1999 PLP (C (PLC(CS))

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the order of the High Court, dated 12‑9‑1998, whereby writ petition filed by Nisar Ahmad appellant, herein, was dismissed.

2. The brief facts of the case are that the appellant was appointed in Electricity Department as Assistant Engineer on 10‑7‑1967 and subsequently he was promoted and was holding the post of Superintending Engineer B.19 when disciplinary proceeding were taken against him and he was compulsory retired from service on 10‑7‑1984. He filed a review petition as envisaged under the relevant rules on 22‑7‑1984 but the same was not disposed of within statutory period of 90 days and, thus, appellant appealed to the Service Tribunal and thereafter, to Supreme Court but the same were dismissed. Meanwhile, the review petition, which remained pending before the Prime Minister was made over to the Secretary Industries and Commerce who made a report to the Prime Minister on 4‑3‑1991. However, no order was made on the review petition by the Prime Minister till 10‑3‑1997 and at the long last the Prime Minister accepted the review petition and ordered the re‑instatement of the appellant in service. However, the respondents did not issue the formal order of his re‑instatement despite the acceptance of his review petition and, thus, the appellant filed a writ petition of mandamus in the High Court for the implementation of the order of the Prime Minister. The learned Judge in the High Court dismissed the writ petition on the ground that the grounds, which resulted in acceptance of the review petition filed by the appellant were already repelled by the Service Tribunal and the Supreme Court and the appeals filed by him were dismissed. It was observed by the High Court that after the dismissal of the appeal, the Prime Minister had no jurisdiction in the matter. Thus, the writ petition filed by the appellant was dismissed.

3. We have heard the arguments and perused the file. It has been contended by Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the appellant, that the High Court, has committed an error in dismissing the writ petition filed by the appellant, herein. He has argued that the mere fact that in the previous round of litigation, the appeal filed by the appellant, herein was dismissed by this Court, did not debar the departmental authority, i.e., the Government to pass an appropriate order on the review petition filed by the appellant, herein, which was pending before it. He has contended that as the review petition was accepted, it was incumbent upon the respondents to issue the formal order of re‑instatement of the appellant. The learned counsel has submitted that there is no law in support of the proposition that if a civil servant fails to get the redressal of his grievance by filing an appeal to the Service Tribunal or the Supreme Court, the departmental authority could not pass an appropriate order on his review petition which was pending. He has argued that the final order passed on a review petition, representation or an appeal of an aggrieved civil servant, is to be implemented by the concerned authority without fail. The learned counsel has submitted that the Government has revisional, executive and inherent powers to deal with the case of a civil servant as it deems proper. He has maintained that the order of the High Court runs counter to the dictum of this Court given in case reported as Inayatullah Chaudhry v. Azad Jammu and Kashmir Government (1990 PSC 1035). The facts of the aforesaid case are distinguishable from the facts of the present case. The perusal of the report shows that the appeals were partly accepted by this Court but it was observed that irrespective of the result of the appeals, the Government can make a 'just and equitable' order in case of one of the respondents, Sardar Muhammad Ashraf Khan, under section 22 of the Civil Servants Act, 1976. The said observation did not imply that the Government could make an order which was violative of the principle of law on the subject or nullified the order of the Court. What is 'just and equitable to a particular case depends upon the facts of each case. In the instant case, it cannot be said that the appellant, who, was dismissed from service on the serious charge of misappropriation, could be re‑instated by resorting to section 22, of the Civil Servants Act after the dismissal of his appeals. Even otherwise, as has been held by this Court in an unreported appeal entitled Abdul Qadir v. Abdul Karim and others (Civil Appeal No. 103 of 1998 decided on 4‑2‑1999), an order under section 22 of the Civil Servants Act can be made only in favour of a 'civil servant' who is in service and not a retired civil servant in view of the amended definition of the words 'civil servant'. In the case reported as Asmatullah Khan v. Government of Punjab (1996 PLC (C.S.) 8,51), the facts were that the concerned civil servant, who was a Forester, was removed from service but afterwards he was re‑instated by the Governor and he continued serving for eight years. Thereafter, on the initiation of the Regulation Wing, the order of his re‑instatement was withdrawn by the Governor as being violative of law. A writ petition was filed in the High Court contending that under Article 105 of the Constitution the Governor was to act on the advice of the Chief Minister or the Cabinet and the Regulation Wing had no authority under the Constitution to advise the Governor in the matter. It was further contended that as the order of the re‑instatement had been acted upon, the same could be subsequently withdrawn on the advice of the Regulation Wing. Consequently, accepting the writ petition, the impugned order was set aside. Evidently, the facts of the above case have no relevancy to the case in hand. In the instant case, the moot point is as to whether after exhausting the remedy of appeals to the Service Tribunal and the Supreme Court, the Prime Minister could legally decide the review petition filed by the appellant on the grounds which were repelled by the appellate Courts. In the authority relied upon by the learned counsel for the appellant, no such question was involved. In case reported as Muhammad Naseer Jahangiri v. Abdus Sami Khan (1997 PLC,(C. S.) 1115), it has been held that a void order must also be challenged to get rid of its effects. In the instant case if it is found that the order of the Prime Minister is violative of the relevant law, the question, which would need resolution is as to whether an illegal order can be enforced in exercise of writ jurisdiction. Obviously, if the answer to the said question is in negative, it would not help the case of the appellant. In case reported as Sajjad Ahmad Javed Bhatti v. Secretary, Establishment Division, Islamabad (1996 PLC (CS) 652), the facts were that the Federal Selection Board considered the case of the petitioner for promotion to grade B.19 but did not clear him while his batch‑mates were approved. Subsequently, the petitioner was also approved by the Federal Selection Board and was promoted to grade B.19. Thereafter, the question of seniority of the promotees who were cleared up by the Selection Board earlier than the petitioner, came up for consideration in a representation made by him to the Government but his representation was dismissed; his appeal and review to the Supreme Court were also dismissed. Thereafter, he approached the Federal Service Tribunal by filing a review petition for setting aside its earlier judgment on the basis of fraud but the same was also dismissed. He filed a petition for leave to appeal to the Supreme Court contending that the previous decisions of the Service Tribunal and the Supreme Court would stand in the way of the Federal Selection Board to reconsider his grievance regarding his seniority. The petition for leave to appeal was rejected observing that the previous judgments of the Service Tribunal and the Supreme Court did not suffer from any legal infirmity. However, an observation was made that if the Federal Selection Board came to. the conclusion that its earlier order was a result of some fraud, the judgments of the Service Tribunal and the Supreme Court should not prevent him from getting the relief. It is evident from the facts that the said observation was given in altogether different circumstances in which fraud was alleged contending that subsequently the Federal Selection Board, after realizing its earlier mistake, cleared the petitioner for promotion to grade B‑19 and, thus, he should be deemed senior to the earlier promotees. Evidently, the legal proposition involved in the instant appeal, as indicated above, is quite different and has no nexus with the facts of the said case.

