Quashing of FIR, mainly on ground that no offence was made out of allegations recorded in FIR

 PLJ 2023 SC 247

[Appellate Jurisdiction]

Present: Syed Mansoor Ali Shah and Mrs. Ayesha A. Malik, JJ.

FIA through Director General, FIA and others--Petitioners

versus

Syed HAMID ALI SHAH and others--Respondents

C.P. 1257 of 2020, decided on 6.2.2023.

(Against the judgment of the Islamabad High Court, dated 04.02.2020, passed in W.P. No. 2367/2018)

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Pakistan Penal Code, (XLV of 1860), Ss. 409/109--Prevention of Corruption Act, (II of 1947), S. 5(2)--Illegal upgradations--Quashing of FIR--The High Court while accepting Writ Petition of respondents, as well as a writ petition and two criminal miscellaneous applications of other accused persons, has quashed FIR--The “FIA” conducted an inquiry and found that prima facie a case of abuse of authority was made out against officers who processed and approved those illegal upgradations--Quashing of FIR, mainly on ground that no offence was made out of allegations recorded in FIR--The High Court agreed with ground pleaded, accepted Writ petitions and quashed FIR--The High Court has observed in impugned judgment that matter in issue, which relates to violation of terms and conditions of service of CDA employees, does not constitute offence of criminal misconduct punishable under Section 5(2) of PCA--The High Court has quashed FIR, by holding that FIA authorities have failed to legally justify their actions of initiating inquiry and registration of FIR--The High Courts can declare such acts of police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make any appropriate incidental or consequential order to effectuate its decision, such as quashing FIR and investigation proceeding--The powers of public servants are like a trust conferred upon them and they should exercise them fairly, honestly and in good faith as a trustee; but entrustment of power to upgrade his subordinate officials is not equivalent to entrustment of property as mentioned in Section 405 PPC and its misuse, or use in violation of relevant rules and regulations, does not constitute cognizable offences punishable under Section 409 PPC and Section 5(2) PCA--The misuse of such a power may constitute misconduct under service laws, but does not attract criminal misconduct punishable under criminal laws--The acts of FIA officers in registering FIR and carrying out investigation in present case are certainly without lawful authority--These petitions being meritless and against law settled by this Court have unduly wasted time of Court depriving it from attending to more lawful and genuine claims pending before it--Such vexatious and frivolous litigation must be dealt with firmly and strongly discouraged. We, therefore, dismiss present petition and decline leave to appeal, with costs. [Pp. 250, 251, 252 & 254] A, B, F, G, I, N, O, P, Q

PLD 1966 SC 650 ref.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Quashing of FIR, mainly on ground that no offence was made out of allegations recorded in FIR.  [P. 250] C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Quash a judicial proceeding--A High Court, can quash a judicial proceeding pending before any subordinate Court under Section 561-A Cr.P.C., if it finds it necessary to make such order to prevent abuse of process of that Court or otherwise to secure ends of justice.                    [P. 251] D

PLD 1971 SC 677 (5-MB); 2011 SCMR 1813 ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--judicial review--Constitutional jurisdiction of high Court under article 199 of constitution, 1973 for judicial review of said acts of police officers. [P. 251] E

PLD 2018 SC 40 ref.

Constitution of Pakistan, 1973--

----Art. 199(1)(a)(ii)--Constitutional powers of High Courts--Article 199(1)(a)(ii) of Constitution empowers High Courts to judicially review acts done or proceedings taken by persons performing functions in connection with affairs of Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect--The registration of an FIR and doing of an investigation are acts of officers of police department (a provincial law enforcement agency) who perform functions in connection with affairs of a Province and are thus amenable to jurisdiction of High Courts under Article 199(1)(a)(ii) of Constitution.                                                                    [P. 252] H

Federal Investigation Agency Act, 1974 (VIII of 1974)--

----Ss. 3, 5--The FIA has been established by Federal Government under Section 3 of Federal Investigation Agency Act, 1974 (“FIA ACT”), for inquiry into, and investigation of offences specified in Schedule to said Act, including an attempt or conspiracy to commit, and abetment of, any such--Under Section 5 of FIA Act, officer of FIA have such powers, including powers relating to search, arrest of persons and seizure of property.       [P. 252] J

Criminal Procedure Code, 1898 (V of 1898)--

----S. 154--Under Section 154 of Cr.P.C., a first information report (FIR) can be registered only with regard to commission of cognizable offence.                                                        [P. 253] K

Criminal Procedure Code, 1898 (V of 1898)--

----S. 156--Investigation--An investigation can be made by a police officer, without order of a Magistrate, under Section 156 of Cr.P.C only in respect of a cognizable offence.         [P. 253] L

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 154 & 156--FIR & Investigation--It is contents of FIR which are to be seen to ascertain whether a cognizable offence is made out of allegations contained therein and mere mentioning of a particular section of PPC or any other offence under law in FIR is not determinative in this regard.      [P. 253] M

PLD 2007 SC 48 ref.

Malik Javed Iqbal Wains, Addl. AGP and Ch. Akhtar Ali, AOR for Petitioners.

Syed Naeem Bokhari, ASC for Respondents.

Date of hearing: 6.2.2023.

Order

Syed Mansoor Ali Shah, J.--The petitioners seek leave to appeal against a judgment of the Islamabad High Court, dated 04.02.2020 (“impugned judgment”), whereby the High Court while accepting the writ petition of the respondents, as well as a writ petition and two criminal miscellaneous applications of other accused persons, has quashed FIR No. 05/2018 registered against them at Police Station FIA, Islamabad, for offences punishable under Sections 409/109 of the Pakistan Penal Code 1860 (“PPC”) and Section 5(2) of the Prevention of Corruption Act 1947 (“PCA”).

2. Briefly, the facts of the case are that on a news item published in a daily newspaper, reporting that a number of employees of the various directorates of the Capital Development Authority (“CDA”) had been illegally upgraded in violation of the relevant rules and regulations during the years 2007 to 2013, the Federal Investigation Agency (“FIA”) conducted an inquiry and found that prima facie a case of abuse of authority was made out against the officers who processed and approved those illegal upgradations as well as against the beneficiary officials of the CDA (including the respondents). With this finding, the FIA registered the above-mentioned FIR and initiated the formal investigation, which may have included the arrest and detention of the accused persons. The respondents and some other persons nominated as accused in the FIR as well as in the investigation proceeding, filed two writ petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 (“Constitution”) and two criminal miscellaneous applications under Section 561-A of the Code of Criminal Procedure 1898 (“Cr.P.C.”) for quashing of the FIR, mainly on the ground that no offence was made out of the allegations recorded in the FIR. The High Court agreed with the ground pleaded, accepted the writ petitions and miscellaneous applications, and quashed the FIR vide the impugned judgment. Hence, the petitioners have filed the present petition for leave to appeal.

3. We have heard the learned counsel for the parties, read the cases cited by them and examined the record of the case.

4. First of all, we want to make it clear that a High Court has no power under Section 561-A Cr.P.C. to quash an FIR or an investigation proceeding; therefore, the criminal miscellaneous applications filed under Section 561-A, Cr.P.C. by some of the accused persons in the High Court for quashing the FIR and investigation proceeding in the present case were not maintainable. This is because jurisdiction of a High Court to make an appropriate order under Section 561-A Cr.P.C. necessary to secure the ends of justice, can only be exercised with regard to the judicial or Court proceedings and not relating to proceedings of any other authority or department, such as FIR registration or investigation proceedings of the police department. This has been authoritatively held by a five-member bench of this Court in Shahnaz Begum.[1] A High Court, therefore, can quash a judicial proceeding pending before any subordinate Court under Section 561-A Cr.P.C., if it finds it necessary to make such order to prevent the abuse of the process of that Court or otherwise to secure the ends of justice; however, it should not ordinarily exercise its power under Section 561-A Cr.P.C. to make such order unless the accused person has first availed his remedy before the trial Court under Section 249-A or 265-K, Cr.P.C.[2] Where before the submission of the police report under Section 173 Cr.P.C. to the Court concerned, the accused person thinks that the FIR has been registered, and the investigation is being conducted, without lawful authority, he may have recourse to the constitutional jurisdiction of the High Court under Article199 of the Constitution for judicial review of the said acts of the police officers.[3]

