' IFTIKHAR MUHAMMAD CHAUDHRY, CJ-This petition has been filed for leave to appeal against the judgment dated 16.5.2012 passed by a Division Bench of the Islamabad High Court, Islamabad whereby Intra-Court Appeal No, 116/2012 filed by the petitioner/Federation of Pakistan was dismissed and the judgment dated 12.3.2012 passed by the Judge in Chamber allowing the writ petition and extending relief to the respondent was upheld.
2. The respondent Muhammad Azam Chattha, is an advocate of Lahore High Court: The Ministry of Law, Justice & Parliamentary Affairs, in exercise of powers conferred by section 4(1) of the Banking Tribunals Ordinance (LVIII) of 1984 [hereinafter referred to as "the Ordinance, 1984"] vide Notification No,F. 49(1)91-AII (A), dated 05.01.1993 appointed some persons as Presiding Officers of Banking Tribunals. The said notification reads as under:-- "MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS (Law and Justice Division)
Islamabad, the 5th January, 1993 ' No, F.49(1)/.91-AII(A).---In exercise of the powers conferred by sub-section (1) of section 4 of the Banking Tribunals Ordinance, 1984 (LVIII of 1984) and in supersession of all its previous notifications on the subject, the Federal Government is pleased to establish the following Banking Tribunals with immediate effect and until further order and specify the territorial limits of each Tribunal within which such Banking Tribunal shall exercise jurisdiction under the said-Ordinance:-- {{TABLE}} Sr. No, Name of the Banking Tribunal Territorial Limits 1 2 3
(1) Syed Abdul Aziz Shah, Banking Tribunal Faisalabad Faisalabad and Sargodha Division of the Province of the Punjab
(ii) Mr. Azad Muhammad Awan (with effect from the date he takes over the charge as Banking Tribunal, Faisalabad) Do.
Mr. A khtar Mahmood Khan, Banking Tribunal, Multan D.G, Khan and Multan Divisions of the Province of the Punjab.
Mr. Justice Retd) Lehrasap Khan, Banking Tribunal-I, Lahore Lahore Division of the Province of Punjab, Islamabad Capital Territory and Azad Jammu and Kashmir Chaudhry Bashir Ahmed, Banking Tribunal-II, Lahore Gujranwala and Rawalpindi divisions of the Province of the Punjab {{TABLE}} ' ABDUL JALIL SIDDIQI Deputy Secretary."
' However, the notification was subsequently amended as per Notification No, F-49(3)92-A II, dated 13.11.1994 in pursuance whereof the respondent was allowed to perforni duty as Presiding Officer, Banking Tribunal Lahore. Contents of the notification are reproduced hereinbelow:-- "Government of Pakistan M/o Law, Justice & Parliamentary Affairs ' Islamabad, the 13th November, 2009 NOTIFICATION ' F.No,49(3)/92-AII.---In exercise of the powers conferred by sub-section (1) of section 4 of the Banking Tribunal Ordinance, 1984 (LVIII of 1984), the Federal Government is pleased to make the following further amendments in this Division's Notification No, F.49(1)/91-A-II(A), dated 5th January, 1993, which shall take effect from the 15th November, 1994.
2. In the aforesaid Notification, in the table, in the first column, in Serial No,(4), in the second column, for the entry "Chaudhry Bashir Ahmad, Banking Tribunal-II, Lahore" the following shall be substituted, namely:-- "Mr. Muhammad Azam Chatta, Banking Tribunal-II, Lahore".
' Sd/- (MOHAMMAD NAEEM MALIK) Section Officer"
3. We have inquired from the learned counsel appearing for the respondent/caveat as to whether there is a notification of his appointment issued by' the Federal Government through Ministry of Finance, he could not produce the same and persuaded us to believe that after his appointment, he was given the posting orders w,e,f, 15.11.1994 as is evident from the contents of the above notification. It is to be noted that as per section 4(3) of the Ordinance,, 1984 a Banking 'tribunal shall consist of a person who is, or has been, or is qualified for appointment as, a Judge of a High Court or a District Judge or an Additional District Judge to be appointed by the Federal Government.