4. In reply, it has been contended by Raja Shiraz Kayani, Advocate? General, that after the compulsory retirement of the appellant, he chose to seek the redressal of the grievance by filing appeals to the Service Tribunal and then to the Supreme Court but the same were dismissed, he did not wait for the disposal of his review petition. Thus, the learned counsel for the respondents has argued that the appellant could not re‑agitate the matter again by contending that as his review petition was decided after his failure in the first round of litigation, he was entitled to the implementation of the order passed in his favour by invoking the writ jurisdiction of the High Court. The learned counsel has contended that after the decision of the Service Tribunal and this Court, the matter was finally closed and the departmental authority has no jurisdiction to give any decision on the review petition filed by the appellant. The learned counsel has argued that if the contention of the learned counsel for the appellant is accepted, there would be no end to litigation initiated by a civil servant which would nullify the whole existing scheme of law in the matter.

5. We have given due consideration to the arguments raised at Bar. It may be observed that it is the appellant's own case that as his review petition was not decided within the statutory period of 90 days as envisaged under section 4 of the Service Tribunals Act, he went up in appeal before the Service Tribunal and to this Court but he was unsuccessful. Thereafter, according to him, his review petition was decided in his favour but the order passed in his favour was not implemented by the respondents. Assuming for the sake of argument that under section 4 of the Service Tribunal Act, the appellant had two choices, either to wait till the decision of his review petition and then to challenge any adverse order before the Service Tribunal or to seek the redressal of his grievance when his review petition was not decided by the concerned authority within 90 days, even then he could not start the second round of litigation because he chose to avail the first option and went up in appeal to the Service Tribunal without waiting for the decision of his review petition. As stated earlier, his appeals were dismissed by the Service Tribunal and. this Court. Therefore, he cannot be permitted to turn round and say that he was still at liberty to re‑agitate the matter because his review petition was decided after he had already exhausted the remedy by filing appeals. For instance, if his review petition would have been dismissed instead of having been accepted, he could not re‑agitate the matter by filing appeal to the Service Tribunal second time due to the mischief of res judicata. On the same analogy, when his review petition could not be accepted subsequently, he could not seek the implementation of an order, which could not be passed due to the bar of res judicata.

6. It may be pointed out that this Court has held in case reported Shabir v. AJK Government (1997 PLC (C.S.) 478) that there was no justification for approving the view that under section 4 of the Service Tribunals Act a civil servant has two options either to file an appeal after waiting for 90 days or wait till the disposal of his review petition and then to prefer an appeal to the Service Tribunal. It was observed that he is bound to prefer an appeal etc. to the Service Tribunal within 120 days, i.e., 90 days waiting period plus thirty days. Obviously, the theory of two 'options' was finally disapproved by this Court vide the aforesaid authority: Although in the case the main question involved was that of limitation yet the ratio decidendi of that case that only one option is available to an aggrieved civil servant is fully attracted to the present case. As has been already stated, the appellant did the same and filed appeals to the Service Tribunal and to this Court but he failed. Therefore, the contention of the learned counsel for the appellant that the Prime' Minister or for that matter the departmental authority was at liberty to pass any order on the review petition filed by the appellant is not tenable and is hereby repelled. When the review petition filed by the appellant was not decided within the statutory period of 90 days and he filed appeal to the Service Tribunal, his review petition would be deemed to have been rejected by fiction of law; once the appeal is preferred to the Service Tribunal by a civil servant, the departmental authority becomes functus officio to deal with an appeal, representation or review petition. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed within no orders as to the costs. H.B.T./385/SC(AJ&K) ?????????????????????????????????????????????????????????? ??????????? Appeal dismissed.