5. In the present case, as the High Court was competent to judicially review the acts of registering the FIR and conducting the investigation by the officers of the FIA in the exercise of its constitutional jurisdiction under Article 199 of the Constitution, therefore, the acceptance of the criminal miscellaneous applications filed by some of the accused persons under Section 561-A Cr.P.C. and the reference to Section 561-A Cr.P.C. while quashing the FIR have no material bearing on the jurisdiction of the High Court while passing the impugned judgment. Even otherwise, if the reasons stated for passing the impugned judgment fall within the scope of the jurisdiction of the High Court under Article 199 of the Constitution, the reference to a wrong or inapplicable provision of law will not by itself have any fatal consequence.[4] The High Court has observed in the impugned judgment that the matter in issue, which relates to the violation of the terms and conditions of service of the CDA employees, does not constitute the offence of criminal misconduct punishable under Section 5(2) of the PCA nor are the ingredients of the offence of criminal breach of trust under Section 409 PPC made out. The High Court has also specifically quoted the statement made before it by the Addl. Director, FIA that “FIA has concluded investigation and no element of bribery has been found in the entire inquiry against any official of CDA”. With the said observations, the High Court has quashed the FIR, by holding that FIA authorities have failed to legally justify their actions of initiating the inquiry and registration of the FIR. These reasons squarely fall within the scope of the provisions of Article 199(1)(a)(ii) of the Constitution.

6. Article 199(1)(a)(ii) of the Constitution empowers the High Courts to judicially review the acts done or proceedings taken by the persons performing functions in connection with the affairs of the Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect. The registration of an FIR and the doing of an investigation are the acts of officers of the police department (a provincial law enforcement agency) who perform functions in connection with the affairs of a Province and are thus amenable to the jurisdiction of the High Courts under Article 199(1)(a)(ii) of the Constitution. The High Courts can declare such acts of the police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make any appropriate incidental or consequential order to effectuate its decision,[5] such as quashing the FIR and investigation proceeding. The acts of registering the FIR and conducting investigation by the officers of the FIA, in the present case, are also subject to said jurisdiction of the High Court, as they have been done by the officers performing functions in connection with the affairs of the Federation.

7. The FIA has been established by the Federal Government under Section 3 of the Federal Investigation Agency Act 1974 (“FIA Act”), for inquiry into, and investigation of the offences specified in the Schedule to the said Act, including an attempt or conspiracy to commit, and abetment of, any such offence. Under Section 5 of the FIA Act, the officers of the FIA have such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Cr.P.C., and its officer not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer-in-charge of a Police Station under the Cr.P.C. That being so, one has to look at the provisions of Sections 154 and 156 of the Cr.P.C., which relate to the registration of FIRs and conducting the investigations, for the purpose of examining whether the acts of registering the FIR and doing the Investigation by the FIA officers in the present case were with or without lawful authority.

8. Under Section 154 of the Cr.P.C., a first information report (FIR) can be registered only with regard to the commission of a cognizable offence. Similarly, an investigation can be made by a police officer, without the order of a Magistrate, under Section 156 of the Cr.P.C. only in respect of a cognizable offence. Needless to say that it is the contents of an FIR which are to be seen to ascertain whether a cognizable offence is made out of the allegations contained therein, and mere mentioning of a particular Section of the PPC or any other offence under the law in the FIR is not determinative in this regard.[6] However, the falsity or truthfulness of those allegations is not under examination for the purpose of determining the legal authority of the police officer to register the FIR. The precise question is: whether the allegations as contained in the FIR make out the commission of a cognizable offence; if so, what is that?

9. When asked how the accused officers who processed and approved the alleged illegal upgradations have committed the cognizable offences of criminal breach of trust and criminal misconduct punishable under Section 409 PPC and Section 5(2) PCA and how the officials who were granted the illegal upgradations are the abettors in the commission of those offences and are thus liable for the offence of abetment punishable under Section 109 PPC, we got no plausible reply. The allegations as contained in the FIR do not involve the very essential ingredients of the offence of criminal breach of trust as defined in Section 405 PPC, (i) the entrustment of, or dominion over, any property, and (ii) the dishonest misappropriation or conversion to his own use of that property, or the dishonest use or disposal of that property in violation of any direction of law or of any legal contract. Therefore, the cognizable offence of criminal breach of trust by a public servant punishable under Section 409 PPC mentioned in the FIR is not made out. Similar is the case with the cognizable offence punishable under Section 5(2) PCA mentioned in the FIR, which is also not made out of the allegations as contained in the FIR. The argument of the learned counsel for the petitioner is totally misconceived, that the authority conferred upon the accused officers, who granted the illegal upgradations, was a trust and by misusing that authority, they have committed the offence of criminal breach of trust punishable under Section 409 PPC and the offence of criminal misconduct punishable under Section 5(2) PCA. No doubt, the powers of the public servants are like a trust conferred upon them and they should exercise them fairly, honestly and in good faith as a trustee;
but the entrustment of the power to upgrade his subordinate officials is not equivalent to the entrustment of property as mentioned in Section 405 PPC and its misuse, or use in violation of the relevant rules and regulations, does not constitute the cognizable offences punishable under Section 409 PPC and Section 5(2) PCA. The misuse of such a power may constitute misconduct under the service laws, but does not attract criminal misconduct punishable under the criminal laws.

10. In view of the above legal position, the acts of the FIA officers in registering the FIR and carrying out investigation in the present case are certainly without lawful authority. We thus find no legal flaw in the impugned judgment. The present petition is not only meritless but also vexatious, as it amounts to continuation of harassment caused to the respondents by initiating the criminal proceeding against them in relation to their service matter, without any lawful authority. Additionally, these petitions being meritless and against the law settled by this Court have unduly wasted the time of the Court depriving it from attending to more lawful and genuine claims pending before it. Such frivolous litigation clogs the pipelines of justice causing delay in dispensation of justice, thereby impairing the right to expeditious justice of a genuine litigant. Such vexatious and frivolous petitions add to the pendency of cases which over-burdens the Court dockets and slows down the engine of justice. Such vexatious and frivolous litigation must be dealt with firmly and strongly discouraged.[7] We, therefore, dismiss the present petition and decline the leave to appeal, with costs of Rs. 100,000/-under Order 28 Rule 3 of the Supreme Court Rules, 1980. The costs shall be deposited by petitioner No. 2, Inspector Irfan Azim Burki, In-charge FIA, Corporate Crime Circle, Islamabad, who registered the FIR and was making the investigation against the respondents, from his own pocket, with the Registrar of this Court within 30 days from today, and after the deposit, they shall be paid to the respondents. A compliance report, in this regard, shall be placed on the record of the case. In case of non-compliance, the matter shall be put up before the Court for appropriate orders.

(K.Q.B.)          Petition dismissed

---

[1].       Shahnaz Begum v. High Court of Sindh and Baluchistan PLD 1971 SC 677 (5-MB).

[2].       Sher Afgan v. Ali Habib 2011 SCMR 1813.

[3].       See Shahnaz Begum case (supra).

[4].       Olas Khan v. NAB PLD 2018 SC 40.

[5].       R. SIM & Co v. District Magistrate PLD 1966 SC 650 (5-MB).

[6].       State v. Sultan Ahmed PLD 2007 SC 48.

[7].       See Naveed-ul-Islam v. District Judge 2023 SCP 32 (Citation on the official website of this Court) on the objectives of imposition of costs.

Entitlement of Pensionary Benefit

 PLJ 2007 SC 791

[Appellate Jurisdiction]

Present: Javed Iqbal, Abdul Hameed Dogar &  Mian Shakirullah Jan, JJ.

FEDERATION OF PAKISTAN through Establishment Division--Appellant

versus

BRIG (RTD.) ZULFIQAR AHMAD KHAN and others--Respondents

C.A. No. 1084 of 2002, decided on 26.3.2007.

(On appeal from the judgment dated 12.4.2001 passed by Lahore High Court, Rawalpindi Bench in Writ Petition No. 8 of 2001).

