' SYED TAHIR ALI SHAH, J.--- Through this petition the orders passed by the Chief Court in Writ Petition No,79 of 2004, decided on 5-8-2005 has been called into question.
2. Dr. Shahabuddin, a Medical Officer of the Northern Areas Health Department filed a writ petition in the Chief Court against Deputy Accountant General, Pakistan Revenue, Gilgit (hereinafter called the department) challenging the action for non-inclusion of four increments in his pay slip by the department, which according to the petitioner was sanctioned in his favour by the competent authority vide his two different letters No,Sec.-H-5(83)/2000, dated 11 September, 2000 and Sec-H- 5(83)/2000 dated 1 June, 2004, respectively, on the strength of O.M. No,1/7/IMP.11/1987 and O.M. No,F- 1(12)IMP.11/91. The petitioner has further complained that instead the inclusion of four increments in his pay slip the department made certain recoveries from his pay. As relief, he prayed to issue direction to department to include four advance increments in his pay slip.
3. Controverting the pleas taken the department contended that department is obliged to honour and act as per directives/O.Ms. Issued by the superior department's i,e, the Finance Division and the Accountant-General Pakistan Revenue Islamabad. The petitioner further contended that O.M.
Issued by the Finance Division referred above for sanction to advance increments has been discontinued vide letter No,1/54/IMP/95, dated 27-7-2002, hence the department is bound to give due respect to the order/O.Ms.
4. The learned Chief Court after hearing the parties as before it, granted the writ petition and directed the department to honour the sanction of competent authority (Chief Secretary Northern Areas).
5. Aggrieved with the findings so returned the department filed a review petition, which as per record met the fate of dismissal hence this petition.
6. We have exhaustively heard the learned counsel for the parties on 5-7-2006, 16-8-2006 and 5- 9-2006. Learned counsel appearing for the department, at the very outset agitated the point that the department being an subordinate Government Department under the direct control of Federal Government cannot be sued in an official capacity without impleading the Government as party to the writ petition. He further contended that the learned Chief Court did not attend to these points and granted the writ petition in the present form which is unwarranted and against all the norms of justice and law. According to him the writ petition was granted without hearing the necessary party.
7. On the other hand controverting the points raised by the learned counsel for the department counsel for petitioner contends that in the matter in hand the Government is neither a necessary nor a proper party. According to him the parties before the Court meet the procedure to grant the relief sought. He supports the findings returned by the Chief Court.
8. Since a vital point, going into the root of the case has been agitated we, without touching the merit of the case deem it proper to resolve the same. It is not and should not be a dispute that the department is a functionary to the Federal Government and the refusal on the part of department to include four advance increments in the pay slip of the respondent is not an independent act of the department. Whatever he did, is on the basis of the instructions/Directives of the Finances Division or the Accountant-General Pakistan Revenue, Islamabad. The act of department whether is legal or otherwise will be determined later on. It being settled that action taken by the department was in its official capacity the question then arises whether the department can be prosecuted for an act done in his official capacity without impleading the Government as a party?
We shall try to find the answer of the question in the framework of law and procedure related thereby. The reproduction of the following provision of C.P.C. Will be helpful to understand the point:-- "section 79. Of C.P.C. Suits by or against the Government.--- In a suit by or against the [Government] the authority to be named as plaintiff or defendant, as the case may be, shall be-
(a) in the case of a suit by or against the Central Government, Pakistan;
(b) in the case of a suit by or against a Provincial Government, the Province; and Order I, Rule, 3, C.P.C. "Who may be joined as defendants.--- All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise."
Order XXVII, Rule 8, C.P.C. Procedure in suits against Public Officer.--- When the Government undertakes the defence of a suit against a Public Officer the Government pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.
(2) When no application under sub-rule (1) is made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties.
9. It is evident from the title of the writ petition that the same was filed against the Deputy Accountant-General Pakistan Revenue, Gilgit. It will further be seen that no application is made by the Government pleader vide sub-rule (2) of Order XXVII, rule 8, C.P.C. It is, therefore, seemingly clear that the writ petition proceeds as if it was a petition between private parties. In the circumstances of the case it cannot be denied that the Federal Government was a necessary party to the writ petition but was not made to it. Needless to say that when action is sought against Federal Government or Provincial Government due regard is to be paid to the provisions of section 79, C.P.C. Which in the instant case has not been adhered to. Besides, the Court at any stage of the proceedings on the application by a party or otherwise always enjoys vast power to add or strike a party to settle matter effectually and finally. Decrees granted and orders made in the absence of a necessary party become, a question mark later on, to maintain the mandate of the Court. In the case in hand Federal Government being necessary party has been condemned unheard. The Court below has not, taken pain to go through the relevant provisions of law before granting the writ petition.
10. In the light of observation made above we are constrained to hold that the Court below was not justified to grant the writ petition without impleading the necessary party as respondent. The learned Court below exercised the jurisdiction illegally in granting writ petition against the department in its official capacity which could not be done without impleading Pakistan as party to the writ.
11. In the result, the petition for leave to appeal is converted into appeal and the same is allowed.
However, in the interest of justice and peculiar circumstances of the area the case is remanded to the Chief Court with the direction to receive amended writ petition from the respondent and to proceed afresh after impleading the necessary parties under law. Since we have decided the matter on the point of law, therefore, it will not effect on the decision to be given by the Chief Court after hearing the necessary parties before it. No order as to costs.