4. Learned counsel for the caveat candidly conceded that such appointment on contract as per Finance Division O.M.. No, F.2(12)BKG(R&S)93-1462, dated 18.08.1993 was normally for a period of three years or less, extendable by a further period not exceeding three years, as may be determined by the President and that the Presiding Officer of the Tribunal would hold the office at the pleasure of the President.
5. It appears that respondent discharged his function as Presiding Officer, Banking Tribunal for about two years when vide Notification No: F.18(1)/96-A.II, dated 10.11.1996 the competent authority had been pleased to terminate his contractual appointment along with other Presiding Officers.
They were, however, held entitled to draw salary in lieu of the notice period, if applicable. The respondent conceded to the termination of contractual period as no proceedings were instituted thereafter.
6. But later on the respondent succeeded in getting himself reinstated in terms of section 6(2) of Sacked Employees (Re-instatement) Ordinance, 2009 [hereinafter, referred to as "the Ordinance, 2009"] vide Notification No,F18(I)/96-A-II, dated 24.11.2009 for a period of one year against supernumerary post of BPS-22 as per original terms & conditions. The notification reads thus:-- "Government of Pakistan Ministry of Law & Justice ' Islamabad, the 24th November, 2009 NOTIFICATION ' No,F.18(1)/96-A.II. Under Section 6(2) of the Sacked Employees (Reinstatement) Ordinance, 2009, and with the approval of the competent authority, the following ex-Presiding Officers of Banking Tribunals-(defunct) are hereby reinstated into service against supernumerary post of BS-22 with immediate effect for the remaining period of their contract as mentioned against each and as per original terms & conditions of their appointment:-- {{TABLE}} S # Name Period of Contract Mr. Muhammad Azam Chattha 1 year {{TABLE}} -sd/- (ANWAR ZEB) Section Officer
7. It seems that he was not satisfied with this notification, as such he challenged the same in a writ petition No,20949/2010 before the Lahore High Court, Lahore with the following prayer:-- "It is, under these circumstances, respectfully prayed that it may kindly be declared that the petitioner is entitled to be reinstated on the original terms and conditions of his service entitling him to such salary, allowances and privileges as are admissible to a Judge of High Court and addition of B.S.22 .In the Notification dated 24.11.2009 is redundant, does not apply to the petitioner, is liable-to be struck down and the petitioner is entitled to claim extension for another three years after the expiry of remaining period of his service under the Sacked Employees (Re-instatement)
Ordinance, 2009.
' It may further be declared that the petitioner is entitled to compensation equivalent to his pay and allowance and other privileges admissible to a Judge of High Court for a period of three years under Section 9 of the Sacked Employees (Reinstatement) Ordinance, 2009 and the respondent be ordered to comply with provisions of Sections 3, 6 & 9 and other provisions of this Ordinance with 'immediate effect."
' Learned Lahore High Court vide judgment dated 28.02.2011 disposed of the writ in the following terms:-- "Be that as it may, the Sacked Employees (Reinstatement) Ordinance, 2009 has lapsed and new law has been enacted by the Parliament i,e, Sacked Employees (Reiristatement) Act 2010. It is an admitted fact between the parties that the case of the petitioners is covered by the Act of 2010, which is not identical to the Ordinance of 2009. In the circumstances, it would be appropriate that the respondent-Secretary, Ministry of Law, Justice & Parliamentary Affairs, Islamabad, reconsider the case of each of the petitioners in terms of and in accordance with the Sacked Employees (Reinstatement) Act, 2010. Consequently, these petitions are disposed of in terms that a copy of the said petitions is sent to the Secretary, Ministry of Law, Justice & Parliamentary Affairs, Islamabad, for reconsideration of the matter in terms of the Sacked Employees (Reinstatement) Act, 2010. This Court is confident that the Secretary concerned shall decide the matter within six weeks from today."
' In the meanwhile, the Ordinance, 2009, referred to hereinabove, was made the Act of the Parliament No, XXII of 2010.
