been empowered to make selection of suitable candidates and recommend for the appointments to the Government. Being a competent authority under the Efficiency and Discipline Rules 1992 was competent to issue notification informing the appellant regarding dispensing with his services on the expiry of the period for which his services were extended.
19. The conduct and performance of the appellant was not found satisfactory and he was refused extension in ad hoc appointment. As it was not in consequence of misconduct so as to call for inquiry, therefore; the same was relieve of the appellant from the services simplicitor, neither removal nor dismissal from service nor a penal action against him as could have legally necessitated service of a show-cause notice; giving him an opportunity to say some thing against proposed action, as such; the appeal against such order is not competent as the impugned notification could not be termed an order in respect of any of the terms and conditions of his services. Secondly no appeal is competent against the order of competent authority determining the fitness or otherwise of the appellant to be appointed or hold the particular post as provided by sub section b(i) of section 5 of the Balochistan Subordinate Judiciary Service Tribunal Act, 1989.
20. Case-law referred by the learned counsel are distinguishable on facts and circumstances. As in case 1994 PLC (C.S.) 1339 the services of the appellant who was appointed on Ad hoc basis till the filling of post on regular basis were terminated without recruitment of regularly selected person, a condition precedent for termination of his services. Similarly in the case reported in 1995 PLC (C.S.)
765 the services of an Ad hoc appointee were terminated without giving any reasoning whereas in the instant appeal the competent authority did not find performance of appellant satisfactory.
Similarly in the judgment reported in 1995 PLC (C.S.) 938 the services of other Ad hoc appointees were regularized except the appellant in that case whose services were terminated, the Tribunal directed for regularization of his services as was done in respect of other persons on the directions of Chief Minister. Other case-law referred by the learned counsel deals with the powers of this Tribunal, which are admittedly available to this Tribunal in view of section-6 (1) of the Balochistan Sub-Ordinate Judiciary Service Tribunal Act, 1989.
' Herein above are the reasons of our short order dated 17-2-2004, whereby; the appeal was dismissed with no order as to costs.
Appeal dismissed.
2005 PLC (C.S.) 665 [Karachi High Court] Before Sarmad Jalal Osmany and Wahid Bux Brohi, JJ Qazi ABDUL SHAKOOR versus HIGH COURT OF SINDH and another Service Appeal No.9 of 1999, decided on 20th December, 2004.
Sindh Civil Servants (Efficiency and Discipline) Rules, 1973--- ----Rr. 4(1)(b)(iv) & 8---Sindh Service Tribunals Act (XV of 1973), S. 4---Dismissal from service--- Appeal against---Appellant who was serving as Reader to a Civil Judge was dismissed from service without holding inquiry against him on ground that he was convicted and sentenced to 9 months R.I. By Summary Military Court---Appellant was convicted and sentenced by Summary Military Court on filing complaint against him on allegation of fraud and misrepresentation without affording him an opportunity of hearing---On filing Constitutional petition in High Court against order of his conviction and sentence passed by Summary Military Court, High Court had declared same as mala fide and without jurisdiction---Appellant's departmental appeal filed against order of his dismissal from service, having been dismissed, appellant had approached Service Tribunal in appeal praying that since the very foundation of order of his dismissal, namely his conviction and sentence by Summary Military Court, had ceased to exist, order of his dismissal should be set aside---Admittedly since very foundation of order of dismissal of appellant from service which was conviction by Military Court had been declared mala fide, without jurisdiction and of no legal effect, superstructure on said basis would wholly collapse---Impugned order in consequence of acquittal of appellant, would not hold field---Order of dismissal of appellant could not be maintained---Said order was set aside---Appellant, however having already attained age of superannuation, would only be entitled to monetary benefits from date of passing of impugned order in accordance, with law. [pp. 667, 668, 670, 671] A, B, C, D, E & F Muhammad Sardar v. Senior Member (Estab.) Board of Revenue 1985 SCMR 1062; Azharul Haq v. Director of Food, Punjab 1991 SCMR 209; Muhammad Hussain v.
Collector, Central Excise and Land Customs, Rawalpindi 1989 PLC (C.S.) 175; Attaullah Shaikh v.
WAPDA 2001 SCMR 269; Ch. Muhammad Azhar's case PLJ 2003 SC 493 and Zaffar Ullah Khan v.
