MUHAMMAD SHAN GUL, J. This judgment shall decide the titled Intra Court Appeal filed against the judgment passed by a learned Single Judge dated 27.03.2015 in W rit Petition No.2772 of 2015.
2. Brief facts of the matter are that a Writ Petition No.2772 of 2015 in the nature of Quo Warranto was filed against respondents No.4 to 6 on the ground that their reinstatement by the Punjab Text Book Board was illegal, void and without jurisdiction. According to the petition, respondents no.4 to 6 i.e. Mst. Fareeda Sadiq, Rana Tariq Mahmood and Ms. Saman Jameel were appointed in the Punjab Curriculum and Textbook Board Act, 2015 in Basic Scale-17 by the then Chairman on the recommendation of the then Minister for Education. Respondent No.4 to 6 were subsequently removed from service vide order dated 16.10.2000 which was challenged through a Writ Petition bearing No.21448 of 2000. That, likewise, some other employees of the Punjab Text Book Board who were also dismissed from service also filed a writ petition No.21592 of 2000. Writ Petition No.21448 of 2000 filed by respondents No.4 to 6 was dismissed and their appointments were declared to have been made without lawful authority . This judgment was challenged before the Hon'ble Supreme Court of Pakistan by means of C.P.No.2259-L of 2001 which, too, was dismissed.
3. Even after the order passed by the Hon'ble Supreme Court of Pakistan, the then Chief Minister issued directives for reinstatement of the respondents No.4 to 6 in the Punjab Curriculum and Textbook Board Act, 2015. Learned Single Judge seized of the matter noted in paragraph No.4 of his order that the only controversy that was required to be resolved for a decision on the writ petition in question was whether the defect in the appointment of respondents No.4 to 6 that found favour with and was upheld by, the Hon'ble Supreme Court, had been subsequently rectified by the Punjab Curriculum and Textbook Board or not. This the learned Single Judge observed because the Hon'ble Supreme Court of Pakistan while dismissing C.P.No.2259-L of 2001 noted that the appointment of respondent No.4 to 6 had not been made with the previous sanction and approval of the Punjab Curriculum and Textbook Board. The respondent Punjab Curriculum and Textbook Board placed the minutes of the meeting of the Punjab Curriculum and Textbook Board held on 16.10.2004 wherein the Board had duly approved and sanctioned the reinstatement of respondent No.4 to 6.
4. Gaining clarity in the matter , the learned Single Judge ruled that the basis on which removal from service had taken place was rectified and did not obtain anymore and that therefore the quo warranto petition could not succeed. The learned Single Judge also questioned the motives of the petitione r in the writ petition and while noting that the petition suf fered from laches the learned Single Judge dismissed the W rit Petition in question.
5. Through the present appeal, the judgment passed by the learned Single Judge has been challenged. Learned counsel for respondent No.4 to 6 (in the Intra Court Appeal-same in the Writ Petition) at the very outset of the proceedings raised a preliminary objection relating to the jurisdiction of this Bench to entertain the I.CA and stated that since the original order against which the writ petition was filed emanated out of proceedings in which the law applicable provided for a right of appeal, the present Intra Court Appeal was hit by the first proviso of Section 3(2) of the Law Reforms Ordinance 1972. He referred to Section 28 of the Punjab Curriculum and Textbook Board Act, 2015 which reads that any person aggrieved by a direction or order of the Board could, within thirty days of the communication of the direction or order , prefer an appeal to the Government. It is his case that since the additional forum of an appeal has been provided by law prior to the invocation of constitutio nal jurisdiction, the subsequent remedy of Intra Court Appeal was not available to the appellant.
6. Learned counsel for the appellant on the other hand, in response, submitted that he has challenged the directive issued by the then Chief Minister whereby the Punjab Curriculum and Textbook Board was directed to reinstate respondent No.4 to 6 and not the order or direction of the Punjab Curriculum and Textbook Board. Learned counsel for appellants was confronted with the fact that the directive of the Chief Minister had merged in the order of the Board dated 16.10.2004 and that the Board had sanctioned the reinstatement of the petitioner and since the final order for reinstatement was that of the Board and since the petitioner had filed a quo warranto petition challenging the order of the Punjab Curriculum and Textbook Board, the order under challenge for all practical and legal purposes was the order passed by the Punjab Curriculum and Textbook Board dated 16.10.2004. Learned counsel for the appellants could not satisfactorily rebut this factual position and instead tried to argue that even if this be so, since the appellant had not availed the right of appeal, therefore, the bar contained in Section 3 (2) of the Law Reforms Ordinance 1972 was not attracted.
