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Petitioner: MUHAMMAD IRFAN KASI VS Respondent: PROVINCE OF BALOCHISTAN
Court Name: Balochistan Service Tribunal Judge(s): Syeda Tahira Safdar, Amanullah Khan, Muhammad Idrees Baloch Title: MUHAMMAD IRFAN KASI vs PROVINCE OF BALOCHISTAN Case No.: Service Appeals Nos.39, 71 to 75, 79, 82 and 83 of 2001 Date of Judgment:2002-10-17 Reported As: 2003 PLC (C.S.) 619 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' JUSTICE AMANULLAH KHAN (CHAIRMAN).---This consolidated judgment will dispose of Service Appeals Nos.39 of 2001, 71 of 2001 to 75 of 2001. 79 of 2001, 82 of 2001 and 83 of 2001, as the common questions of law and facts are involved in all the appeals. Besides, all the appeals are directed against similar Notification issued by the Government Of Baluchistan. ' For reference, facts of the each appeals are given in seriatim hereinbelow:- Service Appeal No,39 of 2001._ ' Appellant Abdul Haim joined Baluchistan Civil Service (Executive Branch) on 9-104972, as Assistant. Commissioner. Thereafter, he was promoted to higher grade from time to time and lastly he was serving as Senior Member Board of Revenue in B-21. He also held the charge of Acting Chief Secretary, lastly he was waiting for the posting orders, when on 29-11-2000, a show-cause notice was issued to him by the Governor, Baluchistan, in exercise of powers under the Baluchistan Civil Servant Act, 1974 as amended vide Ordinance IV of 2000 (hereinafter referred to as "the Amending Ordinance)" calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources and property, in his name or in the name of his spouse and has assumed a living style beyond his known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial, to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus, guilty of 'misconduct' warranting strict disciplinary action. The said show-cause notice was replied on .6-12-2000, wherein the appellant denied the allegations. Thereafter, vide Notification dated 16- 1-2001, appellant was compulsorily retired from Government service along with pension benefits as admissible under the Rules. ,Appellant filed a review petition to Governor, Baluchistan. However, no
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order was passed on the same, hence instant appeal was filed. Thereafter, the Government of Baluchistan promulgated Ordinance V of 2000, wherein section 13 of the Civil Servant Act was amended. During the pendency of instant appeal, another notification was issued on 1-6-2001 in supersession of previous notification dated 16-1-2001, whereby, appellant was simply retired from service, on completion of his 25 years' service w,e,f, 16-1-2001. On issuance of said notification, the appeal was amended, by challenging the subsequent notification of 1-6-2001. Service Appeal No,71 of 2001. ' This appeal has been filed by Appellant Muhammad Irfan Kasi, he was inducted in PCS (BCS) through Public Service Commission in B-17 on 6-7-1974. He was promoted to B-1$ on 22-4-1985 and thereafter in B49 on 23-5-1988 and finally he was promoted in B-20 vide notification dated 17-4- 1994. Lastly he was serving as Director General, {FDA, when a show-cause notice dated 25-4-2001, was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his spouse and has assumed a living style beyond known source of income and thus had earned persistent reputation of being a corrupt officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of officials position to gain undue advantages, and is thus, guilty of 'misconduct'. The said show-cause notice was replied on 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance). Thereafter, appellant filed a review petition before the Competent Authority against said impugned notification of his retirement, but after lapse of 90 days, no order was passed, hence instant appeal has been filed. Service Appeal No,72 of 2001. ' Appellant Col. (R.) Muhammad Hasham was inducted in BCS (EB) BPS-19, directly. He was serving in the Army as Colonel. His absorption in civil service was under Army Personnel Induction Rules. Thereafter, he was promoted in B-20 on 17-4-1994, lastly he was serving as Member-II, Board of Revenue, when a show-cause notice dated 25-4-2001, was issued to him by the Governor, Baluchistan, in exercise of powers under Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his family members, and has assumed a living style beyond known source of his income and thus had earned a persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of officials position to gain undue advantages, and is thus, guilty of 'misconduct'. The said show- cause notice was replied on 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance) Thereafter appellant filed a review petition before the Competent Authority against the said impugned notification of his retirement, but after lapse of 90 days, no orders was passed, hence instant appeal has been filed. Service Appeal No,73 of 2001. ' Appellant Muhammad Kaleem Nasir appointed as Assistant Engineer (B-17) on 25-H-1972. Thereafter, he was promoted in B-18 as Executive Engineer on 15-6-1977 and as Superintending Engineer in B-19 on 9-8-1990. Subsequently he was given More-over in B-20 on 1-2-1994. Lastly he was serving as Officer on Special Duty in Communication and Works Department when a show- cause notice dated 26-4-2001, was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the
