2003 PLP (C (PLC(CS))

S. 24-A

Public functionaries to decide the representations/appeals of their subordinates with reasons and within reasonable time. Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCMR 2268 fol. Muhammad Nazar Khan for Petitioners. Sher Zaman Khan, Deputy Attorney-General for Pakistan for Respondent. I intend to decide the following writ petitions by one consolidated order having similar facts and law:-- (i) W.P. No.3193-2003 (ii) W.P. No.3263-2003

2. Brief facts out of which present writ petitions arise are that the respondents issued call letter dated 20-2-2003 to the petitioners to appear in the examination but subsequently, the respondents had withdrawn the said letter through the impugned letter dated 6-3-2003. The petitioners being aggrieved filed these writ petitions.

3. The learned counsel of the petitioners submits that the petitioners tiled Writ Petition No.19097 of 2002 qua the stone controversy which was disposed of by this Court vide order dated 28-10-2002, wherein the respondent concerned was directed to allow the petitioners to appear in the examination in-question provisionally subject to the final decision of the appeal of the petitioners and shall not announce his result till decision of the appeal. He further submits that the respondents did not decide the appeal of the petitioners till date. The association of the petitioners filed representation before respondent concerned against the action of the respondents on 8-1-2003 but the respondents did not decide the same till date. He further submits that action of the respondents is without lawful authority.

4. The learned D.A.G. entered appearance on Court's call, he submits that these writ petitions are not maintainable in view of bar contained in Article 21.2 of the Constitution read with Section 4 of the Service Tribunal Act and newly added section 2-A in Service Tribunals Act. .He further submits that the letter was issued to the petitioners on 24-2-2003 inadvertently, therefore, the respondents are justified to withdraw the same vide the impugned letter dated 10-3-2003. He further submits that principle of locus poenitentiae is not attracted in the present case, as the petitioners did not appear in the examination commenced by the respondents till 213-2003 He further submits that the impugned order is valid in the eyes of law. He summed-up his arguments that the learned counsel of the petitioners failed to point out any rule and regulation violated by the respondents, therefore, the writ petitions are not maintainable.

5. The learned counsel of the petitioners in rebuttal submits that the petitioners accrued vested rights on the basis of letter dated 20-2-2003 and order dated 28-10-2002 passed in Writ Petition No. 1907 of 2002. He further submits that the impugned order was passed by the respondents without providing proper hearing to the petitioners.

6. I have given tray anxious consideration to the contentions of the learned counsel of the parties and perused the record.

7. In spite of the bar contended in Article 212 of the Constitution read with section 4 of the twice Tribunals Act and newly added Section 2-A. this Court has ample power to give direction to the public functionaries to P action in accordance with law in view of Article 4 of the Constitution while exercising jurisdiction under Article 199 of the Constitution, as per principle laid down by the Hon'ble Supreme Court in "S.H.M. Rizvi and 5 others v. Maqsood Ahmad, etc." (PLD 1981 SC 612). It is alleged by the petitioners' counsel that the order passed by this Court in Writ Petition No .1907 of 2002 dated 28-10-2002 was not challenged by the respondents before any higher forum, therefore, order dated 28-10-2002 is final order between the parties, therefore, the respondents have no lawful authority to withdraw the letter dated 24-2-2003 through the impugned. letter dated 6-3-2003 till the decision of appeal of the petitioners. It is settled principle of law that the judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. It is also settled principle of law that no body should be penalized by inaction of the public functionaries, as per principle laid down by this Court in "Ahmad Latif Qureshi v. Controller of Examination and others (PLD 1994 Lahore 3). It is admitted fact that the impugned order was passed by the respondents without providing proper hearing to the petitioners and without issuance of notices to the petitioners, therefore, the impugned order is without lawful authority as the same is hit by the principle of natural justice. In arriving to this conclusion, I am fortified by the following judgments: "Pakistan and others v. Public-at-large, etc.". (PLD 1987 SC 304). "University of Dacca v. Zakir Ahmad." (PLD 1965 SC 90). "Pakistan Chrome Mines v. Inquiry Officer, etc." (1983 SCMR 1208). After addition of section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to decide the representations/appeals of their subordinates with reasons and within reasonable time as per principle laid down by the Hon'ble Supreme Court in "M/s. Airport Support Service. v. The Airport Manager, Karachi" (1998 SCMR 2268).

8. In view of what has been discussed above, the respondent concerned is directed to allow the petitioners to appear in the examination-in-question provisionally subject to final decision of the appeal of the petitioners and shall not announce their result till decision of the appeal of the petitioners. In case, the petitioners shall attain the position in the merit list, then the respondents shall not fill two posts till the decision of the appeal of the petitioners. The learned counsel of the petitioners is directed to hand over copies of writ petitions alongwith all the annexes to Mr. Sher Zaman Khan, D.A.G. for Pakistan, who is directed to notify the order to respondent concerned for necessary action and compliance. With these observations, these writ petitions are disposed of. Copy "Dasti" on payment of usual charges. S.M.B./T-121/L Petition disposed of.