' ZIA PERWAZ, J.--- The petitioner was an employee of the then Agricultural Development Bank of Pakistan. In pursuance of Ordinance LX of 2002 the Bank was converted into Zarai Taraqiati Bank Limited the respondent No,1 above-named. Petitioner was initially employed in the year 1986. He was dismissed in 1995. In pursuance to the order of the Tribunal in appeal, he was reinstated in the Bank on 11-6-1999. Thereafter, he also got the normal promotions and no disciplinary action is alleged to have been taken against him.
2. After the judgment of the Honourable Supreme Court in the case of Muhammad Mubeen-us- Salam v. Federation of Pakistan PLD 2006 SC 602 the following letter was issued:- "Office memorandum ' In the light of the judgment delivered by the Honourable Supreme Court of Pakistan on June 27, 2006, all C.P.L.As. Pending before it and all proceedings in the Federal Service Tribunal arising out of or in connection with the operation of section 2-A of the Service Tribunals Act, 1973 have been abated. In its judgment the Honourable apex Court has inter alia held that:-- "The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings whichever is earlier."
' Resultantly, under the cover of the aforesaid judgment, the orders passed in the Appeal No,658(R) of 1997, implemented by the ZTBL (the Bank) were protected for a period of 90 days or till the filing of appropriate proceedings.
' Since the Bank has not received intimation about any such proceedings, the O.M. No,E&D/DPS- III/1(368)199/3253, dated 8-6-1999 ceases to have any legal effect ab initio. By this fact Bank's O.M.
No,E&D/DPS-III/1(368)195/1457 dated 20-9-1995 ipso facto becomes valid and comes into effect forthwith.
' The ZTBL reserves its right to recover the amount already paid in the shape of salary and other emoluments etc., during the above period."
3. The petitioner approached this Court with the following prayer:--
(a) To declare that the Office Memorandum, dated 5-12-2006 issued by the respondents Nos.1 and 2 is illegal, mala fide and without lawful authority and does not affect the rights of the petitioner as regular employees as Extra Assistant Director/MCO of the respondent-Bank.
(b) To stay the operation of impugned Office Memorandum dated 5-12-2006.
(c) To award the cost of this petition to the petitioner.
(d) To grant any other relief in the circumstances of this case.
4. Respondents were served upon with notice. On 20-12-2006 it was ordered with the consent of learned counsel that the petition would be heard and decided finally at Katcha Peshi stage.
5. We have heard learned counsel for the parties and Deputy Attorney-General and perused the record.
6. Contention of Mr. Bhajandas Tejwani, learned counsel for the petitioner is that the Honourable Supreme Court has already fixed the guidelines for decision of the pending cases in paragraph No,109 of the judgment in case of Muhammad Mubeen-us-Salam (supra), referring to the meanings of the word "case" as contained in Black's Law Dictionary. He argued that as the matter was disposed of since reinstatement of the petitioner effected in pursuance to the orders of the learned Federal Service Tribunal on 11-6-1999. The matter pertained to a past and closed transaction, which does not fall within the ambit of the cases mentioned in the aforesaid paragraph No,109. He further contended that the impugned action has been taken without any notice or affording opportunity of hearing to the petitioner and has opposed to the principle of natural justice. In support of his contention, he has placed reliance on Anisa Rehman v. P.I.A.C. 1994 SCM R 2232, Prudential Discount and Guarantee House Ltd. v. Pakland Cement Ltd. CLD 2005 Kar.
1191 and Zahida Sattar v. Federation of Pakistan PLD 2002 SC 408.
7. Mr. A.R. Farooq Pirzada, learned D.A.-G. Appearing for the Federation of Pakistan has supported the contentions of Mr. Bhajandas Tejwani. However, at the same time he states that now the matter is governed by law of master and servant and the question of reinstatement in cases involving relationship of master and servant, the High Court would not interfere while exercising the constitutional jurisdiction in pursuance of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his contention, he relied upon the case of Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806.
8. Mr. Imdad Ali Awan, learned counsel for the respondents while opposing the petition has relied upon the arguments advanced by Mr. A.R. Farooq Pirzada on the point of relationship of master and servant and stressed that present petition is not maintainable. The question of reinstatement may not be considered in view of the principle laid down in Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194. He further contended that the conditions set forth in paragraph No,109(d) of the judgment in Muhammad Mubeen-us-Salam's case are to be read with each condition.
9. Before examining the points raised by the learned counsel, it may be beneficial to reproduce the relevant paragraph 109 of the judgment in Muhammad Mubeen-us-Salam's case which reads as under:- "109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445, it is directed as follows:--
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance."
10. The petitioner was employed in the year 1986. He was dismissed from service in the year 1995.
However, his order of dismissal was set aside in proceedings before the Federal Service Tribunal and in pursuance to the orders of the Service Tribunal, he was reinstated in service on 11-6-1999.
11. Taking up the question of maintainability of the petition first, we are in respectful agreement with the principle laid down in the cases Anisa Rehman, Pakistan Red Cross Society and Anwar Hussain (supra), that this Court in proceeding under Article 199 of the Constitution would not order for reinstatement of an employee in a case involving relationship of master and servant. In the instant case Mr. Bhajandas Tejwani while referring to the prayer in the petition categorically stated that the petitioner is not seeking his reinstatement but has only challenged the validity of the impugned letter dated 5-12-2006 on the touchstone of the conditions prescribed by the Honourable 'Supreme Court in paragraph No,109 of the judgment in Muhammad Mubeen-usSalam's case and we propose to consider this petition only for examination of this aspect of the matter. Conditions "A" to "E" are pre-qualified by the words:-- "Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445, it is directed as follows" ' which clearly spells out that the subsequent conditions enumerated thereunder are with respect to the pending cases. These words used in paragraph 109 constitute a pre-condition for any action taken in the matters specified at "A" to "E" of the said paragraph. Word "case" as defined in the Black's Law Dictionary means "A proceeding, action, suit, or controversy at law or in equity" therefore, it is manifestly clear that the word "pending cases" is used in context of matters which have not been decided finally by earlier judgments. The subsequent conditions mentioned applied only to these cases and opening part of the paragraph has to be read in conjunction with each condition.
12. Construing condition "D" in conjunction with the pre-qualification contained in the opening portion of the paragraph makes it clear that the action envisaged at (d) would only apply to pending cases and not to past and closed transaction as categorically observed.
13. It is by now a settled law that bona fide actions of public functionaries in the ordinary discharge of their duties are not struck down merely on the ground of subsequent findings as to legal infirmity either in the appointment or with respect to powers of the Tribunal exercised in the ordinary course of their business and declared otherwise in subsequent findings. The doctrine of de facto is attracted in such cases and has been recognized in cases of Lt.-Col. Farzand Ali v. Province of West Pakistan PLD 1979 SC 98; Abdul Salam Qureshi v. Judge, Special Court of Banking PLD 1984 Kar. 462, Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426, Jawaid Iqbal v. Kh. Muhammad Arif 1995 SCM R 13, Pir Sabir Shah v. Pakistan PLD 1994 SC 738 and Malik Asad Ali v. State PLD 1998 SC 161.
14. In view of the above, present petition also attracts the doctrine of de facto being a past and closed transaction would not fall within the ambit of conditions set forth at subparagraph "A" to "E" of paragraph No,109 of the judgment in Muhammad Mubeen-us-Salam case as no case is pending between the parties. We would allow the petition to the extent that the impugned Office Memorandum dated 5-12-2006 issued by respondent No,1 is declared to be unlawful and is set aside. However, it will be open to the parties to take action according to law after hearing the appellant. This petition is accordingly allowed along with the listed applications.