Secretary, Government of Punjab 2004 PLC (C.S.) 1438 ref. Abrar Bukhari for Appellant.
Ahmad Ali Pirzada, Addl. A.G. For Respondents. Manzoor Ahmed, Advocate as Amicus Curiae. Date of hearing: 10th December, 2004.
' WAHID BUX BROHI, J.---Appellant Qazi Abdul Shakoor has impugned the order dated 15-8-1983 passed by learned District and Sessions Judge, Dadu in capacity of 'authority' whereby the appellant was dismissed from service. The text of the order runs as under:- "Consequent upon conviction on 26-4-1983 for 9 months R.I. By the Summary Military Court No.20 Hyderabad, Mr. Abdul Shakoor S/o Abdul Rehman Kazi, Ex-Reader to the Court of Civil Judge and FCM Kotri is dismissed from service with effect from the aforesaid date of his conviction.
2. The background of the case, as reflected in the memo. Of appeal, is that the appellant was serving as Reader to Civil Judge, & FCM, Kotri. A civil suit bearing No.26 of 1979 (Zakaria v. Jhando and another) was filed in the said Court for declaration, injunction and cancellation of documents which was decreed in favour of the plaintiff. Some allegations were levelled against the appellant, but according to appellant, it was proved in the Ci-, 1 Court that the appellant was not involved in any misappropriation or fraud. Despite this a complaint was lodged before Military Court where without affording an opportunity of hearing to the appellant he was convicted and on the basis of such conviction by Military Court he was dismissed from service through the impugned order. The appellant filed a Constitution Petition in High Court (C.P. No.D-96 of 1992) challenging his conviction by the Military Court and by order dated 4-12-1997 passed by a Division Bench of High Court, (Circuit at Hyderabad) in C.Ps. Nos.D-49/87, 137/88, 142/88, 61/90, 96/92, 120/92 and 535/94 the petition of the appellant as also the other petitions were allowed in following terms:-- "16. As a result of the above discussion, we allow all these Constitutional petitions and hold that the proceedings before the Summary Military Courts were mala fide and without jurisdiction and, therefore, of no legal effect."
3. The appellant's departmental appeal failed, he has, therefore, approached this Tribunal with a prayer that since the very foundation of the order of dismissal ceased to exist the said order may be set aside.
4. We have heard Mr. Abrar Bukhari, learned counsel for appellant, Mr. Ahmed Pirzada, learned A.A.- G for respondents. On our request Mr. Manzoor Ali Khan Advocate also addressed the Court as amicus curiae. We have also perused the relevant material including the record of High Court dealing with the departmental appeals of the appellant.
5. On perusal of the record of High Court it transpires that the first departmental appeal of the appellant was dismissed on 29-9-1984 by the Hon'ble Chief Justice by passing the following order:- - "The appellant is present in person. I have heard him. He has been convicted by a Military Court on the charge of committing a forgery and cheating. In fact he has even served out his sentence.
' I cannot reinstate him and his appeal is dismissed.
' (Sd.) Chief Justice 29-9-1984."
6. Thereafter, when the appellant was acquitted by the Division Bench of High Court he again filed his representation/appeal which was decided by a learned Judge of High Court holding as under:- - "Heard Abdul Shakoor Soomro. His earlier appeal has already been dismissed by the Hon'ble Chief Justice on 29-9-1984., Such order is available on page No.9 of office file No.Admn/XXXIX-A-(D) of Administration Branch.
' In the present appeal the main contention of the appellant is that he has filed a Writ Petition No.98 of 1992 against the conviction/sentences awarded to him by the Summary Military Court in 1983.
The said petition was disposed of by order dated 4-12-1997. In para 15 of the said judgment, it is observed by the Court that in spite of repeated notice the documents and evidence were not placed before the Court on the basis of which the conviction/sentences were passed. The reading of the said judgment shows that the State failed to produce the material before the Court and therefore the petitions were allowed. The Hon'ble Chief Justice while dismissing the earlier appeal already considered the grounds raised by him in his favour and after considering the same his appeal was dismissed on 29-9-1984. I find no reason to allow this appeal. In the circumstances the same is dismissed.
