2003 PLP (C (PLC(CS))

Date of hearing: 26th July, 2002. The brief facts out of which the present writ petition arises are that the petitioner was appointed as PTC Teacher vide order dated 10-8-1993. The petitioner was removed from service by respondent No.2 vide his order dated 9-4-1999. The petitioner being aggrieved filed Appeal No.2971 of 1999 before the Service Tribunal. The learned Service Tribunal dismissed the appeal vide judgment dated 4-10-2001. The petitioner being aggrieved filed this Writ Petition.

2. The learned counsel of the petitioner submits that the Tribunal was not properly constituted and was constituted in violation of mandatory provisions of section 4(2)(a) read with section 3(3)(a) of the Punjab Service Tribunals Act, 1974, therefore, the impugned judgment is not sustainable in the eyes of law and Constitutional petition is the proper remedy. In support of his contentions, he relies upon the following judgments: Qayyum Nawaz and 9 others v. N.-W.F.P. and 4 others (1999 SCMR 2331); Khalid Siddique v. Secretary Excise and Taxation Department Government of Punjab Lahore and 2 others (2000 SCMR 554). The learned Additional Advocate-General entered appearance on Court's call, he submits that writ petition is not maintainable.

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

4. The petitioner has alternative remedy to file an appeal before the Honourable Supreme Court by virtue of Article 212(3) of the Constitution; therefore, writ petition is .not maintainable as per principle laid down by the Honourable Supreme Court in the following judgments: Ch. Muhammad Ismail v. Fazalzada Civil Judge and others (PLD 1996 SC 246); Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738). It is pertinent to mention here that the petitioner had himself approached the Service Tribunal, therefore, after dismissal of his appeal, the petitioner is barred by his own acquiescence to challenge the vires of the composition of the Tribunal. Reliance is placed on Ghulam Muhammad v. Muhammad Din (1989 MLD 488). It is settled principle of law that petitioner is not allowed under the law to approbate and reprobate and would not be heard from the petitioner that forum did not have jurisdiction wherein the petitioner himself has invoked the jurisdiction of the forum as per principle laid down in the case of Ch. Haq Nawaz Chuhan v. Tariq Azam and others (1994 CLC 1530). The aforesaid proposition is also supported by the law laid down by the Division Bench of the Karachi High Court in Rice Export Corporation of Pakistan (Pvt.) Ltd. v. The Chairman Labour Appellate Tribunal and others (1993 PLC 287). The impugned judgment is in accordance with the dictum laid down by the Honourable Supreme Court in Syed Nazar Hussain Zaidi's case (1981 SCMR 402). The judgments cited by the learned counsel of the petitioner are distinguished on facts and law. The Khalid Siddique's case supra was arising out of the judgment of the Service Tribunal and appeal was filed before the Honourable Supreme Court. Whereas the case relied by the learned counsel of the petitioner of Qayyum Nawaz, arising out of the National Commission and Punjab Appellate Tribunal and Qayyum Nawaz has no right under the law to file petition/appeal directly before the Honourable Supreme Court. In view of what has been discussed above, this writ petition has no merits and the same is dismissed. H.B.T./M-1475/L ?????????????????????????????????????????????????????????????????????????????? Petition dismissed.