FAZAL ELLAHI SIDDIQUI vs PAKISTAN
This review petition was filed by the petitioner seeking to challenge a Supreme Court judgment that had dismissed his appeal against a Federal Service Tribunal decision. The petitioner argued that the previous judgment was based on a factual error regarding whether the President of Pakistan had approved his compulsory retirement. He contended that the Court failed to consider specific documents on record that allegedly supported his claim. The Supreme Court, however, determined that examining these documents was unnecessary because the Service Tribunal had dismissed the petitioner's original appeal primarily on the grounds of limitation, as it was filed over 1.5 years late. The Court held that the question of whether the Establishment Secretary acted without Presidential approval was a factual matter requiring proof to rebut the legal presumption of regularity in official acts. Since the delay in filing the service appeal was not condoned, the stage for examining the underlying factual controversy regarding the retirement order never arose. Consequently, the Court found no valid grounds for review and dismissed the petition.
- Can a review petition succeed if the underlying appeal was dismissed on the grounds of limitation?
- Is a mere assertion sufficient to rebut the legal presumption of regularity regarding official acts?
- Does the failure to consider specific documents justify a review if the case was decided on a preliminary point like limitation?
ORDER
' AJMAL MIAN, J.---The petitioner by this petition seeks review of the judgment dated 10-4-1990 whereby Civil Appeal No, 17 of 1983 filed by the petitioner against the Federal Service Tribunal's judgment dated 28-3-1983 was dismissed. The review has been sought firstly on the ground that the judgment has proceeded on wrong assumption of fact to the effect that factually the President of Pakistan accorded his approval to the order of the petitioner's retirement.
2. In support of the above submission, the petitioner who is a practising Advocate of this Court, argued the case with great vehemence and invited our attention to the factum that this Court failed to take into consideration the following documents which were on record.--
(i) Mr. Vaqar Ahmad's comments to the memo. Of service appeal dated 8-10-1978 addressed to the Registrar, Service Tribunal; ' the concise statement dated January, i984 filed on behalf of Mr. Waqar Ahmad before this Court; and ' the petitioner's application dated 5-6-1979 for summoning the order of retirement.
3. In our view, it was not necessary to examine the above documents as the Service Tribunal had dismissed the petitioner's appeal on the ground of limitation, as admittedly it was filed after more than 1-1/2 years, which order was maintained by this Court through the judgment of which review is sought. It will suffice to reproduce the following portion of the judgment under review: "It is an admitted position that no competent forum has recorded as a finding of fact that the impugned order of the compulsory retirement was void. The question, whether Mr. Waqar Ahmad, the Establishment Secretary, had issued the requisite notification without obtainging approval of the President, is a question of fact, which was to be proved in order to rebut the legal presumption that all official acts are regular. Reference may be made to the case of The Province of East Pakistan and others v. Muhammad Abdul Miah (PLD 1959 SC (Pak.) 276) wherein this Court has made the following observations: ' In our view, mere assertion on the part of the appellant that the requisite approval of the President was not obtained is not sufficient to dislodge the above legal presumption of regularity. It is an admitted position that the notification dated 30-10-1976 was issued by the Establishment Secretary in which it was stated that the President had ordered the compulsory retirement of the appellant"
The stage for examining the above plea and the documentary evidence in support thereof would have arisen if the Service Tribunal would have condoned the delay in filing of the service appeal.
4. Then it was contended that there is a distinction between a void order and an order which is void ab initio and that this distinction has been overlooked by this Court in the judgment under review.
5. The above contention is linked with the above first contention. Since we had not examined the above factual controversy, namely, whether the President had accorded approval to the petitioner's retirement order for the reason stated hereinabove, the above second contention needs no further examination.
6. We are inclined to hold that no ground has been made out for review of the judgment. The review petition is, therefore, dismissed.