2004 PLP (C (PLC(CS))

SAIYED SAEED ASHHAD, C.J.

In this Constitutional petition, the petitioner has sought the following reliefs: (a) declare the order dated 10-2-1994. passed by respondent No.1, is contrary to law and is of no legal effect; having been passed without jurisdiction; (d) direct the respondents to declare that the petitioner having been retired on the medical ground, and is entitled to all the benefit as ordered by respondent No. 1, vide order "G-1" dated 17-10-1993; (c) such other further relief as may deem fit by this Hon'ble Court. The petitioner was an employee of Pakistan International Airlines Corporation (hereinafter referred to as "P.I.A.C." and after insertion of section 2A in the Service Tribunals Act he acquired the status of a civil servant for the purpose of Service Tribunals Act and all proceedings pending in any Court were to abate. The grievance of the petitioner is with regard to the refusal of P.I.A.C. to allow him to proceed on retirement on medical ground, retirement is one of the issues which comes within the scope of terms arid conditions of a civil servant. In view of provisions of section 2-A of the Service Tribunals Act the only forum available to the petitioner for redress of his grievance is the Service Tribunal where he ought to have approached without any loss of time as the present Constitutional petition filed by him stood abated oil 10-6-1997 when section 2-A was incorporated in the Service Tribunals Act. Mr. Habibur Rehman, learned Advocate for the petitioner initially contended that the issue involved in this Constitutional petition did not fall within the scope of the terms and conditions of a civil servant but later on he conceded that retirement was an issue which fell within the scope of the terms and conditions of service of a civil servant. Mr. Habibur Rehman further submitted that notwithstanding the fact that the petitioner would be deemed to be a civil servant in view of the provisions of section 2A of the Service Tribunals Act, he would not be able to approach the Service Tribunal as he has been retired from the service of P.I.A.C. and would no longer be considered to be a civil servant. This contention is also without any substance inasmuch as a civil' servant after retirement is competent to invoke the jurisdiction other Service Tribunal for redress of any grievance relating to the terms and conditions of service. Mr. Habibur Rehman further submitted that the order of Wafaqi Mohtasb dated 10-2-1994; whereby he reviewed his earlier order dated 17-10-1993 was absolutely illegal, coram non judice and void as there is no provision in the President Order 1 of 1983, Establishment of the Officer of Wafaqi Mohtasib (Ombudsman) Order, 1983 (hereinafter referred to as the P.O. Order 1 or 1983), which gives powers to the Wafaqi Mohtasib to review his own order. He further submitted that such power could not be exercised in view of the clear and unambiguous pronouncements of the Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others, reported in PLD 1970 SC 1, that the power of review could be exercised by a forum only if such was granted by the statute and not otherwise. His further submission was that an order which was a void order could be challenged in a Constitutional petition. This contention is also without any substance in view of the consistent pronouncements of the Supreme Court that an order relating to the terms and conditions of a civil servant even if mala fide, illegal, void coram non judice would have to be assailed/challenged by the aggrieved civil servant by filing an appeal in the Service Tribunal and a Constitutional petition would not be competent. If any authority is required in support of the above, then the same are available from the judgments in the cases of (i) Asadullah Arshid v. Haji Muhammad Muneer, reported in 1998 SCMR 2129; and (ii) Nazrul Hassan Siddiqui and others v. Federation of Pakistan and others, reported in 2000 PLC (C.S.)

189. Similar observations were made by the Supreme Court in the cases of (i) Agricultural Development Bank of Pakistan and another v. Imtiaz Ahmed Gill. reported in 1999 SCMR 650; and (ii) Pervaiz Aslam v. Ilyas Hussain Shah and another, reported in 1999 SCMR