(Sd.) Judge"
7. The position that is manifestly reflected from a joint reading of the above orders is that the consequential effect of acquittal of the appellant through the judgment of a Division Bench of High Court remains to be considered in the light of settled law as this point has not been thrashed in the aforesaid orders. Admittedly, the very foundation of the order of dismissal of the appellant that is to say his conviction by Military Court, has been declared by a Division Bench of High Court to be mala fide, without jurisdiction and of no legal effect. At a glance, an opinion can simply be formed that the superstructure should wholly collapse if the foundation ceases to exist or breaks down totally. Nevertheless, the legal position has been examined thoroughly and the relevant case-law has also been reviewed with a view to fostering justice.
8. It would be relevant, at the outset, to refer to the leading case on the point Muhammad Sardar v.
Senior Member (Estab.) Board of Revenue (1985 SCMR 1062). In the said case the civil servant/appellant, who was an Assistant in the office of Board of Revenue, Government of Punjab, was tried and convicted for an offence punishable under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act and was sentenced to imprisonment till arising of the Court and fine of Rs.3000 or in default to undergo further 6 months rigorous imprisonment. In view of aforesaid conviction, on disciplinary side Board of Revenue removed the appellant from service.
The appellant challenged his conviction and sentence in the High Court and succeeded in getting the same set aside. He was extended benefit of doubt and acquitted. His departmental appeal was dismissed as he was not acquitted honourably. The Service Tribunal took the view that the appellant had not been acquitted honourably and that he had a very bad service record and dismissed his appeal. The Hon'ble Supreme Court observed that the concept of Honourable acquittal was unjustificably imported by the Tribunal in determining the question of validity of the appellant's removal from service, and held that the very basis on which order of removal stood having disappeared and no other departmental disciplinary proceedings having been taken against the appellant, the order of removal had become ineffective.
9. Muhammad Sardar's case was followed in Azharul Haq v. Director of Food, Punjab (1991 SCMR 209) wherein a Senior Clerk was convicted and sentenced to undergo rigorous imprisonment for 6 months and fine of Rs.100 by Special Judge Anti Corruption, Lahore, but the conviction was set aside in appeal by the Lahore High Court giving him the benefit of doubt. The Hon'ble Supreme Court referring to its earlier decision in Muhammad Sardar's case (supra) held as under:- "9. The dismissal of the appellant was based on the conviction recorded against him. Since the conviction has been set aside, the order of dismissal cannot be maintained and has to be set aside. The appeal is accepted and the respondents are directed to reinstate the appellant in service with back-benefits with effect from 22-1-1980."
10. Muhammad Sardar's case was also followed in Muhammad Hussain v. Collector, Central Excise and Land Customs, Rawalpindi (1989 PLC (C.S.) 175) wherein the appellant, who was Inspector of Customs Department, was convicted by Summary Military Court and consequent upon his conviction he was dismissed from Government service. On his mercy appeal/petition, he was pardoned by Martial Law Administrator, Zone-A. It was further ordered that he may be reinstated in service. The Tribunal held that the grant of pardon was tantamount of Honourable acquittal. The Tribunal relied on Muhammad Sardar's case (1985 SCMR 1062) on the point that when sentence is set aside and the accused officer is acquitted, the very basis on which order of removal from service stood, would disappear and as a result of such conclusion the order of removal was actually set aside and reinstatement into service was directed. Consequently, the Service Tribunal ordered reinstatement of the appellant in the cited case.
11. On the point of Honourable acquittal the Hon'ble Supreme Court observed in clear terms in the case Attaullah Shaikh v. WAPDA (2001 SCMR 269) that all acquittals are honourable and there could he no acquittal, which could be termed as dishonourable.
12. In Ch. Muhammad Azhar's case (PLJ 2003 SC 493) the petitioner, who was Assistant Excise and Taxation Officer, Lahore was imposed major penalty of dismissal from service, while the co- accused were awarded other penalties, but the departmental appellate authority allowed his appeal and modified the penalty from dismissal to compulsory retirement. The aforesaid order was further modified by the Punjab Service Tribunal reducing the penalty of compulsory retirement to reduction in time scale by one stage treating the intervening period as extra ordinary leave of the kind due. This order was challenged in the Hon'ble Supreme Court, and the ground taken was that the petitioner was exonerated by the Inquiry Officer and was also acquitted of the criminal charge by the trial Court. The Hon'ble Supreme Court declined to grant leave against those orders.
