P L D 1984 Lahore 338 (PLP)

Khalil Ramdey, A. A.‑G. for Respondent. Dates of hearing: 14th and 15th December, 1981. While disposing of the petitioner's appeal for fixation of seniority, the Punjab Civil Service (Appellate) Tribunal, Lahore, said vide its order dated 4th July, 1972 that "we, therefore, recommend that the question of converting temporary posts in the Industries Department into permanent posts be examined and retrospective confirmation made against those posts so that the inquiry that person appointed earlier does not remain Junior temporary posts in the Industries Department to permanent posts, and of granting retrospective confirmation against these posts. Therefore, if the recommendation is not accepted for any reason by the Government, the petitioner would have no cause of grievance. But, on the other hand, if the recommendation is accepted, the seniority list will be altered in consequence and this would entitle the petitioner to approach the Punjab Service Tribunal if his seniority is wrongly taken away. In any view of the matter, therefore, the petition is without any merit and is dismissed. This is vide order dated 15th December, 1979.

5. The present petitioner filed a review application bearing No. 15/80 seeking clarification of the aforementioned observation that the Govern ment has only been directed to examine the recommendation of the Service Tribunal . The review application was dismissed as barred by time as well as for the reason that "the grievance is misconceived for when leave to appeal is refused, the order appealed against is kept intact, and all observations made are to be read and understood consistently with the intactness of the order . This is vide order dated 11th April, 1981. The Government having not finally given effect to the direction of the Tribunal, the petitioner filed the afore‑titled application for taking action under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Courts Act.

6. Learned counsel for the petitioner has vehemently contended that the mandamus having been issued by the High Court and the order having remained intact as observed by the learned Supreme Court, directing the Government to implement the directions of the Tribunal and the depart ment having not carried out the direction, the Secretary to the Government of Punjab, Industries and Mineral Development Department, Lahore, be punished.

7. To contest the petition the learned Assistant Advocate‑General has appeared alongwith Mr. Shaukat Ali, Under Secretary to the Government of the Punjab who has produced the relevant file.

8. A perusal of the file shows that the department concerned tried to implement the directions of the Tribunal‑which were for general applica tion and not specifically for the petitioner alone, and made certain proposals for converting temporary posts in the Industries Department into permanent posts giving retrospective confirmation to the incumbents against those posts to remove the inequity that persons appointed earlier would not remain junior to persons _ appointed directly at a later stage. The Finance Department did not agree with the proposals pointing out administrative and financial difficulties for creating permanent posts with back dates and confirming temporary incumbents with retros pective effect affecting a large number of officers in the Department. A high‑powered meeting of the two departments alongwith the general administrative department did not find its way to overcome the difficulties. It cannot be said in the circumstances that the respondent Government Department did not try to carry out the directions of the Service Tribunal. The mandamus, as the learned counsel for the petitioner put, issued by the High Court was the order to implement the directions given by the Service Tribunal. The directions, in their turn, as would appear from the foregoing narration of facts were based on the initial judgment of the Punjab Civil Service (Appellate) Tribunal, Lahore dated 24th July, 1972 which had only made the recommendation. Therefore, in all the circumstances of the case to a person who is appointed directly". One Aziz Ahmad Rathore filed an appeal in which it was directed by the Service Tribunal, Lahore that the Department ‑should comply with the earlier direction of the Tribunal in case of Islam Hassan Khan" (petitioner). This is dated 20th August, 1978. The petitioner filed au application for implementation of the order in his favour and also an appeal for the same purpose of fixation of seniority. The Service Tribunal held "that there was no need of passing any further order in this case The judgment passed in the aforesaid two cases of Mr. Aziz Ahmad Rathore and Muhammad Latif may be read in this case also". This is vide order dated 9th October, 1978.

2. The petitioner having got no relief from the Department filed x Writ Petition No. 5881/S/1978 for a direction to the Department for implementing the orders of the Tribunal dated 24th July, 1972 and 9th October, 1978. When the matter came up for hearing before a learned Single Judge, the A.A.G. made a statement that "the Government would comply with the directions of the Service Tribunal issued from time to time" and reasonable time may be allowed. The learned Single Judge ordered that "the Government would implement the directions given in the orders of the Tribunal referred‑ to above within a period of three months". This is vide order dated 30th June, 1979. The order was challenged by Mr. Aziz Ahmad Rathore by means of I.C.A. No. 237/79 in which he urged that the directions of the Service Tribunal were not binding on the Government. The appeal was dismissed on the ground that the same was not competent in view of the Article 212 of the Constitution. This is vide order‑dated 31st July, 1979. Against this order, Mr. Aziz Ahmad Rathore filed a Civil Petition for Special Leave to Appeal No. 668 of 1979 in the Supreme Court of Pakistan The learned Supreme Court observed that "Mr. Bokhari (who had appeared for Mr. Abdul Aziz Rathore petitioner in the petition) submitted that the Punjab Civil Service (Appellate) Tribunal in order dated 20th July, 1972 had merely made a recommendation to the Government. That is correct, therefore, as sub mitted by the learned counsel the Punjab Services Tribunal had in its order dated 20th August, 1978 erred in treating this recommendation as a direction and further erred in directing the department that they should comply with the earlier direction of the Tribunal ". Similarly, as submitted by Mr. Bokhari, the learned Single Judge had erred in allowing the second respondent's (present petitioner) writ petition with the direction that the Government should "implement the directions given in the orders of the Tribunal within three months". As we explained, there was no direction, but only a recommendation in the Punjab Civil Service (Appellate) Tribunal's order of 24th July, 1972 and unfortunately for the petitioner this recommendation was misread in subsequent proceedings as a direction. However, although the initial recommendation of the Punjab Civil Service (Appellate) Tribunal had been misread, it was final as observed in the impugned order, misread by the Punjab Civil Service Tribunal in its order dated 20th July, 1978 dismissing the petitioner's appeal. Therefore, on the footing that he had a cause of action for challenging this error in the Tribunal's order of 20th July, 1978, his only remedy was a petition to this Court under Article 212 of the Constitution. Therefore, we see no error in the impugned order. Additionally, the Government has only been directed to examine the recommendation of the Service Tribunal on the question of converting mentioned above, it cannot be said that the respondent had acted con tumaciously in deliberate disregard of the order of this Court. '

9. The grievance that notwithstanding the recommendation, direction and orders made by the Tribunal and Courts, the petitioner has got no relief and to silence him be has been compulsorily retired in spite of the facts that throughout his career he had been found in the A.C. Rs. to be a man of honesty and ability, has an element of pathos and tragedy. But this is a matter for the reviewing authority before which the petitioner, it‑is, stated, has filed a petition against his compulsory retirement. In view of what has been stated in the penultimate paragraph, the application for taking action under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Courts Act cannot succeed and is, therefore, dismissed. M. A. K. Petition dismissed.