P L D 2019 Supreme Court 37 (PLP)

MUSHIR ALAM, CHAIRMAN.

Appellant through Shariat Misc. Application, challenged before the Federal Shariat Court Proviso II of Section 17 of the Civil Servants Act, 1973, similar Proviso (II) of Section 18 of Sindh Civil Servants Act, 1973, Proviso (II of Section 17 of N.W.F.P Civil Servants Act, 1973, Proviso (II) of Section 16 of Punjab Civil Servants Act, 1974 and Proviso (II) of Section 17 of Baluchistan Civil Servants Act, 1974. Proviso (II) of Section 17 of Civil Servants Act, 1973, which is in pari materia to Proviso (II) as contained in the contemporary Provincial Civil Servants, Acts reads as follows: "Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed form service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine." In support of his contention, Appellant has referred to Ayah 188 of Surah Baqrah (2-188), the translation of which is given as follow: "And do not eat up your property among yourselves for vanities, nor use it as bait for the judges, with intent that ye may eat up wrongfully and knowingly a little of (other) people's property."

3. Appellant appeared in person was confronted as to how the Proviso (II) to the respective provisions of Civil Servants, Acts as reproduced above are repugnant to Quran and Sunnah more particularly the Ayah relied upon by him and quoted in preceding paragraph. He contended that since substantial amount is doled out to the civil servants who are dismissed/removed from service on account of disciplinary proceeding for different terms before they are reinstated/restored in service by setting aside order of dismissal and or removal from service. It was urged that the civil servants who are dismissed and or removed from service do not render any service during the intervening period till restoration and or reinstatement. It was therefore, urged that the provision is being misused and or abused both by the removed and then reinstated civil servants and authorities reinstate them by awarding back benefits, therefore such provision, which is misused should not be allowed to remain on the statute book. It was urged that in terms of Article 227 of the Constitution of Pakistan no law and rule; repugnant to injunction of Quran and Sunnah, can be framed.

4. Mr. Sharial Qazi, learned AG, Sindh contends position of civil servants who are suspended is similar to civil servants who are dismissed from service and ultimately reinstated by authority and or established forum in accordance with law that such aspect of the matter has already been set at rest in the case reported as Government of N.--W.F.P. v. 1.A. Sherwani and another (PLD 1994 Supreme Court 72 at page 77). Paragraph No.9 whereof reads as follows: "Moreover, it is mentioned in the Sl.No.104 that an Officer under suspension is generally prohibited from leaving station (ESTACODE, page 530, Edition 1989) and Fundamental Rule No.55 provides that leave may not be granted to a Government servant under suspension. It is also evident that he cannot join any other service during the period of his suspension. It clearly indicates that he is detained for the service of the Government and is a full-fledged Government servant during this period. This position is expressly admitted in SI. No.108 also where it is mentioned that a Government Servant under suspension remains a Government servant" (ESTACODE, page 533). So there was no reason why he should be deprived of his salary and other benefits. The Holy Quran says: Woe to those who give short measure, those who, when they have to receive by measure from men, exact full measure, but when they have to give by measure or weight to men, give less than due." (83: 1-3).

5. Mr.Ilyas Bhatti, Additional Attorney General for Pakistan, Barrister Qasim Chohan, Addl. AG Punjab, Mr.Zahid Yousaf Qureshi, AG KP and Mr.Muhammad Ayaz Swati, AG Balochistan adopted such arguments.

6. We have heard the arguments and perused the record. Arguments as raised before us were also raised before the Federal Shariat Court. Learned Bench after referring to the provisions as contained in the Civil Servants Act, 1973 and contemporary provisions in the respective Provincial Civil Servants Acts concluded that the provisions so referred. "do not provide for automatic grant of arrears of the intervening period between dismissal removal/reduction in rank and restoration to the original position but the Authority vested under the law to make such an order, depending upon law, facts and circumstances, may determine, inter alia, question relating to -reinstatement, etc., including restoration to original position, in seniority, cadre, and post, treatment of intervening period as duty or on leave and its kind, e.g., extra ordinary leave/without pay This proviso in fact involves multiple laws and their provisions which are considered by the competent forurn/court. Anyhow since the pertinent Nass of the Holy Quran or the Sunnah of the Holy Prophet (PBUH) has not been quoted in support of the assertion/plea, the Sh. Misc. Application No.7/1/2012 is dismissed in-limine." (The Judgment is since reported as Maqbool Ahmed Qureshi v. Government of Pakistan and others 2013 PLC (CS) 533). 7, Proviso (II) to Section 17 of Civil Servants Act,1973 is in substance reincarnation of Fundamental Rule 54 of Fundamental Rules 1922 (Combined set of F.R and S.R Volumes 1 & II by Hamid Ali and Zakir Ali Revised 2006 Edition page 89), which reads as follows: "Where a Government Servant has been dismissed or removed is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty-. (a) If he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed or removed and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal removal; or (b) If otherwise, such portion of such pay and allowance as the revising or appellate authority may prescribe. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising appellate authority so directs. Explanation-In this rule, "revising authority" means the "authority" or "authorized Officer" as defined in the Government Servants (Efficiency and Discipline) Rules, 1973, who passes the final order on the case and not the authority who passes an order on appeal."