13. In Zaffar Ullah Khan v. Secretary, Government of Punjab (2004 PLC (C.S.) 1438) the appellant was convicted by Summary Military Court along with others on certain charges of corruption which order was set aside by the High Court holding that the conviction by Summary Military Court was illegal being in violation of Pakistan Army Act. The said civil servant was not one of the petitioners in the writ petition yet the benefit of judgment was allowed to him by the Service Tribunal. No inquiry was held against the civil servant and thereby no evidence remained in the field as to the allegations/charges. Two other convicts had been reinstated and the same benefit was extended to the civil servant/appellant and order of his dismissal from service was set aside and since the appellant had already reached the age of the superannuation it was directed that the acceptance of the appeal would only render monitory benefit to the appellant.
14. The most significant aspect that needs to be determined in this case is the effect of acquittal of the appellant on the impugned order which is wholly based on the ground that the appellant was convicted in a criminal case by the Military Court. No doubt, at the relevant time the order passed by the learned District Judge was perfectly justified within the meaning of rule 8 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, but thereafter the factual position stood changed altogether. Perusal of the order passed by the Division Bench of High Court of Sindh reveals that the respondent therein that is to say the Government failed to produce any record of the trial whereby the appellant was convicted, so much so that even the allegation in the petition that provisions of Martial Law Order was and Regulations were flouted and the conviction/sentence was without jurisdiction was not denied. It goes without saying that absolutely no record was made available before the High Court to show, what were the charges and allegations, what was material and what was considered by the Summary Military Court? In consequence thereof the High Court held that the proceedings in the Summary Military Court were mala fide and without jurisdiction and of no legal effect. Essentially, the acquittal from such proceedings was an honourable acquittal, irrespective of the fact it was mentioned so in the order was not. Mr. Manzoor Ali Khan also holds the same view.
15. Nevertheless, on a discreet approach to the controversy herein it may be observed that it was even otherwise immaterial if the acquittal of appellant was honourable or not, for the dismissal from the service of the appellant was solely founded on the order of conviction which stood eliminated in consequence of the order passed by the Division Bench of High Court in the Constitution Petition No.D-96 of 1992 filed by the appellant. No inquiry was held against the appellant and as such there is no evidence in the field against him. Principle laid down by the Honourable Supreme Court in the precedents discussed above, when applied to this case, lead to a positive conclusion that the impugned order in consequence of acquittal of the appellant shall not hold the field and the order of dismissal, therefore, could not be sustained.
16. In result of the foregoing discussion the impugned order is set aside. The appellant, however, has already attained the age of superannuation, he would only be entitled to monetary benefits from the date of passing of the impugned order in accordance with law. The appeal is allowed in these terms.
Appeal, allowed.
2005 L C (C.S.) 671 [Lahore High Court] Before Syed Zahid Hussain, J MUHAMMAD ABBAS versus GOVERNMENT OF PUNJAB and others Writ Petition No. 12190 of 2004, decided on 11th March, 2005.
(a) Constitution of Pakistan (1973)--- ----Arts. 199, 189, 190 & 212---Constitutional petition---Civil Service---Services of 831 employees of different categories had been terminated on completion of projects---Termination orders of number of employees were set aside by the Service Tribunal---Such orders of the Tribunal were maintained by the Supreme Court---Provincial Government then proposed through a summary that all 831 employees of projects whose services were terminated earlier may be reinstated which was approved by the Provincial Chief Minister---List of such employees was prepared and appended who were ordered to be reinstated---Name of the petitioners figured in the said list immediately after the name of one I.A.
