1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---After hearing learned Advocates for the parties, in the morning, the petition was allowed by a short order in the following terms:-- "For the detailed reasons to be recorded later on, the petition is allowed and the Notification bearing No, HD (PRS-I) (11-36/96, dated 18th January, 2005 is hereby struck down as illegal, without jurisdiction, unlawful and of no legal consequence. The respondents are directed to act upon the Notification, dated 17-1-2005, which stands revived and reinstate the petitioner in accordance with notification dated 17-1-2005.
2. ' However, this will not prevent the respondents from passing any other order in accordance with law.
3. ' These are the detailed reasons in support of the above short order.
4. ' The relevant facts as contained in the petition are that the petitioner was working as Superintendent Central Prison Karachi, in B-18. Vide order, dated 19-11-1996 in C.P. No, D-866/1996 Mst. Aasia v. Government of Pakistan, the petitioner was found guilty of the Contempt of Court and was convicted. He was sentenced to suffer simple imprisonment for 15 days and to pay fine of Rs,5000. In default of the payment of fine he had to suffer further simple imprisonment for three days.
5. ' The petitioner being aggrieved with the above order preferred appeal before the Hon'ble Supreme Court and submitted an application for the suspension of sentence. The appeal was entertained by Hon'ble Single Judge of the Supreme Court, in Chamber on 24-11-1996 and the sentence was suspended.
6. ' On 19-11-1996, the date on which the petitioner was convicted for Contempt of Court, he was placed under suspension. Subsequently a show-cause notice was given to the petitioner under section 24 of the Sindh Civil Servants Act, 1973 and after affording personal hearing, in which it was found that the explanation was not satisfactory, the petitioner was reverted from B-18 to B-17, vide order, dated 23-1-1997. Yet another order was passed on 23-2-1998 whereby the petitioner was removed from service in pursuance of Rule 8(a) of Sindh Civil Servants (E&D) Rules, 1973. The petitioner preferred an appeal under the Sindh Civil Servants (Appeals) Rules, 1980 which was addressed to the Respondent No,2, Secretary Government of Sindh, Home Department. Comments were sought which were furnished by the Inspector-General of Prison, Karachi. It was stated that Advocate-General Sindh, has tendered advice to consider the request of petitioner for reinstatement for the reason that the appeal was pending before the Hon'ble Supreme Court and the operation of sentence was suspended. It was further stated that no moral turpitude was involved therefore, the petitioner may be reinstated in his original rank of B-18. The Respondent No,2, thereafter floated a summary for the Chief Minister Sindh on the subject of reinstatement of the petitioner. It is further averred that the Senior Minister Sindh expressed his opinion that," simple imprisonment for 15 days in a Contempt of Court matter does not deprive anyone of rank, emoluments, because it is only a lesson taught to respect Courts." It is alleged that finally Chief Minister approved summary and directed for reinstatement of the petitioner. Vide notification, dated 17-1-2005 the petitioner was reinstated. The notification reads as follows:-- "Notification No, HD (PRS-I) 11-36/96; with the approval of the competent authority i,e, Chief Minister Sindh, Pir Shabbir Ahmed Jan Sarhandi, an officer of Prisons Department (BPS 18) removed from service is hereby reinstated in government service with immediate effect.
7. (Sd.) Brigadier (R.)
8. Ghulam Muhammad Mohataram Secretary Home."
9. ' However, the above notification was withdrawn by the Respondent No,2, Home Secretary, vide notification, dated 18-1-2005 which reads as follows:-- "Notification ' No: HD (PRS-I)/11-36/96. The Notification of even number, dated 17-1-2005 issued by this department regarding reinstatement of Pir Shabbir Ahmed Jan Sarhandi, an officer of Prisons Department (BPS-18) is hereby cancelled and withdrawn with immediate effect. Brig. (R.)
10. Ghulam Muhammad Mohataram Secretary Home"
11. ' The petitioner has assailed the notification, dated 18-1-2005 on the grounds that once the petitioner was reinstated vide notification, dated 17-1-2005, it could not be cancelled unilaterally. It is further contended that the notification, dated 17-1-2005 shows that it was issued with the approval of competent authority i,e, Chief Minister Sindh, while the notification, dated 18-1-2005 does not show that it was issued with the approval of competent authority. According to petitioner he has been condemned unheard and therefore, the impugned notification is violative of the principles of justice as well.
12. ' The petitioner sought declaration that the notification, dated 18-1-2005 is illegal, unlawful and of no legal consequence.
13. ' In the parawise comments filed on behalf of respondent No,2, the facts are generally not denied. It is however stated that the sentence was suspended by an Hon'ble Single Judge of the Supreme Court but subsequently the appeal was dismissed and the conviction was upheld. It is alleged that the summary submitted to the Chief Minister has not been returned with his orders in writing.
