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Official Citation: 2024 MLD 408
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Mrs. Naina Syed, Mst. Naureen Ahmad Tarar vs The Secretary Ministry of JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-12-31, officially reported as 2024 MLD 408. In this matter between Mrs. Naina Syed, Mst. Naureen Ahmad Tarar and The Secretary Ministry of JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 MLD 408
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz, Aamer Farooq (C.J) Title:Mrs. Naina Syed, Mst. Naureen Ahmad Tarar vs The Secretary Ministry of
JUDGMENT
Reported As: 2025 IHC 36 Result: Order Accordingly Judgment
JUDGMENT SAMAN RAFAT IMTIAZ, J.- 1. By way of the instant common judgment, we propose to decide both the above titled cases as similar questions of law and facts are involved. Facts alleged in I.C.A. No. 978 of 2024 2. The instant appeal has been filed by the Appellant [Mrs. Naina Syed] to seek inter alia setting aside of the Judgment dated 18-9-2024 ("Impugned Judgment") passed by the learned Single Judge-in-Chambers dismissing Writ Petition No.2480 of 2019; direction to the Respondent No.1 [The Secretary Ministry of Federal Education and Professional Training] to notify the antedated promotion of the Appellant with effect from 19-10-2007 and direction to Respondents No.2 and 4 [The Director Federal College of Education and The Accountant General Pakistan Revenues, Government of Pakistan] to pay arrears of pay accordingly; and costs and compensation for non- implementation of the Judgment of the Supreme Court from 28-3-2018 till the date of payment. 3. The brief facts, as per the Memo of Appeal, are that the Appellant was appointed as Lecturer at the Federal College of Education, Islamabad with effect from 11-5-1993. She retired on 22-9-2024 after 31 years of service. During service, she was promoted vide Notification dated 4-6-2012 as Assistant Professor with effect from 15-5-2012. The Petitioner was aggrieved by the Notification of promotion being given effect from 15-5-2012 instead of the date of vacancy therefore the Appellant preferred an appeal before the Federal Service Tribunal ("Federal Tribunal") seeking her
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promotion to be antedated. The learned Federal Tribunal allowed the appeal of the Appellant vide Judgment dated 2-3-2017 and directed the Respondents to consider the Appellant for antedated promotion with effect from 19-10 2007 or the date when the post of Associate Professor (BS-18) had fallen vacant. The Respondent No.2 filed Civil Petition No. 1483 of 2017 before the Supreme Court which was dismissed and leave was refused vide Order dated 28-3-2018. Despite the foregoing, no action was taken by the Respondents. 4. The Appellant filed Writ Petition No. 2480 of 2019 before this Court in terms of Article 187(2) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"). The said petition has been dismissed vide the Impugned Judgment as not maintainable in view of the alternate remedy available under Section 5(3) of the Service Tribunals Act, 1973 ("Service Tribunals Act") inserted vide the Service Tribunals (Amendment) Act, 2014 whereby the Federal Tribunal can execute its own decisions. Hence the Appellant filed the instant ICA. Facts alleged in Writ Petition No. 2695 of 2023 5. The instant petition has been filed by the Petitioner [Ms. Naureen Ahmad Tarar] to seek inter alia the implementation of the Judgment dated 11-12-2019 passed by the Supreme Court in Civil Appeals No. 248 to 251 of 2018; declaration that the seniority of the Petitioner cannot be altered or revised post issuance of Gradation List; restoration of the seniority of the Petitioner to her original position as determined under the Central Superior Services Examination ("CSS") and notified on 13- 08-2003; setting aside of the Final Seniority List issued in violation of the aforesaid Judgment of the Supreme Court on 14-06-2022; and direction to the Respondent No.1 and 2 [Federal Board of Revenue through Chairman and Secretary (HRMC-II) Revenue Division, Administration and Human Resources] to issue the Final Seniority List. 6. The brief facts, as per the Memo of Petition and its annexures, are that the Petitioner is an officer of the Customs and Excise Group who appeared for the CSS Exam held in 1996 and was appointed as Assistant Collector in July, 1998. She belongs to the 25th Common Training Program ("CTP"). The Petitioner successfully completed the CTP in July, 1998 and the Specialized Training program in February, 1999 and the Final Passing out Examination ("FPOE") in her second attempt. Her probation period ended on 23-5-2001. The Respondents No. 1 and 2 determined the seniority of the Petitioner's batch in terms of Section 8(4) of the Civil Servants Act, 1973 in light of the merit list of the CSS Examination and on the basis of such Seniority List promoted the Petitioner along with her colleagues on 13-8-2003. 