Full Judgment Text & Judicial Ruling

2012 P L C (C.S.) 203

[Federal Service Tribunal]

Before Moazzam Hayat and Farrakh Qayyum, Members

NOOR-UL-KHITAB

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and another

Appeal No,786(P)CS of 2010, decided on 5th March, 2011.

Civil Servants Act (LXXI of 1973)--

----S. 18---Service Tribunals Act (LXX of 1973), S.4---Leave, entitlement to---Appellant had been selected by the United Nations for posting abroad---Such posting was ratified by the authorities when ex-Pakistan leave was granted to the appellant for 300 days---When the election in connection of which he was posted abroad were postponed, appellant applied for extension in leave by 250 days, but his application was rejected---Validity---Authorities should have granted extension as appellant had completed 22 years of service and he had sufficient leave to his credit and he had not gone abroad without permission---Appellant was also serving the United Nations of which Pakistan was a member---All such considerations were ignored by the authorities in refusing leave to the appellant---Impugned order was accordingly set aside---Authorities, in their written objections had submitted that appellant was directed not to get in touch with any agency, but despite that he filed appeal in the Service Tribunal---No undertaking/contract was valid or legal which would prevent a person from seeking remedy in a court of law---If there was any such agreement, that would be void ab initio---Right to get rights protected through court of law, was fundamental and guaranteed by the Constitution---Authorities could not direct the appellant not to file appeal in the Service Tribunal to get relief---Appeal was accepted and authorities were directed to grant extension in leave by 250 days to the appellant.

M. Shoaib Razzaq for Appellant.

Mian M. .Arshad Javed for Respondents with Iftikhar Ahmed, Section Officer as Departmental Representative for Respondents.

Date of hearing: 5th March, 2011.

JUDGMENT

MOAZZAM HAYAT (MEMBER).--- Appellant Noor-ul-Khitab was Election Officer in the office of Assistant Election Commissioner, Battagram. He was nominated by the United Nations for the post of Electoral Support Officer, Sudan on 29-7-2009. The respondents allowed him 300 days leave from 25-10-2009 to 20-8-2010 vide order dated 29-10-2009 to join the posting in Sudan. It is stated. that the election schedule in southern Kordofan, Sudan was postponed/changed. The United Nations, therefore, extended the contract of the appellant from 1-7-2010 to 31-3-2011. Accordingly the appellant applied for extension in leave by 250 days. His request was declined on 22-6-2010 by the departmental appellate authority. Hence this appeal. It is prayed by the appellant that since he had rendered 22 years service with the respondents and had sufficient leave in his balance, his request for extension should be allowed.

2. The appeal is resisted by the respondents. It is stated that the leave was not a vested right of the appellant and extension was refused as per rules.

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

4. It is submitted by the respondents in their written objections that the appellant was directed not to get in, touch with any agency but in spite of that he filed appeal in this 'Tribunal. No undertaking/contract is valid or legal which prevents a person from seeking remedy in a court oflaw. If there is any such agreement it, shall be void ab initio. The right to get rights protected, through courts of law, is fundamental and is guaranteed by the Constitution. Even under the Contract Act all agreements stopping persons from seeking remedy in court of law are treated to be void. We, therefore, hold that. the respondents could not direct the appellant not to file appeal in the Tribunal to get relief.

5. The appellant had been selected by UNO for posting in Sudan. This posting was ratified by the respondents when ex-Pakistan leave was granted to him for 300-days. When the elections in Sudan were postponed the appellant had applied for extension in leave by 250 days. A The respondents should have granted extension as the appellant had completed 22 years of service with the respondents. He had sufficient leave to his credit. He had not gone abroad without permission. He was also serving the United Nations of which Pakistan is a member. All these considerations were ignored by the respondents in refusing leave to the appellant. As such the impugned order cannot be protected and is accordingly set aside.

6. The appeal is accepted in the above circumstances and the respondents are directed to grant extension in leave by 250 days to the appellant. . ??????????? 7. There shall be no order as to costs. ??????????? 8. Parties shall be informed accordingly.

H.B.T./11/FST???????????????????????????????????????????????????????????????????????? Appeal accepted.

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