Constitution of Pakistan, 1973--

----Arts. 9(2) & 212--Entitlement to pensionary benefit--Civil servant was retired from Pakistan Army--Entitlement to grant of civil pension but was refused by appellant--Jurisdiction--Legality--Civil servant approached Wafaqi Ombudsman who accepted his prayer--Establishment Division being aggrieved of the order of High Court, filed appeal--Mohtasib cannot accept for investigation any complaint by or on behalf of a public servant or functionary relating to Agency--Matter relating to terms and conditions a proper forum was available--Respondent was having a good case on merits, passed an effective order which may be favourable to respondent, but respondent has divulged himself in litigation courses which were not available to him under law--Mohtasib had wrongly assumed jurisdiction while entertaining the complaint of respondent when matter comes before the Court--Order conveniently may be ignored and order being without jurisdiction and without lawful authority--Appeal was accepted.     [Pp. 793 & 794] A & B

Raja Muhammad Irshad, DAG for Appellant.

Ch. Afrasiab Khan, ASC and Mr. M.S. Khattak, AOR for Respondents.

Date of hearing: 26.3.2007.

Judgment

Mian Shakirullah Jan, J.--Federation of Pakistan through Establishment Division, by leave of the Court, has impugned the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby while accepting writ petition filed by the respondents it was held that respondent having retired from Pakistan Army on 5.7.1987 would be deemed to have been inducted in civil service of Pakistan from the said date and having earned/qualified service was entitled to the grant of civil pension and the refusal by the appellant to grant it to the respondent was declared without lawful authority.

2.  A brief resume of the case is that the respondent while serving as Brigadier in Pakistan Army was posted on secondment in the President's Secretariat on 31.12.1985 as Director General/Joint Secretary. On his retirement from the Army he was inducted in the Secretariat Group of Civil Service of Pakistan w.e.f. 19.4.1989 wherefrom he retired on 9.2.1998 having remained in Civil Service for a period of less than 10 years and was found to be not entitled to pensionary benefits. However, subsequently the retirement of the respondent was antedated by the GHQ from 19.4.1989 to 5.7.1987 and thus became entitled to the pensionary benefits. Having failed to get the required pensionary benefits on refusal by the Establishment Division, the respondent approached the Wafaqi Ombudsman who accepted his prayer and directions were issued for awarding him the pensionary benefits of the civil post. On representation to the President, the order of Wafaqi Ombudsman was set aside. The respondent then approached the High Court in its Constitutional Jurisdiction for the award of pensionary benefits of the civil post and also for setting aside the order of the President. The respondent succeeded in his this attempt in getting order of the Establishment Division and also that of the President set aside and he was held entitled to the pensionary benefits. The Establishment Division being aggrieved of the order of the High Court, passed in the writ petition, filed instant appeal, by leave of the Court.

3.  Learned Deputy Attorney has contended that (i) the matter pertains to the terms & conditions of service of a civil servant and in view of the bar contained under Article 212 of the Constitution, the High Court has got no jurisdiction to entertain the writ petition and (ii) the Wafaqi Ombudsman has no jurisdiction in the matter relating to the terms & conditions of the service and moreso when it is a case of no mal-administration, On the other hand learned counsel for the respondent has submitted that after retirement from service, the respondent was no more civil servant and the High Court has rightly entertained the writ petition and also that the order which had been passed by the President by accepting the representation of the appellant and setting aside the order of Wafaqi Ombudsman is not sustainable as no opportunity of hearing has been afforded to the respondent and liable to be struck down as has been done by the High Court.

4.  By looking at the very grievance of the respondent, as it has been agitated before the High Court and also before Wafaqi Ombudsman was with regard to the award and non award of pensionary benefits depending on the conditions as to whether he has completed tenure of 10 years in the civil service which is purely relatable to the terms & conditions of service. By no stretch of imagination, this case could be brought out of the ambit of the terms & conditions of civil servant and in such view of the matter bar contained under Article 212 of the Constitution attracts and the High Court has wrongly assumed the jurisdiction despite the constitutional bar while accepting writ petition of the respondent. Reliance can be placed on Peer Muhammad Vs. Government of Balochistant through Chief Secretary and others (2007 SCMR 54) and Province of Punjab, through Secretary education Vs. Shamshad Begum (2004 PLC (C.S) 1027).

5.  Similar is the case with Wafaqi Ombudsman. According to Article 9(2) of the Constitution, Mohtasib cannot accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein. In view of this implicit bar that petitioner being a civil servant and the matter relating to the terms & conditions of his service and for the redressal for such grievance a proper forum is available, i.e. Service Tribunal which could, in case the respondent was having a good case on merits, pass an effective order which may be favourable to the respondent, but the respondent instead of adopting a proper legal course, has divulged himself in the litigation courses which were not available to him under the law . The findings of the High Court whereby the orders passed on representation against the order of Mohtasib were set aside are also not sustainable. Article 9(1) prescribes the jurisdiction, functions and powers of Mohtasib and sub-Article (2) of the Article ibid contains bar thereto as under what circumstances such powers cannot be exercised which reads as under:

9(2). Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein.

The case of the respondent, which pertains to his personal grievance relating to his service clearly falls under the aforesaid sub-article containing bar on the jurisdiction of Mohtasib. The Mohtasib has wrongly assumed jurisdiction while entertaining the complaint of the respondent and giving findings on it, which he could not do and when such matter comes before the Court i.e. consideration of the order of Mohtasib as an ancillary one or incidentally and not under direct challenge, that can very conveniently be ignored i.e. the order being without jurisdiction and without lawful authority. If the same is set aside or reversed on representation as provided under the law, also cannot be set aside on account of any flaw, may be of not giving opportunity of hearing to the respondent as whether it has been set aside on representation or not, the order of Mohtasib on account of lack of jurisdiction would be of no consequence. Consequently, while accepting this appeal judgment of the High Court, impugned herein is set aside. No order as to costs.

(R.A.)      Appeal accepted.

 

If any relief was omitted then civil servant was debarred from claiming

PLJ 2012 Tr.C. (Services) 68
[Federal Service Tribunal, Islamabad]

Present: Moazzam Hayat and Mushtaq Malik, Members.

NAEEM KHALID, STENOGRAPHER NATIONAL HIGHWAY AUTHORITY SHAHPUR and others--Appellants

versus

CHAIRMAN NATIONAL HIGHWAY AUTHORITY, ISLAMABAD
and another--Respondents

Appeal Nos. 246(R)CS to 276(R)CS and 403(R)CS to 436(R)CS of 2011, decided on 30.11.2011.

Service Tribunals Act, 1973 (LXX of 1973)--

----S. 5(2)--Civil Procedure Code, (V of 1908) O. 11, R. 2--Judgment recorded in the appeal would be applicable to all other appellants--Civil servant could not claim more than one relief in his appeal--Validity--Purpose of deciding any appeal--In a civil suit all the reliefs on one cause of action were to be prayed for in one suit--If any relief was omitted then civil servant was debarred from claiming--Every suit would include the whole of the claim which plaintiff was entitled to make in respect of a cause of action--Where plaintiff omitted to sue, or intentionally relinquished any portion of his claim, he would not afterward sue of the portion so omitted or relinquished--A person entitled to more than one reliefs of the same cause of action might sue for all--Thus in a civil suit all claims based on one cause of action were to be made in one suit--An appeal before tribunal was like a suit before Civil Court--In appeal also all reliefs and claims based on one cause of action, were to be prayed for in one suit--Civil servant had thus not committed any illegality in praying for more than one relief in his memo. of appeal.       [P. 71] A

Constitution of Pakistan, 1973--

----Art. 212(2)--Civil servant--Jurisdiction to make amendments in service rules of National Highway Authority--Objection of--Under Art. 212(2) of Constitution, Courts had been restrained from entertaining any proceedings in respect of any matter to which jurisdiction of FST extended judgment of tribunal appeal lies to Supreme Court that too when substantial question of law of public importance was involved--Tribunal though creation of Service Tribunal Act was in fact set up u/Art. 212 of Constitution, if it found that any term/condition of service was violative of basic rights of civil servant it would definitely assume jurisdiction and either set aside that rule or order the competent authority to repeal it or to suitably amend it--Powers of tribunal to issue a direction for such amendment were not fettered.        [P. 71] B