7. Thereafter, the Respondents No. 1 and 2 changed the seniority of the 25th CTP on its own and issued a revised Provisional Seniority List in the year 2008 and Final Seniority List dated 21-12-2012 whereby the Petitioner was relegated to a lower position by applying Rule 7(4) of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 ("OGS Rules, 1990"). The Petitioner and another challenged the said Seniority List before the Federal Tribunal. The Respondents No. 1 and 2 submitted that seniority has to be determined under Rule 7(4) of the OGS Rules, 1990 but admitted that the OGS Rules, 1990 were applied to the Petitioner and her batch mates for the first time in 2008. The Petitioner and co-appellant argued that the said Rules could not be applied to them with retrospectively given that they were not made applicable at the time they joined service. 8. The Federal Tribunal accepted the appeals filed by the Petitioner and the co-appellant vide the Judgment dated 30-7-2015. The Judgment held that the OGS Rules, 1990 could not have been made applicable to the officers after they have already been promoted. It was held that such officers cannot be relegated to a lower position in the Seniority List of the promoted grade as upon promotion seniority should be determined in the promoted cadre without reference to the seniority in the lower cadre during probation. The Federal Tribunal also observed that while relegating the Petitioner and the co-appellant to a lower level in the Seniority List the Respondents No. 1 and 2
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retrospectively applied sub-rule (2) of Rule 6 of the OGS Rules, 1990 which was substituted by amendment long after their appointment as Assistant Collectors in July, 1998 through SRO 258(I)/2001 dated 03-05-2001 and which was not applied to many earlier batches. The Federal Tribunal also held that the OGS Rules, 1990 are ambiguous and self-contradictory and incapable of being applied as a coherent law. Therefore, the Federal Tribunal set aside the Provisional Seniority List issued on 2008 and Final Seniority List issued on 21-12-2012 and restored the Petitioner's seniority as notified on 13-8-2003. 9. In parallel, four officers from the 24th CTP also approached the Federal Tribunal to challenge the Seniority List finalized by the Respondents No. 1 and 2 in 2012. The Federal Tribunal allowed their appeal vide Judgment dated 5-1-2017 while relying upon its Judgment dated 30-7-2015 passed in the Petitioner's appeal. 10. The Petitioner filed Writ Petition No. 4545 of 2016 seeking inter alia implementation of the Judgment dated 30-7-2015 passed by the Federal Tribunal in the Petitioner and co-appellant's case. On the other hand, the Respondent No. 1 challenged the Judgment dated 30-7-2015 before the Supreme Court of Pakistan by way of Civil Appeals No.1219 & 1222 of 2015 and the Judgment dated 05-01-2017 by way of Civil Appeals No. 248 & 251 of 2018. On 14-12-2016, this Court was apprised in W.P. No. 4545 of 2016 that leave to appeal has been granted by the Supreme Court but that no stay order had been passed. It was submitted that the case of the Petitioner would be forwarded for consideration for promotion in the next CSB meeting in view of the relevant provisions of the Esta Code whereby in the absence of an injunctive order the department is required to proceed subject to the final decision in appeal and as such the writ was disposed of. The seniority of the Petitioner was therefore restored on the basis of her CSS result and the Petitioner was also promoted to BS-20. 11. Thereafter, the Supreme Court passed Order dated 20-2-2019 whereby the Civil Appeals No.1219 & 1222 of 2015 (pertaining to the Petitioner and her co-appellant before the Federal Tribunal) were decided noting therein that leave was granted vide Order dated 23-11-2015 whereas Civil Appeals No. 248 & 251 of 2018 (pertaining to the four officers from the 24th CTP) were adjourned to be heard separately while noting that distinct questions of law and facts are involved therein. The Order dated 20-2-2019 partially allowed Civil Appeals No.1219 & 1222 of 2015 and modified the Judgment dated 30-7-2015 passed by the Federal Tribunal. The Respondent No. 1 filed a civil review petition against the Order dated 20-02-2019 which was dismissed on 20-09-2019. 12. The Civil Appeals No. 248 & 251 of 2018 filed by the Respondent No. 1 against the Federal Tribunal Judgment dated 05-01-2017 passed in the case of the other civil servants were dismissed by the Supreme Court vide Order dated 11-12-2019 as well as the civil review petition filed by the Respondent No. 1 against the same on 7-7-2020. 