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Petitioner: NAYAR AHMED MAZHARI VS Respondent: BOARD OF INTERMEDIATE EDUCATION through Chief ExecutiveHonorable Justice Sarmad Jalal Osmany, C.J. and Sajjad Ali ShahAnsari Abdul Lateef,Arshad Lodhi
2010 P L C (C
2010 P L C (C.S.) 151
[Karachi High Court]
Before Sarmad Jalal Osmany, C.J. and Sajjad Ali Shah, J
NAYAR AHMED MAZHARI
Versus
BOARD OF INTERMEDIATE EDUCATION through Chief Executive and 2 others
Constitutional Petition No.D-1880 of 2007, heard on 7th August, 2009.
Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Civil service---Removal from service---Reinstatement---Claim for grant of back benefits---Petitioner had prayed for the grant of back-benefits w.e.f. initial appointment till retirement including the period he remained dismissed from service on the ground that such benefits were granted to one co-worker placed in similar position---Validity---Petitioner was awarded major penalty of removal from service, whereas major penalty of compulsory retirement was awarded to said co-worker---Petitioner, however was reinstated in service, whereas co-worker had attained age of superannuation during his suspension---Authorities, while reinstating the petitioner imposed a condition as to non-payment of arrears for the period during which he remained out of service---Once competent Authority concluded upon its satisfaction that the order of dismissal from service was not in accordance with law or without lawful authority; and the employee was not at fault in any manner, then the employee could not be deprived of his salary and other benefits during the period for which he had been wrongfully kept out of service by the department by not deciding the appeal, provided he was able to establish that during such period he was not engaged gainfully---High Court declined to decide as to whether the petitioner remained unemployed for the entire period of 15 years during which he remained out of service as it required leading of evidence---Petitioner could be provided treatment at par with said co-worker who had been granted certain benefits by the authorities, which were denied to the petitioner as there appeared to be no difference between the case of the petitioner and his co-worker---Petitioner, in circumstances, could not be denied equal treatment with said co-worker.
Sher Muhammad Shehzad and others v. District Health Officer 2006 SCMR 421; Qadeer Ahmed v. Punjab Labour Appellate Tribunal Lahore and others PLD 1990 SC 747; Ali Nawaz v. Pakistan Railways 1999 SCMR 1873; Abdul Qayyum v. D.G. Project Management Organization 2003 SCMR 1110 and Sher Muhammad Shahzad and others v. District Health Officer 2006 SCMR 421 ref.
Ansari Abdul Lateef for Petitioner.
Arshad Lodhi for Respondents Nos.1 to 3.
Date of hearing: 7th August, 2009.
JUDGMENT
SAJJAD ALI SHAH, J.--- Through this petition the petitioner has prayed for the grant of back benefits w.e.f. initial appointment till retirement including the period in which he remained dismissed from the service on the ground that such benefits were granted by the respondents to one SAW Naqvi, co-worker placed in similar position.
Learned counsel for the petitioner has contended that the petitioner joined the service with respondent No.1 as Upper Division Clerk (UDC) in September, 1971 and has retired on attaining the age of superannuation on 19-10-2005 as Assistant Secretary in BPS-17 after rendering service for 34 years. It is contended that in the year, 1975, the petitioner as UDC and one SAW Naqvi an Office Assistant were jointly proceeded against departmentally under Board of Intermediate Education Karachi Employees (E&D) Regulations and were awarded major penalty i.e. removal from service in the case of petitioner and compulsory retirement in the case of SAW Naqvi. However, the petitioner as well as said SAW Naqvi filed a departmental appeal before the Appellate Authority who at that time was Sindh Provincial Minister for Education and the learned Appellate Authority allowed both the departmental appeals by reinstating the petitioner as well as said SAW Naqvi. Per learned counsel the orders of the Appellate Authority were unconditional whereby the impugned orders were set aside/quashed and for this very reason SAW Naqvi who had attained the age of superannuation even before his departmental appeal was allowed, was granted entire consequential benefits whereas, in the case of the petitioner, he has been discriminated as the respondents are not granting the petitioner the benefits for the period in which he remained out of service. Learned counsel by placing reliance on the judgment of the Honourable apex Court in the case of Sher Muhammad Shehzad and others v. District Health Officer 2006 SCMR 421 contended that once the competent authority set aside the order of dismissal by not finding the employee at fault then he could not be deprived of his salary and other benefits for the period during which his departmental appeal could not be decided by the competent authority.
On the other hand learned counsel for the respondent without disputing the facts has opposed the grant of petition by contending that the department vide its letter dated 13-3-1991 had allowed the petitioner to resume the services with the condition that he would have no claim of dues for the period during which he remained out of service/dismissed. It was next contended that the retiring/pensionary benefits excluding the period during which SAW Naqvi remained suspended were allowed, however, it was admitted that medical reimbursement of Rs.6,000 was allowed to said SAW Naqvi.
We have heard the learned counsel for the respective parties and have minutely examined the record.
It appears from the scrutiny of the record that the petitioner was awarded major penalty of removal from service on 10-4-1976. Likewise major penalty of compulsory retirement was awarded to said SAW Naqvi on 3-4-1976 by the authorized officer of respondent No.1. Both the petitioner and the said SAW Naqvi filed departmental appeals before the controlling authority of respondent No.1 who vide its order dated 10-7-1986 set aside/quashed the impugned order, in the case of said SAW Naqvi and on 2-3-1991 in the case of petitioner. The record further reflects that the petitioner was reinstated in the service whereas, the said SAQ Naqvi had attained the age of superannuation during his suspension. It is further evident from the order of the controlling authority which had attained the finality that while allowing the appeal of the petitioner no condition regarding retirement benefits of the petitioner was imposed. However, the respondent while reinstating the petitioner imposed a condition as to non-payment of arrears for the period during which he remained out of service. However, such condition appears to be in clear contravention of the order of the Appellate Authority reinstating .the petitioner.
It is by now well settled proposition of law that once competent authority conclude upon its satisfaction that the order of dismissal from service was not in accordance with law or without lawful authority and the employee was not at fault in any manner, then the employee cannot be deprived of his salary and other benefits during the period for which he had been wrongfully kept out of service by the department by not deciding his appeal, provided, he is able to establish that during such period he was not engaged gainfully. Reference can be made to the case of Qadeer Ahmed v. Punjab Labour Appellate Tribunal Lahore and others PLD 1990 SC 747, Ali Nawaz v. Pakistan Railways 1999 SCMR 1873, Abdul Qayyum v. D.G. Project Management Organization 2003 SCMR 1110 and Sher Muhammad Shahzad and others v. District Health Officer 2006 SCMR 421.
We are fully conscious of the fact that in writ jurisdiction it is not possible for us to decide as to whether the petitioner remained unemployed for the entire period of 15 years during which he remained out of service as it requires leading of evidence. However, in the given circumstances, the petitioner can be provided treatment at par with said SAW Naqvi who appears to have been granted certain benefits by the respondents which are denied to the petitioner as there appears no difference between the case of the petitioner as that of SAW Naqvi. The petitioner therefore, cannot be denied equal treatment with that of SAW Naqvi.
These are the reasons for the short order dated 7-8-2009 whereby we allowed the petition and directed that, the petitioner shall be given same benefits upto the date of his superannuation as were given to one SAW Naqvi, co-worker, who was placed in the same position as the petitioner.
H.B.T./N-44/K Petition allowed.