8. Rule corresponding to above, are also contained in the respective provincial Civil Service Rules, one may gainfully refer to Rule 154 of Sinclh Civil Service Rules 1954, and contemporary rule in Civil Service Rules (Punjab) etc.such rules are preserved and protected under Article 241 of the Constitution of Pakistan 1973, unless such rules are amended by the competent legislature, same continue to apply with full force as law of the land. In number of cases Supreme Court of Pakistan and various High Courts have examined Proviso (II) of Section 17 of Civil Servants Act, 1973 read with Fundamental Rules, 1922 and contemporary provisions contained in the provincial statute and corresponding provincial Civil Service Rules and in variety of circumstances, a person who is removed or dismissed from service on representation and or appeal is restored by the competent authority and or judicial forum, such civil servant is entitled to receive back benefits depending on facts and circumstances of each case and is rightly dealt with by the Federal Shariat Court; question relating to reinstatement in service including restoring civil servant to the original position, maintaining such person to his original post, award of seniority or otherwise and treatment of intervening period between dismissal/removal and restoration as duty or on leave of the kind is due i.e. extraordinary leave/leave with or without pay etc. are all matters within the domain and competence of Authority or the judicial forum concerned. This is not the occasion to dilate on variety of eventualities leading to award and or denial of back benefit in all its forms, [those interested may gainfully refer to cases reported as Anisul Hassan v. Government of Punjab (2017 PLC (CS) 879), Abdul Hafeez Abbasi v. Managing Director PIAC and others (2003 SCMR 694), Muhammad Hafeez Javaid v. Secretary Department of Agriculture, Government of Punjab and another (2002 SCMR 1034), Muhammad Hafeez Javaid v. The Secretary, Department of Agriculture, Government of Punjab and another (PLD 1992 Supreme Court 31), Syed Kamaluddin Ahmad v. Federal Service Tribunal and others (1992 SCMR 1348), Muhammad Arif Khan, Ex-Overseer Grade-II v. Dy. ENC. E-IN-C's G.H.Q., Rawalpindi and another (1991 SCMR 1904) and Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another (PLD 1990 Supreme Court 787).

9. Appellant having not questioned the Civil Service Rules, 1922 and or Sindh Civil Service Rules, 1954 and corresponding Provincial Civil Service Rules, which appears to be the source of Proviso (II) to Section 17 of Civil Servants Act, 1973 and corresponding provisions as contained in the provincial Civil Servants Acts as noted above nor, uttered a single word to show same to be repugnant to Quran and Sunnah, on any count whatsoever, merely contending that Proviso (II) of the said statutory provisions are misapplied by the competent authorities or judicial forums awarding back benefits, in appropriate case, while restoring Civil Servants by setting aside dismissal or removal order of civil servants, is no ground to challenge any provision of law on the touch stone of Quran and Sunnah. In case, the law is misapplied, remedy to challenge the same is available and has been resorted to by the aggrieved party as noted in the judgments referred to in the preceding paragraph.

10. Ayah 188 of Surah Baqrah (2-188) as relied upon by the appellant, translation of which is reproduced in para-2, above, is not relevant to the point in issue nor the appellant was able to explain the same.

11. Appellant was not able to persuade us to form a different opinion than what has been arrived at by the learned Federal Shariat Court, through impugned judgment dated 30.12.20:L

2. The appellant has failed to cite any Nass of Holy Quran and Sunnah of Holy Prophet (PBUH), which is sine qua non to seek declaration of the kind.

12. No exception to the impugned judgment is called for. Accordingly, instant Shariat Appeal, was dismissed with cost, for the reasons as penned down above, vide our short order which reads as follows: "For the reasons to be recorded later on, this Civil Shariat Appeal is dismissed with cost of Rs.10,000/- to be deposited in the office of the Additional Registrar (Judicial) of this Court". MWA/M-26/S Appeal dismissed.