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Petitioner: GHULAM AULIA VS Respondent: FEDERATION OF PAKISTAN through SecretaryHonorable Justice Aziz-Ur-RehmanMuhammad Arshad Khan Tanoli,Khalid Javed
2015 P L C (C.S.) 1149
[Sindh High Court]
Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ
GHULAM AULIA
versus
FEDERATION OF PAKISTAN through Secretary and 2 others
Constitutional Petition No.D-873 of 2009, decided on 31st December, 2014.
(a) Constitution of Pakistan---
---Art. 199--- Constitutional petition--- Maintainability--- Laches, principle of---Applicability---Discretionary relief---Civil service---Judgment of Service Tribunal, implementation of---Criminal case was registered against the petitioner (civil servant) and upon acquittal, he was re-instated in service with all the benefits---Plea of petitioner was that he was also entitled for ex-gratia and workers participation fund for the intervening period and children education allowance---Contention of petitioner was that judgment passed by the Service Tribunal had not been complied with in its letter and spirit---Validity---Issue of payment/back benefits was not only agitated but had also been decided---Petitioner had received amount without any protest and he could not agitate any grievance with regard to service benefits---Judgment passed by the Service Tribunal had been abated by the said Tribunal---Impugned order had attained finality---No question for implementation of judgment of Service Tribunal arose---Present constitutional petition was not maintainable as no Statutory Rules of the Employer Corporation existed---Petitioner could not explain delay of five years in filing of present constitutional petition---Constitutional petition suffered from laches---Petitioner was not entitled for discretionary relief in such like situation---Constitutional petition was dismissed, in circumstances.
Muhammad Mubeen-us-Salam v.Federation of Pakistan and others PLD 2006 SC 602; Anisa Rehman v. PIAC and another 1994 SCMR 2232; Muhammad Dawood v. Federation of Pakistan 2007 PLC (C.S) 1046; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Muhammad Mumtaz Javed v. Pakistan through Secretary Ministry of Communications, Government of Pakistan and 2 others 1988 PLC (C.S) 705; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Raziuddin v Chairman PIAC PLD 1992 SC 531; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224 Pakistan International Airline Corporation v. Shahabuddin and others 1993 PLC (C.S.) 1 and Pakistan Telecommunication Co. Limited v. Iqbal Nasir PLD 2011 SC 132 ref.
Muhammad Mubeen-us-Salam v. Federation of Pakistan and others PLD 2006 SC 602 distinguished.
Anisa Rehman v. PIAC and another 1994 SCMR 2232; Muhammad Dawood v. Federation of Pakistan 2007 PLC (C.S) 1046; Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602; Pakistan Defence Officer's Housing Authority v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 rel.
(b) Constitution of Pakistan---
---Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of facts could not be looked into or scrutinized by the High Court while exercising constitutional jurisdiction which was discretionary in nature---Recording of evidence could not be done or undertaken in constitutional jurisdiction.
Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 rel.
(c) Constitution of Pakistan---
---Art. 189---Judgment of Supreme Court---Binding effect---Decision of Supreme Court deciding a question of law or enunciating a principle of law was binding on all the other courts in Pakistan.
Muhammad Arshad Khan Tanoli for Petitioner.
Asif Hussain Mangi, Standing Counsel for Respondent No.1.
Khalid Javed for Defendants Nos.2 and 3.
Date of hearing: 11th November, 2014.
JUDGMENT
AZIZ-UR-REHMAN, J.--- By means of this Constitutional Petition filed by the petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on 23-4-2009, the petitioner is seeking the following reliefs:---
(a) Direct the respondents Nos.2 and 3 to implement the Judgment/decision rendered by the Federal Service Tribunal in Appeal No.771(K)/1998 allowing up-gradation to the petitioner from 16-2-1986 to the post of Junior Executive (BS-9) and subsequent move-over to BS-10 with effect from the date when the same fallen due to the petitioner,
(b) Direct the respondents Nos.2 and 3 to extend all the benefits accrued to the petitioner pursuant to his up-gradation and move-over from the date when the same fallen due to the petitioner till the services of the petitioner were dispensed with on 2-9-2001.
(c) Any other relief(s), which this honourable Court may deem fit looking to the circumstances of the case.
2. The facts in brief are that in the year, 1967 the petitioner was appointed as Typist in the respondent Corporation and was subsequently promoted as Senior Assistant on 16-2-1977. Subsequently, the petitioner was placed under suspension on 31-7-1983 on account of his involvement in a criminal case registered against the petitioner. Nevertheless, in the aforesaid criminal case, the petitioner was ultimately acquitted on 31st August, 1991, by the Court of Special Judge, Central Karachi. The respondents, upon acquittal of the petitioner, re-instated the petitioner in service vide Orders/Letter dated 28-10-1991.
