2018 PLP (C (PLC(CS)N)

ADNAN-UL-KARIM MEMON, J.

Through the listed application (C.M.A. No.16932/2012), the Applicant has prayed to initiate contempt of Court proceedings against the alleged contemnors. Whereas, vide order dated 30.03.2012 passed by this Court the instant Constitutional Petition was disposed of in the following terms:- "It is jointly stated that this petition may be disposed of in terms of order dated 02.04.2010 passed by a Division Bench of this Court in C.P.No.D-1759 of 2008, being annexure A to the petition. The petition along with pending applications stands disposed of in the foregoing terms."

2. For convenience, the above specified order dated 02.04.2010 is reproduced verbatim as follows:- "The petitioner claims that he was appointed as Assistant Audit Officer (BS-16) but having failed in SAS Examination twice, he was reduced in rank to BS-11. He states that in the meanwhile the Federal Service Tribunal in two judgments one dated 13.3.2006 passed in Appeal No.571(R)/CS/2004 and other dated 20.3.2007 passed in Appeal No.149(P)/CS/2003 has declared that the passing of the SAS Examination was not a mandatory condition. The petitioner Counsel states that the petitioner is entitled to restoration of his employment in BS-16. He has stated that in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan (1996 SCMR 1185) the Hon'ble Supreme Court of Pakistan has given direction that where a Service Tribunal or High Court decides a point of law relating to terms of service of a civil servant which covers not only the case of civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictum and rule of good governance demand that the benefit of such judgment by service Tribunal/ Supreme Court be extended to other civil servants, who may not be parties to the litigation. Learned DAG states that the respondent will consider the case of the petitioner in the light of judgments of the Federal Service Tribunal referred to above and if his case is found covered by the ratio laid down by the said judgments, the petitioner will be given the same treatment. Counsel for the petitioner is satisfied with such statement of the DAG and states that the petition may be disposed in the above terms. The petition is disposed of in the above terms."

3. The case of the Petitioner as set forth in the memo. of Petition is that in the year 2001 he was appointed as Assistant Accounts/Audit Officer (BS-16) through competitive process. It is admitted by the Petitioner that in the Appointment Letter there was a condition to pass (SAS) Examination with three chances to have service regularized but, the Petitioner could not succeed in SAS Examination and finally his service was terminated by the Controller General of Accounts in the year 2005. Thereafter, the Petitioner challenged the Termination Order before the learned Federal Service Tribunal, Karachi but, to no avail. And, lastly before the Honorable Supreme Court of Pakistan where the Petitioner's Review Petition was dismissed as not pressed. Petitioner has averred that he came to know later that an order dated 02.4.2010 is passed by this Court in C.P.No.D-1759 of 2008 (Sultan Mehmood v. Federation of Pakistan and others). According to the Petitioner the said case was identical in nature with his case therefore, he resorted to file the instant petition to claim the same benefit. Petitioner further asserts that the instant Petition was disposed of by this Court vide order dated 30.03.2012 in the terms of order dated 02.04.2010 passed in C.P.No.D-1759 of 2008. Petitioner added that since the order passed by this Court has not been complied with in the terms as described hence he has filed the listed application for initiation of contempt proceedings against the alleged contemnors.

4. The alleged contemnors have filed counter affidavit/ objections wherein have disputed the allegations leveled by Petitioner and further claimed to have complied with the order passed by this court in letter and spirit.

5. The learned counsel for the Petitioner during the course of arguments referred to various orders passed by this court in the present proceedings and other documents available in the file to prove his assertion that the order dated 30.3.2012 has been violated by the alleged contemnors. The learned counsel further added that the case of the Petitioner has not been considered by the alleged Contemnors/ Respondents as directed by this Court therefore, prayed for initiation of contempt proceedings against them.

6. Mr. Abrar Hassan, the learned counsel for the alleged Contemnors stated that the Petitioner's case was considered by the alleged Contemnors/Respondents after the order dated 30.03.2012 passed in the instant Petition. But, the Petitioner's case was rejected by the alleged Contemnors/Respondents for the reason that the facts of the Petitioner's case did not come within the ambit of decision given by the learned Fec1eral Service Tribunal. The learned counsel further contended that the Petitioner did not qualify SAS Examination in three stipulated chances resultantly his service was terminated by the competent authority vide order dated 01.08.2005. He next argued that the Petitioner is no more in service so his case cannot be further considered and as a grace he was offered a post of lower status that is, BS-11. However, the Petitioner refused to accept such offer, left the job and contested the matter up to the Honorable Supreme Court, but failed. The learned counsel lastly stated that the learned Federal Service Tribunal and Honorable Supreme Court have already dilated upon the merits of the case of the Petitioner and have dismissed his appeal. Therefore, the Petitioner has no cause of action to file the listed application against the alleged Contemnors/Respondents as there is no violation of the orders passed by this Honorable Court.

7. Mr. Muhammad Aslam Butt, learned DAG has supported the arguments advanced by the learned counsel for the alleged Contemnors/ Respondents.

8. We have considered the submissions of the parties and perused the orders passed by this court as well as material available on record.

