GOVERNMENT OF SINDH vs ABDUL SATTAR SHEIKH and others
This matter originated as a petition for leave to appeal against a judgment of the High Court of Sindh, which had allowed a constitutional petition filed by the respondents. The core legal questions concerned whether the High Court possessed jurisdiction to adjudicate the matter given the bar under the Service Tribunals Act, 1973, and whether the government could unilaterally withdraw a promotion order that had already taken effect without providing notice or a hearing to the affected civil servants. The Supreme Court upheld the High Court's decision, dismissing the petition. The Court affirmed that the High Court correctly exercised jurisdiction because the matter did not pertain to a term or condition of service appealable before the Service Tribunal. On the merits, the Court held that the government's subsequent notification, which retroactively altered the respondents' promotion dates without assigning reasons or providing an opportunity for a hearing, was legally unsustainable. The key principle laid down is that the doctrine of locus poenitentiae prevents the arbitrary withdrawal of a benefit or privilege already enjoyed by an employee, particularly when such withdrawal is effected without notice or due process.
- Does the High Court have jurisdiction to hear a petition regarding the withdrawal of a promotion order if the matter does not pertain to a term or condition of service appealable before a Service Tribunal?
- Can the government unilaterally withdraw a notification granting promotion to civil servants without providing notice or an opportunity to be heard?
- Does the doctrine of locus poenitentiae apply to the withdrawal of promotion benefits already enjoyed by civil servants?
- Article 185(3), Constitution of Islamic Republic of Pakistan, 1973
- Section 2-A, Service Tribunals Act, 1973
ORDER
' NAZIM HUSSAIN SIDDIQUI, .1.---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/AQ(ADMN)/4(1239 )/1994 Karachi dated the 26th April, 1994.
ORDER
' In partial modification of this office order No,SLGH/SCUG/A0.11/4 (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( A DMN .)/4(1239)/1994 Karachi dated the 2nd June, 1994.
ORDER
' In partial modification of this office order No,SLGB/A0(Admn) (1239)/1994/1924, dated 26-4-1994, regarding promotion of the following Officer, 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 Melimood Hussain Syed ' Their promotion to 13S-19 is allowed to stand w,e,f, 30=5-1991 i,e, the date of issue of the order.
' SECRETARY TO GOVERNMENT ON 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 penitential, 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 A.-G. 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.
Cited by 2 cases
- MUHAMMAD AFZAL MUNAWAR etc. vs SECRETARY FINANCE GOVERNMENT OF PUNJAB, etc 2006 PLJ Lahore 1464
- MUHAMMAD AFZAL MUNAWAR and others vs SECRETARY FINANCE, GOVERNMENT OF PUNJAB and others 2007 PLC (C.S.) 192