Muhammad Arif Ameen etc Vs Province of Punjab etc

Stereo. HCJDA.38.

Judgment Sheet.

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT.

Case No. ICA No.33280/2020 Muhammad Arif Ameen etc

Versus The Province of Punjab etc

JUDGMENT

Date of hearing 04.3.2021.

Appellants/Petitioners Ch. Muhammad Sarwar, Mehar Alam by Sher, Ch. Abdul Ghaffar, Mr. Saif-ur- Rehman Jasra, Mr. Waqar Ahmed Malik, Mr. Bilal Ijaz Ch., Mr. Rashid Khan, Mr. Zulfiqar Ali Phularwan, Rana Manzar Bashir, Mr. Naveed Khalid, Mr. M. Gulzar Khan, Malik M. Akbar Awan, Hafiz Allah Yar Sipra, Ch. Tariq Javed, Ch. M. Basharat, Mr. M. Faisal Rana, Hafiz M. Gulfam, Mr. Usman Ali, Mr. M. Arshad Gondal, M. M. Nawaz, Mr. Allah Rakha, Syed Ali Abid Tahir, Malik Asif Javed and Mr. Tasawar Hussain Virk, Advocates. Respondents by Mr. Asif Afzal Bhatti, Additional Advocate General, Punjab, Mr. Junaid Razzaq, Assistant Advocate General, Punjab alongwith Mr. M. Saleem, AIG Legal, Ejaz Hameed, DSP, M. Azeem, DSP and M. Shahbaz Inspector Legal, Punjab Police.

Abid Aziz Sheikh, J.- This judgment will also decide Intra Court Appeals (ICAs) (detail of which is

given in Appendix-A) and writ petitions (mentioned in Appendix-B), as common questions of law and facts are raised in all these matters.

2.Relevant facts are that appellants in all these appeals and petitioners in all connected writ petitions are ex-Army Personal who after their retirement were recruited by the Punjab Police on contracts in year 2009- 2010. The said service contracts of the appellants and petitioners were renewed from time to time. In meanwhile, the appellants and petitioners filed various constitutional petitions seeking regularization of their service. On direction in those petitions, the matter of their regularization was considered by the Scrutiny Committee constituted under “The Punjab Regularization of Service Act, 2018” (Act). However, it was held that appellants and petitioners failed to qualify the eligibility criteria for regularization, hence not only their services were not regularized but they were also served with one month notice after which, their contract services will deemed to be terminated. The appellants being aggrieved filed constitutional petitions. Some of those petitions were

dismissed through impugned consolidated judgment dated 14.7.2020, whereas remaining writ petitions were also dismissed subsequently but again in the light of aforesaid impugned consolidated judgment dated 14.7.2020, hence these ICAs. However, the writ petitions (detail of which is given in Appendix-B) were filed during pendency of these ICAs, and therefore transmitted to this Division Bench, to be heard alongwith aforesaid ICAs.

3.Learned counsel for the respondents at the very outset raised preliminary objection to the maintainability of these appeals as well as constitutional petitions. He submits that orders/notices for declining regularization and termination of service contracts were passed under the provision of the Act and against said orders/notices, right of appeal and review being available under section 12 of the Act, these ICAs are not maintainable. He further submits that even writ petitions are not maintainable being adequate alternative remedy of appeal or review available under section 12 of the Act. He further submits that though the learned Single Bench of

this Court entertained the constitutional petitions, because Appellate Committee was not functional at relevant time. However, submits that according to his instruction, some of the appeals in similar matters have been decided recently by Appellate Committee.

4.Learned counsel for the appellants and writ petitioners in response to the above preliminary objections of maintainability, submits that appellants and petitioners cases for regularization were covered and considered under the Regularization Policy dated 01.3.2013 and not under the provision of the Act, therefore, right of appeal and review is not available to them. Further submit that in any case, the Appellate Committee being not functional, the right of appeal under the Act was never availed by the appellants, hence these appeals and constitutional petitions are maintainable.

5.Heard. Before touching merits of the case, we would like to decide the above threshold question of maintainability of these appeals and constitutional petitions at the first instance. The plain reading of provisions of the Act shows that for the purpose of

regularization of a contract employees, under section 5 of the Act, the Appointing Authority shall constitute one or more “Scrutiny Committees” to scrutinize the record and other relevant documents of the contract employees and then to verify that whether contract employees are eligible and qualified for regularization of their services.

The Scrutiny Committee thereafter shall forward its recommendations to the Appointing Authority who under Section 6 of the Act shall regularize the services, if recommended by the Scrutiny Committee. However, under section 7 of the Act, those contract employees who are not recommended for regularization by the Scrutiny Committee shall be terminated forthwith. Under Section 12 of the Act, against such termination orders, the right of appeal is available to the Appellate Committee constituted by the Chief Minister by notification in the official gazette or review to the Chief Minister if final order was passed by the Chief Minister.

6.Perusal of termination of service contract notices, which were impugned in constitutional petitions (dismissed by learned Single Bench) and writ petitions

pending here, depict that the departmental Scrutiny Committee scrutinized the relevant record and documents of the appellants and petitioners and thereafter came to conclusion that they do not fulfil the required criteria for regularization of their services. On the said recommendations of the Scrutiny Committee, the competent Authority terminated the services of the appellants and petitioners. The said orders on face of them, being passed under the provisions of the Act, are appealable under section 12 of the Act before the Appellate Committee. The arguments of learned counsel for the appellants and the petitioners that there cases were not covered under the provision of the Act is misconceived and contrary to their own stance taken in the appeals as well as constitutional petitions. Bare reading of the contents of appeals and writ petitions shows that appellants and petitioners are consistently claiming that their cases are covered under the provision of the Act for regularization of their services. Learned Single Bench in para 3 of the impugned judgment dated 14.7.2020, also specifically recorded that appellants have remedy of appeal/review against the notices impugned in

the writ petitions, however, the writ petitions were entertained as Appellate Committee was not constituted under section 12 of the Act at the relevant time.

