PLJ 2003
Present: SHAHZAD AKBAR KHAN AND QAZI EHSANULLAH QURESHI, JJ.
versus
SAID MUHAMMAD and 2 others-Respondents
W.P. No. 863 of 2000, decided on 14.4.2003.
(i) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)--
—-S. 32-Order of Wafaqi Mohtasib accepting grievance petition of respondent (employee) and holding him entitled to ' full pension/commutation on the post, assailed—Respondent having been retired from service on 27.8.1997, could not have been reverted to his substantive post on 26.3.1998, after about 7 months of his retirement-Petitioner failed to prefer representation before President in terms of . S. 32 of the Order (1 of 1983) and thus, did not avail remedy provided by law-Another colleague of respondent who in similar circumstances as those of respondent was recommended for full pensionary benefits by Wafaqi Mohtasib was not proceeded against by petitioner, thus, discrimination was made with respondent employee by petitioner- Petitioner was thus, not entitled to invoke jurisdiction of High Court in its discretionary constitutional jurisdiction. [Pp. 339 & 340] A
(ii) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)--
—-S. 9-Constitution of
(iii) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)--
—-S. 32-Constitution of
PLD 1992
JUDGMENT
Qazi Ehsanullah Qureshi, J.--Pakistan Railways through its Divisional Superintendent, Peshawar petitioner herein has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer :-
"It is, therefore, prayed that on acceptance of this writ petition, an appropriate writ may please be issued to declare the order dated 23.9.1999 of the Respondent No. 2 as illegal, unlawful and without lawful authority and as such of no legal effect and having incompetently passed is without jurisdiction and is therefore, ineffective upon the rights of the petitioner. Moreover, the complaint of the Respondent No. 1 in the case No. H/5460/99 may please be dismissed or any other remedy deems proper in the circumstances of the case may please be allowed".
2. Brief facts of the case are that Said Muhammad, Respondent No. 1 was an employee of Pakistan Railways, initially appointed as Pointsman in NPS 2/3 in Former Class-IV Category on 3.4.1969, promoted as Junior Assistant Train (BS-5) on 15.3.1985 from the departmental quota, further promoted as Senior Assistant Train (BS-7) on the basis of seniority cum-fitness on 30.5.1990 and lastly promoted as Guard Gr-1 (BS-8) for which basic qualification required was Matric and P-10 Course for which Respondent No. 1 has shown his willingness and that posed himself as Matriculate "which was pre-requisite qualification for the said post. The willingness of Respondent No. 1 was accepted, therefore, he was relieved for course P-10 vide letter dated 13.12.1992. Respondent No. 1 joined P-10 Course at Walton Training School, Lahore where he failed in the first attempt while succeeded in the second attempt. Since Respondent No. 1 qualified P-10 Course, he was promoted as Guard Gr. 1 on 17.5.1994 alongwith others. Respondent No. 1 applied for retirement from service which was sanctioned by the competent authority on 25.6.1997 but after the process of the retirement a complaint was received against one Din Muhammad Ex-Guard Gr.l that his Matric certificate is bogus as a result of which an inquiry against all the promotees Guards was initiated with regard to the Matric Certificates right from 9.9.1989 the date from which the prerequisite qualification of Matric was inserted/made compulsory. After inquiry three Guards i.e. Janat Gul, Din Muhammad and Said Muhammad Respondent No. 1 were found involved as to the fake Matric Certificates. Consequent upon the finding of inquiry Respondent No. 1 was asked to produce his Matric Certificate but he avoided on one or the other pretext, sometime saying that it is burnt and sometime saying that he does not know the year in which he passed his Matric examination. He was finally asked on 8.12.1999 that in case he failed to produce the original Matric Certificate he would be reverted to the substantive post of SAT and his settlement dues will be prepared/paid for the post of SAT/JAT. Show cause notice suggesting major penalty was also issued to him on 13.11.1998, reply was received but since the Respondent No. 1 failed to produce the original Matric Certificate he was reverted to the post of Senior Assistant Train (BS-7) vide letter dated 26.3.1998 taking lenient view. Respondent No. 1 aggrieved of the action taken by the petitioner-Department moved Wafaqi Mohtasib (Ombudsman) Respondent No. 2 who while accepting his grievance petition on 23.9.1999 held him entitled to full pension/commutation on the post holding at the time of his retirement. Hence the instant petition.
3. Learned counsel for the petitioner argued that the very order of the Wafaqi Mohtasib (Respondent No. 2) is void, ab initio and without lawful authority as the matter pertains to the service and the forum/remedy was available to the Respondent No. 1 for his redressal, so the Wafaqi Mohtasib (Respondent No. 2 ) was not competent to entertain and accept the petition/complaint of Respondent No. 1. He further submitted that the void order is always void order so it can be assailed before the High Court in writ jurisdiction and the High Court is competent and within its jurisdiction to undo void and illegal order passed by any authority. Reliance in this respect was placed on (P.L.D. 1992 Karachi 33) & (PLD 1993 Karachi 41).
