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Petitioner: MUHAMMAD ALAMGIR VS Respondent: NATIONAL BANK OF PAKISTAN
Court Name: Lahore High Court Judge(s): Ayesha A. Malik Title: MUHAMMAD ALAMGIR vs NATIONAL BANK OF PAKISTAN Case No.: Writ Petition No,9361 of 2012 Date of Judgment:2012-05-31 Reported As: 2014 PLC (C.S.) 963 Result: Order accordingly
JUDGMENT
JUDGMENT ' `MRS. AYESHA A. MALIK, J.--- Through this writ petition, the petitioner prays for his promotion as per the terms given in Notification No,94/2008 dated 19-8-2008 issued by the respondent Bank. 2. The case of the petitioner is that he was an employee of the respondent No,1 for 29 years and retired ca 10-4-2008. On 29-4-2008, the respondent approved its Promotion Policy 2008, giving promotion to the regular employees of the bank from c Lerical to Officer Grade-3 Staff and up to EVP Cadre, w.e.f, 1-1-2008. It is the case of the petitioner that he is entitled to a promotion, notwithstanding the fact that he retired from his job on 10-4-2008. It is also the case of the petitioner that as a consequence of being denied promotion, the petitioner suffers monetary loss, as the prom Lion would entitle him to better monetary benefits. 3. Learned counsel for the respondent-Bank argued that this petition is not maintainable and in any event suffers from laches. On maintainability, he argued that since there are no statutory service rules for the respondents, hence 110 writ can be filed against the respondents. The Staff Service Rules of the respondent-Bank are the 1980 Rules, which have not been notified. He places reliance on the cases titled "National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others" (1993 SCMR 105), "Pakistan International Airline Corporation and others v. Tanveer-ur-Rehman and others" (PLD 2010 SC 676) and "Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others" (PLD 2011 SC 132). On laches, learned counsel for he respondents argued that petitioner retired on 10-4-2008 and the notification from which he seeks benefit is dated 19-8-2008, whereas this petition was filed in the year 2012. He relies upon the cases titled. "Shahbaz Khan Mohmand v. Islamic Republic of Pakistan and another" (1975 SCMR 4),
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"Muhammad Latif v. Chief Settlement Commissioner and others" (1975 SCMR 217) and "Tayyab Iqbal v. Member (Colonies) Board of Revenue Punjab Lahore and 3 others" (2005 CLC 1447). 4. Learned counsel for the petitioner argued that the writ petition is maintainable, as the respondents are governed by the 1973 Rules, which Rules are statutory. On laches, he argued that since this was a service matter, therefore, the question of any delay would be considered differently, as held in a case titled "M.H. Mirza v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 2 others" (1994 SCMR 1024). 5. Although much emphasis has been placed on the maintainability of this writ petition due to the non statutory nature of the present staff service rules governing the respondents, in a recent judgment dated 13-7-2007 passed by the Hon'ble Supreme Court of Pakistan in C.P.No,552/2007 it was held that:--- "The submission has been considered. In fact there are two sets of service rules framed by the petitioner-bank. One framed in 1973 and the other in 1980. The former rules are statutory but the latter are not statutory. This is .not disputed by the learned counsel for the petitioner, but he submits that the latter rules will prevail. We do not subscribe to the argument. The statutory rules will prevail as against non-statutory rules as held by this Court in National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others (1993 SCMR 105). ' Therefore it would be in the interest of justice.to decide this matter on merits as both parties argued at length on the merits of their respective case. 6. Learned counsel for the respondents, argued that once an employee retires from the service he cannot seek benefit under any prospective circular. He further argued that a retired employee is not entitled to promotion. Going through the notification dated 19-8-2008 the learned counsel argued that this notification does not grant any promotion to the petitioner as it applies to those officers who were in service of the respondents at that time. He places reliance on the cases titled "The Collector, Customs and Central Excise, Peshawar and other v. Messrs Rais Khan Limited through Muhammad Hashim (1996 SCMR 83), "Shafiul Mulk v. Chairman Agriculture Development Bank of Pakistan, Islamabad and 5 others" (2000 PLC (C.S.) 1034), "Wali-ur Rehman and others v. State Life Insurance Corporation and others (2006 SCMR 1079) and "Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan, Islamabad through Secretary and others" (PLD 2008 SC 395). Learned counsel for the petitioner submits that the notification shall apply to all those persons who were in the employment of the respondent-Bank from 1-1-2008, being the effective date. Since the effective date is 1-1-2008, and the petitioner was in employment at the time, he is entitled to promotion. 