784. He further submitted that Wafaqi Mohtasib by his order dated 17-10-1993 had decided the matter in favour of the petitioner by ordering that his retirement should have been deemed to be on medical ground holding him entitled to the benefits as would have been available to him on medical grounds which order will be deemed to hold the ground as its withdrawal by the Wafaqi Mohtasib by his order dated 10-2-1994 passed on the review petition filed by respondent P.I.A.C. was void order having been made in illegal assumption of jurisdiction by the learned Wafaqi Mohtasib which did not vest in him. He further submitted that when an order was illegal on the face of record then it was not necessary for the aggrieved party to avail of any other remedy provided by law and he could have recourse to invoke the Constitutional jurisdiction of this Court. In support whereof he placed reliance on the case of Government of the Punjab Through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad Through Chairman and 4 others, reported in 2001 SCMR 209, Mr. Habibur Rehman concluded his arguments by saying that in view of above the petitioner was entitled to the reliefs sought by him in this Constitutional petition and the same ought to be decided in his favour. Mr. Amir Malik, Advocate appearing on behalf of respondent No.2 submitted that the order of the Wafaqi Mohtasib dated 17-10-1993. Whereby he ordered that the retirement would be deemed to have been on medical ground was beyond his jurisdiction as the same related to the terms and conditions of service of a civil servant. Which could not be agitated before the Wafaqi Mohtasib in view of the bar contained in Article 9(2) of the P.O. 1 of 1983. He further submitted that it is a well settled principle of law that a forum of authority passing an order has also the right to recall the same if the same is found to be illegal, unlawful and against a specific provision of law. He further submitted that the principle of administration of justice gives power/jurisdiction to a forum/authority to do any act, which will help in proper dispensation of justice. He further submitted that judicial functionaries exercising jurisdiction were under a bounden duty to decide the cases correctly and no wrong decision or a decision in violation of law was expected from them and further that if they had decided a case wrongly or against any provision of law then such an order would have no legal sanction being a void order. In support of his above contentions he placed reliance on the case of Government of the Punjab through Collector Faislabad and another v. Hudabia Textiles Mills. Faisalabad through Chairman and 4 others, supra. Mr. Amir Malik while refuting the arguments of Mr. Habibur Rehman that valuable rights had been created by the first order of the Wafaqi Mohtasib which had allowed him the benefit of retirement on medical grounds, submitted that this principle was applicable to an order passed in exercise of jurisdiction and further that it had been acted upon conferring some benefit of right on a citizen but not to an order which was passed illegally in exercise of jurisdiction not vesting in a forum/authority. He further submitted that the original order of the Wafaqi Mohtasib was in exercise of assumption of jurisdiction which did not vest in him thus being a void order it did not confer or create any right in favour of the petitioner on the principle that valuable rights cannot be created on the basis of- bona fide mistake. In support of his above contention he placed reliance on the case of Muhammad Anwar and 8 others v. Muhammad Ashraf, reported in PLD 2001 SC 209, wherein the Supreme Court observed that "valuable rights" could not created on the basis of a bona fide mistake. The Wafaqi Mohtasib in making the original order dated 17-10-1993 had illegally assumed jurisdiction in respect of a matter which was beyond the scope of his authority being within the exclusive jurisdiction of the Service Tribunal. The learned Wafaqi Mohtasib had committed an illegality/mistake in assuming jurisdiction in relation to matters which were beyond his jurisdiction and on the basis of an order passed on bona fide mistake, no valuable right would accrue or would be created in favour of the petitioner on the basis of the observations of the Supreme Court in the case of Muhammad Anwar and 8 others v. Muhammad Ashraf, supra. Section 21 of the General Clauses Act empowers an authority/forum which has been conferred jurisdiction to pass an order to vary, amend, add to or to rescind that order in case if it is found that it suffers from some illegality or is against a specific provision of law. It was submitted on behalf of the petitioner that the, facts and circumstances of the case fully attracted the principle/concept of locus poenitentiae, according to which once a favourable order in favour of a citizen has been passed conferring upon him a valuable right then the order cannot be rescinded, varied, recalled or modified. In support of the above reliance was placed on the cases of (i) Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi, reported, in PLD 1969 SC 407; (ii) The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalauddin, reported in PLD 1992 SC 207, and Abdul Haque indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others, reported in 2000 SCMR

