1. Petitioner was serving in Pakistan Rangers as Naike since, 1988. During his posting as Deputy Superintendent Rangers (DSR) in Delta Company in 2008, he was posted at Tibba. The petitioner was charge sheeted by the Deputy Director General Pakistan Rangers (Sindh) under section 15(1) of Pakistan Rangers Ordinance, 1959 read with Rule 4 of Pakistan Rangers (Efficiency, Discipline and Appeal Rules, 1967) on 26-10-2010 which is reproduced as under:--- Misconduct in his capacity as a member of the Force, in that he 1st Charge While serving in 72 Wing Indus Rangers Hathungo and performing duty as Delta Company Commander with effect from 26 December, 2008 to I0 July, 20I0, established links and developed relations with notorious smugglers/border crossers willingly and willfully.
2. 2nd Charge While serving 72 Wing Indus Rangers Hathungo and performing duty as Delta Company Commander with effect from 26 December, 2008 to I0 July, 20I0, passed information to civilian Ali Khan Ansar, a border crosser about movement of senior Rangers/Military Officers, thus cautioned the smugglers/border crosser to escape.
3. 3rd Charge While serving 72 Wing Indus Rangers Hathungo and performing duty as Delta Company Commander with effect from 26 December, 2008 to I0 July, 20I0, took bribe in shape of cash and Indian Wine from different smugglers/border crossers and overlooked their illegal activities in his area of responsibility.
4. 4th Charge While serving 72 Wing Indus Rangers Hathungo and performing duty as Delta Company Commander with effect from 26 December, 2008 to I0 July, 20I0, instigated heir of apprehended suspects to approach the court of law against Rangers officials for their release.
5. Thus violated rules and Standing Operating Procedure of the force and international border.
6. During the investigation, it was found that petitioner was involved in anti force activities and as such by the order of the Deputy Director-General of Pakistan Rangers (Sindh) on 29-10-2010, the petitioner was dismissed from service. Petitioner thereafter, preferred departmental appeal to the respondent No.1 on 13-11-2010 and when no order was passed the Departmental appeal of the petitioner, petitioner consequently filed Appeal No 337/2011 before the Federal Service Tribunal [FST] at Lahore.
7. The case of the petitioner as stated in, the petition is that the Departmental Appeal filed before the respondent No.1 against his dismissal was decided on 26-7-2013, therefore now the petitioner has approached this court for the implementation of the order of respondent No.1 with the following prayers:---
(a) That the respondents in general and respondent No.2 in particular may be directed to allow petitioner to join his duty as has been directed in the order dated 26-7-2013 and other benefits may also be given to the petitioner forthwith.
(b) That declare the act of the respondents in general and of the respondent No.2 in particular of not allowing petitioner to join his duty in accordance with law and order dated 26-7-2013 is illegal, nullity and of no legal effect.
(c) Or may pass any order(s) in favour of the petitioner against the respondents which may be deemed fit and proper under the circumstances of the case.
8. After issuance of the notices to the respondents, on 4-3-2014 Preliminary objections/comments inter-alia regarding the maintainability of the present petition were filed on behalf of respondent No.2, wherein respondent No.2 has disclosed that petitioner had also filed Appeal No.337/2011 before the Federal Service Tribunal at Lahore. Per respondent No.2, the same was/is pending at the time of filing of present petition. Respondent No.2, raised objection that during pendency of the Service Appeal before the Federal Service Tribunal at Lahore the order dated 26-7-2013 passed by the respondent No.1 besides without jurisdiction cannot be executed. Respondent No.2, has also raised objection that during the pendency of the service appeal before the Service Tribunal which is a higher forum, the order of lower incompetent forum cannot be implemented, by the Department.
9. ' Petitioner filed affidavit-in-rejoinder to the objections of respondent No.2 and in Paragraph No.8 of the affidavit-in-rejoinder for the first time, the petitioner also admitted that petitioner had filed Service Appeal No.337/LCS/2011 before the Federal Service Tribunal at Lahore and during pendency of that Appeal, Departmental Appeal was allowed on 26-7-2013 almost after three (3) years by the Appellate Authority.
