C. M. No. 3/C-2004
CH. IJAZ AHMAD, J.- This is an. Application with the prayer that respondent No. 1 be restrained only from proceeding with cases of promotion of Instructors/Lecturers/Senior Instructors B.P.S.17 to the post of Senior Instructors B.P.S. 18 in GCTIS (Item No. 2) of agenda and only proceed with other issues or final notification of promotion not be made, It is further prayed that vacancies be kept available till the time the seniority is determined.
2. The learned counsel of the applicant submits that action of the respondents is in derogation with order of Service Tribunal and this Court.
3. The learned Law Officer submits that the application is not maintainable, as the applicant wants total relief in the garb of interim relief through this application.
4. In such situation, the learned counsel of the parties are directed to argue the main petition. With the concurrence of learned counsel of the parties, main writ petition as well as this C.M. Has been decided today by a separate order.
Writ Petition No. 19099/2004
CH. IJAZ AHMAD, J.- The sole grievance of the petitioner is that the petitioner has filed representations before respondent No. 1; which are attached with the Constitutional petition at pages Nos. 68 and 69 through proper channel, which have not been decided by respondent No. 1 till date. He further submits that the petitioner has filed the aforesaid representations in terms of order passed by the various Courts, but the respondents failed to decide the matter of seniority between the parties, therefore, action of the respondents is the result of mala fide and is not in consonance with rules and regulations of the respondents. He further submits that directions of this Court as well as Apex Court are binding on each and every organ of the State by virtue of Article 201 and Articles 189 and 190 of the Constitution. He further submits that the petitioner is being penalized by in action of the respondents.
2. The learned Law Officer submits that the matter pertains to the terms and conditions of service of the petitioner and that admittedly, the petitioner is a civil servant, therefore, the writ petition is not maintainable in view of bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act. He further submits that this Court has no jurisdiction to suspend the meeting of the concerned committee, therefore, this Constitutional petition is not maintainable.
3. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.
4. It is admitted fact that the petitioner has challenged the matter before this Court as well as Apex Court, It is also admitted fact that the petitioner has filed representations before respondent No. 1, who did not decide the same till date, In spite of the bar contained in Article 212 read with Section 4 of the Service Tribunal Act, this Court has ample jurisdiction to give direction to the public functionaries to act strictly- in accordance with law in view of Article 4 of the Constitution, while exercising power under Article 199 of the Constitution, as per principle laid down by the Honourable Supreme Court in "H.M. Rizvi and 5 others Vs. Maqsood Ahmad and 6 others" (PLD 1981 S.C. 612) and "Province of Sind through Chief Secretary, Sind, Karachi and 4 others Vs. Gul Muhammad Hajano"
(2003 SCMR 325). It is settled principle of law that nobody should be penalized by inaction of the public functionaries, as per principle laid down by this Court in "Ahmad Latif Qureshi Vs. Controller of Examination, Board of Intermediate, Lahore" (PLD 1994 Lah. 3). It is also settled principle of law that it is the duty and obligation of the public functionaries to decide the representations of their subordinates without fear, favour, nepotism, with reasons and within reasonable time as is envisaged by Article 4 of the Constitution read with Section 24-A of the General Clauses Act, as per principle" laid down by the Honourable Supreme Court in "M/s. Airport Support Service Vs. The Airport Manager, Karachi Airport" (1998 SCMR 2268) and "Zainyar Khan Vs. Chief Engineer, C.R.B.C."
(1998 SCMR 2419). It is also settled principle of law that direction of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution, but the respondents failed to decide the representations of the petitioner and others in a long standing dispute between the parties till date, therefore, action of respondents is in derogation of law and dictum laid down by this Court as well as Apex Court and Service Tribunal.
5. In this view of the matter, the petitioner is directed to appear before respondent No. 1, in his office at 11.00 a.m. On 20.12.2004, who is directed to decide the representation of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and any other person, who would be aggrieved by his order preferably within one month after receiving the order of this Court, either himself or send the same to competent authority for its decision, who is also directed to decide the same in terms of aforesaid direction of this Court, In the meanwhile, Item No. 2 in the agenda of the departmental promotion committee held on 13.12.2004, be held in abeyance till the decision on the representation of the petitioner. He is also directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.
6. It is pertinent to mention here that notices were issued to the respondents by this Court vide order dated 26.11.2004 for filing of report and para wise comments, but the respondents failed to file the same. This fact brings the case of the petitioner in the area' that the respondents are not exercising their powers in good faith, In such type cases, the Honourable Supreme Court has settled the dispute in "Government of West Pakistan Vs. Begum Agha Abdul Karim Shorish Kashmiri"
(PLD 1969 S.C. 14), wherein it is held that manner of exercising of power is also termed as mala fide.
7. The learned counsel of the petitioner is directed to hand over copy of this writ petition including C.M. No. 3-C/2004 along with all the annexures to Mr. Muhammad Hanif Khatana, Acting Advocate General, Punjab, who is directed to send the same to respondents and also to competent authority for necessary action and compliance. He is further directed to notify the order of this Court to the respondents on telephone. Office is also directed to provide one copy of this order to the aforesaid learned Law Officer for onward transmission to the respondents for necessary action and compliance. The Deputy Registrar (J) of this Court is also directed to notify the order of this Court to the respondents on telephone for necessary action and compliance.
With these observations, this writ petition is disposed of. Copy Dasti on payment of usual charges.