2009 PLP (C (PLC(CS))

JAVED IQBAL, J.

This appeal with leave of the Court is directed against the judgment, dated 8-12-2003 passed by the Punjab Service Tribunal, Lahore, whereby the appeal preferred on behalf of appellant has been dismissed due to want of jurisdiction.

2. Leave to appeal was granted by means of order dated 10-6-2004 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- "Petitioner seeks leave to appeal against judgment, dated 8-12-2003 passed by the learned Punjab Service Tribunal, Lahore, (hereinafter referred to as the PST) in Appeal No.1890 of 2002, whereby the appeal filed by him was dismissed. (2) The detailed facts of the case are already narrated in the impugned judgment, which are not required to be mentioned here again. (3) The main grievance of the petitioner is that the authority through order, dated 17-5-2001, dismissed him from service, which order was challenged by him by filing an appeal before the Federal Service Tribunal (hereinafter referred to as the FST). Before the FST, the Secretary, Ministry of Population Welfare, Government of Pakistan, Islamabad, took an objection that although the petitioner was a Federal Government Servant, governed by the rules and regulations made under the Federal Government, but on account of an amendment in the Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001 dated 25-7-2001, he automatically became an employee of the Provincial Welfare Department, Government of the Punjab and that the FST had no jurisdiction to hear the appeal. It was stated by the learned counsel for the petitioner that the same appeal was withdrawn and thereafter, the appeal before PST was filed. The FST, after hearing the parties, dismissed the appeal with the following observations:-- "The order assailed in the instant appeal is passed by Secretary, Ministry of Population Welfare, Government of Pakistan and as such is outside the ambit of jurisdiction of the Punjab Service Tribunal. This Tribunal, therefore, lacks jurisdiction to hearing the appeal and accordingly the same is dismissed without any order as to costs." (4) Mr. Muhammad Bilal, learned counsel for the petitioner submits that the rejection of the appeal of the petitioner by the FST as well as PST declining to exercise the power vested in them, has resulted into miscarriage of justice; that the petitioner has been knocked out by both the learned Tribunals without adjudicating the matter on merits and that the conflicting decisions of the learned Tribunals require just, fair and equitable decision purely in accordance with the law laid down by this Court. (5) We, therefore, grant leave to appeal to consider the above points, and to see whether the findings of both the learned Tribunals on the point of jurisdiction are tenable. Parties are further directed to file concise statement in support of their case. Notice to the respondents shall also be issued well in time. (6) Since, it is a service matter, the appeal shall be fixed for hearing after filing of the concise statement and due service upon the respondents within a period of six months, after obtaining necessary approval from the Honourable Chief Justice."

3. Heard Mr. M. Bilal learned Senior Advocate Supreme Court on behalf of appellant and Mrs. Naheeda Mahboob Elahi, learned Deputy Attorney-General for the respondent at length. After having gone through the entire record, we are of the view that the learned Federal Service Tribunal, Lahore Bench, Lahore, has disposed of the appeal preferred on behalf of appellant (Appeal No.552(L)(CS) of 2001) in a casual and cursory manner by means of order, dated 20-9-2002 which is reproduced hereinbelow for ready reference:-- "Learned counsel for the appellant states that this Court has no jurisdiction as per Ordinance No.XXXII of 2001, dated 25th July, 2001 and Establishment Division U.O. No.1/6/95-R-4, dated 4-2-2002, the relevant portion of the said U.O. is reproduced hereunder:-- 'All the employees of Provincial Population Welfare Departments have become Provincial Civil Servants w.e.f. 25-7-2001 (including 123 Officers who were recruited through Provincial Public Service Commission).' Since the appellant has become an employee of the Provincial Government, the learned counsel for the appellant requests for withdrawal of the appeal. Request is allowed and the appeal is disposed of an withdrawn. Consigned to record. (Sd.) Member." A bare perusal of the above reproduced order would reveal that the provisions as contained in the Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001 (XXXII of 2001) have been misinterpreted and misconstrued. It is worth mentioning that the Ordinance XXXII, 2001 was made applicable w.e.f. 25th July, 2001 whereas the appellant was dismissed on 17th May, 2001 by the Secretary, Ministry of Population Welfare, Government of Pakistan, much before the promulgation of the Ordinance XXXII of 2001 which was made applicable w.e.f. 25th July, 2001 and the question of its application with retrospective effect does not arise. For all practical purposes in the case of appellant, the provisions as enumerated in the Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983 (XIX of 1983) shall be applicable. The appellant for redressal of his grievance has rightly approached the learned Federal Service Tribunal by means of Appeal bearing No.552(L)(CS) of 2001. The learned Deputy Attorney-General has candidly conceded to the said legal position.

4. In sequel to above mentioned discussion, the order, dated 20-9-2003 passed by the learned Federal Service Tribunal, Lahore Bench, Lahore, is hereby set aside and the Appeal bearing No.552(L)(CS) of 2001 shall be treated as pending which shall be disposed of expeditiously. The judgment, dated 8-12-2003 passed by the learned Punjab Service Tribunal, Lahore, in Appeal No.1890 of 2002 is upheld whereby the legal and factual aspects of the controversy have been examined with diligent application of mind, in accordance with law and settled norms of justice. The question of limitation be decided in view of the chequered history of the case as no fault whatsoever can be attributed to the appellant. The appeal is accordingly accepted in the above terms. M.H./A-131/SC Case remanded.