Ayub MTI Abbottabad etc Vs Atiq-ur-Rehman etc

Judsryent Sheet

PBsnawlR Hrcn CouRr" AnnorrABAD Bnxcn

JUDICIAI, DEPARTMENT

Writ Petition No.16-4/2023

Ayub MTI Abbottabad and another... (Petitioners) Versus Atiq-ur-Rehman and others... (Respondents) Present: Sardar Muhammad Irshad, Advocate for petitioners.

Mr.Auran gzeb Khan Mughal, Advocate for respondents.

Date of hearing: 24.05.2023.

JUDGME,NT

MUHAMMAD IJAZ KHAN. J.- Through the instant petition filed under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, petitioner has prayed as under:

"This Honourable Court may graciously be pleased to set aside judgment dated 28.07.2022 passed in MTI Appeal -ry No.129l2O2l alongwith all subsequent actions taken thereunder in CM No.17412022 in the interest of Justice. A.ry other relief which this Honourable Court deems fit in the circurnstances of the case may graciously be awarded."

(Jamil) (DB) Ilon'ble Mr.Justice Kamrqn Hayat Miankhel, IIon'ble Mr.Justice Muhammad llaz Khan.

2.Precisely, the facts of the case are that respondent No.1 namely Attiq-ur-Rehman was appointed and inducted in the petitioners' institution as O.T. attendant/Class-IV on 08.02.1995. Since there were two vacant posts of Junior Clerk in the petitioners' institution which are to be filled from the Class-IV employees, therefore, the petitioners' institution initiated the process of their promotion. It is further pleaded that for the promotion of Class-IV employees to the posts of Junior Clerk, a common seniority list is maintained by the petitioners' institution on the basis of date of acquiring of their SSC qualification. It is further pleaded that as per the policy, another seniority list of Class-IV employees is also maintained by the petitioners' institution on the basis of their date of initial appointment, however, for the purpose of promotion pl of a Class-IV employee to the post of Junior Clerk, a seniority list which is maintained on the basis of date of acquiring SSC qualification is relevant. It is further pleaded that the petitioners' institution on the (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

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basis of aforesaid seniority list has promoted respondents No.4 to 6 who were on the top of the seniority list, however, the respondent No.l felt aggrieved of the same and approached to this court througlr a writ petition No.1017-N2018, however, during pendency of aforesaid writ petition, an amendment was brought into MTI Act, 2015 and thereby MTI Tribunal was constituted, therefore, his writ petition was transmitted to the said tribunal as an appeal who after hearing both the parties directed the petitioners' institution to consider respondent No.1 for his promotion through the impugned order dated 28.07.2022 which order has now been challenged by the petitioners' institution before this court through the instant writ petition.

3.When this case was taken up for hearing respondents were put on notice and respondent No.1 has put his appearance through his counsel. Today el arguments of both the learned counsel for the parties heard in considerable detail and record perused with their able assistance.

(Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

4.At the very outset it was noted that the learned MTI Tribunal has passed the impugned order without touching the merits of the case as on the date fixed, the learned counsel representing the petitioners' institution has conceded to the effect that respondent No.1 (being appellant before the learned MTI Tribunal) is senior to respondents No.2 and 3 namely Wasim Sarwar and Kamal Khan then the respondents No.7 and 8, therefore, the appeal of respondent No.l was allowed and the petitioners' institution was directed to consider respondent No.1 for his promotion, however, the learned counsel representing the petitioners' institution states that the aforesaid concessional statement is correct to the extent of a seniority list which is prepared on the basis of date of appointment where respondent No.1 is senior than respondents No.2 and 3, however, he took us to another seniority list of Class-IV ,2 employees which is prepared on the basis of their date of acquiring qualification of SSC and which is relevant under rules for the purpose of promotion (Jamil) (DB) Ilon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan.

and as such it appears that the learned MTI Tribunal has not been properly assisted as the seniority list where respondent No.l is shown as senior to respondents No.2 and 3 are irrelevant for the purpose of promotion as the same is prepared on the basis of date of appointment and it was not brought into the notice of learned MTI Tribunal that in the seniority list which is prepared on the basis of date of acquiring SSC qualification, respondent No.1 is junior to the private respondents. It is relevant to mention here that respondent No.1 has acquired his SSC qualification in the year 1993, whereas respondents/promotees have acquired their SSC qualification in the years 1990, l99l and 1992, therefore, they are at the top of seniority list, whereas petitioner is at Serial No.6 of the seniority p/ list, therefore, we have observed that infact the impugned order of the worthy MTI Tribunal is the result of sub silentio and as such the same could not legally sustain.

(Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

5.The leamed counsel for the petitioner also took us to the result of typing test of all the Class-IV employees which was conducted by the petitioners' institution for the subject promotion where respondent No. t has remained unsuccessful as he has obtained just 3 out of 15 marks which is hardly 2OYo, whereas respondents/promotees have obtained l2ll5 and 12.5115 marks which are 80Yo and 83%o, respectively, therefore, respondent No.1 was not even eligible for consideration to be promoted from Class-IV to the post of Junior Clerk, as he was not having any typing experience.

6.During the course of arguments, learned counsel representing respondents made much emphasis that since petitioners' institution has made an admission before the Worthy Tribunal, therefore, they are estopped by their conduct to challenge the p/ same before this court, however, it may be clarified that any concession or wrong/incorrect statement given by a person against the law could not be accepted as a valid concession and the same could (jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankh el, Hon'ble Mr.Justice Muhammad Ijaz Khan.

not be taken as an estoppel. It may further be clarified that it is always the mandate of law which is to be prevailed and all the courts of law and Tribunal established under any law are bound to implement the law of land in its true letter and spirit and as such whenever an order is obtained on the basis of any concessional statement or on the basis of a statement which is against the law then such order could not be termed as an order in the eye of law and thus, the same will not create any right in favour of its beneficiary. In the case titled "Mukhtar Hussain and others vs Sohbat Ali and another" reported as 2011 SCMR 1926 the Apex Court has embroidered this principle that concession given against law could not be accepted as a valid concessl0n.

p/ 7. It is also relevant to mention that as per the relevant rules which were notified vide notification dated 06.12.2012, the criterion for the promotion of Class-IV employees to the post of Junior Clerk has been provided which is as under:

(Jamil) (DB) Hon'ble Alr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Mtthantmad Iiaz Khan.

4 Junior Clerk (i) Matriculation with 18 to (a) Thirty-three per cent by second division or 30 promotion, on the basis equivalent

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years of seniority-cum- qualification from fitness, from amongst a recognized Daftaris, Gestetner Board; and Operators, Qasids and (ii) a speed of 30 Naib Qasids including u,ords per minute holders of other in typing. equivalent posts in thc Secretariat with two years service as such, who have passed S.S.C Examination; and (b)sixty-seven per cent by initial recruitment.

Note: For the purpose of promotion, there shall be maintained a common seniority list of Daftaries, Gestetner Operators.

Qasids, Naib Qasids etc., with reference to the dates of their acquiring the Secondarv School Certificate.

Provided that-

(a)if two or more official have acquired the Secondary School certificate in the samc session, the inter se seniority in the lower post shall be maintained for the purpose of determining seniority in the highcr post;

(b)where a senior official does not possession the requisite qualification q at the time of filling up a vacancv. the official next junior to him possessing the requisitc qualification shall be promoted in preference to the senior official or I officials.

(Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khan.

The aforesaid relevant rules on the subject unmistakably shows that all Class-IV employees could avail 33oh quota by promotion, however, for the propose of promotion as a Junior Clerk, a seniority list is to be maintained on the basis of date of acquiring the Secondary School Certificate. It has further been clarified through a proviso to the said Rules that if two or more official have acquired the Secondary School Certificate in the same session, then they will retain the seniority of the lower post.