8. The Ministry of Law, in view in the aforesaid directions, issued Notification No, No, F.2(44)/2009- A.IV, dated 27.4.2011 whereby respondent was reinstated and regularized in government service w,e,f, 8.12.2010 with entitlement to pay, allowances and all privileges as admissible to a Judge of the High Court. Contents of the notification, for convenience, are reproduced herein below:-- "GOVERNMENT OF PAKISTAN LAW, JUSTICE AND PARLIAMENTARY AFFAIRS DIVISION ' Islamabad, the 27th April, 2011 NOTIFICATION ' No, F.2(44)12009-A.IV. In exercise of powers conferred by Section 4(b) of the Sacked Employees (Reinstatement) Act, 2010 Mr. Muhammad Azam Chattha, Ex-Chairman, Banking Tribunal (defunct) is reinstated and regularized in Government service w,e,f, 8.12.2010. He shall be entitled for pay, all allowances and all privileges, as admissible- td a Judge of High Court. -Sd/- (Anwar Zeb) Section Officer"
9. It may be noted that in pursuance of earlier notification dated 24.11.2009, reproduced hereinabove, he had already served for a period of one year and before the decision of his writ petition No, 20949/2010 he had completed his tenure on 24.11.2010. Surprisingly, vide subsequent Notification No, F2(44)/2009-A.IV, dated 06.05.2011 his services were placed at the disposal of Establishment Division for further posting but the Establishment Division instead of acting on this notification vide Office Memorandum F. No, 4-1/2011/RB, dated 13.05.2011 proposed the Law Division to create a supernumerary or additional post to adjust the respondent. However, in the meanwhile the Law, Justice and Parliamentary Affairs Division, Government of Pakistan vide Notification No,F.2(44)/2009-A.IV, dated 28.05.2011 withdrew the notification dated 27.04.2011. The respondent challenged the said notification before the Islamabad High Court by filing writ petition No,1992/2011 which was allowed vide judgment dated 12.03.2012. In ICA No 116/2012 vide impugned order dated 16.05.2012, the judgment of the learned single Judge was maintained.
10. Learned Deputy Attorney General appearing on behalf of the Federation/petitioner contended that the Lahore High Court while deciding writ petition No, 20949/2010 filed by the respondent, sent back the case to the Ministry of Law, Justice & Parliamentary Affairs to re-consider his case but inadvertently vide notification dated 27.04.2011, the Ministry of Law reinstated and regularized him in government service w,e,f, 08.12.2010, with further directions that he shall be entitled to pay, allowances and privileges as admissible to a Judge of the High Court. According to him the respondent was appointed as Presiding Officer, Banking Tribunal on 13.11.1994 for a period of three years, out of which he had already discharged his function for a period of two years and in respect of left over period i,e, one year, he was reinstated on 24.11.2009 and served, as such, on account of inadvertence, wrong notification has been issued whereby he was regularized illegally- as government servant in grade-22 without any basis provided under the Act, 2010. Therefore, for such reasons, the notification dated 27.04.2011 had rightly been withdrawn on 28.05.2011.
11. On the other hand learned counsel for the caveat emphasized that under section 4(b) of the Act, 2010 he was rightly reinstated and regularized in government service w,e,f, 08.12.2010. He further contended that as the respondent was appointed as Presiding Officer, Banking Tribunal vide notification dated 24.11.2009 which has been reproduced hereinabove, therefore, he would be deemed to be the employee of the Government, and unilateral withdrawal of his notification dated 27.4.2011 on 28.05.2011 was unwarranted and for such reasons vide judgments dated 12.03.2012 and 16.05.2012, the learned High Court has rightly granted relief to him.
12. We have heard parties Counsel and have also gone through the relevant notifications; some of them have been reproduced hereinabove, and the law on the subject.
13. There is no cavil with the proposition that respondent had been appointed as Presiding Officer, Banking Tribunal on contract for a period of three years in the month of November, 1994. Actual notification of his appointment is not available but from the perusal of notification dated 13.11.1994 it is ascertainable that after appointment he was posted as the Presiding Officer, Banking Court-II, Lahore in place of Chaudhry Bashir Ahmad. Thus, his appointment was covered under section 4 of the Ordinance, 1984 read with Notification No, F.2(12)BKG(R&S)/93/1462, dated 18.8.1993, wherein terms & conditions of the Presiding Officers of the Banking Tribunals have been prescribed. Thus, for all intents and purposes, the respondent was a contract employee.
