2008 PLP (C (PLC(CS))

HAFIZ TARIQ NASIM, J.

Through this writ petition the petitioner seeks a direction to the respondents for declaring him entitled for the emoluments of BS-20 post with effect from 28-4-2000 to 23-2-2005 as the petitioner continuously performed the duties of BS-20.

2. The petitioner submitted a request before the departmental authorities for the redressal of his grievance but vide letter, dated 6-10-2006 the petitioner's claim was refused. The learned counsel for the petitioner submits that the petitioner has a lawful right of emoluments of the post of BS-20 as the petitioner performed the duties of the higher post on the directions of respondents Nos. 1 and 2 and the refusal of such benefit is otherwise violative of law laid down by the superior Courts.

3. On the other hand the learned Standing Counsel appearing on behalf of respondents assisted by Deputy Director Legal, Pakistan Railways submitted that it is not denied that the petitioner performed his duties against the post of BS-20 with effect from 28-4-2000 to 23-2-2005 but assigning the said duties was not with the approval of the then Prime Minister who was the competent authority rather, it was under the directions of the Chairman Railway Board/Secretary Ministry of Railways who was not competent to do so, hence the petitioner cannot be held entitled for the said relief as claimed for. The learned Standing Counsel next contended that the writ petition is not competent in view of bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

4. Arguments heard, record perused.

5. So far the bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned suffice it to say that withholding of emoluments of BS-20 post where admittedly the petitioner served for a considerable long time without any interruption or complaint whatsoever in fact suffers from inherent vice.

6. It is well-settled by now that the "principal object behind all legal formalities is to safeguard the paramount interest of justice

Legal precepts were devised in order to view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and mala fides."

7. Relief claimed by the petitioner is with regard to the issuance of direction to the respondents to pay the emoluments to the petitioner for which he is entitled according to the law laid down by the apex Court and in such-like controversy High Court would be competent in issuing the directions to the respondents who are admittedly persons performing functions in connection with the affairs of the Federation, to do a thing which they are required by law to do within the jurisdiction of the High Court hence on the strength of law laid down in case of Administrator, District Council Larkana and others v. Ghulab Khan and 5 others 2001 SCMR 1320 the objection of bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is repelled.

8. So far the second submission of the respondents is concerned, it is not disputed that the petitioner started functions not at his own rather the petitioner performed his duties on the directions of Chairman, Railway Board/Secretary Ministry of Railways, Government of Pakistan.

9. It is an important thing that the case of the respondents is not that the petitioner lacked requisite qualification/eligibility threshold for the, post of BS-20, on the contrary the respondents themselves directed the petitioner to work against the post of BS-20 without seeking prior approval from the then Prime Minister for reasons best known to them, so in such-like situation the respondents cannot be allowed to take benefit of their lapses in order to deprive the petitioner from his lawful right which is otherwise available to him in the light of series of judgments of the Honourable Supreme Court of Pakistan merely because the respondents have themselves committed irregularity in violating the procedure governing the said assignment.

10. I have not been persuaded to agree with the respondents that the petitioner could be non-suited on such-like grounds because it is undisputed fact which is also reflected from the departmental record that the petitioner performed his duties against the post of BS-20 with effect from 28-4-2000 to 23-2-2005 and as such in fact action should have been initiated against those who were sitting the helm of affairs for such irregularities and the petitioner cannot be held responsible in any manner whatsoever.

11. Reliance can safely be placed on the law laid down by the apex Court reported as Director, Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350 and Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR

678. For the foregoing reasons, this writ petition is allowed, the petitioner is held to be entitled to the difference of emoluments between BS-19 and BS-20 for the period commencing from 28-4-2000 to 23-2-2005. The respondents are directed to release the said emoluments to the petitioner within a period of two months under intimation to the Deputy Registrar (Judl.) of this Court. No order as to costs. M.H./S-215/L Petition allowed.