1984 PLP 1159 (SCMR)

ASLAM RIAZ HUSSAIN. J This appeal by Dr. A.Q.K, Afghan is directed against the judgment of the Federal Service Tribunal dated 11-2-1982, dismissing his appeal.

2. The facts giving rise to the appeal as mentioned in the impugned judgment, and not controverted by the appellant, are, briefly, that he had entered into the service of the Federal Government in October, 1972, having been appointed as OSD/Ex Officio Joint Secretary in the Ministry of Education. Subsequently in August, 1973 he was promoted to the post of Additional Secretary in Grade 21 of the Secretariat Group. In 1978 he was appointed as Member of the Federal Service Tribunal, Islamabad in the same grade. It was specifically stated in the relevant notification that the appointment was "with immediate effect and until further orders". About three years later on 19‑2‑1981 he was transferred as O. S. D. in the Establishment Division of the Federal Government but vide the subsequent notification dated 9‑3‑1981 he was removed from service by the competent authority in exercise of the powers conferred under section 12‑A of the Civil Servants Act, 1973.

3. Feeling aggrieved the appellant made a representation against his removal from service to the President of Pakistan but since he did not receive any reply to the representation he filed an appeal after the expiry of 90 days, before the Federal Service Tribunal challenging the abovementioned order of his removal. The Federal Service Tribunal, however, dismissed his appeal in limine vide the impugned judgment He, therefore, filed a petition for leave to appeal against the impugned judgment before this Court and leave was granted to him on 13‑6‑1982, to consider whether it was not necessary for the Service Tribunal to summon and peruse the record of the appellant's service dismissing his appeal in limine.

4. We have heard the learned counsel for the parties at length and gone through the impugned judgment. The appellant's counsel submitted that it was necessary for the Service Tribunal, in view of the dictum of this Court in the case of Israr Nabi v. Province of Punjab (P L D 1980 S C 92) and Yamin Qureshi v. Islamic Republic of Pakistan (P L D 1980 S C 23), to summon the appellant's service record before the deciding his case. He also urged that the order of his removal from service is mala fide. The learned counsel admitted that the appellant was heard by the Service Tribunal before his appeal was dismissed in limine. He, however, insisted that it was necessary to have called for the record of the case. It was pointed out to him that it was not necessary for the Service Tribunal, in every case, to peruse the record, because some appeals by Government servants may not involve any dispute on a question of fact, but may rest merely on legal contentions. We, therefore, asked the learned counsel for the appellant as to what questions of facts he would have liked the Service Tribunal to examine after calling the record, specially when the only contention raised by him before the Service Tribunal was of mala fides, without specifying any facts constituting the same and secondly that he could not have been legally removed in exercise of the powers by the competent authority under section 12‑A of the Civil Servant Act, 1973. He could not point out any such facts, and admitted that he had not urged before the Service Tribunal that the record be called and the reasons given by the Review Board for his removal may be examined. He could not therefore be heard to complain now that the record was no summoned by the Tribunal.

5. As for mala fides, be admitted that it had to be alleged and proved specifically and also that in view of allegation made by him in his appeal) before the Service Tribunal, it was not necessary to call for the record t decide the question of mala fides. The counsel strenuously urged that S. 12‑A of the Act was not applicable in his case as there was a break in the service after the 5th of July, 1977 but the appellant who was present in person frankly admitted that there was no such break in his service. It is evident from the facts given by the appellant that he was appointed within the period specified to section 12‑A of the Civil Servants Act, 1973, in the period between 1‑9‑1972 and 5‑7‑1977. Therefore, the contention that the provisions of section 12‑A were not applicable to his case has no force. Learned counsel for the appellant finally submitted that the Service Tribunal has failed to consider the question whether the impugned order was really passed in `public interest' which is the primary condition for the exercise of powers under the provisions of section 12‑A of the Act. In this behalf he referred to the impugned order to point out that it does not specifically state that it has been passed in 'public interest'. Learned counsel, however, frankly conceded that this plea was neither raised before the Service Tribunal nor has even been mentioned in the Memorandum of Appeal before this Court. We, therefore, cannot permit o the appellant to raise this plea for the first time at this stage ; nor can we condemn the Service Tribunal for not having examined the question which the appellant did not himself care to raise before it. For these reasons, there is no merit in this appeal and it is dismissed. We however leave the parties to bear their own costs. M.Z. M. Appeal dismissed.