2018 P L C (C.S.) 797
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ
MUHAMMAD NOOR
Versus
GOVERNMENT OF BALOCHISTAN, S&GAD through Secretary and 2 others
C.P. No.79 of 2014, decided on 19th June, 2017.
Balochistan Employees' Efficiency and Discipline Act (VI of 2011) ---
----Ss. 16 & 17---Balochistan Province Removal from Service (Special Powers) Ordinance (III
of 2000), Ss.3, 9 & 10 [since repealed] ---Balochistan Government Servants (Conduct) Rules,
1979, R.21---Balochistan Government Rules of Business, 2012, Rr.5, 15 & 45---Constitution of Pakistan, Art.199---Writ of quo warranto---Absence from duty ---Removal from service---
Reinstatement on the direction of Chief Minister ---Bar on civil servants to approach members of
Assembly ---Employee was removed from service and his appeal was also declined by the
Authority -Employee -respondent was reinstated into service on the directions of Chief Minister ---
Validity ---Departmental appeal of employee was dismissed by the competent authority ---
Employee did not avail remedy before Service Tribunal ---Penal order passed by the authority
had attained finality ---No remedy of review was available before the competent authority ---No
power of revision was available with the Chi ef Minister under Balochistan Province Removal
from Service (Special Powers) Ordinance, 2000 or Balochistan Government Rules of Business, 2012---Governor (competent authority) could exercise such powers under S.9 of Balochistan Province Removal from Servic e (Special Powers) Ordinance, 2000 or Chief Minister under S.17
of Balochistan Employees' Efficiency and Discipline Act, 2011---No such power was exercised, rather on the recommendation of Provincial Minister a process was initiated and an order was passed to undo the act done within the ambit of a special law ---Employee could not approach any
member of National Assembly or Provincial Assembly directly or indirectly to intervene on his behalf in the matter ---Employee being guilty of misconduct, order passed by the Chief Minister
was in contravention of law ---Directions of Chief Minister were implemented without raising
any question by the officers concerned ---Compliance of any illegal and arbitrary order was
neither binding on the subordinate forum nor valid in the eye of law ---Chief Minister had
misused his powers ---Impugned order of reinstatement of employee was declared to be illegal
and set aside---Constitutional petition was accepted in circumstances.
Hamdullah v. Saifullah PLD 2007 SC 52; Iqbal Hussain v. Province of Sindh through
Secretary, Housing and Town Planning, Karachi 2008 SCMR 105 and Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 rel.
Tahir Ali Baloch and Abdul Razzaq Shar for Petitioner.
Shai Haq Baloch, Asstt. Advocate Gene ral for Respondents Nos.1 and 2.
Abdul Wali Khan Nasir for Respondent No.3.
Date of hearing: 7th March, 2017.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- This petition was filed for the relief:
" . They be asked under what law the respondent No.1 has reins tated the respondent No.3
into Government Service and thereafter the order dated 02- 01-2014 whereby the
respondent No.1( -) is reinstated into Government Service may be declared to be illegal
unlawful made in excess of authority, consequently the same may be set aside, with any
other relief and cost of the proceeding throughout ."
2. The brief facts of the case as collected from the contents of the petition, annexed papers,
parawise comments filed by the official respondents and the reply submitted on court' s query that
respondent No.3 Muhammad Aslam an employee of Government of Balochistan, absented himself from the duty, thus, was proceeded under the Balochistan Province Removal from Service (Special Powers) Ordinance, 2000, (Ordinance, 2000), that on final ization of the
proceedings the competent authority impose the major penalty of removal from service on him (respondent No.3), for the reason he remained absent from his duty since 15th December, 2010, that a departmental appeal was preferred within the sti pulated period, but was misplaced thus
followed by second departmental appeal though entertained, but the request was declined and the
order of authority remained intact, that this order was intimated to the petitioner by the Services and General Administr ation Department vide its letter dated 23rd August, 2013, that this
intimation letter contained recommendations of serving ministers, five (05) in numbers, in their own handwriting with initials for re -instatement of Muhammad Aslam (respondent No.3) in
service, that the letter also contained a direction of the then Chief Minister Balochistan "put up
the summary", that the case was processed consequent thereto, and a favourable order was passed on 2nd January, 2013, and respondent No.3 was re -instated in government service with
immediate effect, that respondent No. 3 assumed the charge and continued with his services till date.