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name of his spouse and has assumed a living style beyond known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages. And is thus. Guilty of 'misconduct'. The said show-cause notice was replied on 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned Notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance). Thereafter, on 29-5-2001 appellant filed an application to the Chief Secretary and then a review petition before the Competent Authority against the said impugned Notification of his retirement, but after lapse of 90 days, no order was passed, hence instant appeal has been tiled. Service Appeal No,74 of 2001. ' Appellant Budhar Das was appointed as Supervisor on 1-9-1970 in Public Health Engineering Department, and was promoted from time to time and lastly he was promoted as Executive Engineer in B-18. During the tenure of his service he was also charged for causing loss to the Government and ultimately he was discharged. On allowing his appeal vide order dated 22-10- 1998. The appellant was serving as Executive Engineer, when a show-cause notice dated 26-4- 2001, was issued to him by the Governor, Baluchistan in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of huge property through illegal means and his service record also shows demotion in rank with directions to reimburse the amount, which order though was reviewed by the then Chief Minister, but still it casts aspersions upon his working and integrity and further he. Has assumed a living style beyond his know source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus, guilty of 'misconduct'. The said show-cause notice was replied, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned Notification dated 23-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance), Thereafter, appellant filed art appeal before the Competent Authority against the said impugned Notification of, his retirement, but after lapse of 90 days, no order was passed, hence instant appeal has been filed. Service Appeal_ No,75 of 2001. ' Appellant Rahim Shah Abdullahzai, join Government service on 13-9-1967? As Naib-Tehsildar, promoted as Tehsildar in B-16 in 1973. Thereafter, he was promoted as Assistant Commissioner on 13-5-1978 and lastly in 1997 was promoted in B-18, when a show-cause notice dated 25-4-2001 was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why; he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his family members and has assumed a living style beyond his known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/miscues of official position to gain undue advantages, and is thus, guilty of 'misconduct', the said show-cause notice was replied, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned Notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance, IV of 2000 (Annending Ordinance). Thereafter, appellant filed a review petition before the Competent Authority against the said impugned Notification of his retirement, but after lapse of 90 days, no order was passed, hence instant appeal has been filed. Service Appeal No,79 of 2001.
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' Appellant Sardar Munir Ahmed was appointed as Assistant Engineer in Irrigation and Power Department and was promoted from time to time. Lastly he was serving as Secretary. P.1-I.E. When a show-cause notice dated 25-4-2001, was issued to him, by the Governor, Baluchistan in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name. Or in the name of his spouse and has assumed a living style beyond his ,known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima -facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus, guilty of 'misconduct'. The said show-cause notice was replied, wherein the. Appellant denied the allegations, *being dissatisfied from the reply, vide impugned Notification dated 23-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000 (Amending Ordinance). Thereafter, appellant filed an appeal on 22-6-2001 before. The Competent Authority against the said impugned Notification of his retirement, which was dismissed on 15th September", 2001, Hence instant appeal has been filed. Service Appeal No,82 of 2001. ' Appellant Jan Muhammad initially joined service in Press Information Department as Information Officer in B-17 on 28th February, 1974. Thereafter, through proper channel he applied for the post of Assistant Commissioner in Baluchistan Civil Service and was appointed as such in 1979. He was promoted in B-18 on 30-4-1.991 and B-19 on 27-9-1997. Lastly he was prorrysted in B-20 on 12th June, 1998. The appellant was Officer on Special-Duty, when a show-cause notice dated 25-4-2001, was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property in his name or in the name of his family members, besides perusal of his service record shows that he managed promotions on extraneous grounds in violation of law and relevant rules and further has assumed a living style beyond known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus, guilty of 'misconduct'. This said show-cause notice was replied on 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the reply, vide impugned Notification dated 22-5-2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as amended vide Ordinance IV of 2000. (Amending Ordinance). Thereafter, appellant filed an application to the Chief Secretary and then a review petition before the Competent Authority against the said impugned Notification of his retirement, which was dismissed on 14-9-2001, hence instant appeal has been tiled. Service Appeal No,83 of 2001, ' Appellant