This judgment will dispose of the following three writ Akhtar petitions:-
(a) W. P. No. 149/S of 1972, entitled:
(1) Muhammad Saleem Akhtar, Senior Clerk,
(2) Muhammad Siddique, Assistant,
(3) Calvin, Assistant,
(4) Muhammad Alt Tanwir, Assistant,
(5) Nisar Ali Khan, Assistant,
(6) Muhammad Rafique, Senior Clerk,
(7) Jamil Ahmad, Senior Clerk,
(8) Manzoor Hussain, Senior Clerk,
(9) Ali Abroad Malhi, Senior Clerk,
(10) Muhammad Mateen, Senior Clerk,
(11) Muhammad Naseem, Senior Clerk,
(12) Muhammad Ashraf, Senior Clerk,
(13) Bashir Ahmad, Senior Clerk,
(14) K. B. Manzoor, Assistant,
(15) War Ali Khan, Assistant-Petitioner Versus
(1) Punjab Civil Services (Appellate) Tribunal Lahore through its Chairman,
(2) Secretary to Government of Punjab, Irrigation and Power Department, Lahore,
(3) Mr. Muhammad Farooq, Junior Clerk,
(4) Mr. Mukhtar Ali, Junior Clerk-Respondents.
(b) W. P. No. 139/S of 1972 entitled:
(1) Mirza Inayat Beg, Senior Clerk,
(2) Habib-nr-Rehman, Senior Clerk,
(3) Karim Ullah, Senior Clerk,
(4) Bashir Ahmad, Senior Clerk,
(5) Khawaja Muhammad, Senior Clerk-Petitioners Versus
(1) Punjab Civil Services (Appellate) Tribunal, Lahore through its Chairman,
(2) Secretary to Government of Punjab, Irrigation and Power Department, Lahore,
(3) Mr. Rashid-ud-Din, Junior Clerk.
(4) Mr. Akbar All, Junior Clerk-Respondents
(c) W. P. No. 315/S-1972 entitled: (1)Muhammad Islam, Assistant-Petitioner Versus
(1) Punjab Civil Services (Appellate) Tribunal, Lahore through Its Chairman,
(2) The secretary to Government of Punjab, Irrigation and Power Department, Lahore Mr. Muhammad lqbal Farooqi, Assistant, officer of the Chief Engineer, Irrigation, Lyallpur- Respondents.
2. The Provincial Government on 25-2-1970 published a seniority-cum-promotion list of the Junior Clerks of the Ex-- Chief Engineer Irrigation West Pakistan and Lahore, Lyallpur, Multan and Bahawalpur Regions. This list was challenged by means of two appeals, namely, (i) Appeal No. 172/96 of 1971, entitled Mr. Muhammad Farooq v. Main Alim-ud-Din, Secretary to Government of Punjab Irrigation' and Power Department, Lahore and 27 other and (ii) Appeal No. 173/97 of 1971, entitled Mr. Mukhtar Ali v. the same respondents, as were in the former appeal. Both these appeals were accepted and disposed of by a common judgment and order, dated 13-1-1972, by the Punjab Civil Services A-3peltate Tribunal, Lahore (hereinafter called the Tribunal), which consisted of a Chairman and two members. One of the members was Mr. Bashir Ahmad Khan, to whose sitting in the Tribunal an exception has been taken as will be pointed out later. The aforesaid judgment and order of the Tribunal has been challenged by the petitioners concerned in the first writ petition mentioned above.
3. The subject-matter of Writ Petition No. 139/5-1972, is a similar Judgment and order --f tic Tribunal, dated 6-1-1972, which was passed by it in two appeals, bearing No. 181/108 of 1971 entitled Rashid-ud-Din v. secretary to Government of Punjab, Irrigation and Power Department and 21 others and (b) Appeal No. 183/109 of 1971, entitled Mr. Akbar Ali v. the same respondents as were in the former appeal in this case also come features of the seniority list published on 25-6-1970 were dealt with.
4. In writ Petition No. 315/5 of 1972, the judgment and order challenged is that which was passed by the Tribunal on 10-1-1972 in Appeal No. 175/102 of 1971 entitled Mr. Muhammad Iqbal Farooqiv. The Secretary to Government of Punjab Irrigation and Power Department, Lahore and 4 others In this case a seniority list, published on the 1st of May 1969 was the subject-matter of controversy.
