1998 PLP 693 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

This petition for special leave to appeal arises out of the order of a learned Judge in Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 2-2-1995 whereby the operation of the orders dated 23-11-1994 and 11-1-1995 issued by petitioners Nos.2 and 4 against the respondent was suspended. By the forementioned order the respondent was suspended from service with in-,mediate effect and was ordered to hand over the charge to a nominated Officer on receipt of the order whereas the subsequent order was a repetition of the earlier order.

2. Briefly the relevant facts are these: The respondent, while serving as Deputy Corporate Manager of the Civil Aviation Authority, Civil Division, Rawalpindi and Islamabad (hereinafter called as the Authority), was transferred vide order dated 20-6-1993 to Civil Division, Makran in place of one Ghulam Qadir Lakhan who was posted in his place. The aforesaid order of transfer was challenged by the respondent in Writ Petition No. 1094/1993 before the Lahore High Court, Rawalpindi Bench, Rawalpindi, principally on the ground of mala fide and incompetency of the Authority to pass it. The writ petition admitted to regular hearing on 14-11-1994. During the pendency of the said writ petition, the Director Administration (petitioner No.2) by his order dated 23-11-1994, which was communicated to the respondent on 14-12-1994, suspended the latter on the ground that he had failed to deliver the copy of the order of the High Court to petitioner No.4 and had thereby taken the law into his hands. The respondent had, however filed a Civil Misc. Application in the aforesaid writ petition which was accepted by a learned Judge and the operation of the order of suspension of the respondent from service on 23-11-1994 was suspended. Nonetheless, the respondent was directed by the Airport Manager vide letter dated 27-11-1994 to vacate the office accommodation. The impugned order of transfer dated 20-6-1994 was withdrawn by the petitioner and, therefore, the writ petition was "disposed of" by the learned Judge on 12-12-1994. In the second round, it was pointed out to the learned Judge in Chamber that notwithstanding the withdrawal of the order dated 20-6-1994 by the petitioners there was no indication as to whether the part of the order relating to Ghulam Qadir Lakhan who had been posted in place of respondent had or had not been withdrawn. Thereupon the learned Judge directed the restoration of the order of status quo ante dated 12-12-1994.

3. It is, inter alia, submitted by Mr. Farooq H. Naek, learned counsel for the petitioners that:-- (a) The respondent being an employee of a statutory body constituted under the Pakistan Civil Aviation Authority Ordinance (No.XXX of 1982) is not entitled to maintain a petition under Article 199 of the Constitution. In support of the proposition reliance has been placed on: (i) The Principal Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170) and (ii) Anwar Husain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194). (b) The impugned order of the High Court suspending the operation of the orders directing the maintenance of status quo ante in favour of the respondent relating to his service matters is contrary to the principles laid down by this Court. (See: (i) Province of West Pakistan through the Deputy Commissioner, Hyderabad and another v. Malik Asghar Khan (1971 SCMR 569) and (ii) Mashkoor Khan and others v. Province of Sindh and others (1971 SCMR 572)

4. Leave to appeal is granted to consider the question whether the High Court could invoke the Constitutional jurisdiction in respondent's favour in relation to his service matters.

5. The impugned order of the High Court dated 2-2-1995 shall remain suspended pending decision of the appeal. Till then, the petitioners shall not proceed further with the inquiry against the respondent. The appeal is directed to be fixed for hearing soon after the summer vacations. A.A./C-10/S Leave granted.