SHAHID WAHEED, J. --- The appellant, Ch. Iftikhar Ahmad, has moved instant Intra-Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 calling in question order dated 20.10.2010 passed by the learned Single Judge of this Court in W.P. No. 21585/10 whereby the afore-said petition was dismissed.
2. Briefly, the facts of the case are that wife of the appellant namely Mrs. Akhtar Tufail joined the service as a regular Senior School Teacher. Later on, she was appointed as an, Ad-hoc Lecturer vide Notification dated 29.09.1985. Government of the Punjab in the year 1986 terminated en block.
The services of all Ad-hoc Lecturers and as a consequence thereof she joined her previous service as Senior School Teacher. However, on 11.01.1989 the Government of Punjab recalled the termination orders of all Ad-hoc Lecturers and in pursuance thereof she was given post of lecturer at Government Girls College, Pattoki with a direction to appear before a Special Selection CI-R.
Board constituted by Government of the Punjab for interview/assessment of her suitability of selection/regularization in service. After eight months she was relieved from her duties from the Government Girls High School, Pattoki and joined as lecturer vide order dated 13.11.1989. She could not appear before Special Selection Board which was abolished before her joining the post. She applied for her regularization to the Director Public Instructions (Colleges), Punjab who vide memo.
Dated 09.08.1995 strongly recommended her case for regularization but the request was turned down. It is worth mentioning here that in the meantime her colleagues who also did not appear before the Special Selection Board were regularized by the Education Department, Government of the Punjab. However, Secretary, Government of Punjab, Education Department refused to regularize the services of the appellant's wife vide order dated 31.01.2005. The deceased civil servant during her life-time assailed order dated 31.10.2005 before the Chief Secretary but it remained undecided and in these circumstances, she moved an appeal bearing No. ,665/06 before the learned Punjab Service Tribunal. On 05.05.2007, the learned Punjab Service Tribunal disposed of the appeal with a direction to the Chief Secretary as well Secretary Education to seriously consider the reconstitution of an Ad-hoc Special Selection Board so as to assess her suitability for selection/regularization in service after an interview. The department did not challenge judgment dated 05.05.2007, passed by the learned Punjab Service Tribunal before the Hon'ble Supreme Court of Pakistan and resultantly it attained finality. Consequent upon the judgment rendered by the learned Punjab Services Tribunal, Mst. Akhtar Tufail moved representation before the respondents for the implementation of the judgment but it could not evoke favourable response. In these circumstances and being helpless Mst. Akhtar Tufail moved C.M. No. 754/08 in Appeal No. 665/06 before the learned Punjab Services Tribunal for the implementation of judgment dated 05.05.2007.
The learned Punjab Service Tribunal vide judgment dated 14.12.2009 again directed the respondent to implement the judgment dated 05.05.2007. The wife of the appellant again approached the respondents for the compliance of judgment but all in vain. With this sense of frustration she died on 05.02.2010. After the death of Mst. Akhtar Tufail the appellant made a request to the respondent for the implementation of the judgment rendered by the learned Punjab Service Tribunal and to regularize 28 years service as ad-hoc Lecturer of Mst. Akhtar Tufail so as to get her due pensionary benefits but the respondents did not budge. Feeling aggrieved, the appellant moved this Court through W.P. No. 21585/10 and it was dismissed vide order dated 20.10.2010. Hence this appeal.
3. In response to notice issued by this Court, the respondents submitted report and parawise comments wherein they stated that the case of Mst. Akhtar Tufail (deceased) was referred by the Education Department to the Chief Minister, Punjab with the proposal to regularize her services with effect from 24.09.1985 to 03.06.1986 and 17.09.1989 to 05.02.2010 in relaxation of Rule 22 of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 but the Regulation Wing, S&GAD Government of Punjab observed that aforesaid rule could only be relaxed in favour of a civil servant and not in favour of a deceased civil servant and resultantly declined to regularize her services.
4. After perusing the facts of the case and report and parawise comments submitted on behalf of the respondents the notice was issued vide order dated 16.02.2012 to the Secretary Education, Government of Punjab to appear in person alongwith relevant record and to explain why the judgment of the Punjab Services Tribunal was not implemented and also why the matter was sent to the Chief Minister, Punjab, in violation of the direction of the learned Punjab Services Tribunal. On 28.02.2012. The learned Assistant Advocate General presented record of the case before this Court and it was observed in order dated 28.02.2012 that prima facie the perusal of the record proved the recklessness and negligent attitude of two Secretaries i.e. Secretary Law and Secretary Education.
In this situation, this Court issued notice to both the Secretaries to appear in person before this Court and explain why the order of learned Punjab Services Tribunal was not implemented. On 26.03.2012, Dr. Ijaz Munir, Secretary Higher Education and Dr. Syed Abu-ul-Hassan, Law Secretary appeared in person and sought time to resolve the dispute amicably. The case was accordingly adjourned. Today the representative of the Higher Education Department, Government of Punjab presented before us order No. SO(CE111)22-1/95(58), dated 25th April, 2012 whereby the service of
(late) Mt. Akhtar Tufail, Ad-hoc Lecturer were regularized w.e.f 28.03.2009. After perusing order dated 25.04.2012, the learned counsel for the appellant submitted that this order was discriminatory and irrational.