7. We have heard the parties at length and perused the record available on the file.
8. The hon'ble Supreme Court of Pakistan in judgments reported in and as (PLD 2007 S.C. 405) and (2011 SCMR 592) has categorically held that the question of jurisdiction, if raised, has to be determined at the outset and to the exclusion of all other issues. In deference to these judgments and since the pivota l question raised by the learned counsel for respondents relates to maintainability and jurisdiction of this Bench to entertain the Intra Court Appeal in question and since the decision on this question has a tremendous bearing on the decision of this Intra Court Appeal, we proceed to determine this question first.
9. The legal regime governing an Intra Court Appeal is contained in Section 3(2) of the Law Reforms Ordinance 1972. Section 3(2) of the Law Reforms Ordinance 1972 is provided as follow:-
(1) An Appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a single Judge of that Court under (clause (1) of Article (199) of the Constitution of Islamic Republic of Pakistan) not being an order made under subparagraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article (199) arises out of any proceedings in which the law applicable provided for at least one appeal (or one revision or one review) to any court, tribunal or authority against the original order .
The law applicable in the present case out of which the present matter emanates is the Punjab Curriculum and Textbook Board Act. Section 28 of the Punjab Curriculum and Textbook Board Act, 2015 reads as follows:- Any person, aggrieved by a direction or order of the Board, may, within thirty days of communication of the direction or order , prefer an appeal to the Government whose decision on such appeal shall be final.
10. In terms of the first proviso to Section 3 of the Law Reforms Ordinance 1972, an Intra Court Appeal shall not be competent if the writ petition before the High Court under Article 199 of the Constitution arises out of any proceedings in which the law applicable provides for at least one appeal against the original order . It has already been noted that the respondents No.4 to 6 were only reinstated in service after the sanction and the order of the Punjab Curriculum and Textbook Board, the right of appeal contained in section 28 of the Punjab Curriculum and Textbook Board Act, 2015 was indeed available to the appellant. The words "any person" contained in Section 28 of the Punjab Curriculum and Textbook Board Act, 2015 puts paid to the naive arguments raised by the counsel for appellant that he was not an employee of the Board and therefore could not have possibly availed the right of an appeal. The words "any person" are clear enough to include the appellant and employing the yardstick of literal interpretation of texts, this is the only inescapable position that can be reached. Moreso, because the words "any person" are followed by the term "aggrieved" in Section 28 of the Punjab Curriculum and Textbook Board Act, 2015.
This therefore, clearly means that any person who is aggrieved of any order of the Board can file an appeal before the Government. Even otherwise ever since 1975, the position of case law on the subject has been clear and trite.
11. In PLD 1975 Lahore 1339 titled as Yousaf Ali Khan Bar-at-Law Vs. Muhammad Javed Iqbal Cheema Esq.
Additional sessions judge llyallpur and 6 others it has been noted in paragraph 7 and 8 as follows:-
7. This brings us to subsection (2) of section 3 of the Ordinance XII of 1972 as amended upto-date which is reproduced below: Section 3 (2).An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, not being an order made under subparagraph (1) of paragraph (b) of that clause Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, arises out of any proceeding in which the law applicable provided for at least one appeal or one revision or one review to any Court, tribuna l or authority against the original order
Under the operative part of this subsection in general an appeal shall lie to a Bench of two or more Judges of the High Court against an order passed by a Single Judge under clause (1) of Article 199 of the Constitution, not being an order made under subparagraph (i) of paragraph (b) of that clause. But, this is subject to and controlled by the proviso reproduced above. As a general rule a proviso to a section operates to cut down its meanings and scope.
In this connection according to Craies on Statute Law, Sixth Edition, p. 217 the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein.
8. The true scope of this proviso has come in for serious consideration in this appeal before us. It lays down that no such appeal to a Bench of two or more Judges of the High Court shall be available or competent if the application brought before the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, arises out of any proceedings in which the law applicable provided for at least one appeal, or one revision or one review to any Court, Tribunal or authority against the original order . At this stage a short analysis of this proviso shall be helpful. It takes us back to "the proceedings" out of which the petition under Article 199 (1) of the Constitution has arisen, so as to find out the law applicable to those proceedings, and then to see whether that law provided for at least one appeal, or one revision, or one review to any Court, Tribunal or authority against the "original order"; In case this is so, then there shall be no appeal to a Bench of two or more Judges of the High Court from an order made by a Single Judge of the same Court under Article 199(t) of the Constitution. These are the steps that must be taken before invoking the bar contained in the proviso against an intra Court appeal to a larger Bench from the order of a learned Single Judge of the High Court.
