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Petitioner: FEDERATION OF PAKISTAN VS Respondent: Syed AFZAL MUHAMMAD FAROOQHonorable Justice IFTIKHAR MUAHMMAD CHAUDHRYAkhlaq Ahmed Siddiqui,Naeem Shah
2005 P L C (C
2005 P L C (C.S.) 1424
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Syed Deedar Hussain Shah, JJ
C.A.1071 of 1998
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan; Islamabad and another
Versus
Syed AFZAL MUHAMMAD FAROOQ and another
C.A.1072 of 1998
Dr. QAMAR-UZ-ZAMAN CH.
Versus
Syed AFZAL MUHAMMAD FAROOQ and others
Civil Appeals Nos. 1071 and 1072 of 1998, decided on 30th June, 2004.
(On appeal from judgment dated 17-4-1998, passed by the High Court of Sindh, Karachi, in Constitution Petition No. 1643 of 1996).
Civil Servants Act (LXXI of 1973)---
----S. 9---Constitution of Pakistan (1973), Art. 185---Promotion---Entitlement---Pensionary benefits- Appeal to Supreme Court---Employee who died during pendency of appeal, had instituted Constitutional petition claiming promotion including cancellation of notification in pursuance whereof other employee was promoted to post of Director-General---High Court directed the department to consider question of fitness of deceased employee and the other employee---After death of the employee, his legal heirs had not been joined as party---In absence of legal heirs of deceased employee it would not be fair to dilate upon merits of the case---Leave granting order was rescinded and Appellate Authority was directed to re-consider case of both the employees as per direction of High Court---If late employee was found to be entitled for promotion to the post of Director-General, in accordance with law, then pensionary benefits could be extended to his legal heirs.
Muttaqi Hussain Rizvi v. Province of Sindh PLD 1978 Kar. 703 and Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290 ref.
Akhlaq Ahmed Siddiqui, Advocate Supreme Court/Advocate-on-Record for Appellants (in C.A. No. 1071 of 1998).
Appellant in person (in C. A. 1072 of 1998).
Respondent No.1 (in C. A. 1071 of 1998) not represented.
Respondent No.2 (in C.A. 1071 of 1998) in person.
Naeem Shah, Pakistan Meteorological Department for Respondents (in C.A. 1072 of 1998).
Date of hearing: 30th June, 2004.
JUDGMENT
IFTIKHAR MUAHMMAD CHAUDHRY, J.---The above-mentioned two appeals by leave of the Court are directed against a common judgment dated 17-4-1998, passed by the High Court of Sindh, Karachi, in Constitution Petition No. 1643 of 1996, concluding para. therefrom reads as under:--
"Keeping in view PLD 1978 Karachi page 703 (Muttaqi Hussain Rizvi v. Province of Sindh), duty approved by a Full Bench of this Court PLD 1981 Karachi page 290 (Abdul Bari v. Government of Pakistan) at page 297 and also being mindful of the aspect that it is only the competent authority who could form an opinion in relation to the fitness of a person to be promoted and we cannot substitute our opinion to the opinion of the competent authority, nor can any Tribunal substitute its opinion in relation to the fitness of a person. We would therefore, declare the impugned notification of promotion of the respondent No.3 to the illegal, unlawful and of no legal consequence and direct the respondent to re-consider the question of fitness of the petitioner and the respondent No.3 within a period of one month from the date of receipt of the order".
Precisely stating the facts of the case that respondent No. 1, who now has died, during pendency of the appeal instituted Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, claiming relief including cancellation of Notification No. M-1(49) of 1995 dated 147.7-1996, in pursuance whereof respondent No.2 was promoted to the post of Director-General, Meteorological Department. The petition was resisted by the Federation of Pakistan-appellants as well as respondent No.2, who has also filed appeal against the same judgment. Learned High Court vide impugned judgment observed that as the matter pertains to promotion of respondent No.2, therefore, it has jurisdiction to adjudicate upon the matter and finally department was directed to re-consider the question of the fitness of the respondent i.e. Syed Afzal Muhammad Farooq and appellant (respondent No.2) Dr. Qamar-uz-Zaman Ch.
3. It may be noted that during pendency of appeals Syed Afzal Muhammad Farooq-respondent No.1 had passed away although to the extent of his promotion as Director-General, Meteorological, his legal heirs had no cause of action but if his claim would have been accepted, by way of promoting him to next grade as Director-General, Meteorological Department, his legal heirs would be entitled for enhanced pensionary benefits, etc. But they have not been joined as party thus, in their absence it would not be fair to dilate upon the merits of the case. Therefore, leave granting order dated 30-6-1998 is rescinded, and Federation of Pakistan through Secretary, Establishment Division is directed to re-consider the case of both the respondents, as per the direction of the High Court and if late Syed Afzal Muhammad Farooq is found to be entitled for promotion to the post of Director-General, in accordance with law, then the pensionary benefits may be extended to his legal heirs. So far as question of jurisdiction of High Court under Article, 199 of the Constitution is concerned it needs no discussion in view of the judgment of this Court in the case of Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280).
Thus, both the appeals are disposed of with no order as to costs, in view of above observations.
H.B.T./F-32/S Order accordingly.