4. Learned counsel for Respondent No, 1 hotly contested the case and submitted that Respondent No. 1 was employee of the petitioner- Department since 3.4.1969, his full and complete record/personal file was in possession of the petitioner-Department, It was their bounden duty to promote -the concerned as per their own record and under the rules permissible at the relevant time. He further advanced that the order of the Wafaqi Mohtasib (Respondent No. 2} is quite legal and he can very competency interfere in the maladministration of any officer concerned. The petition deles not disclose the fate of other two employees involved in fake Matric Certificate. He submitted that no action whatsoever has been taken against Din Muhammad and Janat Gul, found involved in fake certificates. He lastly submitted that Respondent No. 1 was retired from service on 27.8.1997 while he was reverted to his substantive post of BAT on 26.3.1998 i.e. after his retirement.
5. We have heard the learned counsel for the parties and have gone through the record very minutely as well as perused the law on the point. Firstly, it is noticed from the record that Respondent No. 1 was retired from service on 27.8.1997 while he was reverted to his substantive post of SAT on 26.3.1998 after about seven months of his retirement. Secondly, the record indicates that the petitioner-department against the order of Wafaqi Mohtasib (Respondent No. 2) has not preferred representation before the Worthy President of Islamic Republic of Pakistan as required under Section 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (Presidential Order No. 1 of 1983) which postulates that any person aggrieved by a decision or order of the Mohtasib may, within thirty days of the decision or order, make a representation to the President, who may pass such order thereon as he may deem fit. Thirdly, no writ had been preferred
afedinst Din Muhammad who was recommended for full pensionary benefits by Vi afaqi Mohtasib vide dated 4.9.1998 in Case No. H/7910/98 which order was passed by the Respondent No. 2 on the legal advice of the senior legal Advisor of Pakistan Railways and the same is reproduced as under :--
"In my opinion no punitive action should be taken against the ex-employee rather the process of his pension should be accelerated to provide the legal benefit within time to avoid any legal complications".
The above quoted legal advice clearly shows that, discrimination was made with the Respondent No. 1 by the petitioner-department.
6. . The main stress of the learned counsel for the petitioner- Department was that since Respondent No. 1 was" the employee of the petitioner and was a civil servant, he could have the remedy to go to the Service Tribunal, he knocked the door of Wafaqi Mohtasib who could not entertain the petition/complaint of Respondent No. 1 under the law as the Respondent No. 1 and civil servant and so the order passed by Wafaqi Mohtasib was void, ab initio and without lawful authority and it could be challenged in writ, there was no need to prefer representation before the President of Pakistan. As such in the circumstances of the case the writ lie before this Court. His second main ground was that since there was mandatoiy pre-requisite condition of Matric and P-10 Course for the post of Guard, the Respondent No. 1 cheated the Department and shown his willingness to join P10 Course as being Matriculate, his promotion thus was
in contravention of the Rules and Regulation meant for the purpose.
7. It is quite astonishing and deplorable to note that the petitioner- Department believed the employee regarding his Matric qualification and asked his willingness for joining P-10 Course and did not bather to consult his record and personal file in their custody. In case the aspirements contenders of promotion are always believed and the exercise of promotion is carried out on their willingness, it is height of negligence and failure of duty plus incompetence on the part of the Department as in this way the irregularity and illegality would be the order of the day and as such every body would be able to achieve his malafide goal by deceiving and exploiting the situation. As to the contention of the learned counsel for the petitioner- Department that since the Wafaqi Mohtasib was not competent to up-set the reversion order of the Department-petitioner and thus being void and illegal was also misconceived. The Wafaqi Mohtasib can entertain the petition of maladministration and action initiated by the Government Departments Authorities in excess of powers not vested in them. Every case has its own
merit and de-merits. Hence the authorities referred by the learned counsel for the petitioner regarding interference by Wafaqi Mohtasib are distinguishable. However, in certain cases this Court can interfere in its writ jurisdiction in the event some crucial law point is involved and interpretation of law/authoritative judgment is required but we do not feel it necessary to interfere in this case in the wake of the above discussion.
8. As to the question that Respondent No. 1 was a civil servant and the remedy available to him was Service Tribunal as envisage under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. To a query he was himself not clear and assist the Court as to whether the Railways employees upto Grade: 15 are civil servant or not and that whether they are workman. Further that his reply to the interference of the Wafaqi Mohtasib in the cases of maladministration was also not convincing and that it was evasive.
9. We are, therefore, of the view that the petitioner could not advance any solid or plausible reason or any such material put forward which call for interference by this Court in its constitutional jurisdiction, therefore, the petition in hand hold no water, devoid of force and nothing such infirmity was pointed out. Resultantly this writ petition is dismissed.
(A.A.) Petition dismissed.
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