1. The petitioner who joined the Police Service of Pakistan in the year 1952 was Superintendent of Police at Mianwali in the year 1969, when .he was placed under suspension on 3.12.1969by order of the then Chief Martial Law Administrator under MLR-58 known as Removal from Service (Special.
2. Provisions) Regulations. He was one of the 303 officers who was dismissed from service on 7.4.1970.
3. He assailed that order by means of a writ petition in the High Court, which however stood abated due to the establishment Of the Service Tribunal. He then filed appeal before the Service Tribunal which was dismissed for want of jurisdiction. However the order of Federal Service Tribunal was set aside by the Hon'ble Supreme Court of Pakistan and the case was remanded to the Service Tribunal. The appeal then was heard by the learned Tribunal and was accepted vide judgment dated 29.4.1981 by holding that in the above circumstances and the detailed reasons and the facts discussed in case of W.A. Shaikh v. Establishment Division; which are also present in respect of this appellant we accept the appeal of Mr. Nek Alam Cheema and vacate order of dismissal passed against him. He shall be deemed to have been in service with effect from the date he was dismissed, as if no action had been taken against him under MLR-58. He shall also be entitled to pay, allowances, restoration as seniority and also consideration for promotion, if any, under the normal rules." He accordingly reported for duty as is evident from application dated 11.5.1981. While the judgment of the Service Tribunal was yet awaiting implementation, the respondent assailed that order before the Hon'ble Supreme Court of Pakistan whereas the officers like the petitioner approached the High Court and' eventually a learned Division Bench of the Lahore High Court vide order dated 13.7.1982 in S. Inamul Haq v. Secretary Establishment Division, Govt. of Pakistan (NLR 1982 Service 236), directed the Government to implement the judgment of the Service Tribunal, As thereafter Article 13-A was added in the then Provisional Constitution Order 1981, the appeal of the Government qua the judgment of Federal Service Tribunal stood abated by operation of the same The order passed by the Hon'ble Supreme Court of Pakistan on 3.10.1982 was to the effect, that The learned Advocate-General Punjab states that all these appeals filed by the Government have abated under Article 13-A(1)(b) of the Provisional Order, 1981. Agreeing with him thus, these appeals are disposed of as such Despite the above legislative, measures the controversy, however, did not come to an end and the High Court of Sindh in S.A. Rizvi V. Islamic Republic of Pakistan through Secretary. Establishment Division and 2 others (1991 MLD 1834) accepted a petition setting aside the dismissal order of the petitioner therein. The said judgment was affirmed by the Hon'ble Supreme Court of Pakistan in Islamic Republic of Pakistan v: S.A. Rizvi (1992 SCMR 1309). The petitioner herein also considering himself to be placed in identical situation seek reinstatement in service in implementation of the order passed by the Federal Service Tribunal dated 29.4.1981 when his appeal was accepted.
4. The learned counsel for the petitioner relies upon a recent judgment of the Hon'ble Supreme Court of Pakistan dated 9.12.2004 in. C.A. No. 1251 to 1255 of 2001 and seeks similar treatment. It is further stated by him that the petitioner would have in the normal circumstances retired with effect from 5.6.1987 on attaining the age of. superannuation and in case the judgment of the Federal Service Tribunal dated 29.4.1981 is implemented, the petitioner would only be entitled to retirement benefits.
5. The learned Deputy Attorney General, Pakistan has objected to the maintainability of the petition primarily on the ground that the same suffers from laches and that the matter relating to the conditions of service of a civil servant cannot be agitated before this Court in writ jurisdiction.
6. The respective contentions have been considered. The salient features of the case have been briefly mentioned above. In order to meet the objection as to laches reference to paragraph-15 of the petition is appropriate which demonstrates the continuous agitation of the matter and efforts made by him for seeking implementation of judgment of the Federal Service Tribunal dated 29.4.1981. The same is that "15. The petitioner approached the Establishment Division, Government of Pakistan to implement the decision of the Federal Service Tribunal dated 29.4.1981 but to no effect.
