2011 SCMR 499 (PLP)

CH. IJAZ AHMED, J.

We intend to decide the captioned, appeals by one consolidated judgment having similar facts and law arising out of the consolidated impugned judgment/order of the Islamabad High Court, Islamabad, dated 6-10-2008 passed in I.C.A. No.50 of 2008.

2. Detailed facts have already been mentioned in the memorandum of appeals. However necessary facts out of which the present appeals arise are that the appellants appeared in the Central Superior Services Competitive Examination held by the Federal Public Service Commission in 1997. They were ultimately successful and according to their assertion they deserved to be allocated Police Group but instead they have been allocated Income Tax Group and Customs Group respectively. Being aggrieved they submitted application before Government of Pakistan Cabinet Secretariat Establishment Division which was rejected on the basis of Rule 15 of the Rules for Competitive Examination 1997. The appellants being aggrieved filed Constitution Petition No. 18525 of 1999 in the Lahore High Court, Lahore which was dismissed by the learned High Court vide order dated 22-9-2000. The appellants being aggrieved filed I.C.A. No. 691 of 2000 in the Lahore High Court, Lahore, which was also dismissed vide Order dated 11-6-2001. The appellants being aggrieved filed C.P. No. 2478-L of 2001 before this Court which was dismissed as not pressed vide order dated 28-8-2001 which is reproduced herein:-- "Learned counsel for the petitioners submits not to press this petition and reserves the right of his clients to resort to the other available remedies to them, including remedy of approaching the Wafaqi Mohtasib. Order accordingly. Disposed of." Thereafter appellants preferred a complaint before the Wafaqi Mohtasib which was dismissed as time-barred vide order 31-8-2002. Appellants being aggrieved filed representation before the President of Pakistan under Article 32 of the Establishment of the Office of Wafaqi Mohtasib Order 1983 which was also dismissed vide intimation letter dated 20-12-2002. Appellants being aggrieved filed Constitution Petition No.2790-of 2004 before the Lahore High Court, which was finally heard by the Islamabad High Court, Islamabad, and the same was dismissed vide order dated 26-6-2008 on the well known principle of res judicata. Appellants being aggrieved filed I.C.A. No. 50 of 2008 in the Islamabad High Court, Islamabad, which was also dismissed vide order dated 6-10-2008. Appellants being aggrieved of the order of the Division Bench of Islamabad High Court, dated 6-10-2008 filed C.P. No. 1437 of 2008 (Muhammad Anwar) and C.P. No. 1844 of 2008 (Khalid Farooq Mian). Civil Petition No. 1437 of 2008 filed by Muhammad Anwar was fixed before this Court on 17-12-2008 and leave was granted in .the following terms:- "It is contended that first time litigation was concluded with the order of this Court, whereby the petition was withdrawn and the petitioner wanted to resort other remedy available to him including the remedy of approaching the Wafaqi Mohtasib. The learned Advocate Supreme Court further contended that the petitioner approached the Wafaqi Mohtasib, who did not redress his grievance whereafter, the representation against the said order was made, which too was dismissed. It is further contended that this matter has not been considered A by the learned Division Bench of the High Court in its true perspective.

3. Leave to appeal is granted, inter alia, to consider the above contentions." Civil Petition No. 1844 of 2008 filed by Khalid Farooq Mian was fixed on 11-3-2009 and leave was granted in the following terms:- "Since leave to appeal has already been granted in Civil Appeal No. 2243 of 2008 involving identical issue. Therefore, leave is also granted in this case. Both be fixed after one month." Learned counsel for the appellants submit as under:-- (1) That learned High Court had erred in law to dismiss the ICA as well as constitution petition on the principle of res judicata without adverting to the facts and circumstances of the cases of the appellants. (2) Principle of res judicata is not attracted in the controversy in question as the appellants had withdrawn their petition in the earlier round of litigation from this Court with permission to approach Wafaqi Mohtasib. (3) The appellants approached the Wafaqi Mohtasib who dismissed their complaint as time-barred which was also approved by the President of the Pakistan while dismissing their representation. (4) The learned Wafaqi Mohtasib had dismissed their complaint in the violation of principle of natural justice. (5) The learned High Court had not adverted to this aspect of the case. Similarly Chief Executive had also dismissed their representation without issuing any notice to the appellants.

