CHIEF SECRETARY TO THE GOVERNMENT OF N. W.F.P. And Another vs Mian
The petitioners, Chief Secretary to the Government of N.-W.F.P. and another, sought leave to appeal against the judgment of the N.-W.F.P. Service Tribunal dated 16-10-1989, which had set aside the termination order of respondent No.1 dated 20-10-1988 and directed the implementation of the Governor's order dated 25-5-1988 appointing the respondent as Comptroller, Governor's House. The core legal question was whether the Governor's appointment order required a formal notification by the N.-W.F.P. Government to take effect and whether the Government could defeat the order by refraining from issuing such notification. The Supreme Court held that since the Governor had discretionary powers under the relevant rules to make the appointment, the Government could not defeat the formal order of the Governor by refusing to issue the necessary notification. The petition was accordingly dismissed. The key principle laid down is that the Provincial Government cannot nullify or defeat a valid discretionary appointment order made by the Governor by withholding the issuance of a consequential notification.
- Can the Provincial Government defeat a formal appointment order made by the Governor by refraining from issuing a notification?
- Does the Governor possess discretionary powers to appoint officers of the Governor's House Staff under the Rules of Business?
- Whether the Service Tribunal has the jurisdiction to set aside the termination of a civil servant appointed by the Governor?
- Section 5, N.-W.F.P. Civil Servants Act 1973
ORDER
RUSTAM S. SIDHWA J.---The Government of N.-W.F.P. And another, petitioners, seek leave to appeal against the judgment of the N.-W.F.P. Service Tribunal dated 16-10-1989 setting aside the termination order of Mian Asim Ismail respondent No.1 dated 20-10-1988 and directing the petitioner-Government to implement the Governor's order dated 25-5-1988.
2. On behalf of the petitioners it is submitted that though Mian Asim Ismail, respondent, was appointed by the Governor of N.-W.F.P. As Comptroller, Governor's House, on regular basis with effect from 15-5-1988, under section 5 of the N.-W.F.P. Civil Servants Act, 1973 read with Item No.7 of Schedule IV of Rules of Business 1985, under which the Governor had discretionary powers of appointing officers of his own House Staff, since notification appointing the said respondent had not been issued by the N.-W.F.P. Government, the Governor's order did not take effect and the respondent's services were rightly terminated by giving him notice to show cause why his services should not be terminated under his earlier contract on 15 days' notice.
3. It is not disputed that the Governor had discretionary powers to appoint the respondent as the Comptroller, Governor's House, under Item No.7 of Schedule IV of Rules of Business, 1985. The said order of the Governor is a formal order couched in formal language. The N: W.F.P. Government cannot defeat the said order by refraining from issuing the necessary notification to honour it. We would not like to act in aid of injustice either. The N.-W.F.P. Government should honour the Governor's order by issuing the notification, as directed by the Service Tribunal. There being no merit in this petition, the same is dismissed.