This Constitutional petition is brought to challenge the finding/order dated 24-7-1997 passed by respondent No. l qua a dispute which had arisen between the petitioner and its employee- respondent No.2 over the payment of pension.
2.The brief facts are that respondent No.2 was working as an Audit Officer in BPS-17 under the Director Commercial Audit, Wah, a subordinate office of the Auditor-General of Pakistan. He applied for the post of Director (Finance) BPS-19 in the Pakistan Agricultural Research Council hereinafter referred to be as Council) in response to an. Advertisement to fill that post. He claimed to have submitted his application through proper channel and forwarded an advance copy to the Council. He was called for an interview by the Council in which he was declared as successful and was offered the aforesaid post of Director (Finance) in BPS-19. After completion of ten years of service, he applied for combination of his previous service with the service rendered in the Council (petitioner). His request for combination of service was permitted in view of the provisions contained in Article 529 of Civil Service Regulation by the competent Authority vide office Order No.F.4-5/83-Estt-I(C-89), dated 17-1-1994. He was also directed to refund the commutation as well as pension drawn on account of his previous service with his ex-employer. The said amount was to be recovered at the rate of 1/3rd of his monthly salary and the balance amount was to be recovered in lump-sum on retirement. In pursuance of the aforesaid order, respondent No.2 refunded Rs.75,500 up to the date of his retirement and the balance amount was to be recovered at the time of payment of commutation. As such, the combination attained finality but the same was arbitrarily canceyed vide order dated 8-1-1995 by the Council, whereupon a A complaint was addressed by respondent No.2 for the redressal of his grievance to the learned Wafaqi Mohtasib (Ombudsman).
3. After taking into account the facts of the case and upon going through the relevant record, the learned Ombudsman came to the conclusion that the action cancelling the previous order dated 17-1-1994 was not only arbitrary but amounted to mal-administration. It was, therefore, recommended that the pension of the complainant be sanctioned within thirty-days of the issue of findings on the subject.
4. Feeling aggrieved of the aforesaid findings of the learned Ombudsman, the council (petitioner) moved a representation before the competent Authority in view of the provisions contained in Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. The aforesaid representation is admittedly yet pending, as is clear from the ground (c) taken in the writ petition.
5. Learned counsel for the petitioner has submitted that the matter related to the personal grievance of respondent No.2 who being a public servant and functionary under the petitioner could not make any complaint relating to his service nor the learned Ombudsman had jurisdiction to accept such complaint for investigation and decision in view of the provisions contained in clause (2) of Article 9 of the aforesaid order. In this regard, reference is made to International Cargo Handling Company (Pvt.) Limited v. Port Bin Qasim Authority (PLD 1992 Karachi 65), wherein it was held that the High Court had the jurisdiction to interfere with the order of learned Wafaqi Mohtasib irrespective of the bar of jurisdiction contained in Article 29 of the Order, provided the proceedings before the learned Wafaqi Mohtasib suffered from want of jurisdiction or violated the basic principle that no one should be condemned unheard. Reference is also made to Pakistan International Airlines Corporation, Karachi v. Wafaqi Mohtasib and 2 others (PLD 1994 Supreme Court 484) and PIA Corporation v. Wafaqi Mohtasib (Ombudsman) and 2 others (PLD 1994 Karachi 32) to support the aforesaid points.
6.I have considered the above submissions and have also gone through the findings of the learned Wafaqi Mohtasib (Ombudsman) in which a case for arbitrariness and mal-administration was made out. Hence the question of jurisdiction at this stage will not be relevant because the writ petition appears to 8 be pre-mature, as admittedly a representation is pending before the competent Authority against the impugned findings of the learned Wafaqi Mohtasib. The 'principle of exhaustion' will come into play and the writ petition would not be competent till the remedies as provided under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, are exhausted. The writ petition being pre-mature is dismissed in limine.