7. Heard learned counsel for the parties and reviewed the record available on the file. 8. The entire case of the petitioner is based on notification dated 19-8-2008. The notification pertains to promotion from OG-III to 0G-II and OG-II to OG-I of those, who were last promoted on or before 1-12-2002. The petitioner seeks promotion from OG-III to OG-II. For OG-III to OG-II the notification provides that all officers in OG-III are promoted to next higher Grade OG-II. The effective date of promotion as per the notification reads as under:--- "(a) Officers who have completed 25 years of total service as on 31-12-2006 will be promoted with effect from 1-1-2007. (b) All others to be promoted with effect from 1-1-2008." 'The petitioner's representation before the respondent dated 17-2-2010 provides that the petitioner seeks promotion from Grade-III to Grade-II as he has put in 29 years of service and he is a Graduate from the University of Punjab, meaning thereby that he has fulfilled the criteria laid down for the promotion in the notification. A plain reading of the notification shows that its operation is prospective. It applies to all existing Officers in Grade-III who should be promoted to Grade-II. Of these officers, all those, who have completed 25 years as on 31-12-2006, will be promoted w.e.f, 1-1-
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2007 and all others will be promoted from 1-1-2008. There is nothing in the language to suggest that this benefit will apply to retired employees. To the contrary, states that it will apply to all officers in OG III, meaning thereby all officers presently employed in OG-III. The notification in pursuant to the Promotion Policy, 2008, which also provides that it will apply to all regular employees of the Bank from clerical to 00-III and above upto EVP. Clearly only those employees are eligible for promotion who were in the service of the respondent at the time. 9. Furthermore the notification cannot have retrospective effect unless it is specifically stated. If the notification was intended to include retired employees it would clearly say so. To read into the effective date of promotion being 1-1-2008 that it will include all those employees who were in the employment of the respondent at the time will be extravagant. This does not appear to be the intent of the notification, it does not, by its own terms and conditions state that it will apply to those employees who retired prior to its issuance. Therefore there is no reason to assume that the effective date of promotion will include retired C employees. A retired employee cannot take the benefit of a notification issued after his retirement. Once he has retired he has severed all ties ID with the employer and there is no basis upon which any benefit can be claimed. It is a settled law that notification is prospective in its operation from the date of its issuance and cannot be given retrospective effect E unless specifically stated. Reliance is placed on a case titled "Senior Member BOR and others v. Sardar Bakhsh Bhutta and another" (2012 SCMR 864). 10. In this case, the language of the notification does not suggest that it will apply to employees who were in the service of the Bank on 1-1-2008. Petition dismissed. Petition dismissed. [High Court (AJ&K)] Before Ghulam Mustafa Mughal, C.J. Prof. Dr. KHALID MAHMOOD and another versus AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 8 others Writ Petition No,1095 of 2013, decided on 17th December, 2013. (a) Women University of Azad Jammu and Kashmir Bagh Ordinance (VI of 2013)--- ----S. 10(2)---Women University of Azad Jammu and Kashmir Bagh Ordinance (XCIII of 2013), S.40(2)---General Clauses Act (X of 1897), Ss.6, 24 & 30---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---Appointment of Acting Vice- Chancellor for Women University---Transitory period---Discretionary power, exercise of--Scope-- -Contention of petitioner was that appointment of respondent as Acting Vice-Chancellor for Women University was without lawful authority and coram non judice--- Validity---Respondent was appointed on deputation till the date of her retirement on attaining the age of superannuation---Women University of Azad Jammu and Kashmir Bagh (Ordinance VI of 2013), stood elapsed after its statutory life whereupon Ordinance No, XCIII of 2013 was promulgated---No provisions for transitory period had been made in the subsequent Ordinance---No saving clause was included in the new Ordinance---If an order was validly passed under an Ordinance which was re-enacted in second Ordinance then non providing of saving clause would not affect the appointment made/action taken under the previous Ordinance---Appointment of Vice- Chancellor could be made by the Chancellor in accordance with the provisions of S.10(2) of Ordinance, 2013 which did not visualize acting appointment---Acting arrangement could be made by the Chancellor when office of the Vice-Chancellor was vacant or incumbent was absent or was unable to perform the function of the office due to illness or some other cause -- Chancellor could make such arrangement for the performance of duties of the Vice-Chancellor as he deemed fit--- Acting appointment/ arrangement could be made when office of the Vice-Chancellor had been