5. Before proceeding further we would like to cite judgment passed in the case of Council of Civil Services Union v. Minister for Civil Services (1985)1 AC 374, wherein Lord Diplock has suggested a three-fold classification of the various grounds on which administrative decision can be reviewed by a Court. These grounds are:- 'Illegality' which means that the "decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it"
It means that the decision-maker must keep within the scope of his legal power. Illegality means that the decision-maker has made an error of law: it represents infidelity of an official action to a statutory propose. Such grounds as excess of jurisdiction, patent error of law. Etc. Fall under the head of "illegality".
'Irrationality' denotes unreasonableness in the sense of Wednesbury unreasonableness.
(iii) Procedural Impropriety.-- The expression includes failure to observe procedural rules including the rules of natural justice or fairness wherever these are applicable."
The principle of Wednesbury unreasonableness have been laid down in the case of Associated Provincial Picture Houses v. Wednesbury Corporation (1947) 1-KB-223 wherein Lord Greene, M.R., has observed as follows:- "It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions Olen use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with discretion must so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v. Poole Corporation (1926) Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another."
The principle of Wednesbury unreasonableness has also been approved by the Hon'ble Supreme Court of Pakistan in the case of Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCM R 455). Keeping in view the principle laid down in the case of Council of Civil Service Union (supra) we analyze the facts of the case.
6. The perusal of the facts shows that (late) Mst. Akhtar Tufail was a law abiding citizen and an obedient civil servant and this fact finds corroboration from her conduct as, firstly, she moved an application before the competent authority for relieving her to join the new assignment but the matter was unnecessarily delayed and as a result thereof she could not promptly join duty as Lecturer and appear before the Special Selection Board for interview; secondly, she moved repeated representations before the higher Authorities for the redressal of her grievance but departmental red-tape always came in her way; thirdly, she approached the Punjab Services Tribunal to get her lawful right. The department did not implement the judgment dated 04.05.2007 passed in Appeal No. 665/06 and did not constitute a Special Selection Board for her; fourthly, she moved a miscellaneous application bearing No. 754 of 2008 before the learned Punjab Service Tribunal whereby the earlier directions were C.L.R reiterated by the learned Punjab Service Tribunal vide judgment dated 14.12.2009. Even then the respondents remained non-responsive and showed usual recklessness and lethargy towards the matter and as a result thereof (late) Mst. Akhtar Tufail died in frustration. All these facts show malice in law and malice in fact on the part of respondents. On the one hand, the department was regularizing the colleagues of (late) Mst. Akhtar Tufail who also did not appear before the Selection Board and on the other hand, the department taking benefits of its own misdeeds refused to implement the judgment rendered by the learned Punjab Service Tribunal on the pretext that the rules are relaxed only for the benefit of working civil servants and not for those civil servants who died because of their negligence and mal-feasance. The above resume shows that respondents being public officers abused their respective offices, either by an act of omission or commission, and as a consequence thereof an injury was caused to (late) Mst. Akhtar Tufail. The action on the part of the respondents by all means constitutes misfeasance in public office. The deliberate maladministration and unlawful acts of respondents caused inqury to (late) Mst. Akhtar Tufail who due to their mischief died in frustration. This is also a clear violation of Article 9 of the Constitution of Islamic Republic of Pakistan which guarantees life with dignity, Article 10-A which guarantees right of fair trial to the citizens of Pakistan and Article 25 which prevents discriminatory action. It is an established principle of law that no one can be penalized for the act of public functionaries and this principle has been approved by the Hon'ble Supreme Court of Pakistan in the cases of Najam Abbass and others v. SP City Division, Gujranwala and others (2006 SCM R 496), Province of the Punjab through Collector District Khushab, Jobarabad and others v. Haji Yaqub Khan and others (2007 SCM R 554) and Overseas Pakistanis Foundations and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another (2007 SCM R 569). By applying the test laid down in the case of Council of Civil Services Union (supra) we have no hesitation in saying that the action of the respondents is illegal, irrational and shows procedural impropriety for the reasons that the respondents neither applied the law correctly nor considered the above relevant facts while passing order dated 25.04.2012 whereby the service of late Mst. Akhtar Tufail have been regularized with effect from 28.03.2009.
7. It is an admitted fact that the respondents have been regularizing the services of those ad-hoc employees who also did not appear before the Special Selection Board and in this regard the learned counsel for the appellant drew our attention towards the office orders dated 22.8.1995, 29.06.1989, 29.03.1994 and 18.04.1995 whereby the services of different ad-hoc employees were regularized from the date of joining their duty and this fact was not denied by the respondents.
Somewhat similar situation came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of Ijaz Akbar Kasi and others v. Minister of Information and Broadcasting and others (PLD 2011 SC 22) and it was held as follows:--- "Therefore, we are of the opinion that the case of the petitioners deserves to be considered by the Board of Directors for the reasons noted hereinabove as they cannot be discriminated without any cogent reason by violating the provisions of Article 25 of the Constitution and at the same time after having spent a considerable period of their lives in the Organization performing duties on contract basis. It is also the duty of the Organization to protect their fundamental rights enshrined in Article 9 of the Constitution."
The afore-said principle laid down by the Hon'ble Supreme Court of Pakistan by virtue of Article 189 of the Constitution of Islamic Republic of Pakistan is binding on this Court as well as on each and every organ of the State and, therefore, respondents should have applied the principle of equality and regularized the services of Mst. Akhtar Tufail from the date of her joining duty as Ad-hoc Lecturer.
8. In view of what has been discussed above, this appeal is allowed and the order dated 20.10.2010 passed by the learned Single Judge in W.P. No. 21585/10 is set aside and we direct the respondents to regularize the services of (late) Mst. Akhtar Tufail from the date when she joined duty as Ad-hoc Lecturer. No order as to cost. .