1991 PLP (C (PLC(CS))

AJMAL MIAN, CJ.

The petitioner, through this petition, has prayed for the following reliefs:- "The petitioner, therefore, respectfully prays that the Honourable Court will be graciously pleased to admit this petition, call for the record of Examination held in August, 1988 and of further proceedings of viva voce tests alongwith parawise comments of this Petition and after persuing the same and hearing the parties, further pleased to pass judgment as under:- (i) It be declared that after holding Viva Voce Test on 31-1-1989, the subsequent Inquiry/proceedings taken by the Respondent No.3 are illegal, against the Rules and contrary to natural justice. (ii) It may further be declared that the petitioner who is working as officiating Telegraph Master since March, 1986 and having passed the Written Examination with Viva Voce Test, is legally entitled for the Practical Training of Telegraph Master. (iii) Issue mandatory injunction directing the Respondent No.2 to modify the Special Circular No.2 dated 21-6-1989 by adding the name of the Petitioner therein and declaring him eligible for Training and appointment as Telegraph Master. (iv) Grant injunction restraining the Respondents, their subordinates, servants and other persons/officers working under them and acting on their behalf from implementing and giving effect to the special Circular No.2 dated 21-G-1989 till the final decision of this petition. (v) Pass any other order and grant further relief/reliefs which the Honourable Court may deem proper under the nature and circumstances of the case. (vi)? Cost may also be awarded."

2. The brief facts leading to the riling of the above petition are that the petitioner was appointed on 3-3-1956 as Time Scale Clerk in the Post and Telegraph Department, Government of Pakistan, and his services were transferred to the Central Telegraph Office on 3-5-1963 and the petitioner had been working as a Teleprinter Operator upto March, 1986, and since then the petitioner is officiating as the Telegraph Master. It seems that the petitioner appeared in the written test for the promotion of Telegraph Master in August, 1988 under Roll No.240. After having qualified in the written test, he appeared in Viva Voce. According to the petitioner, he obtained 45 Marks out of 100 Marks in the Viva Voce Test. After that the petitioner has been recalled for Viva Voce by an order dated 10-4-1989. The grievance of the petitioner is that under Rule 317, there is no power to recall the petitioner for Viva Voce Test, after the petitioner had appeared and had obtained -15 Marks. His further case is that he is entitled to practical training for being considered for promotion by the Department Promotion Committee as Telegraph Master.

3. On the other hand, the case of the respondents is that after the petitioner appeared in Viva Voce Test on 31st January, 1989, the Department came to know about a news item which was published on 3rd October, 1935 in Evening Special Mashriq, in which it was alleged that the petitioner was arrested for an offence of theft of a car and, therefore, the petitioner was asked to re-appear in Viva Voce Test in order to ascertain whether the petitioner was fit person to be entrusted with the Department money which is involved in the appointment of Telegraph Master.

4. It may be observed that the petitioner was also asked by the Department to file an affidavit about the above case and also to send a copy of the order. The petitioner forwarded an affidavit dated 20-2-1989 alongwith a copy of the order passed by the learned A.C.M: VI East, Karachi, stopping the case under section 249, Cr.P.C., for want of evidence and releasing the petitioner without conviction or acquittal.

5. The basic question is as to whether under Rule 317 of the relevant Rules, the Department could ask the petitioner to reappear in Viva Voce Test. The answer of the above question is provided in the Rule itself which speaks of "be called for a Viva Voce Test". It is, therefore, evident that under the Rule, the petitioner could not have been asked against his wishes to reappear for a second Viva Voce Test. However, it was open to the Department to have initiated? enquiry against the petitioner for the alleged misconduct, if any, committed by the petitioner in relation to the above case and after providing reasonable opportunity to the petitioner, to take whatever legal action is permissible. In the instant case, instead of initiating any enquiry or taking any other action, the petitioner was made to appear second time in Viva Voce Test which was against Rule 317.

6. Mr. Umer Oureshi, learned counsel for the respondent, has submitted that the Department will initiate enquiry against the petitioner and if it is found that there was nothing against the petitioner, his name will be considered for promotion alongwith the other candidates subject to his training. Thereupon, Mr. Dastagir Ghazi, learned counsel for the petitioner, points out that unless the petitioner gets training, he will not be qualified for consideration for promotion by the Department Promotion Committee. In our view, it will be just and proper that the petitioner may be allowed to have training without prejudice to the right of the Department to take action against the petitioner on the basis of the proposed enquiry and in case, the finding in enquiry is against the petitioner, the factum that he obtained practical training on the basis of this order would not give him any fresh cause of action for claiming promotion.

7. With the above observation, the petition is disposed of with no order as to costs. M.Y.H./M-1051/K????????????????????????????????????????????????????????????????????????????? Petition allowed.