P L D 1983 Lahore 167 (PLP)

FAZL-1-MAHMOOD, J.-This Intra-Court Appeal is directed against the order of a learned Single Judge of this court dated 16-12-1979 whereby the appellant's writ petition was dismissed on the short ground that remedy by way of appeal before the Service Tribunal was available to the appellant against order of his dismissal. This Intra-Court Appeal was admitted and now it has come up before us for final disposal.

2. We have confronted the learned counsel for the, appellant with the provisions of section 3 of the Law Reforms Ordinance, 1972 and in particular to its proviso which reads as under : "Provided that the appeal, referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order."

3. In the instant case, the writ petition arose out of the proceedings in which the law applicable provided for an appeal against the original order. The appellant was charge-sheeted under the provisions of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 by the Commissioner of Bahawalpur. The appellant in his reply . to the show-cause notice and in particular, in para. 5 thereof, also demanded strict compliance with the said Rules with the averment that enquiry should be held as required under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. We have gone through the Memorandum of the writ petition and we find that the appellant's case throughout has been based on the provisions of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. We have also examined the provisions of the said Rules and find that it does provide for a departmental appeal. In this view of the matter, the Intra-Court Appeal would not competent.

4. The learned counsel appearing in support of this appeal however, raised the contention that the law applicable to his case or the proceedings would be the West Pakistan Municipal Servants (Efficiency and Discipline) Rules, 1963 since he is not a member of the Local Council Service. Incidentally, these Rules also, provide an appeal. We are not called upon to examine this contention in depth for the short reason that the appellant himself had been demanding an enquiry in accordance with the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 to which a reference has been made in his own reply to the show-cause notice. This stand of the appellant was consistent with the stand taken by him in writ petition.

5. The next contention raised by the learned counsel for the appellant is that the order in this case being ab initio void he was under no obligation to file an appeal as it would amount to an exercise in futility. The. argument B has no relevance for construing section 3 of the Law Reforms Ordinance, 1972. For this purpose the Court has only to examine whether the law applicable provides for an appeal, revision or review or not. Efficacy or otherwise of appeal is not a relevant consideration for determining our jurisdiction to hear an Intra-Court Appeal. We have already noticed that on appellant own showing before the Departmental Authorities and the learned Single Judge the law applicable was the Efficiency and Discipline Rules of 1975. We have not. felt persuaded to allow the appellant to argue an altogether different case in appeal as against the one made out by him before the Tribunal below.

6. We are, therefore, clearly of the view that the Intra-Court Appeal is barred by virtue of the proviso to section 3 of the Law Reforms Ordinance, 1972 and the same is accordingly dismissed. There will be no order as to costs in the circumstances of the case. M. A. g.?????????? Appeal dismissed.