907. The above case-law relied upon by Mr. Habibur Rehmati in support of the above contention is of no help to him. In the case of the Engineer in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalauddin, supra, the Supreme Court pronounced that under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order and that the principle of locus poenitentiae was the power of rescinding till a decisive step was taken emphasizing that it was not a rigid principle of law that an order once passed became irrevocable and past and closed transaction. The Supreme Court further observed that if the order was illegal then perpetual rights could not be gained on the basis of such an illegal order. The above pronouncements/observations of the Supreme Court in the case of the Engineer-in-Chief Branch Through Ministry of Defence, Rawalpindi and another v. Jalauddin, supra were approved by the Supreme Court in the case of Abdul Haque Indhar and others v. Province of Sindh Through Secretary Forest, Fisheries and Livestock Department Karachi and 3. others, supra. In this case the Supreme Court while dilating on the nature of the jurisdiction, of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan pronounced that such jurisdiction could not be exercised to perpetuate ill-gotten gains. In the facts, circumstances and the situation prevailing in the present case it is to be noted that the order of Wafaqi Mohtasib dated 10-2-1994 was an illegal and void order as he did not have the jurisdiction to entertain a petition /complaint in respect of an issue relating to the terms and conditions. of a civil servant in view of categorical bar provided in Article 9(2) of the P.O. Order 1 of 1983. It will be useful to reproduce Article 9(2) of the P.O. Order t of the 1983 as under: "9(2). Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been working in respect of any personal grievance relating to his service therein. " From perusal of the above said Article it is absolutely clear that the power/jurisdiction of the Wafaqi Mohtasib did not extend to adjudicate upon an issue relating to the terms and conditions of service of a civil servant and that by entertaining the application/complaint of the petitioner and deciding the same he exceeded the jurisdiction and assumed jurisdiction illegally. In view of pronouncements and observations made by the Supreme Court in the afore-referred cases, the order dated 10-2-1994 of the Wafaqi Mohtasib was an illegal and void order enabling the Wafaqi Mohtasib to recall the same as it had neither irrevocable nor past and closed transaction in view of its illegality. It may also be noted that the said order had not been acted upon as P.I.A.C. refused to accept the same as a legal and valid order and had refused to provide the benefits to the petitioner. It is a settled I principle of law that the party which has been adversely affected by a It void order is required to get it set aside by filing proper proceedings in view of the observations made by the Supreme Court in the case of Messrs Con force Ltd. v. Syed Ali Shah etc., reported in PLD 1977 SC

599. The proper course for P.I.A.C. was to have filed a representation before the President of Pakistan in view of the provision of Article 32 of the P.O. Order 1 of 1983. Instead of adopting the above procedure P.I.A.C. moved a review application before the Wafaqi Mohtasib which was not provided for in P.O. Order 1 of 1983 but the same was entertained by the Wafaqi Mohtasib and an order was passed thereon whereby he withdrew his original order dated 17-10-1993. There is no denying the fact that the Wafaqi Mohtasib did not have the power to review his own order but in exercise of the powers contained in section 21 of the General Clauses Act and in view of the principle/concept of locus poenitentiae as enumerated by the Supreme Court of Pakistan he had the power to vary, amend, add to or to rescind an order passed by him. In the case of Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others, reported in 1992 SCMR 1652, the Supreme Court pronounced that the Authority competent to make order has power to undo it, but the order could not be withdrawn or rescinded once it had taken legal effect and certain rights were created in favour of any individual, which is not the position in the present case as the original order of the Wafaq Mohtasib was never given effect to as such it could be recalled and/or rescinded. Irrespective of the fact whether the I original order of the Wafaqi Mohtasib was acted upon or not, the same being an order made for want or lack of jurisdiction was an illegal and void order it could not confer any right on the petitioner even if it had been acted upon as on the basis of illegal order perpetual rights could not be gained. In support of the above proposition reliance is placed on the judgment of the Supreme Court in the case of Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others, supra. It was submitted by Mr. Habibur Rehman that the Wafaqi Mohtasib in discharge of his duties was performing judicial functions as such the provisions of section 21 of the General Clauses Act and the principle/concept of locus poenitentiae that an authority having power to make an order-also possesses power to review, recall and modify it before the same had been acted upon would not be available to him in his capacity as a judicial functionary and notwithstanding the above provisions his order on review application withdrawing the earlier order was illegal and void order and of no legal consequence with the result that t e original order would be deemed to be in the field conferring upon the petitioner the right to be retired on medical grounds in view of the fact that the said order now could not be validly challenged in view of the provisions of Article 32 of the P.O. Order 1 of 1983. This contention is without any substance inasmuch as even a Court of law has the authority/power to rectify, correct or recall its order if the same was found to have been made wrongly or illegally on the principle that I judicial functionaries bestowed with the power to exercise the jurisdiction conferred on them are legally bound to decide the cases correctly and no wrong decision on law is expected from them. Such observation was made by the Supreme Court in the case of Imran Ashraf v. The State, reported in 2001 SCMR

