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Petitioner: NUR MUHAMMAD VS Respondent: DEPUTY COMMISSIONER/CONTROLLING AUTHORITY, D.G. KHAN
1992 P L C (C
1992 P L C (C.S.) 368
[Lahore High Court]
Before Munir A. Shaikh, J
NUR MUHAMMAD
Versus
DEPUTY COMMISSIONER/CONTROLLING AUTHORITY, D.G. KHAN and others
Writ Petition No. 1188 of 1987, decided on 13th March, 1988.
(a) Constitution of Pakistan (1973)---
----Art. 199---Dismissal of earlier Constitutional petition as withdrawn--. Principal of res judicata---Applicability of, where Constitutional petition was withdrawn without decision on merits--Petitioner in earlier Constitutional petition moved application stating therein that respondent-Authority had assured petitioner to remedy his demands and due to such express assurance petitioner by keeping his right to have legal resort if not satisfied by that assurance, withdrew his Constitutional petition and that application was accepted by Court and petition was dismissed by High Court as withdrawn-- Order dismissing Constitutional petition as withdrawn having been passed on application of petitioner, it was implied therein that petitioner was permitted to file fresh Constitutional petition---Objection that subsequent Constitutional petition filed by petitioner was barred by principle of res judicata, was devoid of any force especially when previous Constitutional petition was simply dismissed as with drawn and no finding on merits of case was given by Court.
PLD 1984 Kar. 1 ref.
(b) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Maintainability of---Previous Constitutional petition filed by petitioner in 1984 remained pending upto 1987 when same was withdrawn on account of assurance of respondent Authority to redress grievance of petitioner---Subsequent Constitutional petition tiled immediately after dismissal of previous Constitutional petition as withdrawn by petitioner when he could not get relief from Authority according to assurance given to him earlier, was maintainable and could not be held to be suffering from laches.
(c) Constitution of Pakistan (1973)-
----Art. 199---Civil Procedure Code (V of 1898), 01, R.3---Necessary parties-- Civil service---Seniority---Civil servant challenging seniority awarded to respondent by Authority, had not impleaded other colleagues who admittedly were senior to petitioner from very start---In case Constitutional petition filed by petitioner succeeded against respondent, other colleagues of petitioner who were admittedly senior to petitioner and were not impleaded by petitioner in petition, would not be adversely affected---Other colleagues who were not impleaded by petitioner neither being necessary nor proper parties, Constitutional petition against respondent, could not be bad for non-joinder of necessary parties.
(d) Punjab Local Government Ordinance (VI of 1979)---
----S. 156---Constitution of Pakistan (1973), Art 199---Constitutional jurisdiction, exercise of---Adequate and alternate remedy---Availability of other adequate and alternate remedy, was a relative term and same depended upon circumstances of each case as to whether in a given case a particular remedy was adequate---Remedy under S. 156 of Ordinance, 1979 neither was adequate nor alternate as order of Authority challenged in Constitutional petition, not only was void, ab initio, but was also passed behind the back of petitioner without hearing him---Constitutional petition against such order was maintainable---High Court, in exercise of its Constitutional jurisdiction, set aside order of Authority being illegal.
Khadim Nadeem Malik for Petitioner.
Muhammad Akram Sheikh and Akhtar Masood for Respondent No3.
Date of hearing: 13th March, 1988.