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permanently filled in and he was unable to perform the functions---Appointment of respondent was without lawful authority---Powers provided in the subsequent Ordinance had already been exercised by the Chancellor by appointing the respondent for the transitory period and same powers could not be exercised second time---Discretionary power should be exercised judiciously and on the basis of rational and objective criteria---Respondent should not suffer for an act of the Authority and she would be entitled for salary for the period performed by her---Chancellor was directed by the High Court to make appointment of the Vice-Chancellor of the University on permanent basis after receiving the recommendations of the Research Committee/Senate, of a duly qualified person in the light of Supreme Court Judgment on the subject---Writ petition was disposed of accordingly. [pp. 973, 974, 975, 978, 979] A, B, C, D, E, G, H, I & J The State v. Shafi M. Sehwani and another PLD 1997 Lah. 563; Mujahid Hussain Naqvi, Advocate Supreme Court Muzaffarabad and others v. Justice (Rtd.) Basharat Ahmed Sheikh, Mohtasib, Acting Chairman Ehtesab Bureau AJ&K, Mohtasib Secretariat Muzaffarabad and others PLJ 2002 AJ&K 49; Raja Muhammad Nasir Khan v. Acting Vice-Chancellor and others 2013 PLC (C.S.) 353; Prof. Engineer Naib Hussain, Vice-Chancellor, Mirpur University of Science and Technology, Mirpur v. Engineer Prof. Dr. Muhammad Riaz Mughal, Mirpur University of Science and Technology, Mirpur and others 2013 SCR 529; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 and Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others PLD 2010 Lah. 546 rel. (b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----S. 4---Right of education---Scope---Right of education was protected as a Fundamental Right. [p. 978] F Sadaqat Hussain Raja for Petitioners. Sardar M.R. Khan, A.A.-G. and Raja Muhammad Hanif Khan for Respondents. JUDGMENT ' GHULAM MUSTAFA MUGHAL, C.J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 following relief is claimed:--- "In view of above it is very humbly prayed that by accepting this amended writ petition the Women University of Azad Jammu and Kashmir Bagh Ordinance, 2013 (Ordinance VI) of 2013 dated 11-1-2013 up to the extent of appointment of Vice-Chancellor of the University may kindly be declared against the law, decision of the Chancellor's meeting held on 11-5-2006 and the appointment of the respondent No,7 as Acting Vice-Chancellor may kindly be set-aside. The respondents may kindly be directed to advertise the post of Vice Chancellor of Women University Bagh and to fill the post according to the decision of the Chancellor meeting held on 11-5-2006. ' It is further prayed that the summary moved by the respondent No,9 for appointment of respondent No,8 as Vice Chancellor Women University Bagh and all proceedings done by the respondents in this behalf may kindly be declared without lawful authority against the law and rules. Any other relief which the Hon'ble Court deems fit may also be granted." ' Precise facts forming the background of the captioned petition are that petitioners herein are first class State Subjects of the Azad Jammu and Kashmir and are serving in different Universities of Azad Jammu and Kashmir. It is alleged by them that Women University of Azad Jammu and Kashmir Bagh has been established through Ordinance No,VI of 2013 promulgated on 11-1-2013. It is further alleged that respondent No,7 was appointed as Acting Vice-Chancellor of Azad Jammu and Kashmir Women University Bagh till her retirement on 22-12-2013 and prior to that she was serving as Secretary Social Welfare and Women Development. It is claimed that other Universities in Azad Jammu and Kashmir have been established keeping in view the guide lines issued by the Higher Education Commission for the establishment of new Universities and a model Ordinance has also been provided for the purpose. It is contended that earlier Poonch University Rawalakot has been established through an enactment. It is further contended that in a meeting of
