' SARMAD JALAL OSMANY, J.---This Petition impugns the Judgment of the learned Punjab Subordinate Judiciary Service Tribunal (Lahore High Court Lahore) in Service Appeal No, 18 of 2004 filed by the petitioner which was dismissed.
2. Briefly stated the facts of the matter are that disciplinary proceedings were initiated under the Order of the Administrative Committee of the Lahore High Court whereby the petitioner was charge sheeted on two counts; (a) that he had filed a suit against one Muhammad Anwar Khan and others for declaration etc. Wherein he had obtained ex parte Judgment and decree in violation of law which was set aside in Revision by the learned Lahore High Court but yet he retained possession of the same and further that the land in dispute was not indicated in any of the declarations of assets during the petitioner's service. (b) Secondly while posted as District and Sessions Judge, Khanewal the petitioner had ordered some furniture for the Court from a supplier and had not paid the price for the same and that the petitioner gave a Sheesham tree in the District and Sessions Judge's residence which was Government property as consideration for his household furniture etc. The learned Inquiry Officer after conducting a regular inquiry found that whereas charge (a) stood proved against the petitioner charge (b) could not be proved. Hence after affording a personal hearing to the petitioner, the imposition of major penalty of compulsory retirement was recommended. The Administrative Committee of the learned High Court agreeing with the findings of the inquiry officer on charge (a) and reappraising evidence on charge (b) ordered issuance of final show cause notice on both charges. A learned Judge of the High Court who granted personal hearing to the petitioner found that charge (a) had been proved regarding filing of a suit against Muhammad Anwar Khan and obtaining an ex parte decree against all legal norms. He also agreed with the inquiry officer that the imposition of major penalty of compulsory retirement from service woulti meet the ends of justice as the petitioner was near to superannuation. Hence keeping in view the fact that misconduct committed by the petitioner is relatable to his personal conduct which is distinguishable from the performance of judicial functions, his request for retirement from service was accepted. The Administrative Committee therefore vide decision dated 30-6-2001 allowed the petitioner to retire from service at his own request and disciplinary proceedings against him were dropped.
3. On 3-7-2004 a notification was issued by the learned Lahore High Court through which 21 District and Sessions Judges were granted Selection Grade (BS-21) whereas petitioner was ignored although he was senior to most of them. The representation filed by the petitioner on 8-9-2004 was rejected by the learned Chief Justice of the Lahore High Court. Consequently petitioner approached the learned Tribunal in Appeal which was dismissed on the ground that petitioner having an unsatisfactory service record could not be given benefit of the Notification. Hence this Petition.
4. On the basis of foregoing facts learned Senior Advocate Supreme Court has submitted that every person including a judicial officer has the fundamental right to seek justice and hence the litigation launched by the petitioner could not be faulted on that score alone. In this connection learned Senior Advocate Supreme Court submits that the suit filed by the petitioner was regarding a civil dispute between him as well as his family members with the defendant vis-a-vis partition of the property and after judgment in the Revision Petition by the learned High Court he had tried to contact the defendant a number of times for amicable settlement but this could not be procured.
Per learned Senior Advocate Supreme Court in such circumstances the filing of a civil suit and its ultimate dismissal by the Civil Court was in fact the personal conduct of the petitioner and hence not relatable to his service matters as observed by the authorized officer himself. Hence the same could not be made the basis for refusing to grant the petitioner the benefit of the Notification whereby others placed in the same position as the petitioner were granted Selection Grade as observed in the impugned judgment.
5. Regarding the other ground upon which the Petitioner's Appeal was dismissed viz as the subject matter thereof related to fitness of the petitioner for promotion i,e, award of Selection Grade, Learned Senior Advocate Supreme Court has stated that section 5(b) of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 where such prohibition is available is violative of the principle that at least one right of appeal should be granted to a litigant. In support of this proposition learned Senior Advocate Supreme Court has relied upon Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6), Registrar, Supreme Court of Pakistan, Islamabad v.
Qazi Wali Muhammad (PLD 1997 SCM R 141) and Federation of Pakistan and others v. Public at Large and others (PLD 1988 SC 202). Learned Senior ASC's further submission is that objective factors relating to fitness can be subjected to judicial scrutiny for which he has relied upon Fazali Rehmani v. Chief Minister, N.-W.F.P. Peshawar and others (PLD 2008 SC 769), Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. And 4 others (1999 SCM R 1605), Muhammad Rahim Khan v. The Chief Secretary N.-W.F.P. And others (PLD 2004 SC 65) and Mrs. Ageela Asghar Ali and others v. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118).
6. For all the foregoing reasons learned Senior Advocate Supreme Court has prayed that the Petition be converted into an Appeal and allowed and that the benefit of the Notification in question should be given to the petitioner.
7. On the other hand, Mr. Khadim Hussain Qaiser, learned Additional Advocate-General has fully supported the impugned Judgment on the ground that petitioner had been found guilty of the charge regarding obtaining of an ex parte decree against the provisions of law which was set aside in Revision by the learned Lahore High Court etc. And the learned Administrative Committee of such Court took a lenient view in the matter by accepting the petitioner's request for retirement rather than imposing a harsher penalty upon him. According to learned Additional Advocate- General the petitioner was a judicial officer and his conduct was totally unacceptable as he himself was responsible for adjudicating the rights of others. Consequently this was correctly taken into account by, denying the benefit of the notification in question.
