2003 PLP (C (PLC(CS))

3. Barkat Ali v: Muhammad Ehsan (2000 PLC (C.S.) 123). He further urges that even if the inquiry is pending against the petitioner his promotion cannot be withheld in view of the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:--

1. N.A. Qureshi v. Government of Punjab (PL D 1982 Lahore 242)

2. Tahir Latif Sheikh v. Federation (2000 PLC (C.S.) 582) He further submits that respondents promoted Qalb-e-Abbas and Saif-ur- Rehman whose cases are exactly similar to the case of the petitioner. Therefore, action of the respondents is hit by Article 25 of the Constitution.

3. Learned Addl. A.G. submits that this Court has no jurisdiction to entertain the writ petition in view of the bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunal Act. He further urges that the petitioner is estopped to file this writ petition on the well known principle of aprobate and reprobate as the petitioner had filed Service Appeal No.696 of 2002 before the Punjab Service Tribunal. The learned Tribunal dismissed the appeal of the petitioner on merits as is evident from para. 4 of the judgment of the Service. Tribunal dated 17-5-2002 which is attached as Annexure-G with the writ petition. He further submits that the observation of the Service Tribunal that Service Tribunal has no jurisdiction to interfere in determination of such fitness must be read with earlier part of para.4 therefore, petitioner has alternative remedy to file a petition before the Honourable Supreme Court.

4. Learned counsel of the petitioner in rebuttal submits that he accepted the judgment of the Service Tribunal that Service Tribunal has no jurisdiction to take congnizance by virtue of section 4(1)(b). He further submits that finding of the Service Tribunal in para.4 has no relevancy and learned Service Tribunal erred in law to give finding on merits after holding that Service Tribunal has no jurisdiction to interfere in determination of fitness.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

6. It is admitted fact that petitioner filed an appeal before the Service Tribunal against the impugned order dated 4-3-2002. The Service Tribunal had given finding against the petitioner in para-4 and also held that Service Tribunal has no jurisdiction to interfere in determination of such fitness. The question for determination before me is qua the finding of Service Tribunal in para-4 vis-a-vis lack of jurisdiction held by the respondents qua the maintainability of the appeal before the Service Tribunal. The learned Service Tribunal was justified to hold that Tribunal has no jurisdiction which is in consonance with section 4(1)(b) which is reproduced hereunder:-- "No appeal would lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a pers6n to be appointed to or hold a particular post or to be promoted to a higher grade." It is pertinent to mention here that finding qua the maintainability of is in accordance with the dictum laid down by the superior Courts Muhammad Ahsan ul Haq's case, Dr. Aman-ul-Haq's case and Tahir Latif Sheikh s case supra. The learned Tribunal once has come to the conclusion that learned Tribunal has no jurisdiction to take the cognizance of the matter then learned Tribunal should not give finding with regard to the merits of the case. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Khan Sahib Sher Muhammad Mir versus Islamic Republic of Pakistan (1987 SCMR 92). The relevant observation is as under:-- "We, however, feel that in dismissing the appeal as time-barred the Tribunal in the particular circumstances of this case, should not have made any remarks about the merits of the case. It is, therefore, observed that they should not operate against him if he makes any fresh representation." In view of the aforesaid judgment of the Honourable Supreme Court the contention of the learned Addl. A.G. has no force that petitioner has to file appeal before the Honourable Supreme Court against judgment of the Service Tribunal dated 17-5-2002 passed in Appeal No.696 of 2002 filed by the petitioner. The petitioner has filed this writ petition by accepting the verdict of the Service Tribunal. The impugned order of the Service Tribunal is nut a speaking order and does not contain reasons vis-a-vis his colleagues namely Qalb-e-Abbas and Saif-ur-Rehman. The petitioner and respondents did not attach representation on record, therefore, it is difficult to ascertain from the record whether this ground was taken in the representation or not and whether there were so many cases qua minor penalties in their credit or not. It is the duty and obligation of the public functionaries to decide the representations of their subordinates with reasons after addition of section 24-A in the General Clauses Act as per principle laid down by the Honourable Supreme Court in the following Judgments:--

1. M/s Airport Support Service v. Airport Manager (1998 SCMR 2268)

2. Zain Yar Khan v. The Chief Engineer (1998 SCMR 2419) It is pertinent to mention here that both the learned counsel stated that punishment of forfeiture of service is not mentioned -in minor as well as major punishments. This contention has no force. Forfeiture of approved service up to two years is mentioned in Rule 4(1)(a)(ii) of Punjab Police (Efficiency and Discipline) Rules, 1975.

7. In view of what has been discussed above, the impugned order is set aside. Meaning thereby that the representation filed by the petitioner before respondent No.2 shall be deemed to be pending adjudication who is directed to decide the representation of the petitioner after providing proper hearing to all the concerned including the petitioner and any other person who would aggrieve of his order strictly in accordance with law after verifying the record within reasonable time. With these observations the writ petition is disposed of. Q.M.H./M-1546/L Order accordingly.