2024 P L C (C.S.) 535
[Balochistan High Court]
Before Naeem Akhtar Afghan, CJ and Gul Hassan Tareen, J
ZAFAR ALI
Versus
PROVINCE OF BALOCHISTAN through Secretary Food and another
C.P. No.1184 of 2022, decided on 2nd August, 2022.
(a) Constitution of Pakistan ---
----Art. 199 ---Civil Procedure Code (V of 1908), S. 11---Civil service ---Constitutional
petition ---Res judicata--- Scope ---Petitioner's appointment was declared to be illegal by the
High Court ---Such order was assailed before the Supreme Court through Civil Petition for
Leave to Appeal, which was dismissed and the review filed met with the same fate ---
Petitioner through present petition sought reinstatement with back benefits ---Validity ---
Appointment of the petitioner had since been declared illegal by a Division Bench of the
High Court, which was further upheld by the Supreme Court of Pakistan, therefore, High Court had no authority to render a conflicting opinion on any ground whatsoever ---Matter
fell within the definition of "finally heard and decided" ---Petition was barred by the principle
of "res judicata"---Constitutional petition was dismissed.
Humair Altaf v. Federation of Pakistan and 3 others 2018 CLC 1632 and Muhammad
Asif Iftikhar v. Zila Nazim Kasur (Ex -Chairman) and 4 others PLD 2005 Lah. 381 rel.
(b) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction ---Scope ---High Court cannot, in exercise of its
constitutional jurisdiction, interfere with an order passed by another Judge on another Bench of the same Court ---One Bench of the High Court cannot sit as a court of appeal over an
order or a judgment of another Bench ---No writ can be issued by a High Court against itself
in exercise of jurisdiction under Art. 199 of the Constitution.
Muhammad Ikram Chaudhry v. Federation of Pakistan and others PLD 1998 SC 103
and Muhammad Nadeem and 3 others v. Government of Balochistan and 3 others 2015 PLC (C.S.) 1143 ref.
(c) Constitution of Pakistan ---
----Art. 199--- Constitutional jurisdiction ---Civil proceedings ---Scope ---Civil proceeding in a
High Court is also governed by the provisions of the Code of Civil Procedure, 1908, save the provisions which have been specially excepted.
Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1
ref.
Rahib Khan Buledi for Petitioner.
Date of hearing: 27th July, 2022.
JUDGMENT
GUL HASSAN TAREEN J. ----This Constitutional Petition carries the following
prayer:
"A. To direct the respondents to reinstate the petitioner in service with all back benefits and privileges by invoking section 21 of the General Clauses Act, 1897 besides
constitutional powers entrusted to this Honourable Court under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973.
B. Interim orders are solicited whereby directing the respondents to reinstate the petitioner in service till final decision of the petition.
C. Costs of the petition may be saddled upon the respondents.
D. Any other relief(s) which this Honourable Court deems fit, just and proper in favour
of the petitioner."
2. Brief facts necessitating decision of this Constitutional Petition are that, the petitioner
was appointed as Assistant Food Controller (BPS -11) vide appointment order dated 19th
March, 2009. The appointment of, the petitioner and two others was called in question by one Abdul Razzaq through a Constitutional Petition No. 677 of 2009 before this Court. This
Court vide judgment dated 3rd May, 2017 declared the appointment of the petitioner, illegal. The petitioner assailed the judgment dated 3rd May, 2017 passed by this Court through Civil Petition for Leave to Appeal No. 2088 of 2017 before the Hon'ble Supreme Court of
Pakistan, which was dismissed on 18th July, 2017 and the review filed met with the same
fate on 22nd September, 2017. The petitioner then filed Constitutional Petition No. 1030 of
2018 before this Court whereby he challenged the appointment of other incumbents in his
department by the same advertisement through which the petitioner had also applied.
Constitutional Petition of the petitioner was disposed of by this Court on 22nd September,
2020. It was further averred that the petitioner served the respondent department 8/9 years
and has become overage. He is jobless, he and his family are hand to mouth. The petitioner
finally sought his reinstatement to his former service.
3. Learned counsel for the petitioner Mr. Rahib Khan Buledi, Advocate stated that in
view of the order passed by the Hon'ble Supreme Court of Pakistan in Civil Miscellaneous
Appeal No. 168 of 2021 and others, the petitioner is also entitled for reinstatement to his
former position.
4. We have heard learned counsel for the petitioner and have gone through the available
record.