Constitution of Pakistan, 1973--

----Arts. 203-A to 203-J--Specific power to delete rules or make amendments had not been given to High Courts--Entitlement to personal pay--FST failed to understand as to why NHA had stopped such incentive to employee for filing appeal in Tribunal--Action tantamounted to life embargo and start paying personal pay to effected employees alongwith arrears--Other employees falling in slow moving cadre, would be entitled to special pay subject to their clearance by competent authority--Relief to that extent was allowed.  [P. 72] C

Constitution of Pakistan, 1973--

----Arts. 37(e) & 38(e)--Reduction of disparity in income and earning of individuals--Art. 37(e) of Constitution directs the state to make provisions for securing just and human condition of work--Art. 38(e) of Constitution provides for reduction of disparity in income and earning of individuals including persons in various classes of service of Pakistan--Under legal obligation of reduce disparity in income and earnings of appellants--Status had also to be consistent with various classes of the service of Pakistan--Departments were obliged to look into all genuine grievances of the appellant.         [P. 72] D

Mr. Mumtaz Ahmed, Associate of Mr. Abdul Rahim Bhatti, Advocate for Appellants.

Mr. Fiaz Ahmed Jandran, Mr. Zia-ul-Haq Kiyani and Ms. Sofia Iqbal, Advocates for Respondents.

Date of hearing: 30.11.2011.

Judgment

Moazzam Hayat, Member.--With this judgment we shall decide above titled appeals as their facts are identical and all the appellants have prayed for the same relief. However, the judgment shall be recorded in the appeal of Naeem Khalid which shall be applicable to all other appellants.

2.  Appellant Naeem Khalid joined NHA as Stenographer in 1995. His grievance is that only 33% seats were reserved for Stenographers for promotion to the posts of Personal Assistants whereas 67% of the seats were to be filled by direct recruitment. According to him other employees in different categories had been given upgradation whereas he was refused. With regard to upgradation he has referred to a judgment of the Tribunal dated 01.02.2011 passed in Appeal No. 1213(R)CS/2010. A departmental appeal was filed by him for upgradation of his post with a further request that the direct quota be abolished and all seats be filled by promotion. Another prayer was made that amendment be made in the rules for promotion and 375 posts created in BS-16. As regards slow moving allowance, presently admissible @ of Rs.3500/- and Rs.4000/- per month in two stages, be increased. The departmental appeal was not responded. Hence this appeal.

3.  In the appeal following reliefs have been claimed:--

(i)         Increase in personal pay from the present rate to 200%;

(ii)        Upgradation of in post as has been done in other cases;

(iii)       100% promotion quota for the post of Personal Assistants;

(iv)       Amendment in the rules;

(v)        Increase in number of seats; and

(vi)       Removal of disparity in different classes of service.

4.  Some of the employees of NHA were getting slow moving allowance but it was stopped vide Office Order dated 14th May, 2011 on the ground that appeals had been filed by the employees in the FST.

5.  The appeal is resisted by the respondents. It is stated that the Tribunal is not competent to change the rules, that the appellant could not claim more than one relief in his appeal and that he could not claim upgradation of his post, increase in number of seats and increase in personal pay as of right.

6.  We have heard the learned counsel for the parties and have also perused the record.

7.  It is clearly provided in Section 5(2) of the Service Tribunals Act, 1973 that a Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court. In a civil suit all the reliefs on one cause of action are to be prayed for in one suit. If any relief is omitted then the plaintiff/appellant is debarred from claiming it. In this regard provisions of Order II, Rule 2 CPC are very clear. It is stated in Order II, Rule 2 that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. In sub-rule(2) it is further stated that where the plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterward sue in respect of the portion so omitted or relinquished. In sub-rule(3) also it is provided that a person entitled to more than one reliefs in respect of the same cause of action may sue for all. Thus in a civil suit all claims based on one cause of action are to be made in one suit. An appeal before the Tribunal is like a suit before the Civil Court. Hence in the appeal also all reliefs and claims, based on one cause of action, are to be prayed for in one suit. The appellant had thus not committed any illegality in praying for more than one relief in his memo. of appeal. His all reliefs are based on one cause of action. We, therefore, see no illegality in the memo. of appeal. The objection in this regard is repelled.

8.  The 2nd objection of the respondents is that this Tribunal is not competent to make amendments in the service rules of NHA. This Tribunal has been set up under Article 212 of the Constitution of Islamic Republic of Pakistan. It has been given jurisdiction in respect of matters relating to the terms and conditions of persons in service of Pakistan. Under sub-article (2) other courts have been restrained from entertaining any proceeding in respect of any matter to which the jurisdiction of this Tribunal extends. It has also to be noted that from the judgment of the Tribunal appeal lies to the Supreme Court of Pakistan, that too when a substantial question of law of public importance is involved. Thus the Tribunal, though the creation of Service Tribunal Act, 1973, is in fact setup under Article 212 of the Constitution, if it finds that any certain term/condition of service is violative of the basic rights of the civil servant it shall definitely assume jurisdiction and either set aside that rule or may order the competent authority to repeal it or to suitably amend it. In any event the powers of the Tribunal to issue a direction for such repeal/amendment are not fettered.

9.  The High Courts in the provinces and the Apex Court have also been established under the Constitution. Part-VII of the Constitution relates to the Judicature. Articles 176 to 191 are in respect of Supreme Court of Pakistan. As regards the High Courts, the relevant articles are from 192 to 2003. For Federal Shariat Court Articles 203A to 203J have been incorporated. The Federal Service Tribunal has also been constituted under Part-VII Chapter-4. It shall be appreciated that specific power to delete rules/laws or make amendments therein has not been given to the respective High Courts. It is only in the interpretation of the provisions of the Constitution that such power has been given to the Constitutional Courts of the Provinces. By the same analogy same power also vests in the Service Tribunal. We accordingly hold that the argument of the respondents relating to its jurisdiction is misconceived and is rejected.

10.  It has been admitted by the NHA itself in its Office Order dated 06.10.2010 that there are slow moving cadres in its service. It is for that reason that in Stage-I Rs.3500/- per month have been allowed as personal pay to the slow moving cadres. In the 2nd stage the rate of the personal pay is Rs.4000/- per month and is allowed to employees completing 25 years service. However, certain conditions have been prescribed for grant of this allowance. These conditions are lawful and are in line with the general rules of service. The appellants definitely belong to slow moving cadre. They are, therefore, entitled to personal pay subject to fulfillment of the conditions. We fail to understand as to why the NHA had stopped this incentive to the employees for filing appeals in the Tribunal. Their action tantamounted to violation to their own Office Order. We according direct the respondents to lift the embargo contained in the order dated 14.05.2011 and start paying the personal pay to the effected employees along with arrears. The other employees, falling in the slow moving cadre, shall also be entitled to special pay subject to their clearance by the competent authority. Relief to that extent is allowed.

11.  For other reliefs we shall refer to Articles 37(e) & 38(e) of the Constitution. Article 37(e) directs the State to make provisions for securing just and humane condition of work. Article 38(e) further provides for reduction of disparity in the income and earnings of individuals including persons in various classes of service of Pakistan. The respondents are, therefore, under a legal obligation to reduce, disparity in the income and earnings of the appellants. Their status has also to be consistent with various other classes of the service of Pakistan. In the circumstances, the respondents are obliged to look into all the genuine grievances of the appellant.

12.  In support of our above mentioned observations we shall refer  to  an  order  dated  15.03.2010  passed  by  the Apex Court in Civil Petitions No. 325 to 397 and 429 of 2010. The Bench of the Supreme Court comprised of My Lord the Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Ch., My Lord Mr. Justice Ch. Ejaz Ahmed and My Lord Mr. Justice Khalil-ur-Rehman Ramday. We shall reproduce the relevant findings of the Apex Court as under:--

"It is also important to note that this is not the first case of the respondents wherein the question of upgradation has been raised. There are so many other departments wherein the upgradation has already taken place and respondents approached the Tribunal on the ground of discrimination and violation of their fundamental rights under Article 25 of the Constitution of Islamic Republic of Pakistan."

