2015 PLP (C (PLC(CS))

EJAZ AFZAL KHAN, J.

These petitions for leave to appeal have arisen out of the judgment dated 19-1-2012 of the learned Federal Service Tribunal, Islamabad, whereby it dismissed the appeals filed by the petitioners.

2. Learned counsel appearing on behalf of the petitioners contended that the learned Service Tribunal while disposing of the appeals filed by the petitioners did not consider the entire spectrum of the controversy and as such has failed to deliver a fair and just finding in this case. The learned counsel next contended that when the respondent was admittedly a temporary employee, he could not have been promoted to the next higher scale particularly when the petitioners being eligible by all means were side tracked by brushing aside all the recognized canons of law and propriety. A finding thus handed down, the learned counsel added, cannot be maintained.

3. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.

4. The record reveals that respondent was a temporary employee and he was working as such at the time he was promoted. Though his services were ex-post facto regularized on 25-9-2008, yet at the relevant time he was an employee on contract to all intents and purposes. How could he rank senior and how he could be given preference over the employees who were regularized much earlier are the questions which have not been answered either in the impugned judgment or by the learned counsel for the respondents.

5. The learned AAG sought the dismissal of these petitions mainly on the ground of limitation but to our mind, it is not a case where the matter can be set at rest by invoking the provisions regulating the limitation. Whether the order promoting respondent No.4 to the next higher scale could be held to be free from the traits and trappings of a void order is a question which has deep bearing on the fate of the case. The learned Service Tribunal has not examined this question in its correct perspective. It has tried to draw a distinction between an illegal and void order but it appears to have taken too myopic a view of the subject. It cannot be ignored altogether that a repository of executive, judicial or quasi judicial power is required to act in accordance with law. For the very condition for the conferment of such power is that it has to act in accordance with law. If and when it would go wrong in law it would go outside its jurisdiction. An order thus passed would be non-est. Such order cannot be protected simply because the repository of such power, has the power to pass such order. Lord Denning in his well known book the Discipline of law, while commenting on orders of this nature at page 74, observed as under:

"This brings me to the latest case. In it I ventured to suggest that whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because Parliament only conferred jurisdiction on the tribunal on condition that it decided in accordance with the law". Another paragraph of this book at page 76 also merits a keen look which reads as under:-- "I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all courts and tribunals, when faced with the some point of law, should decide it in the same way. It is intolerable that a citizen's rights in point of law should depend on which judge tries his case, or in what court it is heard. The way to get things right is to hold thus: No court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it."

6. In the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447), the Hon'ble Supreme Court held as under:-- "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."

7. Even otherwise, the Courts of law are not supposed to perpetuate what is unjust and unfair by exploring explanation for an act which is prima facie against law and thus void. They should rather explore ways and means for undoing what is unfair and unjust. Even the question of limitation, if at all, created any impediment in the fair adjudication of the case, has to be looked from such angle of vision. When considered in this background, we are constrained to hold that the controversy urged before the Service Tribunal has not been considered and decided in its correct perspective. Remand of the case would thus be inevitable. We, therefore, convert these petitions into appeals, set-aside the impugned judgment and send the case back to the learned Service Tribunal for decision afresh in accordance with law. MWA/F-3/SC Case remanded.