2013 PLP 859 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Facts giving rise to this appeal by leave of the court briefly stated are that respondent Tariq Mehmood claiming himself to be a PTC teacher filed a Constitution petition (22666/2011) challenging the order dated 20-8-2011 passed by the Deputy District Education Officer (Male), Sheikhupura and alleging that though he was in service, he was neither being given charge nor paid the salary. In the comments submitted by the Education Department, the stand taken was that there was no order of appointment made in respondent's favour; that having found that the order, which according to respondent was appointment order, was bogus, the respondent was dismissed from service on 31-5-1999. It was specifically averred in the comments filed by the appellants as follows:-- "(2) Best known to the petitioner with the extent that the appointment orders of the petitioner were also declared as Fake One by the then District Education Officer (M-EE), Sheikhupura and issued Dismissal Orders vide dated: 31-5-1999 on the basis of Fake Appointment Orders. ............................................................................ ............................................................................ ............................................................................ (7) Not admitted to the extent that the petitioner managed his re-instatement Orders vide dated: 16-10-2009 and the such orders were not issued by this office and declared as Fake/Bogus one. (8) Admitted to the extent that the petitioner succeeded to induct in the department on the basis of the Fake Re instatement Orders dated 16-10-2009 which were not issued by this office."

2. The learned High Court allowed the Constitution petition vide the impugned judgment holding that the respondent was validly appointed and that the Department was unjustly preventing him from joining the service and while directing that the respondent be allowed to join the service imposed a cost of Rs.25,000 on the Department.

3. We have considered the submissions made by learned Additional Advocate-General and learned counsel appearing for the respondent.

4. Learned counsel for the respondent while defending the impugned judgment submitted that the respondent did approach the Service Tribunal but his appeal was dismissed vide the order dated 12-9-2012 on the ground that since no final order had been passed the appeal was incompetent. She added that since the Department was not permitting the respondent to join the duty he approached the High Court in terms of Article 199 of the Constitution as his fundamental rights were being trampled with; that as the issues raised in the Constitution petition were not relatable to the terms and conditions of service, the bar of Article 212 of the Constitution was not attracted and the petition was competent. In support of the submissions made, learned counsel relied on a judgment of this Court in Province of Sindh v. Gul Muhammad Hajano (2003 SCMR 325). In the said judgment, this Court did not interfere with the order of the High Court as it was of the view that the respondent - writ petitioner whose petition was allowed by the learned High Court had not challenged any specific order of the departmental authority and the disputed questions of fact had not been raised. The Court specifically attended to the question of jurisdiction observed as follows:-- "At this stage it may be added that the learned A.A.-G. attempted to argue that this matter related to the terms and conditions of service and was outside from our jurisdiction but we are of the opinion that since no order of the Government is being called in question and only an obligation to perform its duties to pass orders within a reasonable time is being invoked, this court has jurisdiction to grant redress."

5. The facts in the instant case are distinguishable as admittedly the respondent had challenged a specific order dated 20-8-2011 and in terms of the comments submitted by the appellants serious questions of fact required resolution which exercise in Constitution jurisdiction was not tenable. It was specifically averred in the comments submitted by the Department that the so-called appointment order was fake. This aspect was not attended to in the impugned judgment. Besides the learned High Court, we may observe with respect, ought to have kept in view the mandate of Article 212(3) of the Constitution. More-so when the respondent himself had gone to the Tribunal and after the dismissal of his appeal before the said Tribunal instead of challenging the said order before this Court opted to file Constitution petition. The impugned judgment in the afore-referred circumstances is not sustainable. Consequently, this appeal is allowed and the impugned judgment is set aside. MWA/D-7/SC Appeal allowed.