The appellants are entitled to the benefit of the above observations of the Apex Court especially when Article 25 of Constitution guarantees equal treatment of law to all.

13.  In the above circumstances, while restoring the special pay of the appellants, we also direct the respondents to consider the claims made by the appellant and take appropriate stage for their redressal, even if it involves amendment in the, service rules. The process may be completed expeditiously, preferably within a period of four months from the date a copy of judgment is received in the office of respondents.

14.  There shall be no order as to costs. Parties shall be informed.

(R.A.)  Appeal allowed

Locus Poenitentiae--In appointment of Person

PLJ 2018 Quetta 59 (DB)

Present: Naeem Akhtar Afghan and Muhammad Kamran Khan Mulakhail, JJ.

FATIMA--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary M/O Commerce Islamabad and 2 others--Respondents

C.P. No. 434 of 2015, decided on 28.3.2017.

Locus Poenitentiae--

----General Clauses Act--S. 24--Constitution of Pakistan, 1973, Arts. 4, 18, 27 & 199--Constitutional petition--Recruitment process completed--Denial of appointment--Legislative Expectation under rule of Prudence--Applicability--Validity--Public authority under the ‘Doctrine of Promissory Estoppel’ was also bound to fulfill its promise to the citizen in respect of her inalienable right protected under the Constitution, and she on having been selected for the post of Manager (Legal) is rightly expecting the legitimate expectation under the rule of prudence--Denying the appointment to petitioner for no valid reasons amounts to offend her legitimate expectations in view of Articles 4, 18 and 27 of the Constitution--Authority passing or making order, no doubt has power to recall, modify or cancel said order but said order is subject to exception that where order had taken legal effect and in pursuance thereof certain right had been created in favour of an individual, such order could not be withdrawn or rescinded to determent of those rights--Petition allowed.                                               [Pp. 68 & 72] A & B

Mr. Baz Muhammad Kakar, Advocate (Martyred in the Suicide bomb blast of Civil Hospital Quetta dated 8^th August 2016) & Mr. Abdul Ghani Khilji, Advocate for Petitioner.

Mr. Aminuddin Bazai, D.A.G. for State.

Mr. Fayaz Aslam Dar, Advocate for Respondents No. 2 & 3.

Dates of hearing: 12, 19, 23.5, 6.6, 15, 12, 16, 20 & 23.12.2016.

Judgment

Muhammad Kamran Khan Mulakhail, J.--Brief facts leading to file the instant petition are that in the backdrop of Prime Minister’s directives, the Cabinet Secretariat/Establishment Division, Government of Pakistan had issued office memorandum F.No. 1-11/2009/DS(Coord:) Islamabad, the 4th April 2014, to the effect that the “Prime Minister has been pleased to desire that all posts under Aghaz-e-Haqooq-e-Balochictan (AHBP) lying vacant in all Federal Ministries/Divisions/Autonomous Bodies, should be filled with in one month.” It was also observed that “according to data available with the Establishment Division, they have 3055 position (BS-1 to 22) lying vacant as on 03.04.2013, as per laid down quota (6% of Balochistan)”, while in compliance of the said directives a schedule was also stipulated, i.e. for advertisement, (April 5-6, 2013) tests and interview (April 16, 2013) preferably at Quetta, scrutiny of papers/finalization (April 17-25, 2013) of the candidates followed by issuance of offer letter/joining (April 26-30 of 2013) with further direction that for the positions within the purview of Federal Public Service Commission (FPSC), requisition of the same may be sent to FPSC and progress reports as on 15th April and 30th April 2013 was also directed to be submitted to the Prime Minister’s Secretariat.

The Respondent No. 1 (Ministry of Commerce) directed the Respondent No. 2 the State Life Insurance Corporation of Pakistan (the “Corporation”) to ensure the implementation of the instructions of the Prime Minister. The Respondent No. 2 floated an advertisement and invited the applications against the vacant posts, which was published in the ‘Daily Jung Quetta’ on 19the April 2013. In the afore referred advertisement applications for the post of Manager (legal) were also invited, wherein the candidates having LLB degree with five years working experience with the upper age limit of 40 years were eligible to apply for the post. The petitioner appeared in the test and interview and finally a merit list was displayed in the office of Respondent No. 3 wherein the petitioner stood at S. No. 1 by securing 68 marks.

2.  Meanwhile, the “State Life Insurance Employees Union” (CBA) through its general secretary filed a petition before the Member, National Industrial Relations Commission (NIRC), Quetta Bench, Quetta, whereby initially the restraining order was passed against the Respondent No. 2 by directing him  to stop the recruitment process. However, vide order dated 8.5.2013 the petition was dismissed as with-drawn. The petitioner on securing highest marks was expecting to receive the appointment letter, when a complaint under Section 33(6) of the Industrial Relation Act, 2012, was filed before the worthy Chairman NIRC at principle seat Islamabad, wherein it was mainly contended that the NIRC has already passed a restraining order against the recruitment in the Corporation on 16.1.2013, therefore for willful defiance of the NIRC’s order, passed by the Karachi and Lahore Benches of NIRC, a contempt proceeding was solicited. In pursuance whereof, a Show-Cause notice dated 20.5.2013 was directed to be issued to the Respondent No. 2 to the effect “as to why action should not be taken against him for violation of injective orders of the Commission”.

The Respondent No. 2 submitted his reply to the show-cause notice, averring therein that posts were advertised in pursuance of directive of the Cabinet Secretariat/Establishment Division vide office memorandum dated 4th April, 2013 for recruitment under Aghaz-e-Haqooq-e-Balochistan package, approved under the Act of Parliament. It was further contended that the said advertisement was for the province of Balochistan only, in order to provide employment to the deprived and unemployed youth of the province. It was also asserted that the similar nature of case filed by the CBA union before the NIRC Quetta Bench has already been dismissed as withdrawn vide order dated 8.5.2013.

3.  However, the petitioner continued to approach the Corporation for issuance of her appointment letter, when she finally learnt that the case related to new recruitments has been stayed by the NIRC’s Commission, therefore on order of appointment can be issued till final disposal of the aforesaid case. The matter remained pending before the NIRC when vide order dated 22.5.2013, Show-Cause notice was discharged after recording the Corporation’s stance and with consent of the parties to the following effect:

“The learned counsel for the respondent corporation in the back drop of the deprivations of the people of the Province of Balochistan and in the peculiar circumstances, and in view of the special package; applications against the vacancies have been invited through advertisement in Daily Jang Quetta need be filled in by selection on merit. The president of the federation when confronted to this aspect of the matter being processed pursuant to the directive of the Prime Minister, he submitted that the petitioner shall not grudge the selection and appointments against the vacancies meant for the workmen subject to the condition that in case the petitioner is successful in substantiating the claim of 33% of the vacancies reserved for the children of workmen being enforceable; the respondent-corporation shall without any reservation or exception appoint on merit the children of the workmen from Balochistan, keeping in view  the number of appointments made pursuant to the advertisement in daily Jang, Quetta as per allocated quota. This offer is categorically accepted on behalf of the respondent-corporation by Mr. Shahid Hashmi (Assistant Manager) under instruction from Dr. Ghazala Nafeez, GM/Disisional Head obtained on telephone a couple of mimutes before and this offer being reasonable is accepted Order accordingly.

9.  Reply to the show-cause notices has been filed on behalf of the respondents. Consequently in view of the above noted position show-cause notices dated 20.5. 2013 issued in terms of order dated 17.5.2013 stand discharged.”

However since the complaint was clubbed with the main case, which was still pending adjudication before the worthy Commission, and was finally disposed of, vide order dated 25.11.2014 in the following manner:

2.  The learned counsel for the respondents submitted that the State Life Insurance Employees Federation of Pakistan (petitioner/complainant) is no more in existence and the complainant federation stands extinct consequent upon having obtained the registration an industry wise trade union Moreover, the body (officers) who instituted the complaint is no more in existence hence; the matter is not being pursued for having lost the interest for the afore-stated reason.