3. Under the aforesaid Order/Letter dated 28-10-1991, it is important to mention, the petitioner was restored with all the benefits admissible to him and the period for which the petitioner remained under suspension was treated as a period on duty. Moreover, the petitioner was also allowed his withheld increments for the period of suspension. According to the petitioner stand, the petitioner was also entitled to 'ex-gratia' and 'Workers Participation Fund' for the intervening period and 'Children Education Allowance' for the remaining period ]from 28-10-1991 to 31-12-1992, but the same were not paid to him. Under such circumstances, the petitioner did compel to make representations to the authorities/respondents.
4. Per petitioner's stand, the petitioner was promoted by way of 'up-gradation' to the post of Junior Executive [BPS-9] with effect from 27-4-1995 vide order dated 24-5-1995. In the order of 24th May, 1995, the petitioner's name was mentioned at Serial No.18. Feeling aggrieved by the aforesaid Order of 24th May, 1995 to the extent of assigning the date of promotion from 27-4-1995, the petitioner, filed 'Departmental Appeal' before the respondent No.2, mainly on the ground that the promotion of the petitioner actually has fallen due to the petitioner w.e.f. 16-2-1986 i.e. after completion of 9 years service as Senior Assistant under Administrative Order No.5/1982, Para 24 (Career Planning) of Sub-Para (c) dated 18-4-1982. Therefore said 'Departmental Appeal' nonetheless, was rejected vide Order dated 27-5-1998 however, only after filing of C.P.No.D-1955 of 1997 before this Hon'ble Court for seeking direction to the respondents for deciding the fate of the petitioner's 'Departmental Appeal'. This Court while, disposing of the aforesaid C.P. No.D-1955 of 1997 vide order dated 30-4-1998, issued directions to the respondents for quick disposal of the petitioner's 'Departmental Appeal'. The 'Departmental Appeal' of the petitioner was thus decided as rejected on 27-5-1998.
5. The petitioner, thereafter approached the Federal Service Tribunal [In short FST] vide Appeal No.771(K)/1998 [Ghulam Aulia v. PNSC and another] for redressal of his grievances. The learned FST upon hearing of the parties was ultimately pleased to allow the appeal on 20-9-2004 with direction to the respondents to consider the 'move-over' of the petitioner to 'BPS-10' with effect from the date which fallen due to him. As far as the issue of 'up-gradation' to 'BPS-9' of the petitioner was concerned, the petitioner's Appeal No.771[K]/1998 to that extent was allowed w.e.f. 16-2-1986. The operative part of the FST judgment dated 20-9-2004 reads as under:---
The relief regarding claim of move-over to BPS-10 has not been contested by the respondents, either in their comments or during the course of arguments. This amounts to admission and as such, we allow the appeal as far as his up-gradation in BS-9 w.e.f. 16-2-1986 is concerned and direct the respondents to consider the appellant for move-over to BS-I0 with effect from the date it falls due to him. No order as to costs. [Underlining is ours].
6. Per petitioner's averments, the judgment dated 29th September, 2004 passed by the Federal Service Tribunal [FST] has not been complied with in its' letter and spirit and the benefits of 'up-gradation' and 'move-over' have also not been released to the petitioner. The petitioner under such scenario, went on approaching the respondents from time to time for extension of the benefits arising out of 'up-gradation' and 'move-over' from the due dates as per direction of the Federal Service Tribunal [FST], however, in return of the petitioner's request, except giving assurances by respondents, nothing concrete came into effect/materialized as averred by the petitioner in MoP.
7. The respondents since, were found reluctant to implement the judgment dated 20-9-2004 passed by the FST, the petitioner consequently filed Misc. Petition No.273/2004 in Appeal No.771[K] of 1998 but during the pendency of Misc. Petition No.273 of 2004 filed in Appeal No.771[K] of 1998, the same then was 'stood abated' by operation of law i.e. in view of the judgment dated 27-6-2006, passed by the honourable Supreme Court of Pakistan in the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan and others [PLD 2006 SC 602]. The petitioner was also informed about the abatement of his Misc. Petition No.273 of 2004 filed in Appeal No.771[K] of 1998 by the Assistant Registrar of FST Karachi through his letter of 30th June, 2006.