8. We have heard both the learned Senior Advocate Supreme Court appearing for the petitioner as well as the learned Additional Advocate-General and perused the record with their assistance.
9. It would be seen that insofar as the charge against the petitioner regarding filing of the suit against one Muhammad Anwar Khan and others and obtaining an ex parte decree in violation of the law is concerned, the facts are that Ch. Jamil Dad Khan, real elder brother of the petitioner had filed a civil suit against Niaz Muhammad (father of Muhammad Anwar) and others seeking a declaration that he had become owner of the land through adverse possession. The suit was dismissed on merits by the learned Civil Court. The petitioner also filed a suit against Muhammad Anwar Khan as well as his own brother Ch. Jamil Dad Khan seeking a declaration etc. That he was owner in possession of land measuring 141 kanals 9 marlas through adverse possession with consequential relief of permanent injunction etc. Two of the defendants namely Muhammad Siddique and Mst. Hajran admitted the petitioner's claim whereas Muhammad Anwar was proceeded against ex parte which finally culminated in ex parte Judgment/decree on 19-7-1973.
The Appeal filed against the ex parte Judgment by Muhammad Anwar failed before the 1st Appellate Court whereafter he filed Civil Revision No,1635 of 1992 which was accepted vide Judgment dated 16-6-1993 and the impugned Judgments/decrees of the learned lower Courts were set aside and the case was remanded to the learned trial Court. On remand, the suit of the petitioner was dismissed for non-prosecution and the application for restoration also met the same fate on 18-11-1995. The petitioner did not challenge this Order. Any further and thus it had attained finality. It is pertinent to mention here that after passing of the ex parte decree, the petitioner got the decree executed by sanction of mutation in his name to the extent of transfer of land measuring 3 kanals 6 marlas belonging to Muhammad Anwar.
10. In the context of afore-going narration of facts it would be pertinent to observe that petitioner retained possession of the land in question even after the ex parte decree obtained by him was set aside by the learned Lahore High Court and upon remand the petitioner's suit itself was dismissed for non-prosecution. This fact alone is sufficient to establish that the petitioner retained the possession of land and made no effort either to settle the matter with the owner or conversely had the mutation based upon such ex parte decree cancelled. On the other hand during the proceedings he took up the defence that no suit was ever filed against him by Muhammad Anwar which too surprised the learned Inquiry Officer and we can do no better than quote his observation on the same "The plea taken by the Accused Officer that it is the complainant to blame for not having brought a suit for partition or possession, is absolutely bereft of legal and moral fiber. I am astounded by the defence taken by the petitioner. Had this defence being taken by a commoner or an individual unconnected with law or judicial proceedings it could have been conceivable, but how can a judicial officer of the status of District and Sessions Judge retain land belonging to other. person and when questioned about it he conveniently puts it off by saying that the aggrieved did not move the Court of law for redress". Consequently we are of the opinion that the petitioner being the senior most judicial officer of the District malafidely and without giving a thought to his 10.
Status as such retained possession of the land even after the ex parte decree obtained by him was dismissed and set aside. To say the least this cannot be expected of a judicial officer who himself is responsible for adjudicating the rights of others.
11. As to learned Sr. ASC's submission that a Judge has the right to seek justice, we have no cavil with the same but if in the process of seeking justice a Judge himself becomes embroiled in dilatory tactics and retains possession of land unlawfully, then such conduct has to be deprecated.
In this regard we may also advert to the findings of the learned Lahore High Court in Civil Revision No,1635 of 1992:- "It was common ground that the petitioner was not served in the suit; no summons was ever issued to him or attempted to be served upon him. The trial Court, in oblivion of the true record mistakenly placed him ex parte. Three of the defendants conceded the suit and recorded their statements on different dates of hearing. Their shares in the land in dispute were not particularized in plaint. One of the defendants was real brother of respondent No,
1. No proof was taken against the ex parte petitioner. No good reason was given for bye-passing the imperative requirement of taking ex parte 'proof at the adjourned hearing. Record gave a clear impression of a Sloven trial by the trial Court. Ex parte decree without service of summons and hearing of the petitioner was non-est which it would not be difficult for the Court to ignore without restraint of any limitation. Petitioner was not served with summons and he gained knowledge of the ex parte decree much later. Ex parte decree was made against the petitioner in complete disregard of procedural requirements for trial of a suit. It had the taint of fraud also."
12. In view of the foregoing discussion we are of the opinion that the learned High Court correctly did not allow the petitioner the benefit of the Notification whereby other District and Session Judges were given Selection Grade and so also the impugned Judgment cannot be faulted on that score as well. It may be that the proceedings were dropped but this was done on the petitioner's own initiative as he had opted for early retirement and in this regard we are in complete agreement with the observation in the impugned judgment that the petitioner did so in order to avoid adverse orders The petitioner cannot be allowed promotion and consequent financial benefit when his conduct in a litigation involving himself is not above board. Hence we would dismiss this petition and refuse leave. As to the other issue regarding competency of the Appeal before the learned Tribunal, we would leave it to be determined in an appropriate matter as neither, learned Advocate Supreme Court or ' Learned Additional Advocate-General had addressed full-fledged arguments on the same.