In view of the above stated position, this matter since cannot proceed further, therefore, the same is disposed of accordingly.”

4.  The petitioner soon after having come to know about final disposal of the lis before the Hon’ble Commission, again submitted a representation dated 2.3.2015 before Respondent No. 2 with request for issuance of her appointment order as Manager (Legal) in the Balochistan zone of the Corporation. The needful could not be done, therefore, the petitioner filed the instant Constitutional Petition before this Court on 9.5.2015.

5.  On receipt of notice, the respondent entered appearance and after availing the copy of petition on 18.6.2015, filed a reply/para-wise comments on 29.6.2015, while learned Deputy Attorney General appearing on behalf of the Respondent No. 1 stated that he does not intend to file para-wise comments and would rather rely on the comments already filed by the Respondent Nos. 2 and 3. The case remained pending, due to lack of attendance of the parties or their respective counsel. Therefore vide order dated 19.12.2015 again a notice was sent to the Respondent No. 3 to ensure the appearance of its counsel. The counsel for Respondents No. 2 and 3 appeared on 22.12.2015 and filed a miscellaneous application along with certain additional documen’s, copies whereof were supplied to the other side. On 8.3.2016 the counsel for the petitioner filed reply/objections to the Miscellaneous Application filed by the respondents and also partly argued the case.

Mr. Baz Muhammad Kakar (martyred) learned counsel for the petitioner regularly appeared and advanced arguments in this case. After his said demise/martyrdom in the Quetta Civil Hospital suicide bombing of 8th August 2016, the arguments were further posthumously carried on by Mr.Abdul Ghani Khilji, Advocate. The learned counsel contended that after the advertisement for the post of Manager (Legal), the petitioner having the requisite qualification applied for the same; that being shortlisted amongst other candidates, she appeared in the test and interviews and was placed at S.N. 1 of the merit list issued on 13.5.2013 after securing the highest marks, therefore, under the doctrine of legitimate expectancy she deserved to be appointed as a Manager (Legal) in the Corporation. Arguing further the learned counsel contended that the petitioner was less than (40) forty years old during the selection process, however when the time came and the injunctive/interlocutory order was passed by NIRC, she became over-aged; that in case, she is not appointed against the said position, she will not be eligible to apply for any other public sector post/position in future; that the official respondents took a categorical stance before the NIRC in reply to the Show-Cause notice of contempt proceedings; that the post advertised by them was related to special package in pursuance of Aghaz-e-Haqooq-e-Balochistn Package, therefore, the shows cause notice issued by the NIRC was discharged. He contended that after completion of selection process, the petitioner has got a vested right to be appointed as Manager (Legal) in the Corporation; that the manner and procedure adopted by the official respondents is an amazing example of probate and reprobate, when on the one hand just to save them selves from the operation of law and from a possible initiation of contempt proceedings, they took a categorical stance before the NIRC that the advertised post relates to special package known as the Aghaz-e-Haqooq-e-Balochistan but on the other, final disposal of the proceedings before the NIRC, they are reluctant to issue the appointment order of the petitioner. He states that under the principle of locus ponitentiae when decisive steps have already been taken and the petitioner was finally selected for appointment, the Executive Authority was not empowered to withhold the appointment order of the petitioner. He in support of his contention placed reliance on following precedents;

Dr. Marvi Shah and nine others v. Province of Sindh (2009 PLC (C.S 182).

Dr. Shoukat Pervez v. Federation of Pakistan (2010 PLC (C.S) 26).

Muhammad Ismail v. Secretary Education, Government of Punjab and another, 2000 PLC (S.C) 112).

Imran Hussain v. Water and Power Development Authority (2011 PLC (C.S) 116).

Munir Ahmed v. Minister Home and Tribal Affairs, Government of Balochistan, Quetta and others. (2007 PLC (C.S) 679).

Muhammad Asghar Wassem v. Secretary, Local Government (2009 PLC (C.S) 586).

6.  Mr. Fayyaz Aslam Dar, Advocate appearing on behalf of Respondent No. 2 and 3, strongly opposed the contention and reiterated his stance, as agitated in para-wise comments submitted by the official respondents. He propounded that the question of appointment cannot be agitated and raised before this Court as a part of vested right of the petitioner; that the recruitment and appointment of a new selectee falls within the domain of administrative authority for which no writ can be issued; that the petition is hit by the principle of latches; that the official respondents cannot be held responsible for not appointing the petitioner due to restraining orders passed by the different Benches of the Hon’ble NIRC. He urged with vehemence that petitioner is not entitled for the relief claimed for, therefore, petition is liable to be dismissed. To support his arguments the learned counsel placed reliance on the judgments in the cases of Muhammad Bilal and Seven others v. Government of Khyber Pakhtunkhwa (2014 PLC (C.S) 769), Mst. Basharat Jehan v. Director General, Federal Government Education, FGEI (C/Q) Rawalpindi (2015 PLC (C.S) 1519) and Federal Public Service Commission v. Altaf Hussain (2015 SCMR 581).

7.  On query posed by the Court that after discharging a show-cause notice relating to contempt of Court proceeding before the NIRC and thereafter on final disposal of the lis, why no plausible reason has been furnished in para-wise comments for not appointing the petitioner, on which the learned counsel sought time to address the query and to file certain leftover documents.

8.  The case was fixed on 22.3.2016, when the Court posed the following questions:

(i)       whether process of recruitment against the post of Manager (legal) initiated earlier has been withdrawn at any stage?

(ii)      what is the guideline issued by the Cabinet Secretariat/Establishment Division?

In response to the said questions the learned standing counsel as well as learned counsel appearing for the respondents once again sought time to assist the Court, During pendency of the petition the respondents filed certain letters of Establishment Division, and propounded that on account of ban on recruitment process in Federal Ministries, Divisions Autonomous Bodies, Corporations, vide letter dated 20th June, 2013 and 25th July 2013, with further clarification vide Office Memorandum dated 6th February, 2014, and 14th March 2014, the appointment letter of the petitioner could not be issued. It was further averted that on account of said ban a guideline was solicited by the corporation vide letter dated 25th July 2013, it was also asserted that vide Office Memorandum dated 25th July 2013 though the ban was lifted but with the stipulation that separate guideline will be issued in this regard by the Cabinet Secretariat/Establishment Division, Again a query was posed to the learned counsel that reply/para-wise comments in the instant case were filed on 29.6.2015, whereas the office memorandum relating to ban on fresh  recruitments was issued in the year 2013 and 2014, how come the para-wise comments do not speak of such ban. The learned counsel did not make any categorical statement and stated that the Corporation is waiting for the final guidelines.

9.  The learned DAG adopted the arguments advanced by the learned counsel for the Respondent Nos. 2 and 3, however, he added that without issuing of appointment letter, no vested right has been created in favour of the petitioner, therefore a writ in terms of mandamus cannot be issued her favour.

10.  We have heard the learned counsel for the parties and have gone through the record with their able assistance.

Since the maintainability of this petition has seriously been disputed by the respondents, therefore before adverting to the resolution of aforesaid question, it is wroth noting that the question of laches raised by the respondents, may not detain us any longer because in the para-wise comments filed by the respondents they themselves pleaded that on account of restraining order passed by different Benches of Hon’able NIRC, the respondents’ Corporation was not in a position to issue appointment order to the petitioner. It was also asserted that the respondents’ corporation was facing a contempt proceeding before the NIRC and since the main case of the Corporation’s CBA Union was subjudice before the NIRC, therefore they could not take any decisive step in respect of appointment of the petitioner or anyone else. The record shows that the lis pending before the NIRC was finally disposed of vide order dated 25.11.2014, According to the petitioner she was regularly approaching the respondents’ Corporation for issuance of her appointment order but on their failure to pay any heed, she had finally filed a representation on 2.3.2015 and again on respondent’s failure to respond to her representation, she filed the instant petition on 9.5.2015, therefore we are of the considered opinion that the petition is not hit by the principles of laches.