8. The respondent viz. Pakistan National Shipping Corporation [In short PNSC], since has been established under Ordinance, No.XX of 1979, as such their Employees, per petitioner's version, are working under the control of respondent No.1, the Secretary, Ports and Shipping. In view of this position, the service of the petitioner amongst others is/was regulated by virtue of the provisions contained in the said Ordinance No.XX of 1979 as such the petitioner's Misc. Petition No.273 of 2004 filed in Appeal No.771[K] of 1998 and then pending with the FST thus should not have been abated. The petitioner, was thus compelled to file C.P.No.D-2221 of 2006 (Ghulam Aulia v. Federation of Pakistan and 3 others] before this Court, inter alia, for seeking declaration of the communication of Assistant Registrar, FST regarding abatement of Misc. Petition No.273 of 2004 filed by the petitioner in Appeal No.771[K]/1998 before the FST as being illegal and liable to be set aside. Besides, direction was also sought to the effect that Misc. Petition No.273 of 2004 before the FST, be deemed and treated as pending. In the 'alternative' direction was sought to the FST for implementation of its' decision/judgment dated 20-9-2004, passed in Appeal No.771[K]/1998 in its' letter and spirit.
9. The aforementioned petition bearing C.P.No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and others], was while, pending adjudication before this Court, the honourable Supreme Court of Pakistan in Civil Petition No.722 of 2007 passed an order whereby the 'communication of abatement of the matters' before FST sent by the Assistant Registrar of the FST, was held as not a judicial order. In view such decision, the petitioner thereafter filed on 11-1-2008, an application under section 151, C.P.C. [C.M.A. No.267 of 2008] in C.P.No.D-2221 of 2006 (Ghulam Aulia v. Federation of Pakistan and others) with the prayer as under:---
"That after the decision taken by the honourable Supreme Court of Pakistan, the continuation of present petition will be of no avail and necessary orders to the effect that the matter of the petitioner is deemed to be pending with Federal Service Tribunal may kindly be passed. Affidavit in support is filed herewith."
10. On 16th January, 2008 when the above Constitutional Petition No.D-2221 of 2008 came-up before the Court then the Hon'ble Division Bench of this Hon'ble Court 'disposed of' the petition along with listed Application bearing C.M.A. No.267 of 2008, The order passed on 16th January, 2008 reads as follows:---
"16-1-2018
Mr. Muhammad Nawaz Shaikh, learned counsel for the petitioner, states that in view of the judgment passed by the Hon'ble Supreme Court in service matters, he does not press tis petition and seeks permission to avail the remedy available before the Federal Service Tribunal according to law. [Underlining is ours]
The petition is disposed of accordingly along with the listed application."
11. Pursuant to the 'disposal of' the aforesaid petition, the petitioner thereafter again, as per his own wish, approached the FST through filing Misc. Petition No.68 of 2008 on 24th January, 2008 in Appeal No.771[K] of 1998 for seeking judicial Order on the earlier Misc. Petition No.273 of 2004 filed in Appeal No.771[K] of 1998 by the petitioner for the 'implementation' of the judgment dated 20th September, 2004 of FST passed in Appeal No.771[K] of 1993 [Ghulam Aulia v. Pakistan National Shipping Corporation through its' Chairman and another]. Thereafter, the Misc. Petition No.68 of 2008 was taken up by FST and after hearing of the learned counsel for the parties at length, by a detailed and comprehensive 'judicial order' dated 2-4-2009, the same was 'disposed of and the order so passed was also communicated to the petitioner vide letter dated 11-4-2009. In terms of the aforesaid Order, the learned FST expressed its' inability to continue with the proceedings any further on the ground of 'abatement' of Appeal No.771[K] of 1998. The M.P. No.68 of 2008 thus filed by the petitioner for recalling of abatement order dated 30th June, 2006 and restoring of the Appeal No.771 [K] of 1998 to its' original position was also disposed of accordingly.
12. The petitioner feeling himself aggrieved once again approached this Court on the basis of same 'cause of action' by way of filing of the instant Petition bearing C.P.No.D-873 of 2007 on 23rd April, 2009 inter alia for seeking direction to the respondents for implementation of the judgment dated 20-9-2004 passed in Appeal No.771[K] of 1998 by FST. Needless to say, the services of the petitioner amongst other employees were dispensed with w.e.f. 2-8-2001 i.e. much prior to the judgment dated 20-9-2004 of the FST, vide Order/letter dated 2-8-2001 as such the petitioner as claimed is entitled to the benefits accrued to him till his service was dispensed with i.e. 2-8-2001.