5. It is not necessary to go Into the minute details- of these cases and confining the discussion to the main points which are sufficient for the present judgment, it is to point out that Mr. Bashir Ahmad Khan one of the members of lb i Tribunal on 2-2-1968, was a Deputy Secretary in the Services and General Administration Department of the Provincial Government., It is contended by the learned counsel for the petitioners that in that capacity Mr. Bashir Ahmad Khan had dealt with the seniority matter of the parties and constitution of the Tribunal withMr. Bashir Ahmad Khan, as one of its members was not proper due to which all its orders which have been y impugned in these writ petitions are vitiated and are without lawful authority. In the report (s) submitted to this Court certain nice points were raised viz., (a) that the learned member concerned had no recollection as to what advice he gave at that time and (b) for that reason the Tribunal had given time to the objectors to produce the relevant file in original but they did riot do so. It is to be pointed out that the Government had filed a copy of the advice before the Tribunal along with their written- statement in one of the cases before it and, therefore, the plea of no recollection", in that context would not be quite apt and same would be the position of the plea regarding alleged failure of the objectors to produce the origins file of the Services and General Administration Department- Before me. Mr. M. B. Zaman, learned Advocate-- Genera, did not suppor4 the aforesaid pleas which had beer, taken up in report (s)/written-statements submitted to this Court and ceded that Mr. Bashir Ahmad Khan had, in fact, dealt with these cases earlier and his participation in the proceedings of the Tribunal was against the rules of natural justice due to which its orders were vitiated. He submitted that for this reason to could not support the impugned orders and requested that the cases may be remitted to the Tribunal for fresh decision in accordance with law.
6. Mr. Ihsan-ul-Haq, learned counsel for the contesting respondents, however, argued that the Court should, in the first instance, bolt into the advice which was rendered by Mr. BashirAhmad Khan. This advice is contained in Annex. "K--- in W. P. No. 149/5/72. It reads as follows:- "Government of West Pakistan Services and General Adminis--tration Department (Section IV)
The Irrigation and Power Department has prepared an integ--rated seniority list of Ministerial Establishment of the Irrigation and Power Department of the former Province of Punjab and Former State of Bahawalpur in February 1967. The new seniority list involved reversions of about 20 officiating, Assistants of the Punjab Irrigation Department.
They, therefore, have filed a civil suit in the civil Court. Lahore, against the said integrated seniority 'list read subsequent reversions. A copy of the civil suit may kindly be seenat pages 3 to 5:- The plaintiff's are of the opinion that:--
(i) According to Paras. 4, 10 and 11 of S&GAD Circular Letter No. 871-Integ-55/4471, dated 25-11-1955, the integrated seniority list of Ministerial staff is to be prepared on the basis of District or Regional cadre.
(ii) A few Government servants who have been appointed after 14-10-1955 have been included in the integrated seniority list as it stood on 13-10-1955. Their names be excluded from the list.
(iii) The seniority list is contrary to the guarantee contained in section 8 of the Establishment of West Pakistan Act, 1955.
The Administrative Department has prepared seniority list including all the pre-integrated staff of former Punjab and Bahawalpur and the promotions are being made accordingly in various Regions. The position of the set-up of the Irrigation Department up to the level of Deputy Chief Engineers in Punjab and Bahawalpur area from 14-10-1955 to 3a-4-1962 was as under:-
(1) Chief Engineer, West Pakistan. Head of Attached Department.
(2) Deputy Chief Engineer, West Regional Head. Pakistan, Lahore.
(3) Deputy Chief Engineer, West Pakistan,do.Lyallpur.
(4) Deputy Chief Engineer, West Pakistan,do.Multan.
(5) Deputy Chief Engineer, West Pakistan,do.Bahawalpur.
The Administrative Department should have prepared seniority list of the Ministerial staff of the office of the Chief Engineer, West Pakistan, separately. The seniority list of each region should have also been prepared separately In accordance with the provisions of Paras. 4, 10 and i 1 of S&(3AD Circular Letter No. 871-Integ.55/4471, dated 25-11-1955. On the abolition of the Office of Chief Engineer, West Pakistan, In 1962, the staff of his office has been allocated to various regions of the former Punjab and Bahawalpur on Reorganization.
The S&GAD Is of the opinion that the civil suit filed by the plaintiff's is In order hence the administrative Department should withdraw it from the civil Court and recast the seniority of the ministerial staff on the basis of the regions as stated above. The Law Department has agreed with views of S&OAD.
The Administrative Department should recant the seniority list on the following basin:-
(1) The seniority list of the ministerial staff of the Office of Chief Engineer, West Pakistan as on 14-10- 1935 should be prepared separately.
(2) The seniority list of the staff of each region as on 14-10-19,55 should be prepared separately in accordance with the provisions of Paris. 4, 10 and 11 of S. Bt 0. A. D. Letter No. 871-Integ.-55/4471 dated 25-11-1955.