3. The petitioner approached this Court by filing the instant petition with the facts that his
sister and a brother were abducted by the persons including respondent No.3, thus an FIR was lodged against the persons namely Muhammad Siddique, Munir Ahmed, Manzoor Ahmed and Muhammad Aslam (respondent No.3) on 4th January 2011, that the abductees were recovered after six days, though the ac cused absconded, but were arrested in the month of April, 2013,
consequent thereto the trial commenced and still pending, that respondent No.3 was removed from service vide order dated 6th April, 2011, as not challenged thus attained finality, that in comp lete negation of the Law and the Rules the respondent No.3 was re -instated in service vide
order dated 2nd January, 2014. This order was questioned on the grounds that the order was passed on political influences, with mala fides, and ulterior motives.
4. The respondent No.1, Government of Balochistan, Services and General Administration
Department, in reply stated to act on the directions of the Chief Minister and issued order for re -
instatement of respondent No.3 on 2nd January, 2014 as a consequence. The act on their part was
justified with denial of the status of the petitioner as of an aggrieved person thus maintainability
of the instant petition was questioned.
5. A separate reply was submitted by respondent No.2, and locus standi of the petitioner
was questioned with objection of misjoinder and non- joinder of the parties, but there was no
reply on merit.
6. The respondent No. 3 opted not to file his reply or counter affidavit.
7. The learned counsel for the parties made their submissions. The learned c ounsel for the
petitioner was of the view that the legality of the order passed by the authority on 2nd January
2014, whereby the respondent No.3 was re -instated in service was questioned, and respondent
No.1 has to reply with reference to law the authorit y was exercised on strength whereof.
8. The learned counsel for respondent No.3 was of the view that existence of a family
dispute between the parties initially converted into criminal litigation, and finally resulted in
filing of the instant petition. He strongly objected the status of the petitioner as of an aggrieved person within the meaning of Article 199 of the Constitution, which curtailed invoking of the jurisdiction of a High Court only by an aggrieved party.
9. In reply the learned counsel for the petitioner was of the view that the instant petition was
filed to inquire into the legality of an order passed by the Chief Minister, and to be replied by
what authority he (respondent No.3) hold the office, thus for the purpose no requirement of filing a petition by a person covered by the term aggrieved party as contained in Article 199 of the Constitution.
10. Article 199 of the Constitution allowed an aggrieved party to invoke jurisdiction of this
Court for the purpose as contained therein. In the c ase in hand a writ in nature of quo warranto
was claimed, thus in the context the status of the petitioner is to be assessed, and his eligibility for filing of the instant petition is to be considered before going into merit of the case. The Honourable Supreme Court already determined the criteria of an aggrieved person if a writ of to warranto is applied. While dealing with the issue, in case Hamdullah v. Saifullah reported in PLD 2007 SC page 52 the Honorable Supreme Court determined: --
" .. A writ of quo warranto is in the nature of laying an information before a Court,
against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty. Its object is to determine the legality of holder of a statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. Where a person prays for a writ of quo warranto the Court would be under an obligation to enquire
whether the incumbent is holding the, office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain
in the office. For issuance of a writ of quo warranto the person invoking the jurisdiction
of the High Court under Article 199 of the Constitution is not required to fulfill the
stringent conditions required for brining himself within the meaning of an aggrieved person any person can move the High Court to challenge the usurpation of unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke the constitutional jurisdictio n under Article 199 of the
Constitution in a manner as generally required by the said Article. This Court in the case
of M.U.A. Khan v. Rana Muhammad Sultan and another (PLD 1974 SC 228)
categorically pronounced that a Civil Petition for issuance of a writ of quo warranto can
be moved by a person who may not even be an aggrieved party. The pronouncement to the above effect was reiterated and followed by this Court in the cases of (i) Al Jahad Trust through Raees -ul-Muhahidin Habibul Wahabul Khairi v. Federa tion of Pakistan
and others (PLD 1996 SC 324), (ii) Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs Islamabad and others (PLD 1998 SC 161); and (iii) Captain Retired Muhammad Naseem Ejazi v. Province of Punjab (2000 SCMR 1720). It is, thus, to be observed that this Court has consistently held that a writ of quo warranto can be instituted by a person though he may not come within the meaning of word aggrieved person."
11. In the case in hand the pe titioner also approached this Court to inform against a person
who hold an office in the Education Department with an object to determine the legality of the holder of an office, with an intent to decide by this Court whether he was holding such office as required and by order of an authority empowered to make an order to the effect. In view of the criteria as determined the instant petition was filed by a competent person, thus held to be maintainable.