14. It is to be observed that in the meanwhile section 4 alongwith other sections of the Ordinance, 1984 came under scrutiny before the Full Bench of the Lahore High Court in the case of Chenab Cement Product (Pvt) Ltd. v. Banking Tribunal (PLD 1996 Lahore 672) wherein it was declared that the notification, appointing the Presiding Officers of the Banking Tribunals, issued under the Ordinance, 1984 was unconstitutional and without lawful authority as such quashed: The relevant para from the said judgment reads as under:-- "11. For the above reasons, section 4, section 6(6) as amended by Act VII of 1990 (as it presently stands), first proviso to section 9 of the Banking Tribunals Ordinance, 1984 are hereby declared unconstitutional as these erode the independence of judiciary and are hit by Article 175 read with Articles 2A, 4, 8 and Article 25 of the Constitution of Islamic Republic of Pakistan and the notifications appointing Presiding Officers of the Banking Tribunals issued under the Banking Tribunals Ordinance, 1984 are equally unconstitutional and without lawful authority and are hereby quashed."
' It is not only the respondent whose notification of the appointment was declared unconstitutional but there were so many others alongwith him, as is evident from the notification dated 10.11.1996, referred to hereinabove, whose services were terminated. So it is abundantly clear that respondent lost his job because of the judgment of the Lahore High Court and for this reason alone; perhaps he had not challenged the order of termination of his contract before any forum for a considerably long period. The question is that a person whose fate has been so determined, although he was a contract employee, had no legal entitlement to continue in contract employment because subject to holding him entitled to draw salary in lieu of the notice period, he could not have agitated the matter in any manner. In addition to it, it is a cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service.
15. In Haisbury's Laws of England (3rd Ed.) Vol. 11, p. 244 Para 414, it is stated that the 'measure of damages for wrongful dismissal, is the loss thereby incurred, and that would, subject to the duty of the plaintiff to mitigate, normally be the wages due and payable for the agreed period of service. In the case of Federation of Pakistan v. Ali Ahmed Qureshi (2001 SCMR 1733) it has been held that in view of the doctrine of master and servant, the ccntract of service cannot be specifically enforced, however, in the event of arbitrary dismissal or unwarranted termination of employment, an employee is entitled to sue for damages equal to wages, allowances and other benefits, which would have been otherwise due and payable under the contract of employment. In the case of Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806) it has been held that an employee of a corporation, in the absence of violation of law or any statutory rule, cannot press into service the Constitutional or civil jurisdiction for seeking relief of reinstatement in service and can only claim damages against his wrongful dismissal or termination. While holding so, reference, has been made to the cases of Mrs. M.N. Arshad v. Mrz. Naeerna Khan (PLD 1990 SC 612), Messrs Malik and Haq v. Muhammad Shamsul Islam Chowdhury (PLD 1961 SC 531), Zainul Abidin v, Multan Central Cooperative Bank Limited (PLD 1966 SC 445), Chairman, East Pakistan Industrial Development Corporation v. Rustom Ali (PLD 1966 SC 848), Abdul Salam Mehta v. Chairman, WAPDA (1970 SCMR 40), Lt. Col. Shujauddin Ahmad v. Oil & Gas Development Corporation (1971 SCMR 566), R.T.A. Janjua v. National Shipping Corporation (PLD 1974 SC 146), Principal, Cadet College, Kohat v.
Muhammad Shoab Qureshi (PLD 1984 SC 170), Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), Syed Akbar Ali Bokhari v. State Bank of Pakistan (PLD 1977 Lah. 234), Muhammad Yusuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224) and Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR' 1275). The same principle has been reiterated in the case of Brig. (R.) Sakhi Marian v. Managing Director PEPCO (2009 SCMR 708).
Reference may also be made to the case of S.S. Shetty v. Bharat Nidhi Ltd. (AIR 1958 SC 12) wherein the Indian Supreme Court on the same issue has held as under:-- "The position as it obtains in the ordinary law of master and servant is quite clear., The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained. "They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he is fitted. If the contract expressly provides that it is terminable upon, e.g., a month's notice, the damages will ordinarily be a month's wages No compensation can be claimed in respect of the injury done to the servant's feeling by the circumstances of his dismissal nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages." [Chitty on Contracts, 21st Ed., Vol. (2), p. 559 N., a. 1040].