12. Subsequently the Hon'ble Supreme Court of Pakistan in a celebrated case titled as "Mst. Kareem Bibi and others Vs. Hussain Bux and another" (PLD 1984 S.C 344), developed the law on the subject further and provided a bond of fate to the legal position explained by the Lahore High Court in (PLD 1975 Lahore 1339). In (1996 CLC 842) titled "The Government of Punjab Through Secretary education Department Vs. Mushtaq Ahmad" , it has been held at paragraph No.2 as follows:- The learned Assistant Advocate-General has argued that even though the Civil Servants Act read with the Service Tribunal Act provides for a departmental appeal as well as an appeal to the Service Tribunal yet this appeal is available only to the Civil Servants and not to the Government and, therefore, Law Reforms Ordinance, 1972 do not bar an Intra Court appeal. This argument is without force as to Law Reforms Ordinance only talks of the availability of appeal and n whether the appeal is available to one or to both the parties. Furthermore there is no question of the "Government challenging its own orders in appeal. It is, therefore, of no consequence that the Government has no right to appeal under the law applicable to the civil servants.
In (2000 PLC (C.S) 93) titled as "Ijaz Ahmad Vs. Registrar , High Court" a full Bench of Lahore High court has held in paragraph No.2 and 3 as follows:-
2. When confronted, whether a right to appeal is available to the appellants in terms of clause 20 of the High Court.
Establishment (Appointment & Conditions of Services) Rules, the learned counsel states that as representation filed by the appellants has not so far been disposed of consequently the remedy of appeal cannot be availed by them, therefore, the instant Intra Court Appeal would be competent.
3. We are afraid that the above contention of learned counsel is not well-found ed for two reasons; firstly , the proviso to section 3 of the Law Reforms Ordinance, 1972, clearly states, that if the application before the High court arises out of any proceedings in which law applicable provides for at least one appeal; or revision or one review I.C.A would not be competent. Thus, in the light of above provision, irrespective of the fact, whether the appellants could not file appeal, due to non-disposal of their representation, the present appeal is not tenable.
Another judgment of Hon?ble Supreme court of Pakistan reported as (PLD 2001 SC 182) titled as "Syed Arif Raza Rizvi Vs. Messrs Pakistan International Airlines through Chairman M.D Karachi" on the same subject was also quoted with approval. In (2005 CLC 978) "Yamin Vs. Mst. Jajan and others" it has been held in paragraph No.5 as follows:- After considering the arguments of both the learned counsel and from the perusal of the record, we have noted an important distinction which has to be kept in mind, while holding the Intra Court Appeal to be maintainable or not. There are two kinds of cases and situations. One is of the cases in which Mukhbari application was filed in such period when original order of allotment was not appealable. The other category of cases is of those cases where original order of allotment was subject to the incidence of appeal, revision/review . The order dated 03.05.1967 passed against Jalal, the original allottee was appealable and the appeal was actually filed against the allotment order and an order of cancellation dated 0305.1967 was obtained,, against which appeal was filed before the learned Settlement commissioner (Land), Multan, which was accepted on14.03.1970 and the case was remande d to Assistant Commissioner , Mailsi with the powers of D.S.C (Land). So, in the above noted proceedings, the appeal was provided by section 19 of the Land Settlement Act, 1958, against the original order which was also availed of.
Therefore, the remedy of Intra Court Appeal cannot be sought for. In fact, the wisdom for providing Intra Court Appeal against an order passed in writ jurisdiction is for bringing another finding from a second Court so that no wrong/mistake/error/omission should remain in the field and the parties be given full opportunity of hearing and adjudication by at least two authorities/forums or Courts. As the appeal is the first remedy provided to a party , therefore, after the second remed y of writ, seeking a third finding/judgment through Intra Court Appeal has been closed by the Legislature in its wisdom. Therefore, power of Intra Court Appeal cannot be exercised in case where a remedy of appeal/revision/review/ representation was available against the original order .
13. This judgment interestingly also provid es the rationale behind the insertion of the proviso to Section 3(2) of the Law Reforms Ordinance 1972.
