P L D 2008 Supreme Court 164 (PLP)

ABDUL HAMEED DOGAR, C.J.

By this single order we propose to dispose of Civil Petition Nos. 1382-L, 1383-L, 1384-L and 1385-L of 2007 as they arose of common judgment dated 19-6-2007 passed by learned Single Judge of Lahore High Court, Lahore whereby Writ Petition Nos. 19402 and 19643 of 2001, 19411 and 13600 of 2002 filed by respondents were allowed.

2. At the very outset Kh. Saeed uz Zaman, learned counsel for the respondents raised objection as to the maintainability of petitions and urged that in view of section 3(2) of the Law Reforms Ordinance, 1972 (hereinafter referred to as `the Ordinance') Intra Court Appeal was competent which, remedy was not availed by the petitioners. According to him, learned single Judge has decided writ petitions in exercise of its original jurisdiction as such impugned judgment should have been challenged by way of Intra Court Appeal in view of above provisions of law. Since above provisions have not been complied with as such petitions are not competently filed.

3. On the other hand Syed Iftikahr Hussain Shah, learned D.A.-G. contended that pension or pensionary benefits are in fact terms and conditions of service as such respondents should have approached learned Service Tribunal as required under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. As regard to the contention that Intra Court appeal was competent it is urged that in view of above mentioned provision of law an appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge in exercise of its original civil jurisdiction as such no departure can be made. He has relied upon the case of Commissioner Income Tax and others v. Mts. Media Network and others PLD 2006 SC 787 wherein according to him this Court has held that in certain exceptional circumstances, this Court can entertain petitions or as the case may be direct appeals even where the remedy of Intra Court Appeal under section 3 of the Ordinance has not been availed by a party.

4. We are not persuaded to agree with the contentions of learned D.A.-G. as it has been held in the case of Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831 as under:

"all orders passed under sub-Article (1) of Article 199 of the Constitution shall be appealable under section 3(2) of Law Reforms Ordinance, 1972 before a Bench of two or more Judges of the same High Court provided that it is not an order of the nature of habeas corpus described in sub-paragraph (1) of paragraph (b) of the Article. The regulations challenged before the High Court in the instant case squarely fell under clause (1)(c) of Article 199 of the Constitution and, hence, was appealable through an Intra-Court Appeal before two or more Judges of the same High Court. In view of section 3 subsection (2) of Ordinance, 1972, the instant appeals and petition are not maintainable before this Court".

5. In view of above learned counsel for the petitioners requested that petitioners may be allowed to file Intra Court Appeals. If said appeals are filed learned High Court may consider the question of condonation of delay.

6. In the above terms, the petitions are disposed of. M.H./A-72/S Order accordingly.