PROVINCE OF SINDH and others vs SAEED-UR-REHMAN
This matter concerns a petition for leave to appeal against a judgment of the High Court of Sindh, which directed the petitioners to finalize and release the respondent's pensionary benefits following his retirement. The respondent had previously faced departmental proceedings for alleged forgery of his date of birth, resulting in a removal from service. Following a remand by the Sindh Service Tribunal, a fresh inquiry recommended reinstatement with back-benefits. Subsequently, an order was passed by the Administrator Auqaf reinstating the respondent and treating the intervening period as duty, effectively retiring him. The petitioners challenged this, arguing that the officer who passed the reinstatement order held only a 'look after' charge and lacked the competency under the relevant statute to exercise the powers of the Administrator Auqaf. The Supreme Court observed that the reinstatement order remained in the field and had not been challenged or recalled by the petitioners. Finding no legal or factual error in the High Court's decision to enforce the existing order, the Supreme Court dismissed the petition, holding that an administrative order that has not been recalled or set aside remains binding and enforceable.
- Whether an administrative order that has not been formally recalled or set aside remains binding and enforceable?
- Can a petitioner challenge the competency of an officer to pass an order when that order has not been challenged or recalled by the department?
- Is a respondent entitled to pensionary benefits if a departmental inquiry recommends reinstatement and the order treating the intervening period as duty remains in the field?
- Sindh Service (Efficiency and Discipline) Rules, 1973
- Sindh Waqf Properties Ordinance IX, 1979
ORDER
GHULAM RABBANI, J.---Leave is sought to appeal against the judgment dated 12-12-2008 whereby learned Division Bench of High Court of Sindh in Constitutional Petition No, D-1101 of 2008 filed by respondent directed the petitioners to process, finalize and release penkion after fixation of pay in accordance with order dated 12-10-2007 passed by petitioner No, 2.
2. Precisely stated the relevant facts are that the respondent was proceeded against departmentally under the provision of Sindh Service (Efficiency and Discipline) Rules, 1973 on the charge that his actual date of birth was 10-2-1944 but lie produced matriculation certificate by forging his date of birth as 10-2-1954. As a result, respondent was imposed upon a major penalty of removal from service, which the respondent challenged by way of appeal before the Sindh Service Tribunal. The learned Sindh Service Tribunal set aside the order of dismissal of respondent and remanded his case to petitioner No, 2 for initiating proceedings afresh under Sindh Ordinance IX of 2000 with the direction to conclude the same within 90 days and in the meantime the respondent was reinstated into service. A fresh inquiry was, accordingly, initiated wherein the Inquiry Officer recommended that the respondent be reinstated into service with all back-benefits of intervening period. Pursuant to this the then Chief Administrator Auqaf Sindh, (Abdul Wahab Abbasi), reinstated the respondent with the observation that keeping a lenient view that respondent was retired from service with immediate effect and his intervenining period from 20-9-2006 to 22-7- 2007 was treated as duly vide order dated 2-1-2008. Since pension matter of respondent was not being finalized, he filed a Constitutional Petition before High Court of Sindh, which was allowed in terms noted above vide judgment impugned herein.
3. Contentions of learned counsel for petitioners are that Mr. Abdul Wahab Abbasi, who had passed the order dated 2-1-2008, was given the charge to look after the work of Administrator Auqaf and that he was not appointed as Chief Administrator Auqaf within terms of section 3 of Sindh Waqf Properties Ordinance IX, 1979 therefore, he could not exercise the power of Administrator Auqaf. His further contention is that being a "look after" Chief Administrator .Mr. Abdul Wahab Abbasi was not competent to act as competent authority to pass order dated 2-1-2008.
4. On the other hand respondent in person stated that he had committed no forgery and that he had rendered the service till he was retired, therefore, he was entitled to all the pensionary benefits which were denied to him.
5. We have considered the above submissions and we have also gone through the record referred to by learned counsel for petitioners and the respondent. The admitted fact is that the order dated 2-1-2008 under 'which the respondent was retired and intervening period was treated as duly, still holds the field. Learned counsel for petitioner frankly stated that no steps were taken to recall the same. The Inquiry Officer who conducted inquiry into the charges levelled, against the respondent recommended latter's reinstatement with all back-benefits and the intervening period treated as duly. Nothing could be brought to our notice that his recommendation was ill-founded. No other legal or factual error was pointed out.
6. In the circumstances, we do not find any merit in this petition which is accordingly dismissed.
Leave refused.