Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MOINUL ISLAM VS Respondent: GOVERNMENT OF SINDH
2000 P L C (C
2000 P L C (C.S.) 1172
[Karachi High Court]
Before Muhammad Roshan Essani and S.A. Rabbani, JJ
MOINUL ISLAM
versus
GOVERNMENT OF SINDH through Secretary, Home Department and 2 others
Civil Petition No.D‑1055 of 1999, decided on 24th May, 2000,
(a) Civil service‑‑‑
‑‑‑‑ Rescission of illegal or irregular order‑‑‑Authority making order had a jurisdiction to rescind the illegal or irregular order‑‑‑Illegal or irregular action could be corrected at any time, but such jurisdiction could not be exercise arbitrarily and without recourse to the legal procedure‑‑‑Rescission of order/action must be in accordance with the procedure provided. by law and after a show‑cause notice to the person to be affected, more particularly in case when the rescission was based on the conduct of the person to be affected‑‑‑Show‑cause notice was necessary under the principle of natural justice even if it was not provided for by the relevant law.
Ehsanullah v. Zila Council, Gujranwala and others 1999 PLC (C.S.) 190 ref.
(b) Civil service‑‑‑
‑‑‑‑Promotion‑‑‑Withdrawal of order of promotion‑‑‑Promotion order of civil servant had been withdrawn without issuing a show‑cause notice 'on the ground that civil servant was holding American nationality also which fact he did not disclose to the Department‑‑‑Charge of having dual nationality was not relevant to promotion‑‑‑If such person could be employed by the Government, he was also entitled to the promotion despite his dual nationality.
Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukbari PILD 1997 SC 351 ref.
(c) Civil service‑‑‑
‑‑‑‑ Promotion ‑‑‑Withdrawal of notification of promotion‑‑‑Notification whereby civil servant, a police official was promoted, was subsequently withdrawn by another Notification issued by Secretary to the Government‑‑ Withdrawal of the notification. had been challenged by civil servant through Constitutional petition‑‑‑Authority had contended that withdrawal of promotion was lawfully ordered by Governor who was Competent Authority by virtue of Proclamation of Emergency under Art‑.232 of Constitution of Pakistan and order of withdrawal could only be reviewed by Government, itself‑‑‑Contention. of Authority was repelled because as per Notification issued by Government Authority to award punishment of reduction in rank of civil servant rested in Inspector‑General of Police‑‑‑Authority given by law was to be exercised according to law and by the person so authorized‑‑‑Order withdrawing Notification of promotion was coram non judice, in circumstances.
(d) Sindh Service Tribunals Act (XV of 1973)‑‑‑
‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Promotion‑‑‑Withdrawal of order of promotion‑‑‑ Notification whereby civil servant was promoted, was subsequently withdrawn by incompetent Authority with immediate effect on ground that disciplinary proceedings were pending against him‑‑‑Constitutional petition. by civil servant against withdrawal of notification was objected to on the ground that matter of disciplinary action against civil servant related to terms and conditions of service and Service Tribunal had exclusive jurisdiction in the matter and Constitutional petition was barred under Art.212 of Constitution of Pakistan (1973)‑‑‑Validity‑‑‑Notification withdrawing order of promotion of civil servant, being not final order appeal against the same before Service Tribunal was barred under S..4 of the Sindh Service Tribunals Act, 1973‑‑‑Since no other remedy was provided by law; Constitutional petition filed by civil servant was maintainable:
Shabbir Ahmed Awan for Petitioner. Ch. Muhammad Rafiq, A.A.‑G. for Respondents.
Date of hearing: 18th May, 2000.
JUDGMENT
S.A. RABBANI, J.‑‑‑2. The petitioner is a regular Sindh Police employee and rose from the rank of Assistant Sub‑Inspector to the Deputy Superintendent on promotion at different stages, the last promotion being through Notification No.POL‑HD/2‑8/97 issued on 14th March, 1998 by Secretary to the Government of Sindh, Home Department. Thirty‑nine other persons were also promoted through the same notification. In pursuance of this notification, the petitioner was posted as Deputy Superintendent of Police.
3. On 1st June, 1990, another notification was issued by the Secretary to Government of Sindh, Home Department. This was as reproduced below:‑‑
"No. POL‑HD/1‑16/98.‑‑With the approval of the competent Authority, the promotion to the rank of DSP (BPS.17) of Sindh Police in respect of Mr. Moinul Islam, issued earlier vide this Department's Notification No.POL‑HD/2‑8/97, dated 14‑3‑1998, (listed at Sr. No.1) is hereby withdrawn with immediate effect pending completion of disciplinary proceedings under the provisions of Sindh Police (E&D) Rules, 1988. "
4. The said disciplinary proceedings were initiated through a show cause notice issued by the Inspector‑General of Police on 10‑8‑1998. The charges according to it, are that:‑‑
(i) the petitioner is holding dual nationality i.e. Pakistan and USA but did not divulge this position to C.P.O. or Home Department; and
(ii) on most of the occasions the petitioner remained out of the country and residing in USA being an American national and got the absence regularized by misrepresentation of facts.
