' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution has been directed against the judgment, dated 28-5-2003 passed by a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench in a constitution petition.
2. The facts in small compass giving rise to the petition are that the respondent No.1 was appointed as senior teacher (English) on ad hoc basis, in 1989 under Regulation No.13 of Islamabad Model Schools and Colleges (Services Regulations, 1988) and later she was selected as Senior Teacher (English) on regular basis by a Selection Committee but due to ban on appointment, could not be appointed on regular basis and continued as ad hoc teacher. In 1994 the Federal Government introduced the policy of regularization of the employees who were appointed on ad hoc basis during the period from October, 1981 to December, 1990 and were classified into two categories for the purpose of regularization. The Ministry of Education, Government of Pakistan, having processed the case of respondent, placed her in category No.1 but the Federal Public Service Commission by changing her category, declined to recommend her for regularization on the basis of criteria applicable to the employees of the category in which she was placed by the Ministry. The respondent being aggrieved of the action of petitioner, invoking the constitutional jurisdiction of the High Court, filed a writ petition in the matter which succeeded and a learned Judge in the High Court directed for treating the respondent in the category in which she was placed by the Ministry of Education.
3. The learned Deputy Attorney-General has contended that the categorization of the ad hoc employees for the purpose of regularization was a policy decision and it was in the exclusive domain of the petitioner to place an employee in proper category, therefore, the High Court was not supposed to interfere in the matter. Learned D.A.-G. Added that the petitioner while strictly observing the criteria for the regularization, placed the respondent in the category to which she actually belonged.
4. The learned counsel for the respondents on the other hand submitted that the respondent was entitled for regularization in the light of the criteria prescribed for category No.1 in which she was placed by the concerned Ministry and F.P.S.C., by changing her category, has taken away her right of regularization.
5. We having heard the learned counsel for the parties when confronted, learned D.A.-G. That respondent being an employee of Ministry of Education was placed in category-I by the Ministry and how the change of her category by the petitioner, was justified, he without satisfying us regarding the authority of petitioner to change the category of the respondent allocated by the concerned Ministry submitted that the decision taken by the petitioner was quite in consonance with the policy. We are afraid, the policy of regularization was made by the Government and the Ministry of Education, a component of Government, would be in better position to allocate proper category to its employees in the light of the policy in question.
6. In the light of foregoing discussion, we would take no exception to the judgment of the High Court and dismiss this petition. Leave is refused.
Petition dismissed.
2007 PLC (C.S.) 260 [Supreme Court of Pakistan] Present: Javed Iqbal and Mian Shakirullah Jan, JJ WAZIR ALI SOOMRO versus WATER AND POWER DEVELOPMENT AUTHORITY and others Civil Appeal No.583 of 2003, decided on 15th September, 2005.
(On appeal from the judgment of the Federal Service Tribunal, Lahore, dated 12-2-2000 passed in Appeal No.1473/L of 1999).
Pakistan Water and Power Development Authority Act (XXXI of 1958)--- ----S. 17(1-A(a)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement---Failure to give show-cause notice---Non-compliance of provisions of S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958---Non- speaking order---Effect---Civil servant was compulsorily retired from service without giving any reason and without any show-cause notice---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---Appeal was decided by Service Tribunal in a perfunctory and slipshod manner by means of a non-speaking order without assigning any reason---No show cause was issued to the civil servant, which should have been issued pursuant to the dictum laid down by Supreme Court in various judgments---Authorities assured that disciplinary proceedings would be initiated afresh strictly in accordance with law and the guidelines enumerated by Supreme Court, in line with the provisions enumerated in S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958--- Judgment of Service Tribunal being laconic was set aside arid authorities were allowed to initiate fresh disciplinary proceedings in accordance with law. [pp. 261, 264] A & B WAPDA v. Zulfiqar Ali PLD 1988 SC 693; Ejaz Nabi Abbasi v. WAPDA 1992 SCM R 774; Pakistan and others v. Public-at-large and others PLD 1987 SC 304 and WAPDA v. Sikandar Ali Abro 1998 SCM R 137 rel. Hafiz Tariq Nasim, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record (absent) for Appellant.
