1996PLC(C (PLP)

? (3) The Chairman and Vice‑Chairman 'of the Board shall perform such functions and exercise such powers as may be prescribed. 86.‑‑(1) The Board shall perform such functions and maintain such funds as may be prescribed. (2) The Board shall with the approval of Government employ such number of employees as may be necessary, on such terms and conditions (and they shall be liable to such disciplinary action and penalties) as may be prescribed. (3) Government may, from time to time, specify that a post in the Board shall be filled by persons belonging to the Sindh Councils Unified Grades or any other service.

87. The expenditure on the maintenance of the Board shall be borne by the councils by making contribution at such rate as may, from time to time, be fixed by Government. "

6. Mr. Rasheed Akhtar for plaintiff has referred section 87 of the Sindh Local Government Ordinance, 1979 and has also referred Notification No.SLGB/LCSICAO/85/81. No. SLGB/LCSICAO/85/81 ‑‑In exercise of the powers conferred b:, subsections (1) and (2) of section 78 and section 103 of the Sindh Local Government Ordinance, 1979, the Government of Sindh are pleased to:‑‑ (i) constitute a Service known as the Sindh Councils Unified Grade comprising the posts in various Councils in the Province and the Sindh Local Government Board mentioned in the Schedule below; (ii) direct that the West Pakistan Local Councils and Municipal Committees Service Rules, 1963 shall as far as possible apply mutatis mutandis to the said service." Mr. Rashid Akhtar has also referred hereto above Sindh Services Tribunal (Amendment) Act and has stressed that in view of this amendment suit will not abate and he will prefer that suit may be decided on merits.

7. Mr. Manzoor Ali Khan has cited at the bar celebrated reported judgment of the Full Bench of this Court (1) PLD 1981 Karachi 290 (Abdul Bari v. Government of Pakistan and 2 others). According to the authority the following questions were referred to the Full Bench by D.B comprising of learned Chief Justice and Mr. Justice Ajmal Mian (as his Lordship then was):‑‑ "(i) Whether the petitions are baited by Article 212 of the Constitution? (ii) Whether the competent authority can retire a civil servant at any time after his completing 25 years' service or alternatively the said power to retire a civil servant can be exercised at or about the time when the civil servant is due to complete 25 years of service? (iii) Whether the power to retire under section 13 (ii) of the Civil Servants Act, 1973 is absolute or is regulated by rules?

8. After hearing the counsel for the parties the learned Full Bench unanimously felt that intention behind the referring order did not seem to be referred all the petitions for final disposal to the Full Bench but, specified questions of .law formulated by the Bench were referred for opinion to them. Accordingly the learned Full Bench refrained the first question so as to read as under:‑‑ "(i) Whether petitions under Article 199 of the Constitution seeking to challenge orders of retirement under section 13(ii) of the Civil Servants Act, 1973 are barred under Article 212 of the Constitution." After hearing the learned counsel for the parties the learned Full Bench observed as under:‑‑ "

17. For the aforesaid reasons, we have come to the conclusion that the answer to the first question referred to us as modified by this Bench is in the affirmative and the petitions which seek to challenge the orders of retirement under section 13(ii) of the Civil Servants Act, 1973 are barred under Article 212 of the Constitution.

18. In view of the aforesaid answer to the first question, it is not necessary to decide the other two questions referred to this Bench. (2) C.P.D. 1384/95 Syed Tanweer Ahmed Naqvi v. The Administrator, K. M. C. and 2 others. In this matter the learned D.B. of this Court has held as under:‑‑ "Even otherwise the petitioner being a civil servant or an employee of a Corporation set up under an Act, the only remedy available to him in law would be to approach the Sindh Service Tribunal as created under the provision of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and thus under the provision of this Article this Court will not exercise jurisdiction in the matter."

9. It would be pertinent to refer the order of appointment of petitioner, which reads as follows: "GOVERNMENT OF WEST PAKISTAN BASIC DEMOCRATICS, SOCIAL WELFARE AND LOCAL GOVERNMENT To The Commissioner, Khairpur Division, Khairpur. Memo. No.SO(BD‑IV) 14/47‑66 Dated Lahore the 1st May, 1968 SUBJECT: REQUEST FOR MR. MUHAMMAD ASHRAF SOOMRC) FOR APPOINTMENT AS ENGINEER IN LOCAL COUNCIL SERVICE. Reference your letter No.5‑LCS/68, dated 7‑2‑1968 on the subject noted above. Government have approved the appointment of Mr. Muhammad Ashraf Soomro an Engineer in the vacancy that might not be available in an local body of your Division. His posting orders may therefore be issued under intimation to the Government and a formal proposal for the relaxation of the condition with regard to the qualification prescribed for the post of Engineer if any and the terms and conditions of his appointment may please be sent to the Government for approval. (Sd.)? K.B. Qureshi, Section Officer IX "

10. The Sindh Local Government Board is a creation of Sindh Local Government Ordinance, 1979.

11. I have gone through the material placed with the matter and have also minutely considered the provisions of Sindh Local Government Ordinance. 1979, Amendment referred hereto above and the case law cited by Mr Manzoor ?Ali Khan.

12. I am of the firm view that petitioner being a civil servant or an employee of a Corporation set up under the Act remedy available to him under the law would be to approach the Sindh Service Tribunal, as created under the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan 1979. 13 Upshot of the above discussion is that suit stands abated. Order accordingly A.A./M‑2165/K?????????????????????????????????????????????????????????????????????????????????????????????? Suit abated.