5. Admittedly the petitioner was arrayed as respondent in Constitutional Petition No.
677 of 2009. This Court by its judgment dated 3rd May, 2017 held:
"Thus, in view of above, the petition is partly allowed. The appointment orders of the respondents Nos. 3, 4 and 5, bearing No. 387- E-Admn:/2009/395- 99, No.387- E-
Admn:/2009 / 3054/55, No. 387- E-Admn./2009/ 347 -5 dated 19.03.2009, 06.04.2009
and 19.03.2009, respectively, are set side, consequently, they are de -seated. The
official respondents should get the vacant posts filled in through the process of the Balochistan Public Service Commission at the earliest, if required"
6. While reaching at such conclusion, this Court held that the appointment of the present
petitioner and others was illegal and result of mala fide and not based upon the result of tests and interviews. In compliance of the judgment of this Court, the respondent No. 1 terminated the services of the petitioner w.e.f. 4th May, 2017. The judgment passed by this Court was upheld by the Hon'ble Supreme Court of Pakistan in, C.P.L.A No. 2088 of 2017 by an order dated 18th July, 2017 and Civil Review Petition No. 313 of 2017 dated 22nd September,
2017. As the appointment of the petitioner has since been declared illegal by a Division Bench of this Court, which was further upheld by the Hon'ble Supreme Court of Pakistan, therefore, we have no authority to render a conflicting opinion on any ground whatsoever. The matter falls within the definition of "Finally heard and decided". A civil proceeding in a High Court is also governed by the provisions of the Code of Civil Procedure, 1908, save the provisions which have been specially excepted. In this regard we rely upon the judgment of the Hon'ble Supreme Court of Pakistan reported as Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1). This petition is barred by the principle of "res judicata", because the matter directly and substantially in issue and cause of action in the C.P. No. 677/2009, C.P. No. 1030/2018 and the instant petition are same. Once the appointment of the petitioner has been declared illegal in the C.P. No. 677/2009, then on what premises of law, petitioner could ask for reinstatement in this latter Constitutional Petition. We are fortified by the judgment of the learned Sindh High Court reported as
Humair Altaf v. Federation of Pakistan and 3 others (2018 CLC 1632). It was held therein:
"10. We are of the view that the earlier Petition filed by the Petitioner before this
Court was dismissed on merits vide order dated 18.10.2012 and the said order was challenged before the Hon'ble apex Court which was not pressed by the Petitioner. Therefore, the order of this Court had attained finality in the earlier round of litigation. The law precludes the Petitioner to institute afresh Petition in respect of the same subject matter on the same cause of action."
In the case of Muhammad Asif Iftikhar v. Zila Nazim Kasur (Ex- Chairman) and 4
others (PLD 2005 Lah. 381) it has been held as follows by Lahore High Court:
"5. It is settled principle of law that principles of C.P.C. are applicable in
Constitutional proceedings as per law laid down by the Honourable Supreme Court in Hussain Bakhsh's case (PLD 1970 SC 1). It is settled principle of law that second writ petition qua the same subject matter and relief is not maintainable in view of section 11 of C.P.C ---"
7. A High Court cannot in exercise of its Constitutional jurisdiction interfere with an
order passed by another Judge or another Bench of the same Court. One Bench of the High Court cannot sit as a court of appeal over an order or a judgment of another Bench. No writ, thus, can be issued by a High Court against itself in exercise of jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Since the appointment of the petitioner was declared illegal by the Division Bench of this Court in C.P. No. 677/2009, therefore, the judgment in that Constitutional Petition is binding on us in this Constitutional Petition. In this regard we are fortified by the judgment of the Hon'ble Supreme Court of
Pakistan reported as Muhammad Ikram Chaudhry v. Federation of Pakistan and others (PLD 1998 SC 103) and judgment of this Court reported as Muhammad Nadeem and 3 others v. Government of Balochistan and 3 others (2015 PLC (C.S.) 1143).
8. It would not be out of context to mention here that this petition is, likewise, barred by
the principle of "Estoppel". The petitioner by his own conduct and action admitted that his appointment was absolutely illegal. He himself filed a Constitutional Petition No. 1030 of 2018. In this Constitutional Petition, the petitioner sought of the same treatment to his fellow civil servants appointed through a process declared by this Court as illegal in Constitutional Petition No. 677 of 2009. The former Constitutional Petition of the petitioner was disposed of by this Court on 22nd September, 2020 with his consent. The relevant portion of the order reads as under:
"Learned counsel for the petitioner is satisfied for the time being from the steps so taken by the department He stated that if the referred judgment of this court is not implemented in letter and spirit, in respect of all concerned, he will have no objection if the petition is disposed of as per the statement so made hereinabove by the parties.
Thus, in view of the statement so made by the learned AAG as well as counsel for the parties, the petition is disposed of."
9. Since the petitioner himself came to this Court in C.P. No.1030/2018 for
implementation of judgment passed in Constitutional Petition No. 677 of 2009, hence he by his conduct affirmed that his appointment was illegal. While through this petition, the petitioner has sought his reinstatement in service against his former position. Such inconsistent positions taken by the petitioner in his former Constitutional Petition and the instant Constitutional Petition, do not entitle him to any equitable relief.
10. The facts of Civil Miscellaneous Appeal No. 168/ 2021 and others relied upon by the
petitioner's counsel are quite distinguishable and same cannot be made a basis to grant the relief claimed for by the petitioner in the instant Constitutional Petition.
In view of what has been discussed hereinabove, we do not find any merit in this
Constitutional Petition which is hereby dismissed in limine. The petitioner shall bear his own costs.
SA/137/Bal. Petition 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,
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