Faiz-ur-Rehman, Advocate-on-Record for Respondents. Date of hearing: 15th September, 2005.
' JAVED IQBAL, J.--- This appeal with leave of the Court is directed against the judgment, dated 12- 2-2000 whereby the appeal preferred on behalf of appellant has been dismissed by the learned Federal Service Tribunal and the order, dated 7-9-1999 whereby the appellant was retired compulsorily under section 17(1-A)(a) of the WAPDA Act, 1958 has been kept intact.
2. Heard Hafiz Tariq Naseem, learned Advocate Supreme Court on behalf of appellant and Mr. Faiz- ur-Rehman, learned Advocate-onRecord for WAPDA. The judgment impugned has been perused carefully, relevant portion whereof is reproduced hereinbelow for re-sly reference:-- "(2) We have held in the case of Muhammad Ibrahim Mangrio (Appeal No.23/L (C.S.) of 2000, decided on 9-2-2000 and in Appeal No.17(1.) of 2000-CS, decided on 10-2-2000, filed by Zahid Parvaiz Mughal, that an order of retirement made under the provisions of section 17(1-A)(a) of the WAPDA Act, 1958, is in accordance with the terms and conditions of service of the appellant. There is no mala fide or reason other than the order of retirement passed under the provisions of section 17(1-A)(a) of the WAPDA Act, 1958. The appeal as such is dismissed and status quo order passed by a Bench of this Tribunal on 24-12-1999 is vacated. In the circumstances of the case, parties are to bear their own costs. The appellant shall return the monetary benefits if received in between 24-12- 1999 till 12-2-2000."
3. A bare perusal of above would reveal that the appeal has been decided in a perfunctory and slipshod manner by means of a nonspeaking order without assigning any reason whatsoever for conclusion drawn by the learned Federal Service Tribunal. The judgment impugned is not in consonance with the dictum as laid down in WAPDA v, Zulfiqar Ali PLD 1988 SC 693; Ejaz Nabi Abbasi v. WAPDA 1992 SCM R 774; and is in oblivion of the dictum laid down by this Court in Pakistan and others v. Public-at-large and others PLD 1987 SC 30i wherein it was held that WAPDA employees must be apprised of and intimated regarding the reasons of their premature retirement. It is worth- mentioning that pursuant to the said judgment, amendment was made in the relevant section of the WAPDA Act, 1958 by means of Act No.XIII of 1994 and an opportunity of show-cause notice was provided. In this regard reference can also be made to the case of Ejaz Nabi Abbasi (supra) wherein it was observed as follows: "(11) Though section 17(1-A) of the Act seemingly confers on the Authority plenary power to remove or to retire an employee of WAPDA at any time without assigning any reason after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days, however, it does not mean that the Authority enjoys above power unfettered or unbridled or arbitrary. The object of conferring such power seems to be to make easier for the Authority to remove from Service surplus and/or inefficient and/or corrupt employees without holding long drawn departmental enquiry in order to make the establishment more viable and efficient and therefore, exercise of the above power should be directed to achieve the above objective. It is to be exercised in good faith by the repository of the power, untainted with bias or mala fide or consideration other than the above objective and, therefore, any action in violation of the above basic norms will warrant interference by the Tribunal and this Court."
