Mohibullah Khan Vs Govt.

JUDGMENT SHEET

PESHAWAR HIGH COURT,PESHAWAR

JUDICIAL DEPARTMENT)

Writ Petition No.1062-P of 2014.

Muhibullah Khan.Petitioner..

Versus.

Government of KPK etc..Respondents.

J U D G M E N T.

Date of hearing _________________________________ Appellant/Petitioner______________________________ Respondent_____________________________________ WAQAR AHMAD SETH,J:- The petitioner through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 has approached this Court with the following relief:- “It is, therefore, most humbly prayed that on acceptance of instant Writ Petition, the impugned office orders dated 28.11.2013 and 12.03.2014 of respondents may please be declared as illegal, unlawful, without lawful authority,

void ab-initio and of no legal effect, hence be set aside and petitioner be re-instated in service with all back benefits, so as to secure the ends of justice.

Any other relief, not specifically prayed for and deemed appropriate by this Honourable Court in circumstances of the case may also be granted to the petitioner”.

2- As per averments made in the writ petition, the petitioner was appointed as Housing Assistant (BPS-11) on 10/11/2006 in Bannu Development Authority and was promoted from time to time on the strength of his excellent performance and lastly posted as Superintendent BPS-16 in Peshawar Development Authority vide Notification dated 16/05/2013; that the petitioner while posted as Housing Officers in Bannu Development Authority was also authorised to look after the work of Project Director BDA in addition to his own duty; that PC-1 was prepared by the competent authority for supply of Gas Pipes in Bannu Development Authority Phase-1 & 2 and to this effect scrutiny Committee for tendering procedure and checking of tender documents was constituted vide office order

dated 05/10/2011. After observing all the legal formalities, the petitioner in pursuance of approval of the competent authority issued work order to the successful contractors; that vide letter dated 26/03/2012 the petitioner was directed by respondent No.2 on the direction of NAB authorities to suspend the tenders and all subsequent activities of the said scheme till further order and in response of the said latter the petitioner vide letter dated 26/03/2012 submitted that the Director NAB(KP) has time and again requested him to award the contract of the scheme to his brother who was neither authorised government Contractor of SNGPL nor participated in the tender proceedings. However, after successful completion of the said scheme work by the petitioner, he was transferred to Peshawar Development Authority vide office order dated 16/05/2013 where he received letter dated 13/09/2013 from NAB authorities KPK whereby allegations of misuse of authority, in award of contract of Gas Pipelines have been levelled against him and also offered plea bargain which was refused by him. In pursuance to the above letter dated 13/09/2013 respondent No.2 issued show cause notice to the

petitioner vide letter dated 25/10/2013 wherein allegations of misconduct, inefficiency and corruption have been levelled against the petitioner and two others which was replied and after conducting inquiry, the Inquiry Committee imposed major penalty of removal from service upon the petitioner vide order dated 28/11/2013 against which the petitioner filed departmental appeal/representation but decision on which was kept abeyance, resultantly the petitioner filed Writ Petition No.74-P/2014 which was disposed of with the direction to the competent authority to dispose of the said appeal within one month positively.

Consequently the respondent No.3 dismissed the departmental appeal of the petitioner vide order dated 12/03/2014, thus having no other efficacious and alternate remedy available to the petitioner, he has knocked the door of this Court through the instant petition.

3- We have heard the learned counsel for the parties and have also gone through the record of the case with their valuable assistance.

4- At the very out set it is pertinent to mention here that show cause notice was issued to the petitioner

under the Khyber Pakhtunkhwa Government Servants (Efficiency & Discipline) Rules, 2011, he was proceeded against under the aforementioned Rules and ultimately removed from service vide office order dated 28/11/2013 and there after his departmental appeal was also dismissed through office order dated 12/03/2014.

Since the whole proceedings were conducted under the above referred Rules, therefore, the petitioner has to file an appeal to the Khyber Pakhtunkhwa Service Tribunal under sub-rule (1) of rule 19 of Khyber Pakhtunkhwa Government Servants (Efficiency & Disciplinary) Rules, 2011 which reads as follow:-

“19. Appeal before Khyber Pakhtunkhwa Service Tribunal----(1) Notwithstanding anything contained in any law or rules for the time being in force, any Government servant aggrieved by any final order passed under rule 17 may, within thirty days from the date of communication of the order, prefer an appeal to the Khyber Pakhtunkhwa Province Service Tribunal established under the Khyber Pakhtunkhwa Province Service Tribunal Act, 1974(Khyber Pakhtunkhwa Act No.1 of 1974)”(

5- The plea of the petitioner that he is not Civil Servant and as such Services Tribunal Act, 1974, is not applicable, is not correct due to the fact that Khyber Pakhtunkhwa E&D Rule, 2001, are applicable to “Government Servants” and not only to “Civil Servants”, thus, the inbuilt provision of legal forum would be applicable.

6- Thus in the light of the above, the jurisdiction of the High Court is barred in such matters by the express provisions of Article 212(2) of the Constitution of Islamic Republic of Pakistan 1973. The constitutional jurisdiction under Article 199 of the Constitution can only be pressed into service, when there is no alternate remedy, available to the aggrieved party.

7- Consequently, the instant writ petition is dismissed being not maintainable. However, the petitioner may approach the proper forum, if so advise.

ANNOUNCED.

29th January 2015

JUDGE

JUDGE