11.  The respondents further stated that the recruitment of any citizen falls within the administrative domain of the respondent’s Corporation and on the strength of principle of policy, same cannot be assailed before this Court. We are afraid that contention raised by the respondents is misconceived and under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court is competent enough to issue a writ against any public entity, which functions in connection with the affairs of the federation, a province or a local authority, subject to the Constitution any order can be issued by this Court for enforcement of any of the fundamental right conferred by Chapter 1 of part-II of the Constitution, therefore the right of individual to be dealt with in accordance with law (Artilce-4) equality of citizen (Article-25) and safeguard against the discrimination in services (Article-27) are inalienable rights of any citizen of Pakistan and this Court under Article-199 of the Constitution can pass any order to give a material effect and to protect the aforesaid rights of any citizen. Therefore the objection raised by the respondents in respect of the maintainability of the petition being based on wrong notion is overruled.

12.  The grievance of the petitioner is that she has been denied the benefit of appointment, which was completed in all respects, except the issuance of appointment order in her favour; that no valid reasons have been shown for withholding the petitioner’s appointment, rater she has arbitrarily been victimized which is an exemplary abuse of authority.

It is established law that once the process of selection is completed in an ordinary manner, it cannot be upset in an arbitrary manner. The process of the recruitment was completed and all decisive steps had been taken for petitioner’s appointment, thus any lapse or delay in executing, a simple clerical or inconsequential formality would not render such process incomplete as a right had accrued to the petitioner for job against vacancy for which she had been selected. It would be seem that the process of selection starting form inviting application from various candidates, which culminate with the display of merit list, which was displayed after completion of requisite process. Indeed a right was created in favour of the petitioner by displaying a merit list and no powers of locus poenitentiae were left with the respondents to retract their steps.

13.  During the course of the arguments the learned counsel for the respondents was asked time and again to satisfy the Court that wither said post has been abolished or at least, if he can place any documents on record to show that the executive authority has altered the requisite qualification for the post of Manager (Legal) or whether the Board of Directors of the corporation have decided to re-advertise the post and if son, the minutes of the board meeting shall be placed on record, but these questions were not attended and the earlier stance was reiterated that selection of the petitioner does nor confer any vested right upon her for appointment against the vacant position.

Thus in view of above discussion, it is held that the respondents could have retracted their steps till such time that the merit list had not left the fold of their office. But once, it had been made public thereby creating right in favour of the petitioner and the respondents’ power to withheld the same had been taken away by the law. In the circumstances, it is obvious that issuance of appointment letter is only consequential step which at the best be termed to be ministerial, because on completion of selection process a valid and tangible vested right has been accrued in favour of the petitioner.

14.  The Hon’able Supreme Court of Pakistan in the case “Regarding Pensionary Benefits of the Judges of Superior Courts” (PLD 2013 SC 829) while rendering the interpretation of the “Doctrine of Legitimate Expectation” observed as under.

“As far as the rule of legitimate expectation is concerned, such rule is not a part of any codified law, rather the doctrine has been coined and designed by the Courts primarily for the exercise of their power of judicial review of the administrative actions. As per Halsbury’s Laws of England, Volume 1(1), 4th Edition, Para 81, at pages 151-152, it is prescribed:

“A person may have a legitimate expectation of being treated in certain way by an administrative authority even though he has on legal right in privae law to receive such treatment. The expectation may arise from a representation or promise made by the authority including and filled representation or from consistent past practice.

In S. v. Secretary of State of Transport Exporte Greater London Council (1985)3 ALL . ER 300, it is propounded that:--

          “Legitimate, or reasonable, expectation may arise from an express promise given on behlf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. The expectation may be based on some statement or undertaking by or on behalf of the public authority which has the duty of taking decision.”

In the judgment reported as Union of India v. Hindustan Development Corporation (1993)3 SCC 499 at 540, it has been held:

          “The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or established procedure followed in regular and natural sequence. It is also distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.”

It is thus clear from the above that the doctrine only has nexus to administrative decisions and actions.

15.  Once the petitioner has been selected after securing the highest marks and her name was placed at S.No. 1 of the merit list, she develops legitimate expectation to be considered for appointments as soon as the lis before the NICR attained finality, denial appointment to the petitioner for which no valid reason and implicit justification was rendered, when neither the requisite qualification for the vacant post was altered not the post was abolished by the public authority. Moreover, when the official respondents have patently failed to give any valid reason for denying the appointment of the petitioner. The public authority under the ‘Doctrine Of Promissory Estoppel’ was also bound to fulfill its promise to the citizen in respect of her inalienable right protected under the Constitution, and she on having been selected for the post of Manager (Legal) is rightly expecting the legitimate expectation under the rule of prudence. Denying the appointment to petitioner for no valid reasons amounts to offend her legitimate expectations in view of Articles 4.18 and 27 of the Constitution.

16.  Mr.Justice ® Fazal Karim Khan in his renowned book “Judicial Review of Public Action” at Pages 1365 to 1367 defines the ‘Doctrine of Legitimate Expectation’ in the following manner.

“Chapter 7.

Legitimate expectation; promissory estoppels

Their relationship

The justification for treating ‘legitimate expectation’ and ‘promissory estoppel’ together as grounds for judicial review is one, that they both fall under the general head ‘fairness’; and two, that ‘legitimate expectation’ is akin to an estoppels. As was explained by Simon Borwn LJ in R.v. Devon CC, the various authorities show “that the claimant’s right will only be found established when there is a clear and unambiguous representation which it was reasonable for him to rely. Then the administrator or the other body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it”. The relationship between them is more clearly brought out by what Bingham LJ stated in Rv. IRC exp IMK:

          “If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or stopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness”.

          And in the Indian case of National Buildings Construction Corp. v. S. Raghunathan, Saghir Ahmed J. Said:

          “But claims based on ‘legitimate expectation’ have been held to require reliance on representation and resulting detriment to the claimant in the same way as claim based on promissory estoppels.”

Legitimate Expectation, its evolution and Meaning

The introduction of the phrase and the concept of ‘legitimate expectation’ in English law owes its origin, as many other phrases and concepts do to Lord Denning. In Schmidt v. Secretary of State for Home Affairs, the Home Secretary refused to extent the stay in England of foreign students, and this was impugned, inter alia, on the ground that a hearing had not been given, Lord Denning MR said:

          “It all depends on whether he had some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”

The judicial evolution of ‘legitimate expectation’ was traced in the opinion of the judicial Committee delivered by Lord Fraser in AG of Hong Kong v. Ng Yuen Shiu, Lord Fraser thought that the word ‘legitimate’ in that expression “falls to be read as meaning ‘reasonable’. Accordingly legitimate expectations in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis”. In CCSU case, however, Lords Diplock and Roskill preferred to use ‘legitimate expectation’. The principle “may now be said to be well-entrenched in this branch of law” namely judicial review.

Thus, when a person invokes ‘legitimate expectation’ he does not rely upon an enforceable common law or statutory right; he is merely asking to be dealt with fairly. As Lord Browne Wilkinson said in R v. Secretary of State for Home, where the Parliament left the enforcement of an Act to the Minister thereby creating a legitimate expectation that the Act would henceforth govern a particular class of person, but the Minister refused to enforce the Act, “an executive decision which effects the legitimate expectation of the application (even though it does not infringe his legal rights) is subject to judicial review.”

Role of the Court

The Court’s role when what is in issue is a promise as to how it would behave in the future made by a public body when exercising a statutory function, that is to say, when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way, is to ask, as a starting point, “what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in Findlay v. Secretary of State for the Home Deptt. “But what was their legitimate expectation? Where there is a dispute as to this, the dispute has to be determined by the Court, as happened in Findlay’s case. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.”

It can be Procedural or Substantive

‘Legitimate expectation’ may be procedural or substantive Promises or representations giving rise to expectations of being heard or consulted are typical examples of procedural legitimate expectation. A promise or representative of home for life and remission of sentence of imprisonment which is not a right, but which creates a legitimate expectation on the knowledge that the prisoner will be granted the maximum remission permitted by the rules if no disciplinary award of forfeiture of remission is made against him are examples of substantive legitimate expectation. Another example of substantive legitimate expectation is where an alien, who has no right to enter a country other than his own, is allowed to stay for a period of time but his permit is revoked before that time. He is it was held in Schmidt v. Secretary of State. “to be given an opportunity of making representations, for he would have a legitimate expectation of being allowed to stay for the permitted time.”

