UNIVERSITY OF SIND Versus AHMED BASHIR
This civil appeal arose from a judgment of the Sindh High Court which had allowed a constitutional petition filed by the respondent, a University professor, declaring his retirement under Martial Law Regulation No. 114 to be without lawful authority. The High Court had proceeded on the assumption that no retirement order had been issued by the President of Pakistan, as the relevant Gazette notification was not produced by the parties, leaving only the University Registrar's circular on record. On appeal, the Supreme Court of Pakistan noted that the Gazette of Pakistan, Extraordinary, dated 30-03-1972, containing the President's order under sub-paragraph (1) of paragraph 3 of Martial Law Regulation No. 114, was indeed produced and admitted by both parties. The Court held that since the President had validly exercised his powers, the High Court's factual assumption was incorrect. The Court further declined to entertain a fresh legal plea raised by the respondent's counsel for the first time regarding whether the University of Sindh constituted a 'corporation' under the Regulation, as this was not raised below. Consequently, the Supreme Court allowed the appeal, set aside the High Court's judgment, and upheld the retirement order.
- Can a party raise a completely new legal plea for the first time before the Supreme Court if it was not raised before the High Court?
- Whether an order of retirement issued by the President under Martial Law Regulation No. 114 is valid if the corresponding Gazette notification is subsequently produced and admitted by the parties?
- Martial Law Regulation No. 114
1. ABDUL KADIR SHAIKH, J.‑‑ This appeal by leave is directed against the judgment of Sind High Court dated 20‑10‑1983 whereby constitution petition filed by Dr. Ahmed Bashir, respondent No.1, was allowed with the result that the order of Registrar, University of Sind dated 15‑3‑1972 retiring the respondent from service with effect from 30‑3‑1972, "as per Martial Law Regulation No.114 issued by the President and Chief Martial Law Administrator" was held to be not in accordance with law and without jurisdiction.
2. The facts of the case as presented before the High Court on crucial legal point of law affecting decision in the case were different from those presented before us and which are the admitted facts, based on correct record. The real facts are that respondent was retired from service with effect from 30‑3‑1972 under the order of the. President in exercise of powers conferred by sub‑paragraph (1) of paragraph 3 of Martial Law Regulation 114 issued by the Chief Martial Law Administrator. This order was published in the Gazette of Pakistan, Extraordinary, dated 13‑3‑1972. It was subsequent to the aforesaid order that Registrar, University of Sind then issued the following order under Circular No.Estt/390, dated 15‑3‑1972:
"CIRCULAR
3. The following Teaching and Administrative staff members of this University stand retired with effect from 13‑3‑1972 from their services as per Martial Law Regulation No .114 issued by the President and Chief Martial Law .Administrator:
1. Mr.Jaliluddin Ahmed Khan Prof. and Head, Dept. of English.
2. Dr.Ahmed Bashir, Prof. and Head Dept. of History‑Respondent herein.
4. 3 to 10------------------------------"
5. It was the above order issued by the Registrar, University of Sind that was challenged by the respondent before the High Court in the constitution petition on the ground that the aforesaid order has not been issued by the competent authority, in that, the Registrar., University of Sind was not authorised by the President to issue an order of retirement under Martial Law Regulation 114. Unfortunately the Notification dated 30‑3‑1972 published in the Gazette of Pakistan Extraordinary, on the same date seas not produced by the parties before the High Court; indeed more unfortunately it was the case of the appellants themselves that the President of Pakistan had passed no order whatsoever under the provision of Martial Law Regulation 114 retiring the respondent. Learned Judges in the High Court, therefore, proceeded on the assumption that no order was passed by the President of Pakistan in respect of the respondent under the provision of Martial Law Regulation 114. In this respect the following portion of the impugned judgment of the High Court may be reproduced:
6. "But the position as it appears from the perusal of all these submissions is that the petitioner was not certain as to under whose orders and how he has been retired. The only document produced by the petitioner is an order of the Registrar of Jamshoro University.
