MIAN BURHANUDDIN KHAN, J.-- By this petition leave is sought to appeal against the judgment and order of a Division Bench of the Lahore High Court, Lahore dated 26-10-1986 passed in Intra- Court Appeal No. 157 of 1980.
2.Facts giving rise to the petition are that the petitioner had employed the respondent as apprentice Cameraman vide letter dated 15-9-1976 with effect from 1-10-1976. This letter of appointment was accepted' by the respondent, and after the probationary period of nine months, he was duly appointed as Cameraman with effect from 1-7-1977. It is averred that the original letter of appointment, dated 1-7-1976 was issued to the respondent against a permanent vacancy and the letter dated 23-7-1977 was merely a confirmation and continuation of the said appointment.
The petitioner, later on, removed the respondent from service vide letter, dated 6-12-1978 in pursuance of order dated 3-12-1978 passed by the Secretary, Government of Pakistan, Ministry of Information and Broadcasting in exercise of the powers conferred by section 3 of the Corporation Employees (Special Powers) Ordinance XIII of 1978 (hereinafter referred to as the Ordinance) read with the Establishment Division Notification S.R.O. 1067(1)78, dated 27-8-1978 directing removal from service of certain employees of the petitioner Corporation, which included the respondent. The respondent filed a writ petition against the termination of his service challenging the order on the ground that he was appointed on 23-7-1977, and, therefore, he does not fall within the period of 1-1- 1972 to 5-7-1977 specified under section 3 of the Ordinance. The learned High Court Judge accepted the writ petition and held by judgment dated 11-3-1980 that the respondent's appointment was made on 23-7-1977 and was, therefore, beyond the period prescribed under section 3 of the Ordinance. Petitioner, aggrieved from the said order, filed an Intra-Court Appeal which was admitted to regular hearing. During the pendency of the appeal the Provisional Constitution Order, 1981 was promulgated. Article 15(2) of the Order gave validity to all orders passed after 5-7-1977 in pursuance of any Martial Law Order or Ordinance, notwithstanding the judgment of any Court. The petitioner thereafter filed an Application C . H . No. 2 of 1982 under section 151, C . P. C . In Writ Petition No. 5820/S of 1978 to declare the Intra-Court Appeal infructuous on the ground that the judgment appealed against, had become of no legal effect. Learned Division Bench of the High Court dismissed the appeal, vide the impugned order dated 26-10-1986 as not maintainable, and this Petition for Leave to Appeal has been filed against the said judgment dated 26-10-1986.
3. Learned counsel for the petitioner contended that the learned single Judge had erred in fact as well as in law by misreading the evidence and holding that the respondent had been appointed on 23-7-1977 when the evidence clearly showed that he had been appointed on 15-9-1976 against a permanent vacancy; that the removal of the respondent from service was ordered in exercise of the powers conferred by section 3 of the Ordinance; that the order of removal of the respondent from service cannot be brought into question in view of the provision of Article 15(2) of the Provisional Constitution Order of 1981 which have been incorporated into the Constitution of Pakistan vide the Constitution (8th Amendment) Order XVIII of 1985; that in view of the above Constitutional provisions, the order dated 3-12-1978 passed by the Ministry of Information and Broadcasting, Government of Pakistan, under the said Ordinance shall, notwithstanding the judgment of the learned High Court Judge dated, 11-3-1980, be deemed to be and always to have been validly made. The learned counsel further contended that the learned Division Bench was bound to dismiss the Intra-Court Appeal as having become infructuous since the original judgment had become devoid of any legal effect; that the Pakistan Television Corporation is a Corporation performing its functions in connection with the affairs of the Federation, and this position was accepted by the learned single Judge while assuming jurisdiction to dispose the Writ petition and held that the writ was maintainable since no appeal or remedy was available to the respondent against the order of removal from service. This finding is contrary to the provisions of the Service Tribunals Act, 1973. The respondent is deemed to be a civil servant in view of the finding of the learned High Court Judge in the instant case, and, therefore, the provisions of the Service Tribunals Act are attracted to the removal of the respondent from service; that the learned Judges of the Division Bench have misinterpreted the law by dismissing the Intra-Court Appeal as not maintainable; that the only ground on which, it is contended by the learned counsel, it can be held that the Intra-Court Appeal was not maintainable was that the respondent could have filed an appeal before the learned Service Tribunal under section 4 of the Service Tribunals Act, 1973, and if this be the case, the learned single Judge should have dismissed the writ petition as incompetent and not maintainable in view of Article 212 (2) of the Constitution of Pakistan; that the remedy of representation to the President of Pakistan was also available to the respondent under sections 4 and 5 the Ordinance which has not been availed.
4. The petition is barred by time by 2412 days but we find that the same has been filed against the final order of the Division Bench of the Lahore High Court dated 26-10-1986, and therefore, we condone the delay, as it is within time from that day though it is barred against the order of the learned Single Judge. Condonation vis-a-vis that order is justified also for the reason that we have granted leave to appeal in the connected C.P.L.A. No. 67 of 1987 wherein similar questions of law arise.
5. As the matter raise substantial questions of law of public importance, we grant leave to consider, inter alia, the contentions) raised by the learned counsel regarding jurisdiction.
To be heard on the present record with liberty to the parties to file additional documents, if desired.
Appeal to be heard alongwith appeal arising out C.P.L.A. No. 67 of 1987.
Operation of the impugned order is suspended till the final decision of the appeal.