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Chancellors of the Universities under the Chairmanship of President of Pakistan on 11-5-2006 a decision was taken wherein a criteria was provided for establishment of the Universities. It is alleged that there is no provision in Ordinance No,VI of 2013 for appointment as Acting Vice- Chancellor nor such appointment is provided in the criteria laid down by the Higher Education Commission. It is further alleged that appointment of Vice-Chancellor can only be made by Chancellor on the recommendations of the Senate and search committee. In the University of Rawalakot Establishment Act the same mode has been provided. It is further alleged that in the Mirpur University of Science and Technology and the University of Azad Jammu and Kashmir Muzaffarabad the same procedure was adopted fOr appointment of the Vice-Chancellor. It is alleged that the provisions of the Women University Bagh Ordinance are not similar to the other Ordinances under which the other Universities have been established, which has been in fact enacted with mala fide intention in order to accommodate the persons of the choice of the respondents. It is stated that a summery for appointment of Vice-Chancellor Women University Bagh has been moved by the Minister Health without any authority wherein he has recommended the appointment of respondent No,8 and the Chancellor is bent upon to approve the summary without following mandatory procedure for appointment of the Vice-Chancellor as visualized by the Ordinance. ' Respondents have contested the petition by filing written statement. It is pleaded by them that respondent No,1 is serving in the department of Agriculture Entomology University of Poonch Rawalakot and petitioner No,2 is serving as Director of Quality Enhancement Cell Azad Jammu and Kashmir University Muzaffarabad. It is further pleaded that earlier appointment of the Vice- Chancellor was in the knowledge of petitioners but they have not raised any objection hence are estopped by their conduct. It is alleged that model University Ordinance is not applicable in Azad Jammu and Kashmir because under the Interim Constitution Act, 1974, it is the prerogative of the President to issue the Ordinance hence no Ordinance can be declared ultra vires of the Constitution on the touchstone of the model Ordinance, as has been claimed by the petitioners. It is further alleged that petitioners have not pointed out any violation of fundamental rights or procedure illegality in the propose appointment, therefore, the petition is liable to be dismissed. It is claimed that Women University Bagh was established through Ordinance No,6 of 2013 and the life of the Ordinance was 120 days which stood expired and fresh Ordinance has been promulgated which is not subject-matter of this writ petition. It is stated that no relief can be granted to the petitioners on the basis of the Ordinance which is no more existing. ' Mr. Sadaqat Hussain Raja the learned Advocate for the petitioners has contended that official respondents have appointed respondent No,7 as Acting Vice-Chancellor of the Women University Bagh despite of the fact that there is no provision for appointment of Acting Vice-Chancellor in the Ordinance No,VI of 2013 dated 11-1-2013, hence, her appointment is without lawful authority and coram non judice. The learned Advocate further contended that even proposed summary for appointment of respondent No,8 is without lawful authority and violative of the provisions contained in Ordinance No, XCIII of 2013 dated 23-9-2013. The learned Advocate submitted that in the other Universities appointments of the Vice-Chancellors have been made on the recommendations of the search Committees and after approval of the Senate, therefore, the respondents are bound to adopt the same procedure for making appointment of the Vice- Chancellor of the Women University Bagh and departure from the settled practice is politically motivated, mala fide and without lawful authority. The learned Advocate further submitted that in the new promulgated Ordinance the Vice-Chancellor can be appointed by the Chancellor on the recommendations of the Senate as well as search committee who will determine the suitability of candidates under section 11 of the Ordinance. The learned Advocate stated that as the first appointment of Vice-Chancellor was made in view of section 40(2) therefore, no second
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appointment can be rhade by the Chancellor/President while exercising powers conferred on him under subsection (2) of section 40 of said Ordinance. He argued that discretionary powers of appointment of the first Vice-Chancellor cannot be exercised in the second time on the pretext that in earlier legislation the provision was not available. ' Messrs Sardar M.R. Khan, A.A.