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Petitioner: PROVINCE OF PUNJAB VS Respondent: SAEED AHMED KHAN
1994 P L C (C
1994 P L C (C.S.) 331
[Supreme Court of Pakistan]
Present: Abdul Qadeer Chaudhry Sajjad Ali Shah and Wali Muhammad Khan, JJ
PROVINCE OF PUNJAB through Secretary, Education Department and another
Versus
SAEED AHMED KHAN
Civil Appeal No. 515 of 1992, decided on 21st November, 1993.
(On appeal from the order of the Lahore High Court, Lahore dated 14‑3‑1992 passed in W.P. No, 1523 of 1992).
(a) Constitution of Pakistan (1973)‑‑
‑‑‑‑Arts. 199, 212(3) & 185‑‑‑Petition for leave to appeal‑‑‑High Court while admitting respondent's Constitutional petition against appellant's appointment on speed post for regular hearing suspending order of appointment of appellant, to the post in question‑‑‑Validity‑‑‑Leave to appeal was granted to examine whether High Court's jurisdiction was not totally barred in such matter in view of Art. 212 of the Constitution‑‑‑Operation of interim order passed by High Court suspending appointment order of appellant was suspended.
(b) Punjab Service Tribunals Act (IX of 1974)‑‑
‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Ante‑dating promotion of respondent‑‑‑Competence of Service Tribunal‑‑‑Order of Service Tribunal to the extent of declaring respondent's promotion effective, from back date was set aside on ground that such order was not within competence of Service Tribunal.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 185 & 212‑‑‑Punjab Civil Service (Appointment and Conditions of Service) Rules, 1974, R. 10(a)‑‑‑High Court having not passed final order in respondent's Constitutional petition (its interim order having been set aside) Supreme Court allowed High Court to decide that Constitutional petition finally including question of jurisdiction whether same was barred under Art. 212 of the Constitution or not‑‑‑Memorandum of Constitutional petition showed that respondent had called in question, appointment of petitioner on acting charge basis to which she was not entitled as contemplated by R.10(a) Punjab Civil Service (Appointment and Conditions of Service) Rules, 1974, benefit of which was claimed by respondent for himself‑‑‑Fact that connected civil appeal (against judgment of Service Tribunal) was disposed of by Supreme Court holding that Service Tribunal was not competent to ante‑date promotion of respondent would also help in disposal of Constitutional petition by the High Court‑‑‑High Court was directed to dispose of respondent's Constitutional petition within two months.
Sh. Abdul Majid, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellants.
Nemo for Respondent.
Date of hearing: 19th October, 1993.
JUDGMENT
SAJJAD ALI SHAH, J.‑‑‑In this appeal with leave of the Court is challenged order dated 14‑3‑1992 passed by the Lahore High Court in Writ Petition No. 1523 of 1992 filed by respondent herein Saeed Ahmed Khan whereby the said writ petition is admitted for regular hearing with notice to the other side and meanwhile operation of order of appointment of Miss Shahida Khanum as Director Sports, Directorate General of Sports, Punjab, is suspended.
2. Writ petitioner has called in question Notification dated 13‑1‑1992 as without lawful authority and of no legal effect, by which Miss Shahida Khanum is appointed as Director (Sports). Writ petitioner has further prayed that he should be considered for promotion to that post.
3. In the memorandum of writ petition it is stated that the writ petitioner as Assistant Director was waiting to be promoted as Deputy Director and in that connection he had filed appeal before the Punjab Service Tribunal, during the pendency of which, a seniority list dated 15‑11‑1990 was published showing writ petitioner at S. No. 1 of the list of Assistant Directors and was subsequently promoted as Deputy Director in BPS‑18 with effect from 31‑12‑1990. He claimed promotion from the back date when the vacancy had occurred on 29‑11‑1984 and in that connection had filed appeal before Service Tribunal, which was allowed ante‑dating date of promotion from 30‑6‑1985 when the Directorate General (Sports) Punjab Service Rules, 1985 were promulgated.
4. The Government of Punjab (Education Department) filed petition for leave to appeal in this Court against the order of the Service Tribunal and also against the order of the High Court in writ petition admitting the same for regular hearing and suspending operation of order of appointment of Miss Shahida Khanum. Leave has been granted by this Court by order common in both the petitions. In this appeal leave is granted to examine whether the High Court's jurisdiction was not totally barred in the matter, in view of Article 212 of the Constitution.
5. At the leave grant stage operation of the interim order passed by the High Court suspending appointment order of Miss Shahida Khanum was suspended. We have heard both these appeals together. We have allowed Civil Appeal No. 514/92 and have set aside the order of the Service Tribunal to the' extent of declaring promotion of Saeed Ahmed Khan effective from back date when Directorate General, Punjab (Sports) Punjab Service Rules, 1985 were promulgated as it was not within the competence of the Service Tribunal to do' so.
6. In this appeal, since final order is not passed by the High Court and petition was fled in this Court against interim order, we feel inclined to allow the High Court to decide this writ petition finally including question of jurisdiction whether it is barred under Article 212 of the Constitution or not. We hold this view for the reason that it appears from the memoradum of writ petition that the writ petitioner has called in question appointment of Miss Shahida Khanum as Director (Sports) on acting charge basis to which she was not entitled as contemplated in Rule 10(a) of the Punjab Civil Service (Appointment and Conditions of Service) Rules, 1974, which was added on 26‑2‑1983, benefit of which is claimed by the writ petitioner for himself. The fact that connected civil Appeal No. 514/92 is disposed of by this Court holding that Service Tribunal was not competent to antedate the promotion of Saeed Ahmed Khan would also help in the disposal of the writ petition. In the circumstances and for the facts and reasons stated above, we dismiss this appeal with observation that the High Court should dispose of the writ petition finally within 2 months from the date of the announcement of the judgment by this Court.
A.A./P‑221/S ????????????????????????????????????????????????????????????????????????? Order accordingly.