2019 P L C (C.S.) 1475
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar, C.J.and Muhammad Ejaz Swati, J
Eng. SAEED AHMED and others
Versus
CHAIRMAN NATIONAL HIGHWAYAUTHORITY, ISLAMABAD and others
Constitutional Petitions Nos. 363, 913 of 2013 and 41 of 2014, decided on 14th May, 2019.
Constitution of Pakistan ---
----Art. 199--- Saked Employees (Re -instatement) Act (XXII of 2010), S.4(b) ---Re-
instatement on orders of the High Court ---Issuance of writ by the High Court against another
High Court ---Scope ---High Court could not issue a writ against another Bench of same High
Court or against another High Court with regard to an order regarding re -instatement in
service passed in judicial capacity.
PLD 1976 SC 315 and 2011 PLC (C.S.) 1465 rel.
Mazh ar Ilyas Nagi for Petitioner (in C.P. No.363 of 2013).
Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.363 of
2013).
Zahoor Ahmed Baloch for Petitioner (in C.P.No.913 of 2013).
Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.913 of
2013).
Zahoor Ahmed Baloch for Petitioner (in C.P. No.41 of 2014).
Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.41 of
2014).
Date of hearing: 10th April, 2019.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----The petitioner Saeed Ahmed in Constitutional
Petition (C.P) No. 263 of 2013 was inducted by the respondent National Highway Authority (NHA) as Inspector (BS -16) on contract basis for two years vide appointment order dated
13th August 1996. Whereas, the petitioner Pervai z Ahmed in C.P. No. 913 of 2013 was
appointed as Assistant Director (BS -17) on contract basis through appointment order dated
10th April 1996. While the petitioner Naqeebullah in C. P. No. 41 of 2014 was appointed as Inspector (BS -16) through appointment order dated 20th March 1996.
2. The respondents vide office order dated 14th December 1996 terminated the services
of the petitioners.
3. On promulgation of Sacked Employees (Re -Instatement) Act No.XXII of 2010
(SERA, 2010), for the purpose of re -instatemen t to persons, who were appointed in a
corporation service or autonomous or semi -autonomous bodies or in Government Service
during the period from the 1st day of November, 1993 to the 30th November, 1996 and were dismissed, removed or terminated from servic e during the period from 1st day of November,
1996 to the 12th day of October, 1999 (both days inclusive).
4. Pursuant to section 4(a) of the SERA, 2010, the respondents vide office order dated
15th January 2011 (1st order), the sacked employees of NHA wer e appointed in regular
strength of National Highway Authority on one scale higher to their substantive scale/grade with three years benefits with effect from the date of enactment of SERA, 2010, whereby the petitioner Saeed Ahmed (in C.P. No.363 of 2013) w as appointed as Inspector (BS -17),
whereas the petitioner Pervaiz Ahmed (in C.P. No. 913 of 2013) was appointed as AD
Engineer (BS -18). While the petitioner Naqeebullah (in C.P.No.41 of 2014) was appointed as
Inspector (BS -17). It is necessary to mention here that the petitioner Saeed Ahmed after his
termination vide order dated 14th December, 1996, he successfully passed Balochistan
Public Service Commission (BPSC) exam and he was appointed as Assistant Engineer (BPS -
17) on 31st March, 2007 in Balochistan Local Government and Rural Development
Department. He worked in Local Government Department for a period of three years and ten
months, however, in pursuance of 1st order, he was relieved from his duty as Assistant
Engineer (BPS -17) vide Notification dated 31st January, 2017 and he joined his duty in view
of office order dated 15th, January 2011 as Inspector in NHA.
5. Six regular employees of the respondents Organization filed a Constitutional Petition
No.D -214 of 2011 before the Hon'ble Sindh High Court a t Karachi, wherein amended title
was filed in compliance of order dated 8th August 2012 and various employees of the respondents organization were impleaded as a party and the petitioner Naqeebullah son of Saeedullah and petitioner Saeed Ahmed son of Arbab Muhammad Hashim were also arrayed
as respondents Nos. 270 and 272 respectively.
6. The above Petition No.D -214 of 2011 was allowed vide short order dated 24th
October 2012 and held as under:
"Interveners who were admittedly appointed on contract basis and required to be dealt with in terms of section 4(b) rather than 4(a) of SERA, 2010."
7. In compliance of above order of Hon'ble Sindh High Court, the respondents vide
office order dated 4th March 2013 (hereinafter the "impugned order") considered the appointments of the contract employees under section 4(b) of SERA, 2010 and thereby reverted the petitioners Saeed Ahmed and Naqeebullah Inspectors from BS -17 to BS -16 and
the petitioner Pervaiz Ahmed from BS -18 to BS -17.
