GOVERNMENT OF SINDH vs ABDUL SATTAR SHEIKH and others
The petitioners challenged the judgment of the High Court of Sindh, which had allowed the respondents' constitutional petition against a notification withdrawing their retrospective promotion. The core legal questions involved whether the High Court had jurisdiction in the matter in light of Section 2-A of the Service Tribunals Act, 1973, and whether the withdrawal of retrospective promotion without notice or opportunity of hearing violated the principle of locus poenitentiae. The Supreme Court of Pakistan held that the High Court rightly assumed jurisdiction as the matter did not pertain to terms and conditions appealable before the Service Tribunal, and that the subsequent notification withdrawing the earlier promotion without assigning reasons or providing a hearing was legally unsustainable. The Supreme Court refused leave to appeal and dismissed the petition, affirming the principle that benefits once acted upon and enjoyed cannot be arbitrarily withdrawn without lawful cause and due process.
- Does the High Court have jurisdiction under Article 199 to challenge a notification that does not pertain to the terms and conditions of service appealable before a Service Tribunal?
- Can a government notification granting retrospective promotion and benefits be unilaterally withdrawn without issuing a show-cause notice or affording an opportunity of being heard?
- Does the principle of locus poenitentiae bar the arbitrary withdrawal of facilities and privileges once a promotion order has taken effect and been acted upon?
- Article 185(3), Constitution of Islamic Republic of Pakistan, 1973
- Section 2-A, Service Tribunals Act, 1973
ORDER
' NAZIM HUSSAIN SIDDIQUI, J.-The petitioners, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, have impugned the judgment dated 6-5-1999 of a learned Division Bench, High Court of Sindh, whereby the Constitutional petition of the respondents was allowed.
2. The petitioners on 26th April, 1994 and on 2nd June, 1994 had issued following two notifications:-- "GOVERNMENT OF SINDH"
LOCAL GOVERNMENT, PUBLIC HEALTH ENGINEERING RURAL DEVELOPMENT AND KATCHI ABADIES DEPARTMENT SINDH LOCAL GOVERNMENT BOARD No, SLGH/SCUG/AO(ADMN.)/4(1239)/1994 Karachi dated the 26th April, 1994
ORDER
' In partial modification of this office order No,SLGH/SCUG/AO.II/4 (1076)/91/1718, dated 30-5-1991, the promotion of following officers of Sindh Councils Unified Grades Service (Admn. Branch) from BS-18 to BS-19 is hereby made effect from "29-1.1989" instead of 30-5-1991: --
1. Mr. Abdul Sattar Sheikh
2. Mr. Abdul Hakeem Sheikh
3. Mr. Habibullah Memon
4. Mr. Shah Mehmood Hussain Syed SECRETARY TO GOVERNMENT OF SINDH GOVERNMENT OF SINDH LOCAL. GOVERNMENT, PUBLIC HEALTH ENGINEERING RURAL DEVELOPMENT AND KATCHI ABADIES DEPARTMENT SINDH LOCAL GOVERNMENT BOARD No, SLGB/SCUG/AO(ADMN. )/4(1239)/1994 Karachi dated the 2nd June, 1994.
ORDER
' In partial modification of this office order No, SLGB/AO(Admn) (1239)/1994/1924, dated 26-4-1994, regarding promotion of the following officers, from BS-18 to BS-19 of Sindh Councils Unified Grades Service (Admn. Branch) w.e.f, 29-1-1989 instead of 30-5-1991 is hereby cancelled and withdrawn with immediate effect:--
5. Mr. Abdul Sattar Sheikh
6. Mr. Abdul Hakeem Sheikh
7. Mr. Habibullah Memon
8. Mr. Shah Mehmood Hussain Syed ' Their promotion to BS-19 is allowed to stand w.e.f, 30-5-1991 Le. The date of issue of the order.
SECRETARY TO GOVERNMENT OF SINDH"
3. Before the High Court the pleas Were raised by learned Additional A.-G. That it had no jurisdiction in view of section 2-A of the Service Tribunals Act, 1973, that the respondents having the status of civil servants were governed by service laws and they could challenge the notification before the Service Tribunal and not before the High Court. As against above, it was submitted by the respondents that, the matter did not pertain to any term and condition of service, as such, no appeal could be preferred before the Tribunal under the service laws. The High Court held that since no appeal could be preferred against the impugned notification before the Tribunal, as such, it had jurisdiction in the matter.
4. On merits, the High Court observed that by virtue of impugned notification the promotion of the respondents was ordered to take effect after a period of more than 2 years while they had already enjoyed the facilities, emanating from the notification dated 26-4-1994 and, on the principle of locus poenitentiae, those facilities/privileges could not be withdrawn. Also, it was observed by the High Court that before issuance of notification dated 2-6-1994 neither any notice was given to the respondents nor an opportunity of being heard was afforded to them.
5. We have heard learned counsel for the petitioners and respondents Nos.1 and 3, who appeared in person.
6. We have drawn the attention- of learned Additional Advocate-General towards the notification dated 2nd June, 1994 and asked him on which ground the notification dated 26th April, 1994 was withdrawn/cancelled. He conceded that no reason has been shown in the notification dated 2nd June, 1994. He argued that the mistake was rectified when it was detected. He, however, was not able to point out said mistake. The respondents stated that issue of seniority was not at all involved in this matter nor the seniority of any employee was disturbed. This assertion of the respondents was not disputed by learned counsel for the petitioners.
7. Under the circumstances; leave to appeal is refused and the petition is dismissed.
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