But in the final list, the name of petitioner and I.A. Were not included nor they were issued letters of reinstatement---Said I.A. Moved the High Court against non-inclusion of his name in the list of reinstated employees through Constitutional petition which was accepted with the direction to reinstate him as ordered by the Chief Minister of the Province---Supreme Court upheld the High Court judgment---Petitioner, in the present case, had made a similar grievance that he was discriminated in the matter and was entitled to similar treatment as others in particular the said LA.---Validity---Supreme Court in the case of I.A. Had not only declined to interfere with the judgment of High Court but had added that department could not "take a somersault to make invidious distinction to treat the employee in a discriminatory manner"---Judgment of High Court had .Merged into that of Supreme Court, to which sanctity as envisaged by Arts. 189 and 190 of the Constitution was attached and department was bound by the same, and obliged to faithfully act accordingly---Effect of the judgment of Supreme Court could not be eroded or nullified through any executive or administrative instrumentality---Amendment made in the earlier order of the Chief Minister/Government through a later summary could not stand on a higher padestal than a duly issued notification which was subject matter of adjudication by Supreme Court---Order of the Chief Minister whereby 831 employees were to be reinstated inclusive of the petitioner, having been approved and upheld by the Supreme Court, he, could not be denied the right to be reinstated which had accrued to him like others---If the Supreme Court had decided a point of law relating to the terms of service of a civil servant which covered not only the case of the civil servant who litigated, but also of other civil servants, who may not have taken legal proceedings; in such a case, the dictates of justice and rule of good governance demanded that the benefit of the judgment be extended to other civil servants also who may not be parties to the litigation instead of compelling them to approach any legal forum---High Court directed that the petitioner be reinstated into service accordingly. [pp. 674, 676, 677, 678] A, B, C, D, E, F, H & J Works Co-operative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430; Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180; Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 and Hameed Akhtar Niazi v.
The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref. . (b) Constitution of Pakistan (1973)--- ----Art. 189 & 190---Supreme Court judgment---Effect of the Supreme Court judgment cannot be eroded or nullified through any executive or administrative instrumentality. [pp. 676, 677] C & D Works Co-operative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430; Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd PLD 1974 SC 180; Capt.
(Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.
(c) Constitution of Pakistan (1973)--- ----Arts. 2A, 4, 25, 26, 27, 37 & 199---Constitutional petition---Allegation of discrimination by the petitioner---Court to look into the implications thereof---Principles.
While dealing with the case of the type where the petitioner alleges discrimination, the Court cannot overlook the implications thereof. Equal treatment of all similarly situated is the basic principle on which justice rests under the law. If evenhanded justice is not administered it can have many adverse and negative effects on the society. It can cause discontentment and frustration in the social setup. There can be no denial that social justice is an objective, embodied and enshrined in our Constitution. The preamble and Article 2-A i.e. The Objectives Resolution, ordain that principles of equality and social justice as enunciated by Islam shall be fully observed. Article 4 (to be dealt with in accordance with law), Article 25 (Equality before law and equal protection of law), Article 26 (No discrimination in respect of access of to public places), Article 27 (Safeguards against discrimination in services) read with Principles of policy i.e. Article 37 (Principle of social justice and eradication of social evils) all go to show, the great stress laid and envisaged by the Constitution makers. Non-observance of such provisions and principles may amount to negation of Constitutional mandates, dictates of justice and rule of good governance, which should be avoided as far as possible. [p. 677] G
(d) Constitution of Pakistan (1973)--- ----Arts. 199 & 212---Civil service---Constitutional petition under Art. 199 of the Constitution--- Maintainability---Where the matter pertained to mere implementation of an order of the Government having been merged into judicial determination and pronouncement, objection as to the jurisdiction of High Court due to the implications of Art. 212 of the Constitution could not be upheld or sustained. [p. 678] I PLC (Service)
Rai Muhammad Tufail Khan for Petitioner.
Ch. Aamir-ur-Rehman Addl. A.G. With Ghulam Sarwar S.O. And Mushstaq Ahmed Asstt. For Respondents.
Date of hearing: 11th March, 2005.
' The petitioner who was employed as Supervisor in BS-11 on ad-hoc basis in the Directorate of Water Management Agriculture Department Government of Punjab was relieved from duties being surplus like many others in the same Department. Due to agitation, unrest and hue and cry of such large number of employees, the matter received attention of the Chief Minister of the Punjab who approved reinstatement of 831 employees including the petitioner. It was a general order passed on a summary initiated by the Department, which was sanctioned by the Chief Minister of the Province on 5-5-2003. Though the order of the Chief Minister was implemented qua others, yet the petitioner despite his representation was not reinstated. He has thus approached this Court through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for a direction to that effect and to be reinstated.