13. Per petitioner's stand since, the judgments of the FST dated 20th September, 2004 has never been challenged before the Hon'ble Supreme Court of Pakistan as such upon attaining finality, needs to be implemented without further dragging the employees into litigation. In this regard reliance has been placed on Clause (b) of Para. 14 of judgment passed by Hon'ble Supreme Court of Pakistan in Civil Appeal No.1304 of 1999.
14. As stated above, the judgment of FST dated 20th September, 2004 has since attained finality, therefore, per contention of the petitioner, respondents are duty bound to implement the said judgment, of course, in its' letter and spirit whereby 'up-gradation' of the petitioner to 'BPS-9' was allowed and direction was also issued to respondent No.2 [PNSC] to consider the 'move-over' of the petitioner with effect from the date when it fell due to the petitioner. Since, the PNSC, per petitioner's stand, has failed to implement the judgment of FST dated 20-9-2004 in its' letter and spirit, hence this 3rd Petition on the subject was filed on 23-4-2009.
15. Upon service, very detailed and comprehensive 'comments' have been filed on behalf of respondents Nos.2 and 3, wherein inter alia the following Preliminary Legal Objections regarding maintainability of the petition have also been raised:---
"(A) That the judgment dated 20-9-2004 of learned FST in Appeal No.771(K)/1998 sought to be implemented has already been abated by a subsequent order dated 2-4-2009 passed by the FST. Since the said judgment has already been abated and the petitioner did not challenge the said abatement order dated 2-4-2009 in the honourable Supreme Court of Pakistan which is the only proper forum as such he cannot seek implementation of the judgment which does not hold the field and has already been abated by a judicial order passed by the FST.
(B) That the petitioner had earlier filed a C.P.No.D-2221 of 2006 on 25-9-2006 for the same relief which has been dismissed by this Court being not pressed by the petitioner vide order dated 16-1-2008. Hence the petitioner cannot file another constitutional petition in this Court for the same relief in respect of the same matter.
(C) That vide judgment dated 12-3-2007 passed by the honourable Larger Bench of this Court reported at 2007 PLC (C.S.) 1046 it has been held by the honourable Larger Bench that no directions for implementation of judgment of FST can be given and the petitions filed by various petitioners for the purpose of seeking directions for implementation of the judgment of FST have been dismissed. The said judgment has attained finality. The earlier Petition No.2221 of 2006 filed by the petitioner on 25-9-2006 in this Court is covered by the said judgment dated 12-3-2007 passed by the Larger Bench of this Court and the same is liable to be dismissed on this ground alone.
(D) That the above matter agitated by the petitioner at the relevant time was for his upgradation. However, the petitioner has already been retired from service of respondent PNSC w.e.f. 7-1-2002 and he has already received his all retirement benefits as full and final settlement as such the question of so called upgradation at this belated stage cannot be agitated by the petitioner when he has already been retired from service and is no more an employee of respondent PNSC.
(E) That the Pakistan National Shipping Corporation [Service] Regulations, 1984 are not statutory rules of service and as such the relationship between the petitioner and answering respondent is that of Master and Servant, hence the constitutional petition under Article 199 of the Constitution, 1973 in a service matter relating to terms and conditions of service/employment is not maintainable in law as held in the following cases of PNSC already decided by the honourable Supreme Court of Pakistan and by this Court:
(i) PLD 1974 SC 146 R.T.H. Janjua v. National Shipping Corporation;
(ii) 1988 PLC (C.S.) 705 Muhammad Mumtaz Javed v. Pakistan through Secretary Ministry of Communications, Government of Pakistan and 2 others.
(F) That the constitutional petition filed by the petitioner involves disputed questions of facts and same is not maintainable in law."
16. The respondents Nos.2 and 3, without prejudice to the above Preliminary Legal Objections also submitted their 'para-wise' reply wherein the assertions/averments of the petitioner made in the Memo. of Petition [In short MoP] were not only denied para by para but also a prayer for dismissal of the instant Petition has been sought as being devoid of any merits.