12. Now reverting to the merit of the case. The respon dent No.1 Muhammad Aslam held the
office of Senior Clerk in the Education Department Government of Balochistan, and was in employment when involved in a criminal case filed on the report of the petitioner for the offences of abduction, wrongful confinement , causing injury and rioting. Consequent to the
report respondent No.3 avoided the process of law, and remained absent from his job for a period of nearly two years. Due to the act of remaining absent proceedings were initiated against him by the competent authority under Ordinance, 2000, and major penalty of removal from service was
imposed vide order dated 6th April, 2011. As per contents of parawise comments filed by respondent No.1 an application was submitted by respondent No.3 within the stipulated pe riod
which was inadvertently dispatched to the Education Department, thus not processed. No paper in support annexed with the reply of respondent No.1 Further another application (departmental appeal) was filed by respondent No.3 against termination of his service on 15th July, 2012, the
period for filing of departmental appeal was over looked, and the application was entertained. Though finally rejected and the decision was communicated on 23rd August, 2013.
13. This letter was issued by the Services and G eneral Administration Department,
Government of Balochistan, in the name of Muhammad Aslam (respondent No.3). A copy
whereof was annexed with the parawise comments of respondent No.1. The perusal whereof reveals that on this application remarks of provinci al ministers five (5) in numbers, were
available, who infact recommended for re -instatement of respondent No.3 in service, and also a
direction of the then Chief Minister Balochistan, to submit summary, in compliance a summary
was moved and Chief Minister approved for his re -instatement in service as a special case.
Consequent thereto order dated 2nd January, 2014 was issued compelled in filing of the instant
petition.
14. While hearing the case on merit a number of queries were posed to Assistant Advocate
General (AAG), who submitted reply in writing. The facts spelt out of the papers on the record and the reply submitted, that the petitioner was removed from service consequent to the proceedings held under the Balochistan Province Removal from Service (Spe cial Powers)
Ordinance, 2000, which was in filed at the relevant time, thus have its application on the case of the respondent No.3. Section 9 of the Ordinance, 2000 was with a provision of representation and review to the departmental authority with speci fication of the Governor, within a period of
fifteen (15) days. In addition a provision of appeal was available under Section 10 of the Ordinance before the Balochistan Services Tribunal within a period of thirty (30) days. In the case in hand the departmental appeal asserted to have been preferred by respondent No.3 within the stipulated period, but no paper placed before the court in affirmation thereof. The second appeal preferred was dismissed, and the letter intimating the decision was of 23rd August, 2013. It contained the date of application as 15th July, 2012. This application was filed beyond the stipulated period of fifteen days. It is also a fact that respondent No.3 remained silent thereafter
and no service appeal as required was preferred within the stipulated period, thus the order of the
authority dated 6th April, 2011 attained finality.
15. The Chief Minister, the Chief Executive of the Province, exercised power and passed an
order for re -instatement of the respondent No.3 under what law would be the moot question. An
action was taken under a specific law, thus the exercise of the powers must be within the ambit
of such law, the basic principle. The penalty was imposed in exercise of powers under section 3
of the Ordinance, 2000 by the competent Authority. Section 9 of Ordinance, 2000 provided a remedy as it is with a provision of representation and review to the Governor, or to such officer or authority as the Governor may designate. Thus the Governor would be the relevant authority to decide t he representation or review submitted, or by the person to whom the authority was
delegated. It is to remind that Ordinance, 2000 was repealed in 2011 on promulgation of the Balochistan Employees Efficiency and Discipline Act, 2011 (Act 2011). Thus when the order of removal from service was passed the Ordinance, 2000 was intact, but when here was an order for re-instatement in service the Ordinance, 2000 was repealed by the Act VI of 2011. The latter law
also with a provision of departmental appeal and revi ew as contained in Section 16 of the Act,
2011 and a period of thirty days allowed for the purpose. While a provision of revision available to the designate officers i.e. Chief Minster, Chief Secretary, Provincial Police Officer, the Administrative Secreta ry by section 17 of the Act, 2011.
16. In view of the Scheme of law a departmental appeal was surely filed in the instant case,
but in fact dismissed by the competent authority, thus the next remedy available to the respondent No.3 was an appeal before the Services Tribunal, which was not availed within the
stipulated period at the relevant time, thus the penal order passed by the authority already attained finality in 2013. That chapter was closed on issuance of letter dated 23rd August, 2013. The whole ca se of respondent No.3 based on the recommendations made by the Provincial
Ministers and on the direction of the Chief Minister to process his case. There was no review before the competent authority i.e. Governor under the Ordinance, 2000 nor before the Chief
Minister, the competent Authority under the Act, 2011. Thus the power of review available was
not exercised under the respective laws by either of them (Governor or Chief Minister). Even the power of Revision available under Section 17 the Act, 2011 wa s also not pressed by the Chief
Minister if intended to pass some favourable order.