Thus in view of above discussion and subject to Articles 4, 18 and 27 of the Constitution of Pakistan, the doctrine of legitimate expectation comes into play and petitioner becomes entitled to get the benefit thereof.

17.  As observed hereinabove that parawise comments of the Respondent No. 2 and 3 were filed on 29.6.2015 and the respondents except raising preliminary legal objection and rendering an evasive denial remained silent on their failure to issue appointment order to the petitioner after final disposal of the lis before the NICR. However on question raised by the Court in the order dated 22.3.2016 to the effect:--

(i)       whether process of recruiting against the post of Manager (Legal) initiated earlier has been withdrawn at any stage?

(ii)      What are the guideline of Cabinet Secretariat/ Establishment Division?

In response to aforesaid queries, the respondents have filed office memorandum dated 22nd October, 2014, issued by Cabinet Secretariat/Establishment Division Government of Pakistan captioned as “Recruitment Policy for the Federal Services/Autonomous Bodies/Corporations”. But except filing the aforesaid police along with State Life Employees (Service) Regulation 1973 (Amended up to 31.12.1991) copy of advertisement in respect of appointment in the Health Insurance Projects of the Corporation and copy relating to powers of the Zonal Heads, did not address the aforesaid questions but just placed reliance on the judgments reported in the cases of Muhammad Bilal and seven others vs. Government of Khyber Pakhtunkhwa (2014 PLC (C.S) 769), Mst. Basharat Jehan v. Director General, Federal Government Education. FGEI (C/Q) Rawalpindi (2015 PLC (C.S) 1519) and Federal Public Service Commission v. Altaf Hussain (2015 SCMR 581) by iterating that petition is not maintainable, which deserves to be dismissed.

The judgments referred by the learned counsel are distinguishable and being not applicable to the proposition involved in the instant case are of no help to the respondents.

18.  Thus, it clearly manifests that the post of Manager (Legal) has never been withdrawn at any stage. However prior to aforesaid application, the respondents have filed another miscellaneous application relating to ban imposed by the Federal Government on fresh recruitments, which brought us to ponder;

‘whether ban could be applied retrospectively or pro-respectively’.

It is not difficult to find the answer. The ban imposed subsequent to the selection could not take away the rights of the petitioner which has already accrued to her and was also finalized. The ban, if any, could at the best be applied retrospectively and that being so the case of the petitioner is safe but the petitioner is now being denied such appointment for no valid reason and process of selection which has been completed in an ordinary manner cannot be upset on this pretext, in an arbitrary manner without disclosing a single instance of foul play. The reference is made to the case of Dr. Marvi Shah v. Province of Sindh (2009 PLC (C.S) 182).

19.  Needless to observe that under the principle of ‘locus poenitentiae’ the authority passing or making order, no doubt had the power to recall, modify or cancel the said order, but said order is subject to exception that where the order had taken legal effect and in pursuance thereof certain right had been created in favour of an individual, such order could not be withdrawn or rescinded to the determent of those rights. The case of the petitioner is to the effect that merit list having been displayed, the selection was completed, therefore the ban could not be applied retrospectively. The powers/discretion available under the principles of locus poenitentiae were no more available to the respondents to annul the process of selection already completed.

20.  Mr. Baz Muhammad Kakar (martyred) in response to Civil Miscellaneous Application filed by the respondents relating to ban imposed by the Federal Government on new recruitments, filed a reply/objection and the office memorandum dated 28th July 2014 issued by Establishment Division, Management Service Wing of Government of Pakistan is also appended therewith, reads as follows:

“The Prime Minister has now been pleased to relax the ban on recruitment against 3692 positions under the Aghaz-e-Haqooq-e-Balochistan Package in the Federal Ministers/Divisions/ Departments/Attached Departments/Subordinate Offices/ Autonomous Bodies/Semi-Autonomous Bodies/Corporations/ Companies/Programmes/Commissions/Authorities/Foundations/Trusts with immediate effect. A list of posts of Ministries/Divisions is enclosed.”

Through aforesaid letter/office memorandum, we have come to know that the ban imposed by the Federal Government was recalled on 28th July, 2014. Thus at presently or even at the time of filling para wise comments, there was no impediment or ban in employing the petitioner who was already selected. For rendering this view that subsequently imposed ban on new recruitment applies pro-retrospectively and not retrospectively, we have been supported with the dictum laid down by the Hon’ble apex Court in the case of Secretary of Government of N.W.F.P, C&W Department v. Jamal Abdul Nasir (2003 PLC (C.S) 977), wherein it was held that:

“The perusal of the official correspondence placed on the record would show that at the time of selection and recommendations made by Public Service Commission, there was no ban on recruitments and the posts of Research Assistants were also available against which the appointments of the selectees of public Service Commission were made after fulfilling the departmental requirements. The subsequent change in policy regarding imposition of ban on fresh appointments and requirement of approval of Chief Minister before sending the requisition to the Public Service Commission would not undo the appointments already made against the vacant posts’. The policy of the Government regarding ban on the appointments under the economy derive due to financial constraints or for any other reason, would not operate retrospectively and effect the appointments made in consequence to the recommendations of Public Service Commission before the introduction of policy in question which was not enforceable from a back date and to be given retroactive operation to effect existing rights of the individuals. This is an established principle that such policies always operate prospectively and if an order has been given effect or acted upon, the concerned authority would have no power to rescind such an order.

In Shahbaz v. Crown (PLD 1956 F.C. 46) it was held that locus poenitentiae refers to the powers of receding till a decisive step is taken. If a decisive step is taken other considerations would arise but if that step is yet to be taken there is no reason to restrict the power to modify or cancel. The same view was taken in Mahboob Rabani v. Government of Pakistan (PLD 1963 Lah. 53), Adnan Afzal v. Copt. Sher Afzal (PLD 1969 SC 187) and Pakistan v. Muhammad Himayat Ullah (PLD 1969 SC 407).

In view of the legal position explained above, we hold that the appointment of respondent as Research Assistant in C&W Department, Peshawar, having already taken effect, would be out of reach of the petitioner to rescind the same in the light of principle of locus poenitentiae. The petitioners having taken decisive steps were no more empowered to retrace their steps and rescind the appointment of respondent.”

21.  Thus, the aforesaid discussion bring us to the irresistible conclusion that subsequently issued ban if allowed to operate retrospectively nullifying all the steps taken for selection of the candidates, it will not only erode the confidence of the people in the public functionary but also in the Government itself. Thus subject to legitimate hope raised in the mind of candidate that she has the backing of the State and she is protected under the Constitution, will also be diminished, if her legitimate expectation was not fulfilled on pretext of subsequently issued ban imposed on new recruitments.

22.  We, therefore observe with dismay that the official respondents just to save themselves from the operation of law in contempt proceedings before the NIRC took a special plea that no injunctive order has been violated and subject posts were advertised as a special package on special directives of the Prime Minister of Islamic Republic of Pakistan, in consequences whereof the Show-Cause Notice relating to contempt proceedings was discharged. Rather than being penitent for not furnishing even a single explicit reason in their reply for not issuing appointment letter of the petitioner, they introduced an entirely divergent plea at a subsequent stage relating to imposition of ban by the Federal Government, prompting them not to issue the

appointment letter. The manner and procedure adopted by the official respondents and their uncalled for tendency to deal with the case of the petitioner has dragged her to the unnecessary litigation for her legitimate right. It is all the more reprehensible for the respondents that due to their reluctance to discharge their lawful authority with diligence, the petitioner has now gone over-aged and if she is not appointed against the subject post, there will hardly be any chance of her getting appointment in a public sector institution in future.

22.  We, therefore, allow this petition direct the respondents to issue formal appointment letter in favour of the petitioner for the post of Manager (Legal) in the State Life Corporation of Pakistan (Balochistan Region) within a period of one month positively after communication of this judgment. The respondents are also directed to submit compliance report for our perusal in chamber.

Copy of this judgment be also sent to the Chairman, State Life Insurance Corporation of Pakistan for information and compliance.

(W.I.B.)           Order Accordingly