17. According to respondents Nos.2 and 3, the petitioner was appointed in Ex-NSC [Now PNSC] some time in the year, 1967, as 'Typist' and thereafter in due course of time was upgraded/promoted as Assistant, Senior Assistant and Junior Executive w.e.f. 3-7-1973, 16-2-1977 and 24-4-1995 respectively. The petitioner, indeed, was suspended by the Management of PNSC [respondent No.2] i.e. for his involvement in a 'criminal case' having been lodged against him for demanding of illegal 'gratification' from 'Daily Wages Employees'. The petitioner, nonetheless, was later on acquitted by the Special Judge, Central Karachi, on 31-8-1997 and consequently, thereafter was reinstated in service along with benefits admissible to him vide order dated 28-10-1991. The petitioner after being reinstated in service moved an application to respondents Nos.2 and 3 regarding the payment of 'ex-gratia' and 'Children's Education Allowance' for the period from 28-10-1991 w.e.f. 31-12-1992. The said application was forwarded to the 'Accounts Department' for consideration and taking necessary action thereon as per law and laid down procedure. The petitioner, per respondents Nos.2 and 3 stand, however, failed to provide/submit any 'CERTIFICATE' from any recognized school/college/institution in support of his request made in the application. Resultantly, the same was rejected after being found meritless.
18 According to respondents Nos.2 and 3 stand, the name of the petitioner after petitioner's re-instatement in service was knowingly placed in a meeting of the 'Promotion Committee-II' for consideration of his 'promotion'. The committee after giving due consideration to the 'Employment Record' of the petitioner and keeping in view the 'Annual Confidential Reports' of the petitioner fairly decided to promote the petitioner to the post of 'Junior Executive BS-9', however, with effect from 27-4-1995 and not w.e.f. 16-2-1986. Such decision was taken in the light of the petitioner's ACRs wherein the case of the petitioner was not recommended by the head of his department for promotion. The 'up-gradation'/'promotion' of an employee, it is significant to note, is linked with 'seniority-cum-fitness' and 'good service record' of an employee. Such factors, indeed, are always considered at the time of promotion/up-gradation. Promotion/up-gradation of an employee is not a vested right rather always made purely on merits and strictly in accordance with law and rules.
19. The petitioner along with hundreds of other Employees of respondent Corporation [PNSC], as asserted, no doubt, in the first instance were sent on forced leave and thereafter, of course, their services were dispensed with in terms of PNSC Service Regulations, 1984 with all benefits w.e.f. 1-1-2001 and 2-8-2001 respectively. Upon feeling aggrieved, the matter was also agitated by the Employees before the learned FST. The learned FST passed a judgment, however, both the parties feeling aggrieved by the said judgment of learned FST, had challenged the same before the Hon'ble Supreme Court of Pakistan. Nonetheless, the judgment of learned FST was maintained. Meanwhile, the petitioner stood retired from service of PNSC w.e.f. 7-1-2002 i.e. on attaining the age of superannuation. The petitioner thereafter received all his 'Retirement Benefits' from respondent Corporation without any reservation and/or objection towards his full and final settlement of claims.
20. The matter now being agitated in the present petition regarding 'so-called 'promotion'/'up-gradation', per respondents Nos.2 and 3 version, besides being infructuous is not maintainable on various grounds inter alia being a matter of 'past' and 'closed' transaction'. Moreover, in view of an earlier judgment dated 27-1-2009 passed by this Court in C.P.-No.D-1947 of 2006, to which the petitioner was also party, the issue of 'payment'/'back benefits' was not only agitated but also decided by this Court as well as Hon'ble Supreme Court of Pakistan. The respondent Corporation [PNSC], consequently in compliance with the judgment of Hon'ble apex Court, paid further/more amounts to the petitioner amongst others. The petitioner herein viz. Ghulam Aulia was also paid an amount of Rs.72,000 [Rupees Seventy Two Thousand only] on 24-6-2010 vide Cheque No.FAF4875199 dated 18-6-2010 which was not only received by the petitioner 'without any protest' but also the same was encashed. The petitioner thereafter has not agitated any grievance and apparently found himself fully satisfied regarding the service benefits. In view of this position as well, per respondent [PNSC] contention, the instant Petition has become infructuous.
21. Even otherwise, the present Petition filed in the year, 2009, in view of the earlier Petition filed on 25-9-2006 i.e. C.P.No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and 3 others] seems not only infructuous but also not maintainable in law. The judgment dated 20-9-2004 passed by FST in the petitioner's Appeal No.771[K] of 1998 has subsequently been declared as abated by the FST vide its' order dated 2-4-2009. The abatement Order of 2nd April, 2009 on account of its' not being challenged in the Hon'ble Supreme Court of Pakistan has attained finality as such the question of implementation of the FST's judgment dated 20th September, 2004 does not arise.
22. It is significant to note that the Order dated 2-4-2009…
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