Muhammad Asiam Jamali joined service in Revenue Department as Tehsildar (13-16) on regular basis in 1975. He was promoted as Assistant Commissioner (B-17) in 1985 and then in B-18 in 1997. Lastly he was serving as Deputy Commissioner, when a show-cause notice dated 25-472001, was issued to him by the Governor, Baluchistan, in exercise of powers under the Amending Ordinance calling upon him; as to why, he should not be retired from service, as he had acquired possession of pecuniary sources of property, in his name or in the name of his family members and has assumed a living style beyond known source of income and thus had earned persistent reputation of being a corrupt Officer, which prima facie is prejudicial to good order of service discipline and reflects abuse/misuse of official position to gain undue advantages, and is thus guilty of misconduct'. The said show-cause notice was replied en 2-5-2001, wherein the appellant denied the allegations. Being dissatisfied from the Reply, vide impugned Notification dated 22-5- 2001, appellant was retired from service under section 13 of Baluchistan Civil Servants Act, 1974 as
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amended, vide Ordinance IV of 2000 (Amending Ordinance). Thereafter, appellant filed a review a petition before the Competent Authority against the said impugned Notification of his retirement, which was rejected and such order was conveyed to him on 15-9-2001, hence instant appeal has been filed. ' Mls. Muhammad Aslam Chishti, S.A.M.Quadri, K.N. Kohli, Khushnood Ahmad and Malik Manzoor Ahmad, learned counsels, appeared for the appellants. Whereas official respondents were represented by Mr. Ashraf Khan 'ration, learned Advocate-General. Mr. Muhammad Aslam Chishti, learned counsel contended as follows:- 1. The impugned Notifications, issued by the Governor, Baluchistan, retiring appellants from service, are ultra-wires and this Tribunal has the powers to declare the same as such. 2. Excessive powers have been delegated to the Governor by means of Amending Ordinance, which have been misused, while issuing the impugned Notifications. 3. Reasonable opportunity of-hearing was not provided to appellants, in order to rebut the allegations and thus the orders have been passed in violation of the principle of natural justice. ' All the other learned counsel, appearing for appellants, adopted the arguments of Mr. Muhammad Aslam Chishti, Advocate. HoWever, Mr. S.A.M. Quadri, learned counsel, added that since appellant Abdul Hakim, has completed his 25 years' service on 19-10-1997 and had reached to the age of superannuating on 24-12-2002, and throughout, he earned good reputation, therefore, he may be ordered to be retired from service with effect from said date and further, as no enquiry was held in his case, therefore, in the alternative, appellant Abdul Hakim Bloch, is also ready to accept the offer, as was given to his fellow Officer in B-21 namely Muhammad Yousaf Pathan, by retiring him with effect from 10-1-2001. ' In case of appellant Colonel (R.) Muhammad Hashim, learned counsel Mr. Muhammad Aslam Chishti, added that appellant was inducted in Baluchistan Civil Service (EB) in BPS-19 under Army Personnel Induction Rules on 26-10-1989 and was promoted in B-19 on 17-4-1994, and therefore, he had not completed his 25 years of service as 'Civil servant' therefore, his retirement is otherwise pre-mature. ' In the case of appellant Jan Muhammad Dashti, Mr. S.A.M. Quadri, learned counsel, argued that he was inducted in service on 28-8-1979, therefore, his retirement is also pre-nature. ' Learned Advocate-General, strongly opposed the appeals, by contending; that though this Tribunal has the jurisdiction to look into the vires of the Amending Ordinance, but the powers have been exercised within the limits of Statutes and the Governor, has not transgressed its powers, as laid down in the said law, therefore, no exception can be taken to it. He further argued that, amendments made in section 13 of the Baluchistan Civil Servants Act, 1974, have been challenged in piecemeal, i,e. Partly accepted by the appellants and partly challenged, therefore, a Statute cannot be declared ultra vires partly. Learned A.-G. Pointed out that, vires of a Statute can only be challenged, if it is in violation of the fundamental rights of the Constitution and nothing has been brought on record to show that, amendment made is inconsistent. With the provisions of the Constitution. He further pointed out that, on comparing the old section 13 of the Civil Servants Act, with the amending section 13, it would reveal that, in fact the entire section has been re-framed by the Amending Ordinance and nothing new has been brought. Since the law was already on the statute books and was never challenged earlier, therefore, now the same cannot be challenged. Learned A.-G. Also stated that further, amendments were made in the amended section 13, which have not been challenged, and the Governor has been given powers, in view of Article 2(2) of the Provisional Constitutional Order, to act on behalf of the Chief Executive, which has also been endorsed by the Humble Supreme Court. As far as excessive delegation of powers is concerned, learned A. -G. Contended that, it is a valid Legislature and the powers are in conformity Ntith the Act itself. Lastly he argued that no penal action has been taken against any appellant and they