14. However, Minister for Home had put his signature on the office copy of summary which was construed as an approval. It is pleaded that the order of reinstatement was issued due to misrepresentation. It is also alleged that the order of reinstatement was issued on erroneous interpretation of signature by the Minister who had not passed any specific order. On realization of the mistake and being informed of the earlier opinion and misrepresentation in the summary floated, the order of reinstatement was immediately withdrawn. It is submitted that the competent authority for reinstatement of a dismissed officer is the Chief Minister who had not approved the summary for reinstatement. It was bona fide mistake wherein signature of Home Minister was construed to be a signature of approval. Having realized the mistake, the notification was withdrawn by the Home Department within 24 hours.
15. ' Heard learned Advocates for the parties, Mr. Islam Hussain, learned counsel for the petitioner reiterated the contention raised in the Memo of Petition. He has argued that the impugned notification, dated 18-1-2005, cancelling and withdrawing the notification, dated 17-1-2005 is not sustainable in law as it is without jurisdiction. Admittedly the competent authority is the Chief Minister of Sindh and the notification, dated 17-1-2005 contains that it was issued with the approval of the Chief Minister, while the impugned notification has been issued without approval of the competent authority. The Home Secretary is not appointing authority and he could not reinstate, the petitioner, therefore, the petitioner was reinstated with the approval of competent authority i,e, Chief Minister Sindh and if the notification was to be withdrawn it could be done with the approval of Chief Minister and not by the Home Secretary who was not competent in law in this behalf. He has further submitted that the petitioner had been condemned unheard and no reason has been assigned in the notification, dated 18-1-2005 for cancelling and withdrawing the notification, dated 17-1-2005 which contains that it was issued with the approval of Chief Minister Sindh. He has submitted that the impugned notification being without jurisdiction is viod ab initio, and is liable to be struck down, thereby, reviving the notification, dated 17-1-2005. He has further submitted that the respondents Nos. 2 and 3 be directed to act upon the notification, dated 17-1-2005 issued with the approval of competent authority.
16. ' Mr. Abbas Ali, learned Additional A.G., has reiterated the contentions raised in the comments. He has submitted that the earlier notification was issued by mistake and, therefore, it was cancelled and withdrawn vide notification, dated 18-1-2005. He has however, conceded that the notification, dated 18-1-2005 has been issued without being given any opportunity of being heard to the petitioner, without assigning any reason and without seeking approval of the Chief Minister. He has however, submitted that since the notification, dated 17-1-2005 was issued by mistake therefore, no approval of Chief Minister was required and the petitioner was not entitled to any right of hearing.
17. ' Mr. Manzoor Ali Khan, learned counsel for the respondent, who was joined on his own application, on the plea, that he was promoted to the post of Superintendent Jail after removal of petitioner from service, has supported the impugned notification, dated 18-1-2005. A perusal of the affidavit sworn by Respondent No,4, in support of his application under Order 1 Rule, 10, C.P.C., shows that according to him a misconceived and mistaken summary, dated 12-5-2003 was moved by the then Home Secretary, Government of Sindh Karachi, to the Chief Minister Sindh, who having been misguided, particularly under impression that the matter before the Hon'ble Supreme Court was pending, ordered reinstatement of petitioner as Superintendent Central orison, by notification, dated 17-1-2005. He alleged that the Supreme Court had already announced the judgment on 6-11- 2002 whereby the petitioner's appeal was dismissed and the sentence of imprisonment was reduced to already undergone. It is further alleged by him that on coming to know about the aforementioned facts the Government of Sindh by its order, dated 18-1-2005 cancelled the notification, dated 17-1-2005.
18. ' Mr. Manzoor Ali Khan, has raised objection to the jurisdiction of this Court and to the maintainability of the petition on the ground that the matter pertains to the terms and conditions of service of the petitioner and therefore, it is exclusively within the jurisdiction of Service Tribunal.
19. He has submitted that whenever point of jurisdiction is raised before any Court, it is required to decide the question of jurisdiction first, and then to examine the merits of the case if it is found that the Court has jurisdiction.
20. ' He next placed reliance on the provisions contained in section 21 of the General Clauses Act, 1897, in support of his contention that where power to issue notifications, orders etc. Are conferred then that power includes a power exercisable in the like manner and subject to like sanction and condition (if any) to add, amend, vary or rescind any notification, orders etc. He has submitted that although in the impugned notification, dated 18-1-2005 no reason has been assigned for cancelling and withdrawing the notification, dated 17-1-2005, but it is of no consequence, because the Respondent No,2 was not required to assign any reason.
21. ' We have carefully considered the contentions raised by the learned Advocates for the parties. At the very outset we would like to observe that we agree with all the propositions of law canvassed by Mr. Manzoor Ali Khan, that, first, whenever any objection to the jurisdiction of the Court is raised, it is the duty of the Court, first to decide, the B question pertaining to its own jurisdiction and thereafter consider the merits of the case, and secondly, the matters pertaining to the terms and conditions of service are exclusively within the jurisdiction of Service C Tribunal and the jurisdiction of the High Court is barred and thirdly, an authority competent to issue an order/notification is in the like manner D competent to amend, modify, cancel, withdraw or rescind such executive order subject to like sanction and conditions.