2. The learned counsel contends that the petitioner was similarly situated like others in particular Ijaz Ahmed who succeeded in his petition before this Court and has been reinstated by the Department. It is contended that the petitioner is being treated differently without any justification, in derogation of provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
3. In the comments filed by the Government of Punjab, Secretary Agriculture Department (respondent No.1), the position taken is that "the name of the petitioner was erroneously included in the list of regular employees to be reinstated but his name was later on deleted from the said list by the permission of the competent authority being an ad-hoc employee'. In view of such position of the Department, the learned Additional Advocate General Punjab contends that the initial order passed by the Chief Minister of Province having been reviewed later on 28-6-2004, the petitioner is not entitled to get benefit of earlier order which cannot be implemented and that the petition is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
4. The undisputed position is that services of 831 employees of different categories had been terminated on completion of projects. On agitations of the matter, the termination orders of number of employees were set aside by the Punjab Service Tribunal which orders of the Tribunal "
2re maintained by the Hon'ble Supreme Court of Pakistan. It was then proposed through a summary that all the 831 employees of projects whose services were terminated earlier may be reinstated. Such proposal was contained in paragraphs 6,7 and 14 of the Summary, which was approved by the Chief Minister Punjab on 5-5-2003. A list of such employees was prepared and appended who were ordered to be reinstated. In that list the name of the petitioner figured at serial No.265 immediately after the name of Ijaz Ahmad. In the final list, however, the name of the petitioner and Ijaz Ahmad were not included nor they were issued letters of re-instatement. It is thus that the said Ijaz Ahmad filed petition before this Court (W.P. No.14929 of 2003) which was accepted on 12-11-2003 with the direction to reinstate him as ordered by the Chief Minister of the Province. The said judgment was assailed by the Department before the Supreme Court of Pakistan but the petition C.P. No.43-L of 2004 was dismissed by their Lordships on 23-6-2004. Now the petitioner makes a similar grievance that he is being discriminated in the matter who is entitled to similar treatment as others in particular like Ijaz Ahmad. It is to be seen in this context whether the Department can bank upon the later proposal approved by the Chief Minister on 28-6-2004; and to what extent the petitioner is justified in making a grievance of discriminatory treatment to him. It may be mentioned here that while deciding case of Ejaz Ahmed (W.P. No. 14929 of 2003), it was observed by this Court in paragraph-3 thereof as under:-- "3. The initiation of summary for reinstatement of 831 employees of the Department at the initiative of the Chief Executive of the Province is not disputed. In the said list the -name of the petitioner appears at serial No.264. The consequential order however issued on 24-5-2003 though relate to 831 employees yet his name was excluded therefrom. No plausible and convincing explanation has been brought forth as to how his name was dropped and the name of someone else was included.
Needless to emphasis that what had been approved and ordered by the Chief Minister of the Province, could not be nullified or altered by the Department. A strange explanation is being advanced that the name of the petitioner was mentioned in the list which was approved by the competent authority or the Chief Minister "erroneously" due to "clerical mistake". It may be mentioned that no such change was ordered by the Chief Minister. The Department could not of its own act to the prejudice of the petitioners and delete his name from the list of reinstated employees. Reference in this context may be made to Raja Muhammad Nawaz v. Government of the Punjab (1981 SCMR 523). The petitioner was thus entitled to seek implementation of his reinstatement ordered by the Chief Minister of the Province and the respondent/department had no lawful authority to deprive the petitioner therefrom on such a flimsy ground and hollow ruse."
Ijaz Ahmad Chaudhry v. Secretary Agriculture Government of the Punjab, Agriculture Department, Civil Secretariat, Lahore and 3 others (2004 PLC (C.S.) 317).
' The judgment as mentioned above, was upheld by the Hon'ble Supreme Court of Pakistan on 23- 6-2004. In paragraph-3 of the said judgment the case pleaded on behalf of the Department was noted by their Lordships and was dealt with in paragraph-4.
4. We have heard the learned counsel for the petitioners at length. We find that the name of the respondent was included in the list of employees who had been directed by the Chief Minister, Punjab to be reinstated in service. Thereafter, it was not open to the petitioners to take a somersault to make invidious distinction and to treat the respondent in a discriminatory manner in the presence of the order of the Chief Minister, Punjab."
' It is thus evident that not only interference with the judgment of this Court was declined, it was added also that the Department could not "take a somersault to make invidious distinction to treat the respondent (therein) in a discriminatory manner." The judgment of this Court indeed merged into that of the Hon'ble Supreme Court, to which sanctity as envisaged by Article 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 is attached. The Department is bound by the same, and obliged to faithfully act accordingly. It cannot deviate therefore nor demean the same.