13. The Petitioner filed applications and representations with the Respondents No. 1 and 2 for restoration of her original seniority in line with the Judgment of the Supreme Court but instead of following the same, the revised Seniority List dated 14-6-2022 of 25th CTP has been issued in which the Petitioner has been relegated to 17th number. In contrast, the seniority of the 24th CTP was restored to the original CSS merit list. Hence, the instant petition whereby the Petitioner seeks implementation of the Supreme Court Order dated 11-12-2019 pursuant to Article 187(2) of the Constitution and consequential reliefs. Arguments in I.C.A. No. 978 of 2024 14. The learned counsel for the Appellant contended that the learned Single Judge-in-Chambers failed to appreciate that the Judgment dated 2-3 2017 passed by the Federal Tribunal merged with the Order dated 28-3-2018 passed by the Supreme Court with the result that it is only the order of the Supreme Court that is now in the field for execution/implementation. He argued that as such the writ petition was maintainable since it is the High Court that executes the judgments of the
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Supreme Court in terms of Article 187(2) of the Constitution. On merits, he pleaded that the Appellant is aggrieved as her case was not placed before the two meetings of the DPC that have been held on 3-5-2018 and 29-5-2019 since the passage of the Order dated 28-3-2018 by the Supreme Court for appropriate amendment in the Notification to grant antedated promotion to the Appellant. The learned counsel submitted that the Respondent No.1 has violated the fundamental rights of the Appellant as guaranteed under Articles 3, 4, 5, 9, 10A, 14,18, and 25 of the Constitution. He relied upon Bahadar Hilal Vs. Shaukat Hayat, 2022 CLC 959 and Bashir Ahmed Badini, D&SJ, Dera Allah Yar Vs. Hon'ble Chairman and Member of Administration Committee and Promotion Committee of Hon'ble High Court of Balochistan, 2022 SCMR 448. Arguments in Writ Petition No. 2695 of 2023 The learned counsel for the Petitioner too relied upon Article 187(2) of the Constitution to submit as a general proposition that the High Court is duty bound to implement any decision or order of the Supreme Court and in this regard relied upon Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar Vs. Maqsad Hayat, 2023 SCMR 8; Bahadar Hilal Vs. Anwar Hayat through Legal Heirs, PLD 2022 Peshawar 39; Roshan Ali Lakhan Vs. The D.G. Petroleum, 2022 CLC 284; Bahadar Hilal Vs. Shaukat Hayat, 2022 CLC 959; Qurban Ali Shah Vs. Federation of Pakistan through Federal Secretary, PLD 2020 Sindh 242; Kainat Soomro Vs. Province of Sindh through Chief Secretary, PLD 2020 Sindh 611; Contempt Proceedings against Syed Yousaf Raza Gillani, The Prime Minister of Pakistan regarding non-compliance of this Court's Order dated 16-12- 2009, PLD 2012 SC 553; Mrs. Iram Adnan Vs. Federation of Pakistan, 2012 PLC (C.S.) 1355; Amanullah Khan Yousafzai Vs. Federation of Pakistan through Law Secretary, PLD 2011 Karachi 451; Muhammad Amin Bhatti Vs. Inspector-General of Punjab Police, 2011 PLC (C.S.) 535; Mehar Muhammad Nawaz Vs. Managing Director, Small Business Finance, Corporation, 2009 SCMR 187; Saad Amanullah Khan Vs. IVth -Senior Civil Judge, (South), Karachi, PLD 2008 Karachi 499; Umer Gul Vs. Government of Sindh through Secretary, Transport, Karachi, 2007 YLR 3191; Ghulam Sarwar Vs. Habib Bank Limited, 2001 PLC (C.S.) 198; Hameed Akhtar Niazi Vs. The Secretary, Establishment Division, Government of Pakistan, 1996 SCMR 1185; ICT Pakistan Ltd./Soda Ash Works, Khewra, District Jehlum Vs. Zila Council, Jehlum through Chairman, 1994 MLD 235; and Sugar Mills & Distillery Ltd., Mardan Vs. Tee Frontier Sugar Mills & Distillery Ltd., PLD 1978 Peshawar 128. 16. On the other hand, in case leave is declined by the Supreme Court he relied upon Sahibzadi Maharunnisa Vs. Mst. Ghulam Sughran, PLD 2016 SC 358 whereby it has been categorically held that in such case the judgment of the lower fora remains intact and does not merge into the leave refusing order. He, therefore, argued that where the Supreme Court has dismissed leave to appeal against an order passed by the Federal Tribunal the rule of merger does not apply and it is the Federal Tribunal order that is to be implemented and as such the matter will not come within the ambit of Article 187(2) of the Constitution. Instead the matter would lie before the Federal Tribunal in view of Section 5(3) of the Service Tribunals Act added vide the Finance Act, 2014 whereby the Federal Tribunal now has the power to execute its own decisions. He submitted that in case the Supreme Court modifies the judgment of the Services Tribunals such order of the Supreme Court would fall within the ambit of Article 187(2) of the Constitution to be implemented by the High Court. 17. The learned counsel for the Petitioner highlighted that the Supreme Court Order dated 20-2- 2019 whereby the Respondent No.1's civil appeals were partially allowed held that the un-amended OGS Rules, 1990 as at the commencement of the probationary period in July, 1998 shall remain applicable for reckoning of seniority on the completion of probation in grade 17 and that the judgment of the Federal Tribunal stands modified accordingly. He argued that that means that the Petitioner's seniority shall not be disturbed or amended on account of amendments to the OGS