' If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and subject to the rule of maitigation in the salary of which the master had deprived him. [Vide Collier v. Sunday Referee Publishing Co., Ltd. (1940) 4 All E.R. 237]. The servant would then be entitled to the whole of the salary, benefits, etc., which he would have earned had he continued in the employ of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment. Such damages would be recoverable by the servant for his wrongful dismissal by the master only on the basis of the master having committed a breach of the contract of employment."
16. Now turning towards the development, which had taken place from the year of 2009 when the Ordinance, 2009 and the Act, 2010 were promulgated, it appears that the respondent submitted a request for his reinstatement, which had been conceded to, as is evident from the notification dated 24.11.2009 and he was reinstated for a period of one year alongwith 8 other Presiding Officers of the Banking Tribunals (defunct) against supernumerary post of BPS-22.
17. Learned DAG emphatically contended that in fact this notification itself was void, as being the Presiding Officer of the Banking Tribunal, the respondent's case did not fall within any category of employees/persons, who were entitled for the relief as stated in the preamble of the Ordinance, 2009 as well as definition clause 2(a) & (b) (ibid), therefore, the respondent was not liable to be reinstated.
18. Learned counsel for the respondent, however, contended that the respondent being the Presiding Officer shall be deemed to be in the government service, as such under section 6 (b) of the Act, 2010 he was entitled for the relief. It would be appropriate to note that the Ordinance, 2009 was promulgated under Article 89 of the Constitution of Islamic Republic of Pakistan by the President to provide relief to persons who were appointed in service of State Corporations, autonomous bodies or semi-autonomous bodies or in government service during the period from 01.11.1993 to 30.11.1996 and were dismissed, removed or terminated from service during the period from 01.11.1996 to 31.12.1998. Admittedly, the respondent was not a person who was in the service of a State, nor was he a member of the civil service of the Federation or holding a civil post in connection with the affairs of the Federation in a Ministry, Division or Department as he was appointed under the Ordinance, 1984. Further, the respondent was originally employed on contract for three years under section, 4 of the Ordinance, 1984, which was declared ultra vires of the Constitution in Chenab Cement Products' case (ibid) followed by issuance of notifications in pursuance whereof not only the respondent but so many other Presiding Officers were terminated.
The parent law, which governs the services of the respondents i,e, Ordinance, 1984 does not speak in respect of permanent appointment of the Presiding Officers and section 4 of the Ordinance has also been found contrary to the independence of the judiciary as noted hereinabove.
19. We have applied different tests under Article 240 and the definition of service of Pakistan under Article 260 of the Constitution to ascertain whether respondent's case is covered by the definition of "Government Servant". Admittedly, if a person claims that he is a person in government service, he has to establish that he holds the post or office in connection with the affairs of the Federation or of a Province and includes an All-Pakistan Service. Reference may be made to the following paras from the case of Mubeenus-Salam v. Federation of Pakistan (PLD 2006 SC 602):--
68. The ratio decidendi of the judgments, discussed above, lays down following two basic propositions, for the purpose of ascertaining as to whether a person is in the service of Pakistan:-
(a) A declaration must exist that he shall be deemed to be in the service of Pakistan.
(b) Such person must hold a post or office in connection with the affairs of the Federation or of a Province and includes in all Pakistan Service.
69. The view taken in the above judgments, giving rise to above proposition, was reiterated in the cases of WAPDA v. Muhammad Ashraf Naeem (ibid), Wasim Ahmed Khan- (ibid), Chairman, WAPDA v. Abdul Hafeez Khan (ibid), and Muhammad Ibrahim Mangrio (ibid). In these judgments, the proposition under discussion namely, as to whether by means of a deeming clause a person can be declared to be in the service of Pakistan for the purposes of Article 260 of the Constitution, had not been examined. In this behalf it may be noted that according to Article 260 of the Constitution, the Legislature is empowered to declare any service to be service of Pakistan by or under an Act of Majlis-e-Shoora [Parliament]. This Constitutional provision nevertheless does not empower the Legislature to declare any person to be in the service of Pakistan, on the basis of a legal fiction. The Legislature by using the expression "shall be deemed" has allowed to enjoy the status of civil servant, even. To those persons who were excluded from its definition in terms of section 2(1)(b) of the CSA, 1973, which also includes a person, who is a contract employee as interpreted by this Court in the case of A ftab Ahmed (ibid) followed in Zahir Ullarf s case (ibid).