10. ' Mr. Saad Siddiqui, learned counsel for the respondent No.2 at very outset referred to section 15 of The Pakistan Rangers Ordinance, 1959 which is reproduced as under:---
15. Departmental Punishment.--- [(I). The Director-General may, subject to rules made under this Ordinance, summarily award, in lieu of or in addition to suspension, removal, dismissal or compulsory retirement from service, any one or more of the following punishments to any member of the Force who in his opinion is inefficient or has ceased to be efficient or whom he considers to be guilty of disobedience, neglect of duly or remissness in the discharge of duty or of rendering himself unfit to discharge his duty, or of other misconduct in his capacity as a member of the Force, that is to say:---
(e) Removal from any office of distinction or special emoluments in the Force;---- (1A) The Director-General may delegate, to such extent and in respect of such units as he may think fit, the powers conferred upon him by subsection (I) to the Deputy Director-General.
11. Learned counsel for the respondent No 2 raised serious objection that the Departmental Appeal had been filed before the wrong forum/incompetent forum as such the order needs not be implemented as prayed by the petitioner. Besides, according to the counsel for the respondent No.2, since the dismissal order dated 29-10-2010 was passed by the Deputy Director-General Pakistan Rangers (Sindh) therefore, the departmental appeal ought to have been filed before Director-General Ranger (Sindh), who is the competent authority under law.
12. The learned counsel for respondent No.2 has placed reliance upon The Pakistan Rangers Administrative Power Rules, 1965 and the schedule thereof which provides that in case of awarding of major punishment to Deputy Superintendent Ranger (DSR) under subsection (1) of section 15 of PR Ord. 1959 the competent authority is Government, if punishment is awarded by Director-General and Director-General in other cases. Learned counsel for the respondent in view of the aforesaid legal position vehemently contended the petitioner in a calculated manner had chosen the wrong forum to file Departmental Appeal.
13. Mr. Abdul Salam Memon, learned counsel for the petitioner in counter submits that since powers were delegated by the Director-General of Pakistan Rangers (Sindh) to the Deputy Director- General Pakistan Rangers (Sindh), therefore, the respondent No.1 was/is the Competent authority and the order dated 26-7-2013 so passed by the respondent No.1 is lawful and legal thus needs to be implemented by this Court.
14. We have heard the learned counsel for parties at length and perused the materials available on record with their assistance minutely.
15. It appears that petitioner filed Service Appeal bearing No.337/2011 before Federal Service Tribunal at Lahore apparently after 90 days however such factum of filing of appeal before FST has concealed in the memo. Of present petition. In view of this position, the petitioner has also approached this Court with unclean hands. Being relevant section 4 of the Services Tribunals Act, 1973, is reproduced as under:---
4. Appeals to Tribunals.--- (I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority. In respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter: Provided that---
(a) Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973 or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved Civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days, has elapsed from the date on which such appeal, application or representation was so preferred, and Petitioner, in his affidavit-in-rejoinder filed on 18-9-2014 in paragraph No.8 has stated that he moved Departmental Appeal before Appellate forum on 13-11-2010 and filed Service Appeal No.337/2011 before the Federal Service Tribunal Lahore. After about three years filing of Service Appeal before the Federal Service Tribunal by the petitioner, respondent No.1 decided the Departmental Appeal on 26-7-2013. Moreover, the petitioner has failed to produce the Memo. Of Appeal filed before the Federal Service Tribunal at Lahore with the present petition. It is not known whether petitioner has mentioned the factum of filing of Departmental Appeal before the respondent No.1 in the Memo. Of Service Appeal or not which he had filed before the Federal Service Tribunal at Lahore.
16. From the materials available before us it is apparent from the record that under the law respondent No.1 is not the appellate authority as such, the order passed by the respondent No.1 on 26-7-2013 besides without jurisdiction illegal could not be implemented muchless, when the petitioner has come this Court with unclean hands by concealing the factum of filing of Service Appeal before the Federal Service Tribunal at Lahore as such the petitioner is not entitled for any relief on account of his unclean conduct. For the foregoing discussion we hereby dismiss the present petition. However, the petitioner is allowed thirty (30) days time from receipt of this order to approach the competent forum i.e. Director-General of Pakistan Rangers by way of filing Departmental Appeal which shall be decided by the Director-General Pakistan Rangers on merits strictly in accordance with law after affording a fair opportunity of hearing to the petitioner.
17. Petition stands dismissed however, with no order as to cost.