Syed SAGHIR AHMAD NAQVI vs PROVINCE OF SINDH through Chief Secretary, S&GAD, Karachi and another

SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine the question of law involved in these and certain other appeals as well i,e,, whether the ad hoc appointment of the appellant had not on the strength of the orders passed from time to time matured into a regular appointment so as to get excluded from the ambit of "Ad Hoe Appointment Regulation Order" promulgated on 2-5- 1978 by Martial Law Administrator Zone C known as Martial Law Order No,55 (hereinafter referred to as M.L.O. 55) under which action for reconsideration of his case ultimately resulting in his removal order from service had taken place.

2. After advertising the vacancies of Civil Judges ad hoc recruitment through a Selection Committee had taken place in April, 1971. The appellant was one such appointee. Thereafter, the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and the Sindh Public Service Commission (Function) Rules, 1974 had come into existence. The Chief Minister had, exercising his power under Rule 5 of the Sindh Public Service Commission (Function) Rules, excluded five posts of Civil Judges then held by ad hoc appointees and ordered that they should be filled without reference to the Sindh Public Service Commission (hereinafter referred to as the Commission) by appointment on regular basis by persons who were holding such appointments on ad hoc basis.

This was followed by a formal order of regular appointment of the appellant and others by the Governor of Sindh on 4-12-1974.

3. In this background of events and prior to the enforcement of M.L.O. 55 on 2nd of May, 1978 the appellant was called for interview by the Commission. He considered that this direction to appear for interview before the Commission had no cover of law and on 23rd of May, 1978 he filed a Constitution Petition (No, D-813 of 1978). The M.L.O. 55 had already come into force on 2-5-1978. His contention in that Constitution Petition was that the action having been initiated prior to the enforcement of M.L.O. 55 was a initio void and unsustainable notwithstanding the subsequent promulgation of M.L.O. 55, that he having been appointed in accordance with law then in force, on regular basis, could not be taken to be ad hoc and dealt with under M.L.O.

55. Additional grounds taken up were that M.L.O. 55 itself was ultra vires being beyond the powers of Martial Law Administrator Zone 'C' that the Commission was not properly constituted and had no authority to interview him because its Chairman was of advance age more than prescribed in the law. This Constitution petition was dismissed on 7-8-1979.

' A Petition for Leave to Appeal (No, 221-K of 1979) was instituted in the Supreme Court. It was dismissed on 7th of January, 1981. This Court observed while refusing leave to appeal as hereunder:- "As to the third contention that action was initiated in February, 1978 much prior to the promulgation of M.L.O. 55, the factual position is that while the Government had no doubt written to the Commission in February, 1978 to call the petitioners for interview, so far as the petitioners are concerned, the proceedings against them did not commence until 25-3-1978 when they were called upon to furnish their qualification documents to the Commission while the M.L.O. 55 was promulgated on 7-3-1978. Even otherwise the argument has merit limited to technicality only for the petitioners were ad hoc appointees under M.L.O. 55 and it was obligatory upon them when called upon to appear before the Commission to test their qualifications and competency but instead they rushed to the High Court and invoked the discretionary jurisdiction under Article 199 of the Constitution without even waiting for the result of their examination by the Commission."

' The appellant. Had also filed a review petition in the High Court on 11-8-1979 against the dismissal of the Constitution Petition (No,D-813of 1978) but same was declared to be infructuous, when leave to appeal was not granted to the appellant in petition arising out of the dismissal of this Clisoution petition by the Supreme Court.

4. On 10-8-1982 the appellant filed another Constitution Petition (No,D-670 of 1982) in the High Court. This time his challenge was to a requisition by the Commission dated 15-7-1982 calling him to appear for interview as required under M.L.O.

55. His case was the same as put in the earlier petition with the additional ground that the action could be taken under M.L.O. 55 till the 30th of June, 1980 as provided in paragraph 8 of M.L.O. 55 read with the extension order passed by the Martial Law Administrator. Action under M.L.O. 55 taken after 30-6-1980 was without lawful authority. This Petition was also dismissed by the High Court on 9-5-1984.

' The appellant thereafter, on the one hand filed a Civil Petition for Leave to Appeal No 258-K of 1984 against this order in which he obtained an interim order that he was not to be removed pending the petition and from this Civil Appeal No 108-K of 1989 has come before us; on the other hand, he instituted a Constitution Petition No,D-421 of 1986 on 4-5-1986 challenging a recommendation submitted by the Commission after interviewing the appellant not recommending his continued appointment and preventing the appropriate authority from passing any order on such a recommendation. This Constitution petition also failed in the High Court on 4-10-1987/9-9-1987, and a Civil Petition for Leave to Appeal No,511-K of 1987 was filed against it in which leave to appeal was granted and the second appeal (Civil Appeal No,109-K of 1989) is there to be dealt with.