424. In this very case the Supreme Court reiterated its earlier pronouncements that no party should be made to suffer on account of wrongs committed by judicial functionaries. The original order of Wafaqi Mohtasib dated 17-10-1993 was in clear disregard of the provisions of Article 9(2) of the P.O. Order 1 of 1983 and being an order in disregard of the provisions of law, it was liable to be recalled. Thus, the subsequent order of the Wafaqi Mohtasib dated 10-2-1994 withdrawing the earlier order dated 17-10-1993 did not amount to review and the Wafaqi Mohtasib was competent to recall it. J Even if it had not been recalled or rescinded it would not create or confer any right on the petitioner as being an illegal/void order it could not be acted upon. Great emphasis was laid by Mr. Habibur Rehman on the pronouncement made by the Supreme Court in the case of Messrs Conforce Ltd. v. Syed Ali Shah etc. supra, in support of his contention that the party which had been adversely affected by an illegal/void order was required to get it set aside by filing proper proceedings and that in view of the above the original order of the Wafaqi Mohtasib could have been recalled or rescinded only by the President on making a representation by P.I.A.C. as required by Article 32 of the P.O. Order 1 of 1983. We are in respectful agreement with the observation of the Supreme Court in the case of the Messrs Conforce Ltd. v. Syed Ali Shah etc. supra, but in view of the provision of section 21 of the General Clauses Act and the subsequent pronouncement of the Supreme Court referred to herein above, the authority/forum making an illegal or void order has the power to vary, add, to recall or to rescind the same, which would imply to give power to the aggrieved party to move an application before the authority/forum passing the order to recall or rescind the same and such authority/forum would have the jurisdiction to do the needful. For the foregoing reasons, discussions and the case-law we hold that the Wafaqi Mohtasib had no jurisdiction to decide the issue referred to him by the petitioner and his original order was in usurpation of jurisdiction not vesting in him ,him thus being an illegal/void order, which could have been recalled/rescinded in exercise of the powers under section 21 of the General Clauses Act and the principles enunciated by the Supreme Court Resultantly the original order of Wafaqi Mohtasib ceased to be in existence. During the proceedings of the Constitutional petition section 2A was incorporated in the Service Tribunals Act declaring the petitioner as a civil servant for invoking the jurisdiction of the Service Tribunal for redress of grievance relating to the terms and conditions of his service. After insertion of section 2A in the Service Tribunals Act this Constitutional petition stood abated and the petitioner should have approached the Service Tribunal for redress of his grievance. Mr. Habibur Rehman submitted that the petitioner would not be able to approach the Service Tribunal by way of appeal as the same would be hopelessly time-barred and requested that the Service Tribunal may be directed to condone the delay in filing the appeal. We are afraid that we cannot give any such directions to the Service Tribunal. The proper course for the petitioner will be to file appeal before the Service Tribunal alongwith an application for condonation of the delay from the date of incorporation of section 2A in the Service Tribunals Act and the filing of the appeal, which application the Service Tribunal will decide in accordance with the principles relating to condonation of delay and act sympathetically in deciding " the same. This Constitutional petition stands disposed of in above terms. M.H./N-146/K Petition dismissed