8. The petitioners being aggr ieved from the impugned order had filed the instant
petitions, having common points of law, grounds and facts are involved, therefore, are being disposed of through this common judgment.
9. Learned counsel for the petitioners contended that the petitioners were appointed on
regular basis in view of the SERA, 2010 under section 4(a) of the Act and a vested right has been accrued in their favour, therefore, their reversion vide impugned office order by the respondents without affording them opportunity of bei ng heard, is legally not justified; that
the respondent No.2 acted beyond the judgment of the Hon'ble Sindh High Court.
10. The learned counsel for the petitioner Saeed Ahmed contended that after termination
of contract employment of the petitioner, he was serving on regular basis in BS -17 as
Assistant Engineer in Local Government Department Government of Balochistan from where he was relieved vide Notification dated 31st January, 2011 in pursuance of NHA order dated 15th January, 2011; that the petitioner accepted the office order dated 15th January, 2011 issued by the respondent No.2, as his induction was one scale up, therefore, in the above circumstances, the reversion of the petitioner vide impugned order is against the natural justice; that vide letter dated 7th November, 2018 issued by Government of Balochistan
Local Government and Rural Development Department addressed to the Chairman NHA for repatriation of services of the petitioner in Local Government Department as Assistant Engineer (BPS -17), has also not been acted upon by the respondents, and thus, the petitioner
had been deprived from his valuable rights of service/grade.
Learned counsel for the respondents contended that the Act No.XXII of SERA, 2010,
was passed and published in Gazette of Pakistan for the purpose of providing relief to
persons, who were appointed in a corporation service or autonomous or semi -autonomous
bodies or in Government Service during the period from the 1st day of November, 1993 to
the 30th November, 1996 and were dism issed, removed in termination from service during
the period from 1st day of November, 1996 to the 12th day of October, 1999, as such the petitioners are not entitled for any relief claimed for.
12. We have heard the learned counsel for the parties and per used the record. The
petitioner were initially appointed in the Organization of the respondents on contract basis. The respondent No.2 vide office order dated 14th December 1996 terminated the services of the petitioners on promulgation of SERA, 2010. The petitioners were appointed in regular
strength of National Highway Authority on one scale higher to their substantive scales/grades in view of section 4(a) of the SERA, 2010 vide office order dated 15th January 2011.
13. The respondents vide office order dated 4th March 2013 (impugned order) reverted
the petitioners as under:
"In compliance of the orders dated 24- 10-2012 passed by Honourable Sindh High
Court at Karachi in C.P. No.D -214 of 2011, titled as "Javed Hussain Langah and
others v. Government of Pakistan and others" all Sacked Employees reinstated in NHA under the Sacked Employees (Reinstatement) Act, 2010 vide Clause 4(a) are hereby reverted to their initial/original pay scales of appointment as of contract. These
employees had been reinstated one scale higher to their appointment upon the instructions of Cabinet Sub- Committee under Clause 4(a) of the Act. Now, the
Honorable Sindh High Court has ordered their reinstatement in their initial pay scale under Clause 4(b) of the Act. Detail of reverted employees is as under:
14. From the above, it reveals that the impugned order had been passed by the
respondents in compliance of the judg ment passed by the Hon'ble Sindh High Court in C.P.
No.D -214 of 2011 holding that:
"The interveners who were admittedly appointed on contract basis and are required to be dealt with in terms of section 4(b) rather than 4(a) of SERA 2010."
15. Admittedly, the petitioners Naqeebullah and Saeed Ahmed were party i.e. respondents
Nos. 270 and 272 in the judgment passed by the Hon'ble Sindh High Court at Karachi. The learned counsel for the petitioners were unable to satisfy as to how these petitions under Artic le 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) are
maintainable before this Court against the judgment passed by the Hon'ble Sindh High Court. It is well settled that no Bench of the High Court can issue a writ against another Bench of the same High Court or against another High Court in respect of order passed in judicial capacity. Reference is placed on the judgments reported in PLD 1976 SC 315 and 2011 PLC (C.S) 1465.
16. In the instant cases, the petitioners had reme dy to assail the judgment before the
Hon'ble Supreme Court if not availed, as the petitioners were party in the judgment passed by the Hon'ble Sindh High Court in C.P. No.D -214 of 2011 and the instant petitions before this
Court are not maintainable for wa nt of jurisdiction.
In view of the above, Constitutional Petitions Nos. 363, 913 of 2013 and 41 of 2014
are dismissed. Parties are left to bear their own costs.
ZC/34/Bal. Petitions dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.