4. The scope of section 17(1-A)(a) of the WAPDA Act, 1958 has been examined time and again by this Court and finally settled in case titled WAPDA v. Sikandar, Ali Abro 1998 SCM R 137 relevant portion whereof is, reproduced herein below:-- "(9) We now proceed to consider whether on account of change in the language of section 17(1-A) of the Act introduced by Act XIII of 1994, the scope and scheme of section 17(1-A) (ibid), has been changed so that the above interpretation of the provision of section 17(1-A) has become inapplicable. We have already reproduced earlier in this judgment the original text of section 17(1- A) as well as its provisions as they now stand after the amendment of 1994. The insertion of the words "after informing him in writing of the grounds on which such action is proposed to be taken and giving him an opportunity of showing cause in writing against the action, within a period of fourteen days" in place of "without assigning any reason, after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days". In our view though it did not take away the discretion of the Authority completely to remove its employee, but it did have the effect of curtailing such discretion. Under section 17(1-A) of the Act as it originally stood, the Authority could remove an employee without disclosing the reasons for such removal by just giving the concerned employee either 30 days' notice or pay in lieu thereof. However, under the amended section 17(1-A), the Authority now cannot remove an employee without first informing him the grounds on which action for his removal from service is being taken and allowing him an opportunity of showing cause in writing against the proposed action. This change in the procedure for removal of an employee under section 17(1-A) of the Act, in our view is, intended to remove the taint of arbitrariness, if any, in such action. This, however, does not mean that the discretion available to Authority under section 17(1-A) to dispense with the services of an employee has been taken away by the amendment of 1994. The amendment introduced in section 17(1-A) by Act XIII of 1994 has the effect of only circumscribing the discretion of the Authority by providing a different procedure for removal of employee from service. The contention of the respondents that after amendment in the language of section 17(1-A), a detailed enquiry is must in every case of removal of an employee from service under section 17(1-A) (ibid) does not appear to be correct. Similarly, the contention of respondents that where in the first instance the Authority elected to proceed under the Rules, it could not take action under section 17(1-A) of the Act, is devoid of force. The language of section 17(1-A), even after amendment, does not admit of any such construction. The underlying object of section 17(1-A) of the Act, even after its amendment by the Act XIII of 1994, remained unchanged and the Authority still has the discretion to dispense with the service of an employee through recourse to section 17 (1-A) provided the removal did not carry with it any stigma and the procedure laid down in the section is strictly followed by the Authority. The learned counsel for the respondents relied on Ghulam Hadi Baloch v. Collector of Customs 1987 SCM R 602 and Zarar Khan v. Government of Sindh and others PLD 1980 SC 310, in support of their contention that where the Authority first chooses to proceed against its employee under the detailed procedure it could not subsequently change its mind and follow another procedure prescribed under the Rules. These cases are quite distinguishable. In both the above cited cases the proceedings were initiated under the Government Servants (Efficiency and Discipline) Rules, 1973. In the case before us, there was no legal bar for the Authority to have recourse to the provisions of section 17(1-A) of the Act, even where proceedings under the Rules were initiated in the first instance against an employee as held by this Court in WAPDA v. Muhammad Ali (supra).
(10) From the preceding discussion, it follows that even after amendment in section 17(1-A) of the Act, the Authority is competent to remove an employee from service through recourse to the provisions of section 17(1-A) of the Act provided the removal does not carry with it any stigma on the concerned employee and the grounds of removal are such that they could be determined within the ambit of procedure prescribed under section 17(1-A) of the Act. As a corollary, it follows that where the Authority intends to remove an employee on serious charges which required detailed enquiry to establish the same and it also carried stigma on the concerned employee the 'Authority' could not have recourse to the provisions of section 17 (1-A) of the Act for removing such employee from service."
5. Mr. Faizur Rehman, learned Advocate-on-Record on behalf of WAPDA has conceded frankly that no show-cause notice could be issued which should have been issued pursuant to the dictum as laid down by this Court in various authorities as mentioned above. Mr. Faiz-urRehman, learned Advocate-on-Record has assured that the disciplinary proceedings would be initiated afresh strictly in accordance with law and the guidelines as provided by this Court specially in line with the provisions as enumerated in section 17(1-A)(a) of the WAPDA Act, 1958 subject to permission of this Court.
6. In view of what has been stated herein above, the judgment impugned being laconic is set aside.
The appellant shall be reinstated in service w,e,f, 7-9-1999. The WAPDA would be at liberty to initiate fresh disciplinary proceedings in accordance with law which shall be finalized within a period of four months. The question of back benefits may be raised by the appellant after finalization of disciplinary proceedings and its result which shall be decided by the department on merits.