17. Rather the whole exercise, as narrated in preceding paras, was made on recommendations
of the Ministers on the referred to letter. The legality of this recommendation w ould be the main
consideration. The learned Assistant Advocate General referred to the Rules of the Business
Government of Balochistan with specification of Rule 15, with assertion that a Chief Minister is empowered on strength thereof to pass an order of the nature. Rule 15 of the Balochistan Government Rules of Business, 2012 is with title "Consultation with Finance Department". Thus not relevant. While Rule 5 deals with the functions of the Chief Minister, and Rule 45 with Reference to the Chief Minister . Further, as per Schedule VIII Part A enlisted the cases to be
submitted to the Chief Minister for his approval before issuance of order. Item No.28 reads as "all cases requiring orders of Chief Minister under any law" would be relevant. The law is to be followed for exercise of power in each case. In view thereof the learned Assistant Advocate General was under some misconception, as the questioned act was taken and order was passed under the provisions of a special law, thus required to be dealt as provi ded by the Statute.
18. The referred to provisions and the Rules unable to confer any such power to the Chief
Minister either under Ordinance, 2000, Act, 2011 or Rules of Business, 2012. If an application for review was before the Governor he night have ex ercised the powers under section 9 of the
Ordinance, 2000 or the Chief Minister could press the powers available under Section 17 of the Act, 2011, but that was not done, rather on simple recommendations of Provincial Ministers a process was initiated and an order was passed to undo an act, done within the ambit of a special
law.
19. In addition it is to be kept in sight that respondent No.3 approached the Provincial
Ministers to use the political pressure for his personal gains. The Balochistan Civil Serva nts
(Conduct Rules), 1979 (Rules, 1979), described this sort of conduct within the ambit of misconduct. Rule 21 of the Rules, 1979 specifically bar a civil servant to approach any member of National Assembly or Provincial Assembly directly or indirectly to intervene on his behalf in
the matter. This made the respondent No.3 guilty of act of misconduct.
20. It was observed with concern that the order passed by the Chief Minister was in
contravention of law, and in complete negation of the required Procedure, despite the same the
directions of the Chief Minister were Implemented without raising question by the offices concerned. The Honourable Supreme Court in case of Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning. Karachi reported in 2008 SCMR 105 specifically held that compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. The issue was also dealt with by the Honorable Supreme Court in case of Mahmood Akhtar Naqvi v. Federation of Pakistan, reported in PLD 2013 SC 195, whereby it was determined for guidance:
"-- We reaffirm that while civil servants do have a duty to follow the policy guidelines
and directions of the political executive yet, because of Article 5 of the Constitution, just like other citizens, their foremost duty is "obedience to the Constitution and the law", not
unthinking obedience to all directives (right or wrong) issuing from the political
executive. In this context, Rule 5(10) of the Rules of Business, 1973, framed by the
Federal Government in accord with Articles 90 and 99 of the Constitution, may be examined. "When the Secretary submits a case to the Minister, the latter may accept the proposal or views of the Secretary or may over -rule him. The Secretary will normally
defer to the decision of the Minister and implement it. In case, however, the Secretary
feels that the decision of the Minister is manifestly wrong and will cause gross injustice
or undue hardship, he may state his reasons and resubmit the case to the Minister. If the
Minister still adhere to his earlier decision and the matter is important enough, the Secretary shall request the Minister to refer the case to the Prime Minister and the Minister shall so refer the case for orders of the Prime Minister. If the case is not referred
to the Prime Minister, the Secretary shall submit it directly to the Prime Minister with observations of the Minister -in-Charge." In other words, implementation of policy or
directives, in some cases may be required notwithstanding the considered views of a civil servant to the contrary. In such event, however, the civil servant should record his/her honest and considered opinion without fear. Decisions violating the law relating to appointment and terms a nd conditions of service of civil servants which are manifestly
wrong and are likely to cause gross injustice or undue hardship should be considered important enough for the purpose of Rule 5(10) ibid."
In view of the above discussion it is now establishe d that there was mis -exercise of
powers on part of the Chief Minister, and respondents Nos.1 and 2 and the order was passed in complete negation of the relevant law i.e. the Balochistan Province Removal from Service (Special Powers) Ordinance, 2000, and the Balochistan Employees' Efficiency and Discipline Act, 2011. The respondent No.1 failed to describe the law under which respondent No.3 was instated in government service, thus order dated 2nd January, 2014 pertaining to re -instatement
of respondent No.3 in service is declared to be illegal, passed in excess of authority, thus set aside. The petition is allowed in the terms.
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