14. In (2012 SCMR 114) "Secretary of the Government of Punjab, Revenue Department Vs. Sajjad Ahmad and another" and it has been held in paragraph No.5 and 6 as follows:-
5. Mr. Mudassar Khalid Abbasi, Assistant Advocate-General, Punjab in his arguments vehemently contended that the two conditions contained in the letter dated 18-1-2006 issued by the Board of Revenue Punjab, were challenged by the respondents through Writ Petition No.1664 of 2006, on the ground of jurisdiction as it was not an order open to challenge in appeal under the provisions of the Act of 1894. It was in this background that judgment in the said writ petition was rightly challenged by the present appellants through I.C.A. However , learned Division Bench of the Lahore High Court, while passing its impugned judgment, fell in grave error of law in recording its view regarding availability of remedy of appeal under section 54 of the Act of 1894, thereby dismissing the I.C.A. of the appellants on such unsustainable legal objection, and not deciding the same on merits after considering various grounds urged by the appellants. He further contended that even in terms of Rule 14(2)(ii), restoration of unutilized acquired land to its original owners was subject to the discretion of competent authority and further to fix its price, if necessary to be lower than the original rates paid to owners, on the ground of deterioration of land or enhance the rates on the ground that value of land has been improved, but these important aspect of the case, which needed due consideration, were totally overlooked by the Division Bench, while passing its impugned order .
6. Sheikh Zamir Hussain, learned Senior Advocate Supreme Court for the respondents when confronted with the question of maintainability of the I.C.A., candidly stated that the remedy of appeal in terms of section 54 of the Act of 1894 was not available to the parties, therefore, dismissal of I.C.A. on this ground qua reference to section 3(2) of the Law Reforms Ordinance 1972, was due to erroneous view formed by the learned Division Bench.
In (PLD 2016 Lahore 163) "Muhammad Abid Iqbal Vs. District Election Commissioner and 3 others" , it has been held in paragraph No.4 as follows:-
4. Admittedly in these appeals either nomination papers were accepted or rejected and against acceptance or rejection of nomination papers an appeal is provided under Sub-rule (10) of Rule 14 of the Punjab Local Government (Conduct of Elections) Rules, 2013, which reads as follows:- An appeal against the decision of the Returning Officer rejecting or accepting the nomination papers of the candidate may be preferred by any person present at the time of scrutiny unde r Sub-rule (1) to the concerned District and Sessions Judge or any other Judicial Of ficer nominated for the purpose by the Election Commission.
The proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972, is reproduced as under:-- Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court. Tribunal or authority against the original order; If we read the provision of Sub-rule (10) of Rule 14 of the Punjab Local Government (Conduct of Elections) Rules, 2013 in juxtaposition with proviso to subsection (2) of section 3 of the Law Reform s Ordinance, 1972, it leaves no ambiguity that where one appeal or one revision or one review is provided against the original order then Intra Court Appeal is not competent. Admittedly the original orders have been passed by the Returning Officers either rejecting or accepting the nomination papers against which an appeal is provided under Sub-rule (10) of Rule 14 of the Punjab Local Government (Conduct of Elections) Rules, 2013. Therefore, these Intra Court Appeals are not competent as law applicable has provided one appeal against such orders under proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972. Reference may be made to case titled Mst. Karim Baksh and others v. Hussain Bakhsh and another (PLD 1984 SC 344). Reference may also be made to unreported order dated 12.10.2015 passed in I.C.A. No. No.1305 of 2015 in case titled Ahmad Raza and another v. Chief Election Commissioner , etc. In I.C.A. No. 1309 of 2015 right of appeal was not availed by the appellant before the Appellate Authority under Sub-rule (10) of Rule 14 of the Punjab Local Government (Conduct of Elections) Rules, 2013. However , the non- filing of appeal does not make the Intra Court Appeal competent as right of appeal under the above-mentioned rule was available to him.
In judgments reported as (2020 CLD 1462) "Chairman National Accountability Bureau (NAB) Vs. Ramzan Sugar Mills Limited and others" (2020 CLC note 32) "Mst. Shanzey Khan Vs. Muhammad Asim and another" similar dictum has been laid down. (2020 CLC 173), "National Electric Power Regulatory Authority Vs. Gujranwala Energy (Pvt) Limited" (2019 CLD 144) "State Life Insurance Corporation of Pakistan through Attorney Vs. Additional District Judge and others" and (2018 PTD 75) "Tandlianwala Sugar Mills Ltd. Vs. Province of Punjab through Excise and Taxation and 5 others" similar ratio decidendi has been laid down.