Therefore, it cannot be said that right of appeal under section 12 of the Act is not applicable to the appellants or not available to the petitioners against the termination of service notices. Learned Law Officer on instructions also apprised this Court that some of the similar appeals have already been decided by Appellate Committee, which means that Appellate Committee has not only been constituted under section 12 of the Act but same is also functional now.

7.With the above legal and factual back ground, we now determine the maintainability of these appeals and constitutional petitions. Regarding ICAs, under the proviso to subsection 2 of section 3 of the Law Reforms Ordinance, 1972 (Ordinance), the ICA shall not maintainable if the constitutional petition brought before the High Court arises out of any proceeding, in which, the law applicable provide for at-least one appeal or one revision or one review to any court, tribunal or authority

against the original order. The notices for termination of services which were impugned in the constitutional petitions decided by learned Single Bench, indeed arose out of the proceeding under the provision of the Act, against which, remedy of appeal being available under section 12 of the Act, these ICAs are not maintainable in view of aforesaid provision of the Ordinance.

8.No doubt, the Appellate Committee being not functional at the relevant time, the right of appeal under the Act was not availed by the appellants. However, it is settled law that if right of appeal available under statute was not availed even then, the bar contained in proviso to section 3(2) of the Ordinance shall be applicable and ICA will not be maintainable. The honourable Supreme Court in Mst. Karim Bibi etc vs. Hussain Bakhsh etc (PLD 1984 SC 344) held “that the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not”. The law settled above

by apex Court was also followed in Ch. Nazir Ahmad vs.

Moulvi Masood ur Rehman Khan etc (PLD 2008 Lahore 405), Secretary Education (Schools), Government of Punjab etc vs. Tariq Mehmood (2005 PLC (C.S) 851) and National Electric Power Regulatory Authority, Islamabad vs. Gujranwala Energy (Pvt.) Ltd (2020 CLC

9.So far as the question of maintainability of constitutional petitions (mentioned in Appendix-B) are concerned, indeed impugned termination orders/notices under section 7 of the Act are appealable under section 12 of the Act. It is settled law that where a statute under which the impugned order is passed, itself provides the remedy of appeal, this Court should be loathed to bye- pass special statute and embark upon judicial review. In this context, reliance is placed on Willam Lawrence vs.

Govt. of Pakistan etc (1986 PSC 383), Govt. of Pakistan through Secretary, Ministry of Interior v. Muhammad Yasin etc (PLD 1997 SC 401), Al Ahram Builders (Pvt.)

Ltd vs. Income Tax Appellate Tribunal (1993 SC 539), Raja Muhammad Ramzan etc vs. Union Council etc

(1994 SCMR 1484), Wealth Tax Officer etc vs. Shaukat Afzal etc (`1993 SCMR 1810) and Syed Qamar Ahmad etc vs. Anjum Zafar etc (1994 PSC 206). In case C.P.S.L.A No.832-L of 1995 titled as Muhammad Jameel Sohail etc vs. The Income Tax Officer/Tax Recovery Officer, Lahore, the Apex Court held that there is difference between lack of jurisdiction and wrong exercise of jurisdiction and in case of wrong exercise of jurisdiction, the constitutional petition cannot be filed in presence of alternative statutory remedy. Similarly, in case Wealth Tax Officer etc vs. Shaukat Afzal etc (1993 SCMR 1810), the august Supreme Court held that tendency to bye-pass remedy provided under the relevant statute to press into service constitutional jurisdiction of the High Court had developed lately, which is to be discouraged.

10.Though learned Law Officer on instructions submitted that the Appellate Committee has already decided some appeals and therefore, apparently same has been duly constituted. However, in case, said Appellate Committee is not functional, the respondent Authorities

are bound under the provisions of the Act to constitute and make functional the Appellate Committee. It is relevant to note that under section 12 of the Act, the appeal is available to the Appellate Committee constituted by the Chief Minister by notification in the official gazette. It is settled law that when a power vest in State functionary empowering him to do something, then concerned functionary is obliged to exercise the said power fairly and in the manner provided under the relevant statute. The right of appeal is not merely a matter of procedure but a substantive right. The appellate forums have ample powers to scrutinize the documents on record and exercise the same jurisdiction as vested in the original authority. Further Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), mandates that State shall ensure provision of inexpensive and expeditious justice to the people. The denial of right of appeal by not appointing the appellate forum under section 12 of the Act (if same is not constituted), is not only denial of substantive right but will also be against the dictates of Article 37(d) of the Constitution.

11.In view of above discussion, the preliminary objections of maintainability of these appeals and writ petitions raised by learned counsel for the respondents are sustained. Consequently, all these ICAs (mentioned in Appendix-A) and writ petitions (mentioned in Appendix-B) are dismissed being not maintainable.

However, it is directed that in case, Appellate Committee under section 12 of the Act is not functional, the concerned Competent Authority shall ensure to constitute and make the said Appellate Committee, functional without fail within a period of 30 days from the date of receipt of certified copy of this judgment.

(SHAHID KARIM) (ABID AZIZ SHEIKH)

JUDGE. JUDGE.

Approved for reporting.

JUDGE

Rizwan

Appendix A

Sr. No. ICAs No.

Appendix B

Sr. No. Writ Petitions No.

SHAHID KARIM ABID AZIZ SHEIKH

JUDGE JUDGE