5. In the comments filed by the Home Department, Government of Sindh, the stand taken is that the withdrawal of promotion was lawfully ordered by the Governor of Sindh who was the competent Authority by virtue of the proclamation of emergency under Article 232 of the Constitution, and that the orders can only be reviewed by the Government itself which remedy has not been availed by the petitioner and thus, invoking the writ jurisdiction is premature.
6. Through the comments filed on behalf of the Inspector‑General of police, the respondent No.3 termed the action lawful stating that the petitioner was on probation. He also raised the plea of bar of jurisdiction under Article 212 of the Constitution. Another plea raised is that issuance of show‑cause ‑notice to the petitioner before the impugned action, was riot permitted by Police Rules 13 and 18.
7. Chaudhary Muhammad Rafiq, learned A.A.‑G, representing the respondents, contended that the impugned notification is lawful as it was issued with the approval of the Governor who was competent Authority by virtue of proclamation of emergency under Article 232 of the Constitution. He submitted that the petitioner was on probation and no show‑cause 'notice to him was necessary before the impugned action, and that under section 20 of the General Clauses Act the appointing authority has jurisdiction to rescind order of irregular and illegal appointment. In support of the 'contention he cited the case of Ehsanullah v. Zila Council Gujranwala and others reported in (1999 PLC (C.S.) 190).
8. There can be no cavil with the proposition that the authority making an order has a jurisdiction to rescind the illegal or irregular order and that an illegal or irregular action can be corrected at any time, but this jurisdiction cannot be, exercised arbitrarily and without recourse to legal procedure. The rescission must be in accordance with the procedure provided by law and after a show‑cause notice to the person to be affected, more particularly ill a case when the action of rescission is based on the conduct of the person to be affected. Such a notice is necessary under the principle of natural justice even if it is not provided. for by the relevant law.
9. Learned A.A:‑G also referred the case of Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari, reported in PLD 1997 SC 351, in support of his contention that the superior Courts in exercise of their discretionary jurisdiction, refuse to intervene where grant of relief would amount to retention of ill‑gotten gains or would lead to injustice or aiding the injustice. Obviously, the authority is distinguishable on facts. In the present case, the promotion order of petitioner has ' been withdrawn without issuing a show‑cause notice to the petitioner for this purpose, on the ground that he was holding American nationality simultaneously, which fact he did not disclose to the Department. It is difficult to understand as to how this charge is relevant to the promotion. If such a national can be employed by the Government, he is also entitled to the promotion despite such nationality. A query was made, in the Court, from the A.A.‑G. but he was not in a position to clarify it with a legal support.
10. Another important contention of the learned A.A.‑G. was about bar of jurisdiction under Article 212 of the Constitution. He submitted that it is a matter of disciplinary action relating to terms and conditions of service and, therefore, the Service Tribunal has exclusive jurisdiction in the matter. On this point, Mr. Shabbir Ahmed Awan, learned counsel for the petitioner, submitted that in view of the nature of the impugned action and notification, a remedy, against it, is not available before the Service Tribunal and since no other remedy is available, a petition under Article 199 of the Constitution is the proper legal remedy. He contended that the impugned notification is not a final order and, therefore, an appeal against it, before the Tribunal, is barred under section 4 of the Sindh Service Tribunal ‑ Act, 1973. The impugned notification itself mentions that the promotion was withdrawn "pending completion of disciplinary proceedings," and it is not disputed that it was not a final order. In view of this fact, the petitioner cannot seek remedy before the Service Tribunal under section 4 of the Sindh Service Tribunal Act, 1973.
11. Mr. Awan further contended that the impugned order is corum non judice as the Home Secretary 'is not the authority under the Rules which provide that Inspector‑General, Police is the authority in the case of the petitioner. According to him. Home Secretary is the appellate authority. He has produced copy of Notification No. POL‑HD/6‑6/98, dated 11th January, 1999, issued by the Government of Sindh, Home Department. According to award punishment of reduction in rank or pay to a D.S.P. is Inspector-General of Police.
12. The contention of learned A.A.‑G., that the Governor, being the can exercise these powers, is not tenable because an given by law is to be exercised according to law and by the person so authorized. The Governor despite being head of ‑the Province cannot himself arrest a person exercising powers of the S.H.O. The powers and jurisdiction can be authorities vested with them by the law.
13. The impugned notification, dated 1st June, 1999 is illegal and of no effect because it was issued without lawful authority in view of the facts mentioned above, and because it was made without, issuing a show‑cause notice to the petitioner. The petition is not barred under Article 212 of the Constitution as an appeal before the Service Tribunal in a case where the impugned action is not a final order is expressly barred under section 4 of Sindh Service Tribunals Act, 1973. Since no other remedy is provided by law, the petition is maintainable under Article 199 of the Constitution. The petition is allowed accordingly. ,
H.B.T./M‑76/K Petition accepted.