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Rules 1990 in 2001. He also emphasized that the Supreme Court of Pakistan hasrevised Seniority List of the Petitioner was set aside and Seniority List as notified on 13-8-2003 restored. 18. The learned counsel for the Petitioner explained that by way of Order dated 11-12-2019 the Supreme Court held that those officers who had already been promoted could not be relegated to a lower position given that the Gradation List on the basis of which the promotion was granted was prepared when Rule 7(4) of the OGS Rules, 1990 was in existence and yet such Gradation List was never challenged nor the promotion. According to the learned counsel for the Petitioner the said Order has cleared all ambiguities, if any, on the matter in issue as the Order dated 11-12-2019 passed by the Supreme Court of Pakistan has clearly held that seniority of the civil servants as determined at the time of their induction in service cannot be changed especially when they have been promoted to the next grade in the light of the said Seniority List. The learned counsel argued that the Petitioner falls within the category of officers who had already been promoted and as such the Respondent No.1 has no basis to refuse to implement the Supreme Court's directions. 19. The Petitioner was admittedly not a party before the Supreme Court in the Civil Appeal No. 248 to 251 of 2018 in which the Order dated 11-12-2019 was passed of which the Petitioner is seeking implementation from this Court. However, the learned counsel for the Petitioner argued that it is a judgment passed in rem which as such is applicable across the board and the Petitioner cannot be treated differently than all other officers of the Respondent No. 1 by erroneously differentiating the Order dated 20-2-2019 of the Supreme Court of Pakistan passed in respect of the Petitioner. The learned counsel for the Petitioner submitted that even if it is assumed hypothetically for the sake of argument that Petitioner had not in fact initiated any litigation even then she would be entitled to be accorded the same benefit as has been extended pursuant to the Supreme Court of Pakistan's Judgment dated 11-12-2019 to like officers which cannot be withheld from her on the touchstone of Article 25 of the Constitution. 20. He also highlighted that Respondent No. 1 sought advice from the Establishment Division as well as the Law and Justice Division and both have advised Respondent No. 1 that the Judgments passed by the Tribunal and Supreme Court of Pakistan resolving the seniority dispute of Pakistan Customs Service Officers are required to be implemented without discrimination amongst the officers whether litigants or not and seniority of such employees cannot be disturbed or altered by any subsequent Seniority List on the principle of legitimate expectation. In support of his contentions the learned counsel for the Petitioner relied upon Faraz Ahmed vs. FOP through Secretary Ministry of Communication, Government of Pakistan, Islamabad, 2022 PLC (CS) 198; Dera Allah Yar and others vs. Honourable Chairmen and Member Administration Committee and Promotion Committee of Honourable High Court of Balochistan and others, 2022 SCMR 448; Mrs. Imran Adnan and others vs. Federation of Pakistan and others, 2012 PLC (C.S.) 1355; Muhammad Amin Bhatti vs. Inspector General of Punjab Police, 2011 PLC (C.S.) 535; ICI Pakistan Ltd./Dosa Ash Works, Khewra, District Jhelum vs. Zila Council, Jhelum through Chairman and another, 1994 MLD 235. Arguments of the Respondents 21. On the other hand, the learned counsel for the Respondents No. 1 and 2 argued that the Petitioner was not a party to Civil Appeals No.248 to 251 of 2018 wherein the Supreme Court passed the Order dated 11-12-2019 of which the Petitioner is seeking implementation by this Court. He further argued that the Order dated 11-12-2019 cannot be treated in rem in view of the Order dated 20-2-2019 passed by the Supreme Court specifically in the Petitioner's Civil Appeal No. 1219 of 2015 which has modified the Federal Tribunal Judgment dated 30-7-2015 to the extent that the OGS Rules, 1990 are to apply to the Petitioner in their un-amended form. He submitted that the Respondent No. 1 is duty bound to implement the Supreme Court's orders and as such the Seniority List dated 14-06-2022 has been issued in implementation of the Supreme Court Order dated 20-