(3) On the abolition of the Office of Chief Engineer, West Pakistan in 1961, the staff of his office should be allocated to various regions of the former Punjab and Bahawalpur arid allowed seniority from the date of their continuous appointment in the grade.
(Sd.) 29-1-1968.
(A. H. Baloch), Section Officer IV.
DS(R) As proposed in Pares.(Sd.) Bashir Ahmad Khan 30 and 31 above.31-1-1968.
(Sd.) Haider, 1-2-1968.
ACS.
U.O No. SO-IV (S&GAD)5-14/67dated 2-2-68.
A copy is forwarded to Secretary to Government of West Pakistan Irrigation and Power Department for taking further action in the matter.
This is in reference to his U.O. No. 12/13 S. O. III (B)/64, dated 11-12-1967.
(Sd.) 2-2-68(A. H. Bloch)
Section Officer IV S&GAD
7. Mr. Ihsan-ul-Haq argued that the paper reproduced above gave a resume of the facts and contained a suggestion or advice that region-wise seniority should be adopted. It also advice s that the paper was prepared by the Section officer and show Secretary (who at that time was Mr. Bashir Ahmad Khan) who endorsed the view of the Section Bas, that action should be taken, "as proposed in paras. 30 and 31 above---, the details of which paragraph have not bees given to this Court. 'Thereafter, the paper was marked to higher officials who passed orders thereon accordingly. At that time, learned counsel submits. Disintegration of West Pakistan had not taken place and the advice rendered was with reference to the situation of the Province, as it then existed. After dissolution of West Pakistan, submits the position had changed and even though the province had disintegration but due to inter-regional transfers and promotions the case had assumed now dimensions. The so-called regional Offices had been abolished and the earlier advice of Mr. Bashir Ahmad Khan was not workable. Even otherwise that advice was such which favoured the writ petitioners and if Mr. Bash' Ahmad Khan has in the impugned orders changed his Views it shows that ho was not sitting in tile Tribunal with a sealed or closed mind the argument of Mr. Ihsan-ul-Haq was that except in cases where a Tribunal (or a member of the Tribunal), had a pecuniary Interest, his judgment on account of the disqualification Involved heroin was merely void able at the instance of a person against whom a bias existed and war not void abinitio. Mr. Bashir Ahmad Khan's opinion was that an Integrated seniority list should be prepares and this is the view which the petitioners are now canvassing. The Opinion of Mr. Bashir Ahmad Khan, according to the learned counsel, was not against the petitioners but was rather in their favour. The grievance in this context, ho submitted should have been raised by the contesting respondents not the present petitioners. In this respect he referred to and the majority view as enunciated in Anwar and another v. The Crown (PLD 1955 FC 185). It is sot necessary for me to go into the details of that judgment because its facts and circumstances wile different from the present case. That was a case of a re- trial of an accused after certain observations had been made by the High Court In a revision against his acquittal. It was held that slue to the observations of the High Court, the trial in the Court below could not be said to have been vitiated. It is obvious that the situation in the instant case is quite different and here the judgment of the Tribunal is not to be examined with reference to the opinion of any revisional Authority but with reference to "the participation of one of its own members. Moreover, as pointed out in the said case itself distinction is to ' be maintained between cases where objection is taken to the constitution of a Tribunal right at the beginning and those where the objection is taken after the conclusion of the proceedings its higher Courts. The case cited was of the latter type whereas the present case is of the former type. The principle relied upon by the learned counsel is not applicable to the cases of the present kind. Proceeding In this way, if we read the opinion of Mr. Bashir Ahmad Khan along with the written-statement, which the Provincial Government filed before the Tribunal in Appeal Case No. 7.2/36 of 1971, entitled Mr. Khadim Hussain v. Mims Aim-ud-Din and others (a copy of which was placed on record), it becomes quite clear that the case had beers dealt with by Mr. Bashir Ahmad Khan In various dimensions in the Services and General Administration Department and it cannot be said with certainty that the said department was whole-heartedly agreeing with the view-point of the petitioners in taro. 7 he submissions of Mr. Ihsan-ul-Haq that the viewpoint of Mr. Bashir Ahmad Khan In all matters, Involved was the same as the petitioners have put forward does not stand established on the present record and nor has this plea been taken either by the learned Advocate-General or by the Tribunal itself in its report and written statement. At this stage, it is partinent to mention that later on when another case/appeal about the same class of employees came before the Tribunal, Mr. Bashir Ahmad Khan did not sit as a member. To maintain equality of treatment to persons placed In a similar situation if Mr. Bashir Ahmad Khan did not sit in another case, he should not have sat in the present case as well. The proceedings of the Tribunal, it is obvious were against the two principles of natural justice, namely, (a) justice should not only be done but should so appear to be done and (b) that a person, who has previously expressed an opinion In a matter, should not later on sit to a judicial capacity in the same matter, see Ghulam Rasul and others v. Crown (PLD 1951 FC 62). I do not want to enter into a detailed study of voluminous case-law, which exists in this respect, but would conclude that the net result of the entire case-law is that in cases where objection to the constitution of a Tribunal is taken afterwards (and not before the start of the trial), there is a distinction between real likelihood of bias and mere possibility of bias. The former is enough to vitiate a trial whereas the latter is not. Examining the present case even from this stand point it fall within the scope of real likelihood of bias and Mr. Bashir Ahmed Khan should not have proceeded to try the same. In case where objection is takers right in the beginning (as is the case here), any element, which goes to suggest that justice would not appear to be done will preclude the members concerned from taking part in the proceedings.