-G. and Raja Muhammad Hanif Khan appearing for the respondents prayed for dismissal of the petition on the ground that the Ordinance on the basis of which appointment of respondent No,7 as Acting Vice-Chancellor was made has expired and new Ordinance has been promulgated whereby the actions taken/ appointments made under the previous Ordinance have not been protected therefore, it cannot be said that the President is precluded from making the appointment under subsection (2) of section 40 of Ordinance No, XCIII of 2013. The learned Advocate further contended that the first appointment in the University can be made by the Chancellor under the powers conferred on him by the Statute, hence, mode for appointment of the permanent Vice-Chancellor visualized by section 11 of Ordinance is not attracted in the present case. The learned Advocate further contended that the petitioners have not challenged the new Ordinance, therefore, their petition is liable to be dismissed. The learned Advocate maintained that after repealing the previous Ordinance appointment of Dr. Shahjahan Saima has automatically come to an end and she is no more acting as Vice-Chancellor, hence, the writ petition has become infractuous. The learned Advocate further submitted that as the acting Vice-Chancellor has failed to take necessary actions for establishment of the University for which purpose she was appointed, therefore, fresh appointment can be made by the Chancellor under section 40(2) of the Ordinance notwithstanding any mode provided in the Statute for the appointment of regular Vice-Chancellor. They argued that as earlier there was no provision in the repealed Ordinance for transitory period, hence, the appointment of the private respondent would be treated as nullity in the eye of law and shall be taken to have not been made at all. ' I have heard the learned counsel for the parties and gone through the record of the case. ' A perusal of the record reveals that initially Ordinance No,VI of 2013 was issued on 11-1-2013 for establishment of Azad Jammu and Kashmir Women University Bagh. Under section 10(2) of the Ordinance respondent No,7 was appointed as acting Vice-Chancellor of the University vide notification dated 10-4-2013, which reads as under:--- "Azad Government of the State of Jammu and Kashmir. Services and General Administration Department Muzaffarabad Dated 10-4-2013 Notification ' No,S&GAD/E-1(133)/2012, in exercise of powers conferred by section 10(2) of the Azad Jammu and Kashmir Women University Bagh Ordinance, 2013, the President of Azad Jammu and Kashmir/Chancellor AJK Women University Bagh, has been pleased to approve the appointment of Professor Dr. Shahjahan Saima, Secretary Social Welfare and Women Development, Government of Azad Jammu and Kashmir as the Acting Vice-Chancellor of the Azad Jammu and Kashmir Women University Bagh. She will be on deputation and her lien shall remain intact against BS-20 post in the government of AJK till 22nd December, 2013. (date of her retirement on attaining the age of superannuation). ' The Acting Vice-Chancellor will, inter alia, immediately start the process for the recruitment of (Riffat Rasheed) Deputy Secretary. S&GAD (Gazetted-II/III)" ' A perusal of the Ordinance reveals that respondent No,7 was appointed on deputation till the date of her retirement on attaining the age of superannuation. This Ordinance stood elapsed after its statutory life whereupon Ordinance No, XCIII of 2013 was promulgated on 23-9-2013. A comparison of both the Ordinances would show that in the first Ordinance there was no provision for transitory
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period as has been made in the subsequent Ordinance in shape of section 40(2) of the said Ordinance. It is also an admitted position that similar provisions were available in the University of the Poonch, Rawalakot Act, 2011 and Mirpur University of Sciences and Technology Ordinance. The purpose of appointment of respondent No,7 as Acting Vice-Chancellor as is evident from her appointment notification reproduced herein above was mainly to take steps for recruitment of regular Vice-Chancellor through due process and in light of the policy of the Higher Education Commission but it appears that due to tussle between the parties no step could be taken by respondent No,7 in this regard. ' The contention of Raja Muhammad Hanif Khan, the learned Advocate for the respondents that appointment of respondent No,7 stood automatically come to an end after promulgation of Ordinance No, XCIII of 2013 because all the actions taken by her including her own appointment vide notification dated 10-4-2013 have not been saved by providing a saving clause in the new Ordinance is devoid of any force. Though there is no saving clause in the new Ordinance but the summary annexure 'If appended with the amended petition negates the contention of the learned Advocate which reveals that the summary was moved and approved by the President for reenactment of the same Ordinance, therefore, on the strength of sections 6, 24 and 30 of the General Clauses B Act if an order is validly passed under an Ordinance which is re-enacted or followed by another Ordinance and no saving clause is provided in the second Ordinance then non-providing of saving clause will not effect the appointments made, actions taken under the previous Ordinance as has been held in a case titled The State v. Shafi M. Sehwani and another (PLD 1997 Lahore 563). The relevant observation has been recorded in para 35 of the…
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