5. It needs nor reiteration, as the legal position is free of any obscurity, that effect of the judgment of Supreme Court cannot be eroded or nullified through any executive or administrative instrumentality. In Works Co-operative Housing Society and another v. The Karachi Development Authority (PLD 1969 SC 430), after the judgment of the Supreme Court of Pakistan, the notification subject-matter of controversy was amended by the Government which had the effect of bypassing and impairing the legal efficacy of the judgment. It was held that "it is now well-settled that a Notification cannot be made to operate retrospectively and I think that there can be no manner of doubt that a judgment of a Court declaring a right cannot be nullified by executive action." In that case in the earlier judgment there was an observation about notification dated 9th of June 1964 that the Karachi Development Authority could not depart from the commitment contained in the notification" so long as it stands intact". Notwithstanding the said observation it was held that "In my view the words "so long as it stands" occurring in the last paragraph of the judgment in the appeal mean no more than this that since relevant provisions of the notification dated 9-6-1964 had not been altered till then the commitment subsisted and the appellant- Society was entitled to the allotment. It could. Never have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify its own judgment." Similar was the view taken in Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180) that "a notification by the Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed." The same principle was reiterated in Capt.
(Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others (PLD 1992 SC 184) observing that "a judgment of the Supreme Court, a right .Declared thereunder, cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will.". It may be observed that in the present case the amendment made in the earlier order of the Chief Minister/Government through a later summary cannot stand on a higher pedestal than a duly issued notification which was subject-matter of adjudication in Works Cooperative Housing Society and another v. The Karachi Development Authority (PLD 1969 SC 430).
6. Another aspect that has engaged my attention and needs to be kept in view is that the petitioner has alleged discriminatory treatment in the matter of implementation of the original order of the Government declining his reinstatement. The order of Chief Minister dated 5-5-2003 E whereby 831 employees were to be reinstated inclusive of the present petitioner, was approved and upheld by the Hon'ble Supreme Court, he cannot be denied the right to be reinstated which had accrued to him like others. Though he was not party with Ejaz Ahmed, yet he was entitled to be treated alike in view of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) wherein it was observed that "We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; in such a case, the dictates of justice and rule of good F governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum." The petitioner was entitled to be extended the benefit of judgment in the case of Ejaz Ahmed.
7. While dealing with the case of this type where the petitioner alleges discrimination, the Court cannot overlook the implications thereof. Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If evenhanded justice is not administered it can have many adverse and negative effect on the society. It can cause discontentment and frustration in the social setup. There can be no denial that social justice in an objective, embodied and enshrined in our Constitution. The preamble and Article 2-A i.e. The Objectives Resolution, ordain that principles of equality and social justice as enunciated by. Islam shall be fully observed. Article 4 (to be dealt with the accordance with law), Article 25 (Equality before law and equal protection of law), Article 26 (No discrimination in respect of access of to public places), Article 27 (Safeguards against discrimination in service) read with Principles of policy i.e. Article 37 (Principle of social justice and eradication of social evils) all go to show, the great stress laid and envisaged by the Constitution makers. Non-observance of such provisions and principles may amount to negation of constitutional mandates, dictates of justice and rule of good governance, which should be avoided as far as possible.
8. The petitioner thus is justified to ask for similar treatment of Ijaz Ahmad. His case cannot be dealt with differently inasmuch as in the list of 831 employees, which was approved by the Chief Minister of the Province, the name of Ijaz Ahmad figured at serial No.264, whereas that of the petitioner was at serial No.265. No real and material distinction can, therefore, be made in the case of the petitioner who is identically placed. The plea of the respondents that the name of the petitioner and Ijaz Ahmad was mentioned in the list of 831 employees "erroneously" has already been repelled while deciding case of Ijaz Ahmad. Since Ijaz Ahmad has been reinstated into service, no justifiable basis can be made to deny the petitioner a similar treatment. The reliance of the respondents upon the revised order of the Chief Minister dated 28-6-2004 is also inapt, being nugatory to the judgment of this Court and of Hon'ble Supreme Court. Such a plea, therefore, cannot be countenanced.
9. In so far as the objection as to the jurisdiction of this Court due to the implications of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, since the matter pertain to merely the implementation of an order of the Government having been merged into judicial determination and pronouncement, the objection cannot be upheld or sustained.
' In view of the above, accepting the petition, it is directed that the petitioner will be reinstated into service. The petition is accepted accordingly with no orders as to costs.