The reason for this strictness of the rule can be traced mono to considerations of public policy than to the actuality of the bias affecting the judge. Lush, J., said In Serjent v. Dale ((1877) 2 Q B 558) that, "the law in laying down this strict rule, has regard, 'not so much perhaps to the motives which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security'". This statement of Policy was confirmed by Lord Esher M. R. in 1894 in Sckerslay v. Mersey Docks and Harbour Board ((1894) 2 Q B 667) in the following words, " . .. . the doctrine which is applied to Judges, .not merely of the Superior Courts, but to all Judges is that, not only must they be sot biased, they ought not to act ;is . . . . Judges in a matter where the circumstances are such that people . . . .not necessarily reasonable people, but many people. . . would suspect of them of being biased." Day, J., went so far ass to condemn, "anything at any time which could make fools suspect." (See R. v. Taylor, Exp. Vogwill ((1898) 14 T L R 185). But Lord Goddard, C. J., seems to think this is putting it too high (see R. v. Nailsworth Justices ((1953) 1 W L R 1046). Again it was said by Lord Rewart, C. J., in R. v. Sussex Justices ((1924) 1 K B 256) that it, "is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seem to be done." It Is for the reason hereinbefore stated that even where it Is shown that a Judge who was a member of a Court took no part in the decision, the decision is not allowed to stand. Bowen L. J. in Leeson v. General Council of Medical Education ((1859) 43 Ch. D 366) said that, "where such a pecuniary interest exists the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest. The fact is established from which the inference is drawn that he is interested in the decision and he cannot act as a judge." In R. v. Hertfordshire Justice ((1845) 6 Q B'753) a decision of Justices was quashed and it was no answer to the objection that there was a majority in favour of the decision without reckoning the vote of the justice who was an interested party nor that such interested party withdrew before the decision, if he appeared to have joined in discussing the matter with the other Magistrates. It R. v. Meyer ((1875) 1 Q 3 D 173) where a justice had such an interest as might have given him a real bias in the matter and had sat with three others on the bench, he was disqualified when it was affirmatively shown that he took no part until the other Justices had unanimously determined to convict, when he (the Justice in question), proposed a mitigation of the penalties, and that he did not sign the convictions, and it was held that he ought not to have sat as a Justice and it was immaterial what part he really took in the matter, Blackburn, J., said, "Mr. Mayer was sitting as a J., in an opinion arising out of a matter in which he was a litigant party with the defendant; and although he states he took no part in the conviction yet he clearly ought not to have been on the bench."
In the instant case; not only the aforesaid principle of justice has been violated, but the element of likelihood of bias was also not ruled out. After all. I hive not understood that if really the earlier view of Mr. Bashir Ahmad Khan was in favour of the petitioners, why should have they raised an objection to his sitting in the Tribunal? Similarly, it' Mr. Bashir Ahmad Khan considered it mete and proper as not to sit in another case of the same class of persons, why he did not give similar treatment to the present petitioners also and acted rather in a discriminatory manner. Looked at from whatever point of view, the participa--tion of Mr. Bashir Ahmad Khan in the proceedings of the present cases cannot be upheld. In somewhat similar circumstances, same view was taken by my learned brother Nasim Hassan Shah, J., in Haji Ghulam Mustafa v. Secretary to Government of the Punjab Agriculture Department and others (W. P. No. 525/S-71, decided on 22-12-1972).
8. The upshot of the above discussion is that the present writ petitions are accepted, the impugned orders of the Tribunal are declared to be without lawful authority and of no legal effect against the petitioners and are hereby set aside. The cases are remanded for being tried afresh under the Punjab Civil Services (Appellate Tribunals) Ordinance 1V of 1970 in accordance with law. There shall be no order as to costs.