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02-2019 whereby the Petitioner's seniority stands altered as a result of applying the un-amended OGS Rules, 1990. 22. Vide the Order dated 4-11-2024 passed in the instant I.C.A., notice under Order XXVII-A, C.P.C. was also issued to the Attorney General for Pakistan. The learned Assistant Attorney General ("AAG") argued that provisions of Article 187(1) are subject to and controlled by Article 175(2) of the Constitution and as such Article 187(2) cannot be invoked to approach the High Court for implementation of Supreme Court's directions, orders or decrees passed in relation to Tribunal Judgments in view of the bar contained in Article 212(2) of the Constitution. He also relied upon Section 23A of the Civil Servants Act, 1973 to challenge the maintainability of the instant ICA and Petition. He submitted that essentially the Appellant and the Petitioner are seeking implementation of the Federal Tribunal Judgments for which purpose the Federal Tribunal has powers pursuant to Section 5(3) of the Service Tribunals Act and as such writ petitions are not maintainable and the ICA is liable to be dismissed. 23. The instant writ petition was initially heard by a Single Judge-in-Chambers of this High Court comprising of one of us (Justice Saman Rafat Imtiaz) wherein the Respondents objected to the maintainability on account of Section 5(3) of the Service Tribunals Act which in turn was countered by the Petitioner in reliance upon Article 187(2) of the Constitution. Since similar question pertaining to Section 5(3) of the Service Tribunals Act and Article 187(2) of the Constitution was also at issue in the instant ICA, the matter was referred to the Chief Justice for appropriate orders vide Order dated 7-11 2024 where after the matter was fixed before this Division Bench pursuant to an administrative order. 24. We have heard the learned counsels for the parties and have also perused the record. 25. In a nutshell, the learned counsel for the Appellant as well as that of the Petitioner contended that the High Court implements Supreme Court directions, orders, and decrees pursuant to Article 187(2) of the Constitution, which provides as follows: "187. (1) Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. (2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province. (3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final." [Emphasis added]. 26. As rightly pointed out by the learned AAG, the directions, orders or decrees mentioned in Article 187(2) are such which are issued under Article 187(1) of the Constitution, which in turn is subject to and controlled by Article 175(2) and as such may only be invoked in a case or matter competently filed before the Supreme Court under any Article of the Constitution or provision of some other law conferring jurisdiction[1]. In the case at hand, we are concerned with Orders issued pursuant to the Supreme Court's jurisdiction under Article 212(3) of the Constitution whereby an appeal to the Supreme Court inter alia from a judgment, decree or order of a tribunal shall lie only if the Supreme Court grants leave to appeal on being satisfied that the case involves a substantial question of law of public importance. 27. In other words, the Appellant and the Petitioner have invoked Article 187(2) of the Constitution to seek implementation of the Orders passed by the Supreme Court in exercise of its jurisdiction under Article 212(3) of the Constitution in respect of judgments of the Federal Tribunal. It bears
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emphasis though that the Supreme Court clarified in the Contempt Proceedings against Syed Yousaf Raza Gillani, The Prime Minister of Pakistan, PLD 2012 SC 553 that clause (2) of Article 187 of the Constitution only mandates that when the orders of the Supreme Court are to be enforced within a Province they shall be executed as if passed by the High Court of that Province not that the execution is to be carried out by the High Court. 28. The words "as if passed by the High Court of that Province" in Article 187(2) create a fiction whereby execution of a Supreme Court direction, order, or decree is to be carried out in the manner that governs execution of the High Court's own decree[2]. It enables the application of the procedure applicable upon execution of a High Court decree to be employed for purposes of execution of Supreme Court directions, orders or decrees. 29. The High Court can pass judgments and decrees while exercising its original jurisdiction, for example under the Companies Act, 2017 or the Financial Institutions (Recovery of Finances) Ordinance, 2001 or as in the case of the Karachi Bench of the Sindh High Court in exercise of its original civil jurisdiction in which case the High Court is also the executing Court. In case such judgments and decrees are challenged before the Supreme Court the directions, orders or decrees passed by the Supreme Court, if any, which fall within the ambit of Article 187(2) of the Constitution would therefore naturally be executed by the High Court. 30. However, the High Court also passes judgments and decrees in its appellate, revision, and writ jurisdiction. With regard to the manner of execution of directions, orders or decrees that are issued pursuant to the Supreme…
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