Relevant para from the last mentioned judgment is reproduced hereinbelow for convenience:--- "The above view taken by the learned Tribunal does. Not appear to be correct as section 2-A which was inserted in the Service Tribunals Act, 1973 by its own force, created a class of Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the learned Service Tribunal. Section 2-A ibid while providing that the service under an authority, Corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Governments has a controlling share of interest is declared to be the service of Pakistan and every person holding a post under such Corporation or organization -shall be deemed to be a civil servant for the purpose of Service Tribunals Act, dries not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. We are, therefore, of the view that as the appellants were covered by the provisions of section 2-A for the purposes of availing remedy before the Service Tribunal. The fact that they were employed in the organization/Corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of incorporation of section 2-A of the Service Tribunals Act, 1973. Accordingly, the above appeals are allowed, the order of the learned Service Tribunal is set aside and the cases are remanded to the learned Service Tribunal with the direction to decide the same afresh in the light of above observations. There will, however, be no order as to costs."
20. Thus, in view of the discussion made in Paras above, it is held that the respondent was not holding any position in connection with the affairs of the Federation, being contract employee under section 4 of the Ordinance, 1984. His status to continue in the service was subject to pleasure of President of Pakistan as it is noted in the notification dated 18.8.1993. Essentially, a person who is a civil servant or in service of Pakistan or a person in government service has not to work subject to the pleasure of President as their services are to be governed under the laws regulating their services.
21. It is to be noted that at the time when respondent was appointed as Presiding Officer of the Banking Tribunal, enabling provision was the notification dated 18.08.1993 and section 4 of the Ordinance, 1984. As far as section 4 is concerned, it deals with the establishment of Banking Tribunals and as per its sub-section (3), the Banking Tribunal shall consist of a person who is, or has been, or is qualified for appointment as, a Judge of High Court or a District Judge or an Additional District Judge, to be appointed by the Federal Government. In this provision no terms & conditions of service have been prescribed, therefore, for such reasons, in the year 1993 the notification referred to hereinabove was issued in pursuance whereof initially contract period was prescribed for three years, which was expendable for another period not exceeding three years.
Thus, it is held that the notification dated 24.11.2009 of appointment of the respondent issued under Ordinance, 2009 was illegal, unwarranted and void.' As it has been pointed out hereinabove, the respondent had availed period of one year to be the Presiding Officer of Banking Tribunal contrary to the law, for which legally he was not entitled to hold the post. Similarly, the question is as to how a contract employee can be inducted into service of Pakistan on regular basis in pursuance of the provisions of Act, 2010? Without prejudice to the case of any of the parties, at the best, the respondent could have succeeded subject to discussion made hereinabove, to be a permanent Presiding Officer of the Banking Tribunal, which of course was not possible in view of the provision of section 4 of the Ordinance, 1984 read with notification dated 18.08.1993. It is also to be noted that the Act, 2010 also deals with the persons who were in employment of the corporation etc. Or in government service. We have examined the case of respondent and have come to the conclusion that his case is not covered under either of the two expressions, therefore, he was not entitled to be regularized as a government servant in BPS-22 and for such reason we agree with the learned Deputy Attorney General that the notification dated 27.4.2011, reproduced hereinabove, was issued inadvertently. Therefore, under the circumstances, the Law Ministry; on having realized that the issuance of such notification was contrary to law, had rightly withdrawn the same on 28.5.2011.
22. Before parting with the judgment, we observe 'that the respondent succeeded in getting himself re-instated sunder section 6(2) of the Ordinance, 2009 vide notification dated 24.11.2009 whereas the person holding such post, which is not supported by any provision of the law, do not deserve to draw salary or any other benefit. Similarly, after issuance of the notification dated 27.4.2011 he has also drawn the difference of the pay between grade-22 and the Judge of the High Court, which admittedly amounted to the tune of Rs, 42,00,000/-.