9. We have noted that order dated 03.03.2012 passed by this Court is a 'conditional order' based on the concessional statement of the learned DAG on the premise that the Respondents would consider the case of the Petitioner in the light of two judgments passed by the learned Federal Service Tribunal, Karachi. And, if the case of the Petitioner is found covered by the ratio laid down in the said two judgments of the learned Federal Service Tribunal, Karachi, the Petitioner will be given the same treatment otherwise not.

10. At this juncture in our view, the case of Petitioner cannot be reopened and discussed. And, at the most the factum that whether there is any violation of the order passed by this court can be looked into. Record reveals that the Petitioner and others challenged their Termination Orders dated 1.08.2005 respectively before the learned Federal Service Tribunal at Karachi in Appeals bearing Nos.393 to 396(K)CS/2005 and 5(K)CS of 2006 respectively. The learned Federal Service Tribunal at Karachi vide common judgment dated 08.03.2010 dismissed the above said appeals on merit. The Petitioner and his other colleagues impugned the said common judgment dated 08.03.2010 in Civil Petitions Nos.246-K to 250-K of 2010 respectively before the Honorable Supreme Court which were dismissed vide order dated 20.09.2010. Thereafter, the Petitioner and others filed Civil Review Petitions Nos.73-K to 75-K, 72-K of 2010 and SMRP No.3-K of 2010 respectively but, the same were dismissed as withdrawn vide order dated 07.10.2011. We have noted that at the time when Petitioner filed Review Petition before the Honorable Supreme Court, the instant petition was pending in this Court which fact was not disclosed by the Petitioner before the Hon'ble Supreme Court, Further, the Petitioner instead of pressing the Review Petitions before the Hon'ble Supreme Court sought its withdrawal on the ground that he will approach the appropriate forum. Thereafter, the Petitioner continued to pursue the already filed instant Petition and succeeded in getting order on 30.03.2012.

11. Reverting to the stand taken by the Petitioner that the decision rendered by the learned Federal Service Tribunal vide judgments dated 08.03.2010 respectively and the order dated 20-09-2010 of Honorable Supreme Court would not come in the way of petitioner because the case of the Petitioner is at par with the case of Sultan Mehmood (supra) who got similar relief from this Court. Therefore, the Petitioner claimed the identical relief, since the order passed by this court is holding the field and has to be implemented in letter and spirit by the alleged contemnors/ Respondents.

12. We are of the view that the said stand of the Petitioner is not supported/warranted by law because the Hon'ble Supreme Court has upheld the decision rendered by the learned Federal Service Tribunal at Karachi. In presence of the decision of the Hon'ble Apex Court on merits the listed application of the Petitioner cannot be considered therefore, initiation of contempt proceedings against the alleged Contemnors/Respondents shall tantamount to nullifying the effect of the judgment of the Hon'ble Supreme Court.

13. We have also gone through the contents of the affidavit filed by Mr. Muhammad Anwar Aslam Qureshi, Deputy Accountant General (Admin) in the office of Accountant General Karachi. He has stated in paragraph 10 that the case of the Petitioner is different from the case of Sultan Mehmood bearing C.P.No.D-1759 of 2008. He further stated that the Controller General of Accounts conveyed the office order in respect of the Petitioner, wherein it is stated that said benefit could not be extended to the Petitioner because his case is not covered by ratio laid down by the judgments dated 13.03.2006 and 20.03.2007 passed by the learned Federal Services Tribunal at Karachi. He further stated that Mr. Mansoor Shahzad and Mr. Mutahir Shah in Appeals bearing Nos.571/(R)/CS/2004 and 149/(P)/CS/2003 respectively were SAS qualified but, the Petitioner has not passed the SAS examination. It is further stated in the affidavit that Mr. Mansoor Shahzad and Mr. Mutahir Shah continued to work in the department, whereas the Petitioner remained out of service from 01.08.2005. The learned DAG also narrated that the case of the Petitioner was taken into consideration and was rejected vide Office Order dated 05.06.2013 (available at page 1137 of the file), on the ground that it was found to be distinguishable from the case of others. He relied upon the Report submitted through statement dated 09.02.2017 in this regard.

14. We have perused the judgments passed by the learned Federal Service Tribunal at Karachi and have noted that the said judgment has attained finality after the orders of Honorable Apex Court rejecting the Appeal of the Petitioner. Therefore, the Petitioner's approach to this Court, getting order of disposal and thereafter to claim non-compliance is not tenable in the eyes of law.

15. We are of the view that the Petitioner cannot claim discrimination by relying upon the case of Hameed Akhtar Niazi supra which is distinguishable. So far as the decision given in the case of Sultan Mehmood is concerned, we are cognizant that when on an identical issue/question an order passed by the Honorable Supreme Court is in the field the same is binding under Article 189 of the Constitution and this Court has no jurisdiction to give a contradictory finding. Thus, the contempt proceedings cannot be maintained.

16. In the light of the facts and circumstances of the case and the reasons alluded to above, we are not inclined to proceed further and the listed application C.M.A. No.16932/2012, having no merit, is accordingly dismissed. ZC/A-115/Sindh Petition dismissed.