22. ' Now we proceed to examine whether the above propositions of law are attracted to the facts of present case. We have clearly expressed during the course of hearing arguments of the learned Advocates for the parties, that we will not consider any question pertaining to terms and conditions of service of the petitioner. We propose to consider a short point only, to wit, whether impugned notification, dated 18-1-2005 has been issued competently and with jurisdiction or not. Thus, in view of the fact that we do not propose to examine any issue pertaining to the terms and conditions of service of the petitioneWe would like to observe that by now, it stands settled that, in exercise of powers of judicial review of administrative action this Court has always the jurisdiction to examine whether any order passed by any executive or administrative authority is with jurisdiction or without jurisdiction. Since every order passed without jurisdiction is always void ab initio and nullity in law, therefore, this Court shall always have jurisdiction to consider such point.
23. ' Coming to the competence of respondent No,2, the Home Secretary Government of Sindh, in cancelling and withdrawing the notification, dated 17-1-2005, we find that, admittedly the Appointing Authority in respect of a civil servant in B-17 and B-18 is the Chief Minister and consequently, he is competent in law to remove any such civil servant from service. It is also evident from the notification, dated 23-2-1998, which contains that the competent authority has decided to remove Pir Shabbir Sarhandi from service and therefore, Pir Shabbir Sarhandi, is accordingly removed from service. This notification was issued by the Home Secretary but in pursuance of the decision taken by the competent authority. Again, the petitioner was reinstated vide notification, dated 17-1-2005, with the approval of competent authority i,e, Chief Minister Sindh.
24. In the comments filed by the Respondent No,2, in reply to Para-11 of the petition it is stated that the Authority approved the proposal of removal from service. In the affidavit sworn by Respondent No,4, in support of his application under Order 1, Rule 10, C.P.C., it is stated in para-4 that, "on misconceived and mistaken summary, dated 12-5-2003 moved by the then Secretary Home, Government of Sindh Karachi, to the Chief Minister Sindh, which having been misguided, particularly under impression that matter before the Hon'ble Supreme Court was pending then, ordered reinstatement of the petitioner as Superintendent Jail by notification, dated 17-1-2005."
25. ' Thus, the petitioner was removed from service in the year, 1998 in pursuance of decision of the competent authority and he was reinstated vide notification, dated 17-1-2005 with the statement that, with the approval of competent authority i,e, Chief Minister of Sindh, Pir Shabbir Sarhandi was reinstated in government service with immediate effect. If this notification was to be rescinded it could be done again with the approval of the competent authority i,e, the Chief Minister and not by the Home Secretary who is not the competent authority, as with the result of the cancellation of the notification, dated 17-1-2005, is, removal of petitioner from service. If the notification, dated 17-1- 2005 was issued by mistake, misinterpretation or misrepresentation as alleged by the Respondent No,2, it could be rescinded and corrected with the approval of competent authority i,e, Chief Minister Sindh and not by Home Secretary who is not the competent authority.
26. ' We are fortified in our views by a Single Bench judgment of Peshawar High Court in the case of Shah Nawaz v. Umar Daraz, 1999 CLC 1883. The learned Single Judge of the Peshawar High Court has held as follows:-- "if, however, due to any fallacy of facts, misrepresentation or misreading of any document or due to any other vitiating factor, a wrong or unwarranted order was passed, the same could be corrected by the same authority which passed the previous order, or by upper hierarchy under the same law in view of section 21 of the General Clauses Act, 1897 (Act No, X of 1897), which reads as under:-- "Power to make, to include power to add to amend, vary or rescind orders, Rules or bye-laws.--- Whereby any Central Act, or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add, to amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
27. ' We entirely agree with the view held by the learned Single Judge of the Peshawar High Court and hold that if there was any mistake in issuance of notification, dated 17-1-2005 or it was result of any misrepresentation or misguidance, the wrong could be corrected with the approval of the competent authority i,e, the Chief Minister of Sindh, and not by the Home Secretary, who is not the authority competent in law to remove the petitioner from service without prior approval of the competent authority i,e, Chief Minister.
28. ' Secondly, we are of the opinion that-,sction 21 of the General Clauses Act is not to be read in isolation but has to be read with I section 24A of the General Clauses Act, which reads as follows:-- "24A. Exercise of Power under enactments.---(1) Where, by as under any enactment, a power to make any order or give any direction is conferred on any authority, office as person such power shall be exercised reasonably, fairly, justify and for the advancement of the purposes of the enactment.
(2) The Authority, officer or person making any order on issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate give reason for making the order on, as the case may be, for issuing the direction and shall provide a copy of the Order and, as the case may be the observation to the person affected prejudicially."
29. ' Admittedly the impugned notification, dated 18-1-2005 is without any reason and consequently it is bad on this account as well.
30. ' As already observed we do not propose to consider the questions pertaining to the terms and conditions of the service and consequently we will not make any observation on the points whether the petitioner could be removed from service or not, and whether he was rightly reinstated or not.
31. These points are to be considered by the Authorities competent in law to determine the questions.
32. ' For the foregoing reasons, petition was allowed in the morning by short order, which has been reproduced, in the opening part of this judgment. The petition is allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.