7. Since then the petitioner had made several representations which have not brought any result."
8. The contents of the said Para were not denied and the reply was "Needs no comments". It was indeed the petitioner who was making repeated applications time and again but without any positive response. There was undoubtedly procrastination on the part of the . respondents and delay on their part cannot be made a ground for non-suiting the petitioner. In fact such a conduct of the respondents could furnish a cause of action for agitating the matter before the Court. In such peculiar A circumstances, the objection as to laches is not well founded. The other objection of the learned Deputy Attorney General for Pakistan that the matter relates to conditions of service, therefore, the petition is not maintainable, also does not hold the ground inasmuch as after the judgment of the Federal Service Tribunal dated 29.4.1981 the petitioner was seeking implementation thereof and nothing more.
9. As pointed out by the learned counsel for the petitioner, the controversy stand set at rest with the recent pronouncement by the Hon'ble Supreme, Court of Pakistan in judgment dated 9.12.2004 (C.A. No. 1251 to 1255 of 2001), paragraphs-11, 12 and 13 whereof due to their import and relevance are reproduced "11. It is an irrefutable reality that the exercise or otherwise of mala fide is a pure question of fact.
10. Hence, by pronouncement of law it cannot be determined that a particular act, by a particular authority at a particular time was either bona fide or maia fide. No unreasonableness can be attached to an act of Legislature whose every act must be deemed to be fortified by logic and wisdom. If we attribute that logic and wisdom to Legislature, it would be strongly presumed to have existed in case of Article 270-A of the Constitution as well and thus one cannot think of the validation of an act of mala fide, if in the circumstances of each case and as a question of fact, such act was in fact mala fide.
11. 12.It is 'proved in the instant cases that the respondents were dismissed from service on the basis of a secret list of officers prepared before hand. The officers exercising power under M.L.R. 58(3) were thus mala fide influenced. They never acted with the application of their, own mind and with a sense of imparting justice. The respondents were not allowed to obtain legal assistance. It was despite the fact that under paragraph 3(2) of M.L.R: 58 no action could have been taken by the Tribunal unless opportunity to show cause and opportunity to be heard in person had been provided to the aggrieved person, The Tribunal under M.L.R. 58 proceeded with a predetermined action to be taken in accordance with the secret list provided to it by the higher authorities. The proceedings thus were sham proceedings. A hearing or trial conducted by the Tribunal on the basis of a list of those officers earmarked for dismissal is neither a hearing nor a trial. The principles of audi alter-am partem, coram non-judice, lack of jurisdiction and mala fide are squarely and collectively attracted to the case of present respondents.
12. 13.In view of the factual background as well as the law laid down by this Court from time to time, we are of the view that the Federal Government in its benevolence for the people of Pakistan ought to have honoured the decision given by the Federal Service Tribunal. It is sad to observe that they are languishing for the last about three and a half decades. There being no merit in the petitions, these are hereby dismissed. "
13. 14.The matter stand clinched. In presence of the Supreme Court judgment, no I other view is possible. Rather all are bound to honor and respect the same in view of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. The petitioner is justified in seeking similar treatment and the implementation of judgment of the Tribunal dated 29.4.1981. Reference may be made to Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) wherein it was observed that "We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any. legal proceedings; in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum. Reference may also be made to Khawaja Abdul Hawed Nasir and others v. National Bank of Pakistan and others (2003 SCMR 1030) and Inam-ul-Haq Shah and 3 others v. Government of the Punjab through Secretary Technical Education and Vocational Training Authority and 2 others (2006 PLC (CS) 11) As noted ab.ove, the implementation of the said judgment will only entitle him to certain benefits of retirement as he had already reached the age of superannuation in the Year 1987.
14. The petition is accordingly accepted with the direction to respondents to implement the judgment of the Federal Service Tribunal dated 29.4.1981. No order as to costs.