It has further been clarified through 2nd proviso that even if a senior official who does not possess the requisite qualification of SSC at the time of filling up a vacancy, he shall be bypassed by the next junior official if such junior official is having the qualification of S.S.C. The aforesaid Rules further stipulate that only those Class-IV employees could be promoted who are having Secondary School Certificate and is also having a speed of 30 words i/ per minute in typing and thus as per mandate of Rules when respondent No.l was junior to the private respondents as he has acquired his S.S.C (Jamil) (DB) Hon'ble ll{r.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

qualification in the year 1993,, whereas the private respondents have acquired their S.S.C qualification in the year 1990, l99l and 1992, therefore, the petitioners' institution rightly did not consider the promotion of respondent No.l and as such the competent authority rightly adhered to the rules on the subject.

8.It is now well settled that public functionaries are bound to obey and adhere to the law and the constitution and in case of failure, the incumbent of public office has to bear consequences thereof. In the case titled "Sami Ullah Khan Marwat v. Govt: of Pakistan through Secretarv Establishment & another" reported as 2003 SCMR 1140, the Apex Court has observed that the exercise of powers by the public functionaries in derogation to the direction of law would amount to &? disobey the command of law and the Constitution.

The concept of administration of justice is not confined only to the judicial system rather every person discharging the functions in relation to the (.lamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, IIon'ble Mr.Justice Muhammad Ijaz Khan.

rights of people is bound to act fairly, justly and in accordance with law and if a person holding a public office is found to have proceeded in violation of law or his acts and conduct amounted to misuse his official authority, he should be made answerable to law and should be proceeded against for an appropriate action by his superiors. So far as the present case is concerned, we found that the petitioners' institution had discharged their duty in a fair and honest manner by refusing the promotion to respondent No.1 which its conduct is worth apprecration.

9.It is also relevant to mention here that this court in constitutional jurisdiction can make judicial review of the order and judgment of the Special Courts/Tribunals, if their judgment is result of the improper exercise of jurisdiction or if the same found as against the clear mandate of law and as ,7 discussed hereinabove we found that the impugned order of the learned MTI Tribunal goes a long way in violation of the relevant rules on the subject, (Jamil) (DB) Hon'ble Mr.Justice Katnran Hq)at Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

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therefore, this court can interfere to correct the same In the case titled "Mst. Mahmooda Begum and another vs. Tai Din" reported as 1992 SCMR 809, the Apex Court has held that in normal circumstances, the High Court is not supposed to interfere with a finding of fact recorded by a tribunal of special jurisdiction in respect of matters exclusively within its competence, unless there has been a serious misreading or mis-appreciation of the evidence on the part of the said tribunal, or there has been failure on its part to take into consideration material facts or to apply the statutory law or any principle or rule of law as laid down by the superior Courts. Similarly, in the case tilted o'Amiad Khan vs. Muhammad Irshad (deceased) through LRs" reported as 2020 SCMR 2155, the Apex Courl has held that it is by now a settled principle of law that the High Courts must not exercise their Y constitutional jurisdiction in order to interfere with the discretion exercised by lower Courts unless the same suffers from jurisdictional, factual or legal (Jamil) fi)R) t{on'ble Mr.Justice Kantran Hayat Miankhel, Iton'ble Mr..lustice Muharnmad liaz Khan.

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errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these effors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter. In another case of "Mst.Mo Fatima vs. Muhammad @" reported AS PLD 2006

Supreme Court 214, the Apex Court has also held that the High Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusions are drawn by the Courts below which are not based on fr facts found because such an act would amount to an error of law which can always be corrected by the High Court.

(Jamil) (DB) Hon' ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khan.

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10.In view of above discussions when respondent No.1 did not qualiff the typing test as he was found below passing marks and when he was junior to the respondents/appointees as respondent No. t has acquired his SSC qualification in the year 1993,whereas respondents/appointees have acquired the said qualification in the years 1990, 1991 and lgg2, therefore, the impugned order of the worthy Tribunal passed in favour of respondent No.1 could not legally sustain and the concession, if dfrY, extended by the petitioners' institution would be of no help for respondent No.1.

11.Accordingly, this petition is allowed, the impugned order of the worthy MTI Tribunal dated 28.07.2022 is set aside and consequently all the subsequent orders passed on the basis of aforesaid order shall have no legal effect.

ANNOUNCED.

(Jamil)

JUDGE

(DB)Hon' ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Juslice Muhammad liaz Khan.