AJMAL MIAN, ACTG. C.J.---The above petitions have been filed by the Federation of Pakistan against the interlocutory orders dated 25-2-1997 in Writ Petition No. 4145 of 1997 (which is the subject-matter of Civil Petition No. 195 of 1997), dated 11-3-1997 in Writ Petition Nos. 5470 of 1997 (which is the subject-matter of Civil Petition No. 245 of 1997). Dated 27-2-1997 in Writ. Petition No 4542 of 1997 (which is the subject-matter of Civil Petition No. 246 of 1997) and dated 10-3-1997 in Writ Petition No. 4384 of 1997 (which is. The subject-matter of Civil Petition No. 247 of 1997), directing suspension of the orders, whereby the respondents' services as the members of Income Tax Appellate Tribunal were terminated.
2. It seems that the respondents were employed on contract basis through a common Notification dated 5-7-1994 for a period of three years from the dates assumed the charge of their offices at the stations shown in the aforesaid notification. The said period of three years will expire on 7-7- 1997 and 11-7-1997. However, before the expiry of. The above period of three years, the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, through separate notifications, terminated the services of the respondents. It may be observed that the Notification issued in respect of the respondent in Civil Petition No. 195 of 1997 has been filed, which reads as under:-- "NOTIFICATION No.,F.13(I)/96.A.IV.---In supersession of this Ministry's Notification No. F.13(3)/94-A-II, dated 5th July, 1994, the competent Authority has been pleased to terminate the contractual employment of Mr. Muhammad Zaman Khan as Judicial Member (BS-21), Income Tax Appellate Tribunal, Lahore, with immediate effect.
2. He will, however, be entitled to draw salary in lieu of notice period if applicable."
3. It is an admitted position that after the issuance of the above notification, the respondents handed over the charge of their offices. They filed aforesaid Writ Petitions in or about fourth week of February, 1997. Alongwith the writ petitions, they filed civil miscellaneous applications for suspension of the above termination orders. Thereupon, a learned Single Judge of the High Court passed the aforementioned interlocutory orders.
4. It appears that on the basis of the above orders, the respondents took over charge of their offices again. The Federation has, therefore, filed the present petitions for leave to appeal.
5. In support of the above petitions Mr. Tariq Mehmood, learned Deputy Attorney-General has vehemently contended that the learned Judge in Chambers was not justified in suspending the termination orders when these were already acted upon several months prior to the passing of the impugned interlocutory orders inasmuch as the respondents had handed over the charge of their offices.
On the other hand, Mr. Talat Farooq Sh. Learned Advocate Supreme Court for the respondents, has contended as under:--
(i) That the above petitions are not competent in view of clause (2) of Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, which provides a right of appeal to this Court against a final order and not against an interlocutory order;
(ii) That after the above initial interlocutory orders, the learned Judge in Chambers has already confirmed the above orders through fresh orders, against which no petition for leave had been filed; (i.e) That even otherwise on merits, the respondents had very strong prima facie case as their services were terminated without assigning any reason in the absence of any adverse comments on their performance.
6. We may take up the above first to contentions of the learned counsel for the respondents. In support of the first contention, Mr. Talat Farooq Sh. Has referred to clause (2) of Article 185 of the Constitution, which provides that an appeal shall lie to this Court from any judgment, decree, final order or sentence of a High Court in respect of the matters mentioned in sub-clauses (a) to (f). To reinforce the above submission, he has referred to the following cases:- (i)Ramzan Sugar Mills Ltd. And others v. Mian Miraj-ud-Din and others 1994 SCM R 2281; and (ii)Ittefaq Sugar Mills Ltd. And another v. Mian Miraj-ud-Din and 21 others 1996 SCM R 452.
In both the above cases, the interlocutory orders of the learned Company Judge passed under the Companies Ordinance, 1984, were impugned. Petitions for leave were filed in this Court under Article 185(3) of the Constitution, which were declined.
In the aforesaid first case, inter alia it was observed that non--interference with the interim orders passed by a Court of competent jurisdiction is a "rule" and interference is an "exception".
In the above second case, it was field by this Court that since the order of the learned Company Judge directing the petitioner to furnish some information had not, in any manner, adversely affected interest/right of the petitioner, this Court would not interfere with such an interlocutory order.
7. We may observe that this Court, being the apex Court, generally does not interfere with interlocutory orders passed by competent Courts, but if the same are arbitrary, capricious and against the well-settled principles of law, this Court is bound to interfere with the same in order to obliviate miscarriage of justice. The principle, that non-interference in interlocutory orders of the Courts below by this Court is a matter of rule and interference is an exception, seems to be a sound principle. However, if the exercise of discretionary power through interlocutory orders is of the nature which has been referred to by us hereinabove, such a case will fall within. The exception warranting interference. The present cases fall within the category of exception.