15. In (2021 CLC 462) "Raheel Bahadur and 4 others Vs. The Province of Punjab through Secretary Environment and 6 others" it has been held in paragraph 7 as follows:- Another aspect of the case is whether the instant Intra Court Appeal is maintainable. In order to address the afore- referred proposition of law, for facility of reference, it would be appropriate to reproduce section 3 of Law Reforms Ordinance, 1972:-- "3. Appeal to High Courts in certain cases:
1. An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction.
2. An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under [clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan] not being an Order made under sub-paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order .
3. No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court."
In respect of words "original order" and "proceedings" contemplated under the Law Reforms Ordinance, 1972 with reference to the maintainability of Intra Court Appeal, it has been settled in case of "Mst. Karim Bibi and others v. Hussain Bakhsh and another" (PLD 1984 Supreme Court 344) that word 'proceeding' would include every step taken towards further progress by which the machinery of law is put to motion and original order may be the order passed by the lowest officer or authority in the hierarchy . Therefore, the test is that as to whether the original order passed in proceedings is subject to an appeal or a revision under the relevant law, irrespective of fact whether the remedy of appeal or revision so provided was availed or not. The section 8 of the Punjab National Calamities (Prevention and Relief) Act, 1958 itself provides that a revision shall lie against the order of the Relief Commissioner , Punjab passed under section 4 of the said Act. Section 8 of the Punjab National Calamities (Prevention and Relief) Act, 1958 reads as under:- "8. Revision.- (1) Any order passed under this Act by the Relief Commissioner , shall be subject to revision by the Government, and the Relief Commissioner shall give ef fect to the orders of the Government made in revision.
Provided that no order in revision shall be passed without giving to the party to be affected thereby an opportunity of being heard.
(2) The Government shall, by rules, prescribe the class of cases and the manner in which and the time within which orders made under this Act shall be liable to revision by the Government."
As a revision is provided against the orders passed by the Relief Commissioner , Punjab, therefore, no Intra Court Appeal can be filed under section 3 of Law Reforms Ordinance, 1972.
In (2019 SCMR 939) titled as "SME Bank through President Islamabad and others Vs. Azhar-ul-Haq", the hon'able Supreme Court was pleased to hold in paragraph No.3,5 and 6 of the judgments as follows:-
3. Mr. Abdul Rahim Bhatti, learned ASC for the respondent, at the outset, has conte nded that the appeal before this Court is not maintainable as against the impugned judgment the appellant had a remedy of filing an Intra-Court Appeal (ICA) in the High Court. He conte nded that without availing such remedy , the present appeal is liable to be dismissed.
5. We would directly like to examine the said judgment of this Court cited at the Bar by the learned Senior ASC for the appellant and in this regard, reference is made to para 8 thereof. Relevant portion is as follows: "8. After giving our anxious consideration to the arguments urged in support of this appeal we are, however , not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal, against the original order , then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appe al in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review , if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced."
6. It is admitted fact that disciplinary proceedings were conducted against the respondent under the Regulations stated above, which ultimately resulted into imposition of penalty vide Office Order dated 02.06.2003, against which under the said Regulations, which are stated by the respondent to be statutory , the remedy of appeal and review is provided. We are of the view that where the proceedings from which the writ petitio n has arisen provided for either review , revision or appeal, in terms of proviso to section 3 of the Ordinance of 1972, remedy of ICA will not be available against the judgment passed by the learned Single Judge in the writ petition. Thus, the appeal before this Court is competent.
16. The case law listed above conspicuously and indubitably lends credence to the preliminary objection raised by the learned counsel for respondents No.4 to 6. The judgments quoted above clearly hold that whether an appeal was availed or not is immaterial and as long as an appeal against the original order is provided by law then an Intra Court Appeal shall not be competent. Likewise, the above judgments clearly hold that the right of appeal whether it could be availed by both the parties is immaterial and as long as the right of appeal is available in the statue in terms of which the order has been passed, an Intra Court Appeal is not competent. Above judgment, especially (2005 CLC 298) "Yamin Vs. Mst. Jajan and others" also explain the rationale and the logic behind the insertion of proviso to Section 3(2) of the Law Reforms Ordinance 1972.
17. In view of what has been discussed above, the present Intra Court Appeal is held to be not maintainable and accordingly the preliminary objection is sustained and the Intra Court Appeal is dismissed.