23. We have regrettably noted that in issuance of both the notifications dated 24.11.2009 as well as 27.4.2011 the functionaries of the Law Ministry acted unlawfully and with gross negligence, as it was apparent from the notification dated 24.11.2009 that the respondent's case was not covered under any of the definitions of the persons who were entitled for the relief as per the contents of the Ordinance, 2009 and while issuing 2nd notification dated 27.4.2011 they lost sight of the to that the High Court in its judgment dated 28.2.2011, contents whereof have been reproduced hereinabove, had sent back the case of the respondent alongwith others for r?Consideration and the High Court had not given the relief to them. It seems that the relief which was even not claimed by the respondent in prayer clause, had been given to him because firstly he had claimed extension for another three years after expiry of remaining period under the Ordinance, 2009 and secondly it was stated that he was entitled to compensation equal to pay, allowances and other privileges as admissible to a Judge of the High Court for a period of three years under section 9 of the Ordinance, 2009 and directions were sought to apply the provision of sections 3, 6 and 9, etc., of the Ordinance with minimum effect and as he was unduly and illegally favoured, instead of getting the relief, which he was claiming, he was reinstated and regularized in government service w,e,f, 8.12.2010 with the pay, allowances and all privileges as admissible to a Judge of the High Court with further relief that as at that time no post of his scale was available in the Law Ministry against which his services could be utilized, his services were handed over to the Establishment Division for further posting. Surprisingly, a person, who himself was claiming that his contract should be extended as Presiding Officer, he is being obliged for no other reason except, prima facie, by indulging in corruption and corrupt practices by making him a regular employee of the government department and placing his services with the Establishment Division for his posting as Grade-22 Officer. Thus, such state of affairs is sufficient to conclude that notification dated 27.4.2011 was illegal, void and contrary to law.
24. Accordingly, the petition was converted into appeal and allowed vide our short order of even date, which reads as under:-- "For the reasons to be recorded later, this petition is allowed. Consequently, judgments of the High Court dated 12.3.2012 in Writ Petition No, 1992/2011 and dated 16.5.2012 in ICA No, 116/2012 respectively are set aside. It is declared that the respondent's case is not covered under any of the provisions of the Sacked Employees (Reinstatement) Ordinance, 2009. Therefore, his reinstatement in service as Presiding Officer of the Banking Tribunal is declared illegal and void ab initio with immediate effect.
Similarly the Notification No, F2(44)/2009-A.IV, dated 6th May, 2011, reinstating/regularizing services of the respondent w,e.f. 8th December, 2010 is not sustainable in the eye of law. Under the circumstances, the Ministry of Law, Justice and Parliamentary Affairs Division, Govt. Of Pakistan has rightly issued Notification No, F2(44)/2009- A.IV, dated 28.5.2011 by withdrawing the earlier notification dated 27th April, 2011. The respondent, in view of the termination of his services as back as on 10.6.1996 was not entitled to any emoluments or difference of pay which statedly he has recovered from the Government to the tune of Rs, 42,00,000/- being a contract employee, he was entitled only to salary in lieu of the notice period. The Secretary, Finance as well as the Secretary, Law, Justice and Parliamentary Division, Govt. Of Pakistan are hereby directed to calculate the total amount which is to be recovered from the respondent under both heads noted hereinbefore and on receipt of the notice from the Ministries of Finance and Law, Justice and Parliamentary Division, he shall deposit the amount within four weeks after adjusting Income Tax deducted at sources. The Secretary, Law . Justice and Parliamentary Affairs Division are also directed to initiate civil/disciplinary proceedings against the persons who issued the notification without examining the relevant provisions of the law and acted negligently. Any order which deemed fit, shall be passed against them after following the due process of law. The inquiry report and action taken against the officers/officials shall be submitted to the Registrar of the Court within 8 weeks after receipt of this order, for our perusal in Chambers, for passing appropriate orders, if need be.
' The respondent is present and stated that he is ready to deposit the aforesaid amount voluntarily as per observation of this Hon'ble Court that he had wrongly been inducted in service. He further stated that he believes in the rule of law and also in earning Rizq-e-Hilal for himself and his family.
We appreciate this gesture voluntarily made by him."
24. As the respondent has volunteered to refund the outstanding amount noted above and we have also appreciated his gestures, therefore, he is not burdened with costs. However, the Secretary, Ministry of Law & Justice shall probe into the matter as to who was responsible for negligence and/or corrupt practices which resulted in loss to the national exchequer, and proceed against those found responsible, in accordance with law.
Leave Petition Converted into Appeal and .