8. The above to- cases do not advance the case of the respondents as they are not on clause (2) of Article 185 of the Constitution.
However, we may point out that there is a marked distinction between a right of appeal provided under clause (2) of Article 185 of the Constitution and a petition for leave to appeal under clause
(3) of the said Article. A party is entitled to file an appeal if his case is covered by clause (2) of Article 185 of the Constitution m the matters provided in sub-clauses (a) to (f) thereof as a matter of right; whereas under clause (3) of Article 185, there is no such right vested in a patty to file a petition for leave. This Court has the discretion to grant or to refuse leave according to the merits of the case concerned. No doubt the above discretion is to be exercised justly and fairly in consonance with the basic norms of justice. In the instant case, petitions have been filed under clause (3) of Article 185 of the Constitution, which does not provide that a petition for leave can be filed against a final order and not against an interlocutory order. In the aforesaid clause the words employed are "an appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal". The word employed in the aforementioned clause is "order" and not the words "final order". The former encompasses an interlocutory as well as final order. The framers of the Constitution nave deliberately used to different phraseologies in the afore stated to clauses, namely, "final order" and "order". It may also be pointed out that a petition for leave to appeal will lie under clause (3) of Article 185 of the Constitution only in those cases which are not covered by clause (2) of the above Article. Additionally use of the words "only if the Supreme Court grants leave to appeal" indicates that a party has no vested right to file appeal in respect of cases falling under above clause and that the Supreme Court has discretion to grant leave or not to grant leave depending on the facts and circumstances of each case.
In this view of the matter, the above contention of the learned counsel for the respondents has no force.
9. Reverting to the second submission of the learned counsel for the respondents, namely, that after the above initial interlocutory orders the learned Judge in Chambers had already confirmed the above orders through-fresh orders before the filing of the above petitions for leave, against which no petition for leave has been filed, it may be observed that there is no doubt that the petitioner has not referred to the confirmation orders in its petitions for leave, technically speaking, the learned counsel for the respondents is right. However, we may point out that clause (1) of Article 187 of the Constitution provides that "Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice to any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document"".
10. In our view, the order suspending the termination orders after the respondents had already handed over the charge of their offices several months back, was not warranted by law and, therefore, in order to do complete justice, we would not allow the above technical objection to deny the relief which the petitioners are otherwise entitled to. Furthermore, the basic orders were the aforesaid interlocutory orders. Confirmation of the same were re-affirmation of aforesaid earlier orders.
11. As regards the merits of the case, it may be pointed out that it is a well---settled proposition of law that the object of passing of an interlocutory order or status quo is to maintain the situation obtaining on the date when the party concerned approaches the Court and not to create a new situation. Another well --settled principle of legal jurisprudence is that generally a Court cannot grant an interlocutory relief of the nature which will amount to allowing the main case without trial/hearing of the same. In this regard, reference may be made to the judgment of this Court in the case of Qazi Inamul Haq v Heavy Foundry and Forge Engineering (Pvt.) Ltd. And another 1989 SCM R 1855, in which the petitioner had been prematurely retired from service. He filed a suit and obtained a temporary injunction from a learned Civil Judge, which was vacated by a learned Additional District Judge. The petitioner then preferred a revision petition before the High Court of Sind, which was declined for the following reasons:-- "(a) The order of retirement had already taken effect before the civil suit, was instituted to challenge it; and
(b) even if the petitioner had merely, an arguable case, the other to essential factors, i.e., presence of balance of convenience, which is in fact balance of inconvenience and causing of irreparable loss did not exist. "
The above case supports the view which we are inclined to take as this Court declined to interfere with the above order.
12. In the present case as stated hereinabove, pursuant to the notification of termination of services of the respondents, the respondents handed over the charge of their offices though, according to them, under protest. Admittedly, they were pot in office for several months when they filed their aforementioned writ petitions and, therefore, the learned Judge in Chambers could not have created a new situation by suspending the termination orders. In other words, he could not have reinducted the respondents into service before the disposal of their writ petitions. We are, therefore, inclined to hold that the impugned interlocutory orders are not sustainable in law.
13. The above petitions are converted into appeals; the aforementioned interlocutory orders and the orders confirming the same are set aside. However, since the period of three years will expire on 7-7-1997 and 11-7-1997, the High Court may dispose of the main writ petitions before 7-7-1997, as purely a point of law is involved in them. The above appeals stand disposed of in the above terms, with no order as to costs.
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