SHAHID HAYAT vs FEDERATION OF PAKISTAN and others

' CH. EJAZ YOUSAF, J.--- This petition for leave to appeal is directed against judgment, dated 6-6- 2008 passed by the Federal Service Tribunal, Islamabad whereby appeal filed by the petitioner was dismissed in limine.

2. Facts of the case, in brief, are that the petitioner qualified the Central Superior Services examination and joined the Police Service of Pakistan in 1991. In November, 1996, he was posted as Sub-Divisional Police Officer (S.D.P'O. Saddar), Karachi. F.I.R. No,4433 of 1996 was registered at Police Station Clifton, Karachi in pursuance whereof he was arrested in December, 1996. The trial of the case did not conclude and he remained confined in prison till February, 1999. He was released on bail only after the expiry of statutory period provided under section 497 of the Code of Criminal Procedure. Nearly 12 years have passed, but the trial of the case has not concluded so for.

According to the petitioner, he is not responsible for the delay in the trial of the case.

3. The petitioner filed an appeal before the Federal Service Tribunal praying therein that he may be held entitled to continue in service for 2 years and 3 months beyond the date of his superannuation, i,e, the period for which he was not allowed to perform his duties and sections 13 and 14 of the Civil Servants Act, 1973, insofar as they do not allow a civil servant to continue his service beyond the period of superannuation may be held ultra vires the fundamental rights guaranteed under Articles 9, 18, 25 and 27 of the Constitution of the Islamic Republic of Pakistan, 1973. The Tribunal held that the jurisdiction of the Tribunal was restricted to adjudication upon matters relating to the terms and conditions of service under the Civil Servants Act, and did not extend to striking down or declaring as ultra vires any provisions of the said Act. It was further held that the petitioner had not fulfilled the mandatory requirement of filing departmental appeal/representation. Consequently, the appeal of the petitioner was dismissed. Hence this petition for leave to appeal.

4. The learned counsel for the petitioner has reiterated the contentions urged before the learned Federal Service Tribunal. He submitted that the petitioner and several other Police. Officers were falsely implicated on a biased prejudiced setting in the aforesaid F.I.R., which was the third F.I.R.

Regarding the same incident. He, therefore, prayed that the impugned judgment may be set aside, the provisions of sections 13 and 14 of the Civil Servants Act, 1973 insofar as they do not allow for continuation of service after the age of superannuation may be declared ultra vires the fundamental rights guaranteed under Articles 9 and 14 of the Constitution and the petitioner may be allowed to serve the department for a period of two years and three months beyond the date of his superannuation.

5. Malik Muhammad Qayyum, learned Attorney-General for Pakistan appeared for the Federation of Pakistan while Mr. Masood A. Noorani, Additional Advocate-General, Sindh appeared for the Government of Sindh. Both the learned law officers candidly conceded that the petitioner was deprived of his right by his employer (State) to actively serve the department for a period of two years and three months without any fault of his in violation of the fundamental rights guaranteed under Articles 9 and 14 of the Constitution, as also the objectives resolution, which is now part of the Constitution, by virtue of Article 2-A. They stated that this Court is competent to pass any order to do complete justice in any pending case and that there is nothing in law, which prevents this Court from passing an order that the petitioner should be allowed to serve the department for the interrupted period of his service with a view to specifying the wrong done to him.

6. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance.

7. We find that the denial to the petitioner of his right to actively serve the department without any fault on his part is established in the present case, which brought humiliation and suffering to the petitioner. Therefore, we are inclined to hold that the petitioner should be allowed to serve for a period of two years and three months---equivalent to the interrupted period of his service from November, 1996 till February, 1999. The respondents are directed to take appropriate measures in this regard. The benefit of this judgment shall also be available to other Police Officers, who were implicated alongside the petitioner in the aforesaid criminal case.

8. The impugned judgment of the Federal Service Tribunal is set aside. The petition converted into appeal and is disposed of in the above terms.