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have been exonerated of all charges and simply retired from service on completion of their 25 years service. ' Before coming to the moot question of retirement of appellants on completion of their 25 years' service; it would be appropriate to first dilate upon the additional arguments made in Service Appeals Nos.39, 72 and 82 of 2001. ' Mr. S.A.M. Quadri, learned counsel argued that appellant Abdul Hakim Bloch, would be satisfied and would not press the appeal, if impugned Notification dated 16-1-2001, is set aside and appellant is ordered to be retired from service on attaining the age of superannuation and for the said period, appellant shall also not claim any posting. He stated that allegations contained in the show-cause notice stand withdrawn, after Notification of 1-6-2001,, wherein the appellant was retired with retrospective effect i,e, from 16-1-2001, after completion of his 25 years service. Learned counsel prayed that period after 16-1-2001. May be adjusted by allowing/treating it as L.P.R. In favor of appellant or in alternative. Since appellant's fellow employee Muhammad Nionsaf Pathan was retired on completion of his 25 years service, therefore, appellant may also be granted the same benefit. ' We are not inclined to accept the request made by appellant, because he has been simply retired from service vide Notification dated 1-6-2001 on completing his 25 years service and the Notification does not speak of his retirement on the basis of any allegations. The Notification shows that he has. Been exonerated from all, the allegations and has been retired w,e,f, ,.16-1-2001. Thus the contention is repelled. ' As regards the contention that appellant Col. (R.) Muhammad Hashim (Appellant in Service Appeal No,72 of 2001), has been retired prematurely. As he has not completed his 25 years service as a Civil 'Servant', it may be observed that appellant was inducted in Baluchistan Civil Service in B- 19 on 26-10-1989, and was also placed at the top of the seniority list of BPS-19 Officers. It may be pointed out that appellant was sent on deputation in BPS-19, to the Government of Baluchistan vide Notification dated 7-3-1989. Thereafter, his services were permanently absorbed in Baluchistan Civil Service vide Notification of December, 1991 and he was retired from Pakistan Army with full benefits vide Notification dated 6-6-1992. The contention of Mr. Muhammad Aslam Chishti is devoid of force that, services rendered by appellant in Pakistan Army cannot be counted towards his civil service. Suffice it to observe that, under sub-clause (b) of clause (5) (Part-II) of the Establishment Division Memorandum, known as ' Induction/Re-employment of Officers of Armed Forces of Pakistan in Civil Service" services rendered in Pakistan Army will be counted towards the civil service. It may be mentioned here that, under no Rule an Army Officer can be inducted directly in B-19 in Civil service. Anyhow, appellant was inducted in B-19 only on the basis of his services rendered in Pakistan Army, therefore, his services rendered in Arms Force, will be counted towards his service rendered as civil servant. Thus the contention lacking force is repelled. ' As far as the' contention of Mr. S.A.M. Quadri, learned counsel, pertaining to pre-mature retirement of appellant Jan Muhammad Dashti, is concerned, it may be observed that while appellant was promoted in B-19 on 12-6-1998, the seniority of appellant was challenged by his other colleagues, regarding excessive promotions and in the said proceedings, appellants contention was that before induction in Baluchistan Civil Service, he was appointed by the Federal Government in the Ministry of Information on 8 28-2-1974 on ad hoc basis, as Information Officer in B-17, therefore, after being inducted in Baluchistan Civil Service. His service with the Federal Government, was also counted. In the said proceedings, it has been held by the Humble Supreme Court that his service will be counted from 1974; therefore; appellant cannot approbate and reprobate. He got promotion on the basis of his previous service, rendered by him in the department of Information, therefore, contention that, he has been pre-maturely retired is devoid of force and is accordingly repelled.
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' Mr. Muhammad Aslam Chishti, learned counsel, while meeting with the preliminary objection raised by other side, regarding jurisdiction of the Tribunal to declare the amendment, ultra vires, contended; that since the matter pertains to the terms and conditions of service, therefore, any law passed by the Authority is amendable to the jurisdiction of this Tribunal. He further contended that, since in service matters, no Court has power to exercise jurisdiction thus; Amending Ordinance passed by the Governor, cannot be challenged before any other Court, therefore, Tribunal having the functions of a Civil Court, and substituted for the High Court under article 212 of the Constitution, can declare the law ultra-wires. Learned counsel, to support his contention, relied on following case-laws:- - (i) PLD 1976 Quetta 59 (Muhammad Hashim Khan and others v. Province of Baluchistan and others), wherein following observations were made:-- "On the other hand, the Tribunal under section 5 of the said Act is deemed to be civil Court of the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure. As any other civil Court the Tribunal to our mind will have the jurisdiction to examine whether or not a law…
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