5. The Provincial Government has not opposed these appeals.

6. As questions of law involved in these appeals are of Constitutional importance relating to the jurisdiction of the Courts. Constitutionally constituted, it is necessary for us to take a stock of the entire proceedings in order to determine their legality and effect. The question whether M.L.O. 55 applied to the case of the appellant or not and whether the recommendations of the Commission and the call for interview could be brought for adjudication in this Court stood determined with the dismissal of Civil Petition for Leave to Appeal No 221-K of 1979 by this Court. Additionally, M.L.O. 55 itself defines "ad hoc appointment" and that definition is different from that contained in the Civil Servants Act and for that reason the definition contained in M.L.O. 55 will prevail and the p.,4 held by the appellant having been excluded from the purview of the Commission by the Chief Minister will directly come within the definition of ad hoc appointment as provided in paragraph 2(a)(iii) of M.L.O.

55.

7. What every one seems to have omitted from consideration is the fact that while these Constitution petitions were being dealt with; on 1-9-1982 the Martial Law Administrator had passed a final order directing the removal of the appellant. This final order relating to the terms and conditions of service of the appellant was appealable in a forum having exclusive jurisdiction in the matter under Article 212(3) of the Constitution i,e, before the Sindh Service Tribunal. The High Court was left with no jurisdiction in the matter being aware that on 1-9-1982 the final order in the case had been passed. On this ground alone the Constitution petitions were not competent on the date that these were decided the High Court having no jurisdiction in the matter.

8. The learned counsel for the appellants contended that as the Service Tribunal had exclusive jurisdiction only against final orders passed by the competent Authority, the orders which were not final could be challenged by resort to Constitutional jurisdiction. In support of this proposition the learned counsel has referred to the decision of the Lahore High Court in Muhammad Azhar v.

General Manager (Operation), Power, WAPDA PLD 1990 Lah.

352. He has also contended that final orders passed Coram non juice as was claimed in this case, were equally open to challenge in Constitutional jurisdiction. For this he has placed reliance on Abdul Kabir Qureshi and 3 others v. The Accountant-General, Azad Jammu and Kashmir, Muzaffarabad and 2. Others PLD 1986 Azad J&K 239. His additional contentions were that actions taken without lawful authority or jurisdiction are not protected by Article 270-A of the Constitution as held in Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 at pp. 43, 46 and 53 Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah. 49 and Muhammad Bacall Memon v. Government of Sindh through Secretary, Department of Food and 2 others PLD 1987 Kar.

296. To contend that actions by Military Authorities which are found to be without, jurisdiction can be challenged by resort to Constitutional jurisdiction he bag relied on the Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khati and others'PLD 1974 SC 151 and The State v.. Zia-ur-Rahman and other PLD 1973 SC 49.

9. The contention of the learned counsel for the appellant that where appeal lies only against the final order a Constitution petition challenging the Interim orders can yet be maintained is erroneous. In the Lahore case PLD 1990 Lah. 352 relied upon by the learned counsel for the appellant itself where a final order was passed pending proceedings in the Constitutional jurisdiction it was held that jurisdiction stood barred final order having come in the field.

' There are so many laws on the statute books of the country which provide for an appeal only against the final order. In the Punjab Urban Rent Restriction Ordinance, 1959 proviso to section 15 reads "provided further that no appeal shall lie from an interlocutory order passed by the Controller. In the Cantonments Rent Restriction Act, 1963, section 23 provides "any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court". In Sindh Rented Premises Ordinance, ]979, section 21 provides "any party aggrieved by an order, not being an interim &der, made by the 'Controller may, within thirty days of such order prefer an appeal to the High Court. In the Banking Companies (Recovery of Loans) Ordinance, 1.979, proviso to section 12 reads: "Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court". A notification under the West Pakistan Warf Properties Ordinance, 1961 could be challenged only by means of & petition under section 7 in the District Court and an appeal lay against the decision to the High Court. Both the Courts were placed under duty not to issue a temporary injunction or order restraining the Chief Administrator from taking over of assuming the administratio4, control, management and maintenance of property in respect of which a notification had been issued under section 6. While the suit or an appeal, as the case may be, was pending, such prohibitions, limitations and regulatory provisions with respect to appeal and grant of relief against the interlocutory orders were considered vis-a-vis the maintainability of the Writ Petition in the case Mumtaz Hussain alias Butta v. Chief Administrator of Aqua, Punjab, Lahore and another 1976 SCMR

450. On examining the statute, the Supreme Court held as hereunder:-- "As the said Ordinance has taken away the right of petitioner to interim relief, learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings on the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law."

The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The F party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders.

10. In the Paper Books that have been produced before us the or of the Martial Law Administrator, Zone 'C' passed on 1-9-1982 does n However, a reference to the record of the High Court as well as to chiding definitely show the existence of such an order on the summary submitted by the Chief Secretary. In the presence of such a final order with regard to the terms and conditions of service of the appellant and the Constitutional bar contained in & Article 212 of the Constitution it is clear that the Constitution petition was not competent at all.

11. We are not examining the merits of the orders passed because we are holding that the High Court had no jurisdiction in the matter at all and the dismissal of the petition filed was well justified but for reasons different from those recorded by the High Court. The merit of the claim both on the legal as well as on the factual grounds can be taken care of and dealt with by the Tribunal having jurisdiction in the matter. Even Constitutional issues can be H taken before the Service Tribunal and dealt with in exercise of its exclusive jurisdiction as has been held by this Court in I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041.

12. Both the appeals are found without merit and are dismissed. No order is made as to costs.