1996 PLP 1969 (SCMR)

SALEEM AKHTAR, J.

The petitioner seeks leave to appeal against the judgment of the learned Judges of the High Court, whereby the petition filed by respondent No.1 was allowed and Notification dated 11th November, 1993 appointing respondent No.2 on the post of Secretary to the Provincial Assembly, Balochistan on contract basis was declared to be of no legal effect.

2. The petitioner by Notification dated 11th November, 1993 re-employed respondent No.2, the former Secretary (B-20) of the Balochistan Provincial Assembly as "Secretary (B-20) of the Balochistan Provincial Assembly on contract basis for a period of six months in the public interest with immediate effect". Respondent No.1 challenged this Notification. It was pleaded that respondent No.2 having reached the age of superannuation as Deputy Secretary, Senate (B-19) was re-employed over there for a period of one year. Thereafter in the year 1986 he was appointed as the Secretary, Balochistan Provincial Assembly Secretariat for a period of three years on contract basis. On expiry of the contract period, he was again re-employed but his services were terminated on 10th October 1990. Again respondent No.2 has been re-employed for a period of six months. The petition was contested and it was pleaded that in view of bar under Article 69 of the Constitution the Court was not competent to question the validity of the impugned Notification as the appointment of respondent No.2 in the Provincial Assembly Secretariat had been made by the Speaker to regulate the procedure and conduct the business of the Assembly. The learned Judges held that "all acts performed by the Speaker in discharge of his duties, other than the proceedings inside the House are amenable to the jurisdiction of the Court". It was further held that "the proceeding of an elected House does not enjoy absolute immunity from judicial review and if manifestly action appears to have been taken by the Speaker in violation of existing Rules, for example, appointment/recruitment etc. the Courts are competent to exercise writ jurisdiction under Article 199 of the Constitution". Reliance was placed on Pakistan v. Ahmad Saeed Kirmani and others (PLD 1958 SC (Pak.) 397) and Muhammad Anwar Durrani v. Province of Balochistan (PLD 1989 Quetta 25). It was also contended that in view of bar under Article 212 of the Constitution, the jurisdiction of the Court was (sic) respondent No.2 was not a civil servant and the bar would thus not be applicable. It may be pointed out that in Hadi Bux v. Government of Sindh and another (PLD 1994 SC 532), the Additional Secretary in the Provincial Assembly was held to be a civil servant. However, in the present case respondent No.2 has been re-employed on contract basis, therefore, the question would arise whether Article 212 of the Constitution will apply in the circumstances of the case. The locus standi of respondent No. 1 to file the petition was also challenged. However, it was rejected by the impugned judgment. While making reference to Rule, 15 of the Recruitment Rules, 1975, which provides that a retired employee shall not ordinarily be employed in the Secretariat unless such re-employment is necessary in the public interest and is made with the prior approval of the authority, provided that where the appointing authority is the Speaker, such re-employment may be ordered with the approval of the Finance Committee, the learned Judges observed that re employment of respondent No.2 as Secretary was made in spite of the fact that previously his services were terminated by the same Speaker, hence there seems to be no valid reason for re-employment. All these questions have been raised by the learned counsel for the petitioner.

3. The contentions and the questions raised require interpretation of the provisions of the Constitution and the rules of recruitment which are of general importance. Leave is granted. A.A./S-936/S Leave granted.