1991 PLP (C (PLC(CS))

Subject: Review Petition From Mr. Muhammad Zafar Alam Retired Chief Engineer (B-20) T&T Department Against The Orders Of The Retirement From Government Service. With reference to his Review Petition against the orders of his retirement from Government service under Civil Servants Act, 1973, Mr. Muhammad Zafar Alam, retired Chief Engineer T&T (B-20) is informed that the Prime Minister has been pleased to reject his petition. (Sd.) (Wall Muhammad) Chief Engineer (Staff & Establishment)" The appellant later submitted a petition (No. 61/86) on 6-3-1986 to the Federal Service Tribunal saying that at the time of hearing of the appeal, counsel for the petitioner had placed on record copy of letter dated 15-1-1986 conveying the rejection of the review petition which had been submitted to the President, by the Prime Minister and had pointed out that the review petition had been rejected after the Provisional Constitution Order had been withdrawn and the Constitution had been restored. Further that the counsel had argued that the departmental proceedings could not be said to have been concluded during the period of Martial Law and that since the review petition to the President wad a step in the departmental proceedings the proceedings attained finality after the rejection of review petition which happened after the restoration of the Constitution. And in these circumstances, the retirement of the petitioner from service was not a past and closed transaction or that it was hit by the P.C.O. Request was made in the petition that this vital point does not find any mention in the order of the Tribunal and the matter may be re-considered and re-viewed. This review petition was decided on 14-4-1986 as under:-- "The order of the Prime Minister having been passed on 15-1-1986,, the same can be challenged separately before an appropriate forum, if the appellant so desires. As far as this Tribunal is concerned, the decision made by it on 12-2-1986 was perfectly correct which does not call for any review. This petition is rejected."

3. The appellant then submitted a petition to the Supreme Court on 1b-4-1986 (Civil Petition No. 102-R of 1989) which came up for hearing before the Supreme Court on 27-1-1987 when it was dismissed as withdrawn. Meanwhile the present appeal to the Tribunal had been submitted on 22-5-1986.

4. The learned counsel for the appellant has stated that the Provisional Constitution 'Order was of 'a temporary nature and when it came to an end it ceased to exist except for transactions past and closed. Further that unless there is some special provision to the contrary after a temporary legislation has expired no proceedings can be taken upon it and it ceases to have any effect. He has cited the case of Akhtar Mahmud v. District Magistrate Lahore (P L D 1964 (W.P.) La h. 93) where the Full Bench decision in another case, The Crown v. Haveli (P L D 1949 Lah. 550) was followed and has drawn attention to the following portion of this judgment:-- "The general law in relation to temporary statutes is that once such a statute has expired it ceases altogether to have effect as it had never been except as to transactions past and closed. This result follows unless there be provision made in the statute itself for continuing the effect there-of in any respect." The counsel has further drawn attention to the decision in the case B. Banagopal v. Emperor (A I R 1933 All. 699) mentioned in the decision of High Court in the case of Crown v. Ghulam Muhammad (P L D 1950 Lah. 479) and that of State v. Muhammad Sharif (P L D 1960 Lah. 236) in support of his contention that when a temporary statute expires a prosecution under it, comes to an end as it is deemed never to have existed except for the transactions past and closed.

5. The next point made by the appellant's counsel is that if an appeal is filed against a decision the matter is sub-judice and only becomes final after the decision of appeal and the counsel for the appellant has quoted cases at P L D 1964 S C 520 and P L D 1985 S C 145 in support of this plea. It has been stated that the review petition submitted by the appellant was decided after the revival of the Constitution and as such the appellant can now agitate the matter before the Tribunal.

6. The counsel for the appellant has further stated that the Supreme Court by its judgment in the case of Pakistan and others v. Public at Large and others decided that provisions of section 13 clauses (i) and (ii) of Civil Servants Act, 1973 were repugnant to the Injunctions of Islam and directed that the relevant 'taw should be amended within six months of the date of the decision which was delivered on 11-3-1987 failing which it will cease to have legal effect. It has been stated that this judgment of the Supreme Court is declaratory and as the Supreme Court has held that these clauses are repugnant to the Injunctions of Islam and as such any action taken under these clauses was not legal.

7. The contention of the counsel for the appellant is that Provisional Constitution order was temporary and after the revival of the Constitution the case has to be decided according to the law on the date of hearing. The counsel for the appellant has also objected to the order saying that as it was not passed by the competent authority by application of his own independent mind to the facts and circumstances of the case, but it was a case of rubber stamping a decision which had been taken almost a year earlier by an incompetent authority Case at 1988 PLD SC 13 has been cited in support of this contention.

8. The appeal has been resisted by the respondents. It has been stated that the issue involved has already been considered and decided in Appeal No.163(R) 1984. It has been stated that the case once having been decided by the Tribunal, it cannot by reconsidered and as such the appeal is incompetent. Decision at 1986 S C M R 12 has been cited in support of this plea. The learned counsel for the respondents has further stated that the order was passed when the Provisional Constitution order was in the field and as such an appeal was incompetent and decision of the Supreme Court at 1989 S C M R 805 has been cited in support of this plea. The counsel for the respondents has further stated that counting the limitation from the date of decision of the Prime Minister namely 15-1-1986, the appeal to the Tribunal submitted on 22-5-1986 is time-barred and there was no cogent reason for delay in filing the appeal. In respect of the decision of Supreme Court at P L D 1987 S C 304 quoted by the appellant's counsel, it has been stated that by this decision, it was directed that section 18 of Civil Servants Act, would cease to have any effect after 11-9-1987 but the appellant had been retired long before that date. The counsel for the respondent has further stated that the order of retirement was passed by the President himself and the facts of the present case are different than case P L D 1988 S C 13 cited by the counsel for the appellant.

9. We have considered the arguments advanced by both sides. The order retiring the appellant from service was passed on 26-12-1983 at a time when the Provisional Constitution Order, 1981 held the field and the Tribunal had no jurisdiction under Article 13(1) of the Order to entertain any proceeding calling in question the validity of the order on any grounds whatsoever. The only remedy available to the appellant was to apply to the competent authority for a review of the order. He submitted a review petition to the competent authority on 4-1-1984 which was later rejected on 15-1-1986. The revival of the Constitution has not revived the jurisdiction of the Tribunal to entertain an appeal against an order passed when the P.C.O. held the field. The appeal is, therefore, not competent.

10. The appeal is dismissed. There will be no order as to costs. Parties should be informed accordingly. M.Y.H./582/Sr.S Appeal dismissed.