1985 PLP (C (PLC(CS))

SHAH ABDUR RASHID (CHAIRMAN).‑‑The appellant while serving as Deputy Inspector‑General of Police, in the Railway Police, West Pakistan, was dismissed from service alongwith several others under the Removal from Service (Special .Provision) Regulation, 1969, commonly known as M. L. R.

58. He made an application for review of the order to the then Chief Martial Law Administrator, but did not get any response. He then filed a constitutional petition before the High Court where it was held that actions taken under M. L. R. 58 would be struck down only if they are coram non judice or are otherwise mala fide. The present appellant alongwith other appellants went in appeal to the Supreme Court. By that time, the Service Tribunal had been established under Article 212 of the Constitution and a right of appeal was conferred on the civil servants from all orders passed with effect from 1st July, 1969. The appellant's case also fell under that category. He filed an appeal before the Service Tribunal, which was heard and disposed of by a Full Bench. Two of the Members were of the opinion that the Tribunal jurisdiction was limited to the cases where allegations of mala fide or coram non judice has been raised. The Chairman was, however, of the view that the Tribunal jurisdiction was completely barred.

2. When the matter came up in appeal before the Supreme Court, it decided that the Service Tribunal had full jurisdiction to entertain the appeal of the persons dismissed or removed under M. L. R.

58. The appeals were reheard by the Tribunal and it accepted the appeals of the appellant and others and ordered their reinstatement. The matter was taken to the Supreme Court by the Government, but when the appeal was pending there, an amendment was made in the Provisional Constitution Order, 1981, which restored the provisions of Article 270 of the Constitution retrospectively and also saved all actions taken under M. L. R. 58 by inserting Article 13‑A in the P. C. O.; 1981.

3. The learned counsel for the appellant has argued that the appellant superannuated on attaining the age of 60 years, and thus got a fresh cause of action to come in appeal before us. The present appeal has been filed for the grant of benefits. with effect from the date of dismissal to the date of retirement and subsequent pensionary rights.

4. When the appeals of the Government against the appellant and others were pending in the Supreme Court, the omission of Article 270 of the Constitution in Article 2 of the P. C. O. was removed retrospectively which resulted invalidation of all orders passed during the Martial Law period when M. L. R. 58 was enacted. It may be pointed out that the Tribunal had inter alia accepted the appeals of the persons affected by M. L. R. 58, on the ground that Article 270 had not been saved by P. C. O. It was to remove this omission that the amendment had been made.

5. Article 13‑A inserted in the P. C. O. is a code by itself relating to the cases dealt with under M. L. R.

58. By the operation of this Article. all actions taken under M. L. R. 58 were validated. It was provided that no Court or tribunal including the Supreme Court, a High Court and Service Tribunal shall have any jurisdiction to entertain any proceedings whatsoever in respect of or in any manner relating to or arising out of such order or actions. In clause (b) all actions pending before the Courts were abated. In clause (c), all judgments passed by the Tribunal were anulled. Under clause (d), all persons affected by M. L. R. 58 who has been reinstated, were retired from service immediately.

6. The present is a case which is covered by clause (b) of Article 13‑A. It is not disputed that the appeal against the order of the Tribunal was pending with the Supreme Court. That appeal abated. It is accepted principle of law that when appeal abates, the original order from which the appeal is made also abates. In view of this legal position. the appeal before the Tribunal on the basis of which the appellant was given relief also abated and there was no order in his favour. The appellant cannot, therefore, now say that be got fresh cause of action after retirement. Even otherwise, since the case is that of M. L. R. 58. the Tribunal has no jurisdiction to entertain the appeal in view of clause (a) of Article 13‑A of the Provisional Constitution Order.

7. In view of the facts stated above, we dismiss the appeal as being incompetent and also for want of jurisdiction, in limine. A. E. Appeal dismissed.