7. Notice of this petition had been issued to the respondents in 1973 and the respondents are Islamic Republic of Pakistan the Province of Sind as well as the University of Jamshoro. And yet in spite of this notice there is no counter‑affidavit filed by them. No order from the President of Pakistan retiring the petitioner has been produced by the respondents. The contentions in the petition have not been controverted by the respondents .-------------There is no Notification produced by the Government of Pakistan where the petitioner is shown to have been retired by the President of Pakistan nor any Notification has been shown where the President of Pakistan had authorised Registrar of Jamshoro University of Sind to act as a competent authority under M . L. R .114. Even the Jamshoro University has not been able to produce any Notification showing that it was the President of Pakistan who had taken any action against the petitioner and retired him or that the Registrar of Jamshoro University had been given the powers under Martial Law Regulation 114.
8. The net position, therefore, is that the petitioner was not certain as to under what orders he has been retired and he was, therefore, groping in the dark and had, therefore, sought a declaration that his retirement was without lawful authority. On record it is only the written order of the Registrar of Jamshoro University which is the only basis for his retirement. This order of Registrar of Jamshoro University is evidently not an order under Martial Law Regulation 114 as no such authority has been shown to existing in the said Registrar. The said order has, therefore, to be declared without lawful authority. We may note here that Mr. Usman Ghani Rashid has not challenged before us the vires of Martial Law Regulation 114 nor he has now challenged the authority of the President of Pakistan in that respect and he has merely confined himself to the position that there is no authority in the Registrar of Jamshoro University under Martial Law Regulation 114."
9. Leave to appeal was granted by this Court as the Gazette of Pakistan, Extraordinary, dated 30‑3‑1972 with the relevant notification containing the order passed by the President of Pakistan under the' provision of Martial Law Regulation 114 in respect of several persons including the respondent was produced before us, and it was submitted that the High Court had been wrongly persuaded to take the view that no order was passed by the President under Martial Law Regulation 114 retiring the respondent from service.
10. At the hearing today, as stated earlier, it is the admitted position of the parties, which cannot even otherwise be denied, that the President of Pakistan had, in fact, issued the order retiring the respondent from service in exercise of powers conferred upon him by sub‑paragraph (1) of Paragraph 3 of Martial Law Regulation 114. In view of this admitted position, there is no escape but to set aside the judgment of the High Court.
11. We may, however, mention that Mr. Usman Ghani Rashid, learned counsel for the respondent submits that since the respondents was an employee of University of Sind, which is not a corporation, the order passed by the President of Pakistan was not competent in law. This argument is based on the language of sub‑paragraph (1) of paragraph 3 of the Regulation which empowered the President, as the competent authority, to pass an order of dismissal, removal, etc., in respect of a "person in Government service or a person in corporation service". The Regulation defines "person in corporation service" as to mean "every person in the employment of a corporation or other institution set up or established by the Central Government or a Provincial Government or by any law for the time being in force and includes the Chairman and the Managing Director of, and the holder of any other office, in such corporation or institution;" Precise point raised by the learned counsel is that University of Sind not being a corporation or other institution set up or established by the Central Government or Provincial Government or by any law for the time being in force, the persons employed therein cannot be treated as persons in corporation service so as to be covered by the provisions of the Regulation.
12. The question whether University of Sind is a corporation within the meaning of the Regulation was not raised before the High Court, and it is a totally fresh plea being raised for the first time before this Court. Not only this, but, on the contrary, learned counsel for the respondent who also appeared for the respondent before the High Court had not challenged the authority of the President, in law, to pass the impugned order against the respondent under the provision of the Regulation. This has been specifically mentioned the High Court in the relevant portion of the impugned judgment reproduced above. We, therefore, cannot allow the respondent to raise the above plea before us.
13. For the reasons mentioned earlier, this appeal must succeed, and it is accordingly allowed, with the result that the impugned judgment of the High Court is set aside and the order of the President of Pakistan retiring the respondent from service is upheld as valid in law, In the circumstances, however, we leave the parties to bear their own costs.
14. M.Y.H./U‑13/S Appeal accepted.