4. The learned Deputy Attorney-General has supported the impugned judgment/order.

5. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce the prayer clauses of the Constitution Petitions Nos. 18525 of 1999 and 2790 of 2004 respectively filed by the appellants to resolve the controversy between the parties:-- . Constitutional Petition No. 1825 of 1999 "It is respectfully prayed that the questioned recommendation of respondent No. 2 and decision taken thereupon i.e. not to allocate Police Group of Service to the petitioners may kindly be declared to be illegal and without lawful authority with a direction to respondents to allocate the petitioners Police Service Group instead of Income Tax and Customs. Costs may also be awarded. It is further prayed that till disposal of Writ Petition, the petitioners may be allowed provisionally to have training as members of Police Service Group." Constitutional Petition No. 2790 of 2004 "In view of the above, it is most respectfully prayed therefore, that by an appropriate writ/order, Order dated 20-12-2002 conveyed to the petitioner on 22-5-2004 may kindly be declared to be illegal, without a lawful authority,, may be set aside and the representation may be remanded to the President of Pakistan for decision thereof after taking into consideration aforementioned points and by writing of a well reasoned judgment after giving of an opportunity of hearing to the petitioners. It is further prayed that till decision of the writ petition, respondents may be directed to provisionally allocate the petitioners Police Group instead of Income Tax Group of Service and Customs Group of Service."

6. Mere reading of the aforesaid prayer clauses of the constitution petitions clearly envisages that causes of action in both the Constitution Petitions are entirely different. Therefore, learned Single Judge erred in law to dismiss the constitution petition on the principle of res judicata vide order dated 26-6-2008. The learned Division Bench had upheld the order of the learned Single Judge vide impugned judgment dated 6-10-2008 without adverting to the prayer clauses of the constitution petitions as evident from the operative part of the impugned judgment/order of the Division Bench which is to the following effect:-- "Learned counsel for the appellants concedes the fact that appellants had only withdrawn the C.P.L.A. from the Hon'ble Supreme Court. Thus, the order of the learned judge-in- chamber affirmed by the Division Bench in I.C.A. has attained finality. Fresh petition filed almost after three years on the same cause of action, besides, being barred by lathes, is not maintainable in law. A Division Bench of this Court cannot set aside the order passed by another Division Bench in an earlier litigation on the same cause of action. Reference can be had to "Shaikh Gulzar Ali and Co. Ltd. and others v. Special Judge, Special Court of Banking and another, 1991 SCMR 590."

7. Reading of the operative part shows that the impugned order/judgment is judgment per incuriam as evident from the aforesaid prayer clauses of the constitution petitions which clearly show that appellants had challenged the vires of the order of the Wafaqi Mohtasib in the second round of litigation which was passed on their complaint and also the order of the President which was passed on their representation whereas in the earlier round of litigation appellants had challenged the vires of the recommendations of Public Service Commission. It appears that the learned counsel of the parties did not bring into the notice of the Division Bench the controversy arising in the first round of litigation and present litigation. Therefore, impugned judgment is not in consonance with the law laid down by this Court in various pronouncements. See Mollah Ejahar Ali's case (PLD 1970 SC 173), Gouranga Mohan Sikdar's case (PLD 1970 SC 158) and Messrs Airport Support Services' case (1998 SCMR 2268).

8. In view of what has been discussed above the appeals are allowed and impugned judgment/order dated 6-10-2008 is set aside and the cases are remanded to the learned Islamabad High Court, Islamabad to decide the I.C.A. on merits and in accordance with law. M.H./M-82/SC Case remanded.