1989 PLP (C (PLC(CS))

A.A.‑G. for Respondents. Date of hearing: 28th November, 1988. Through this Constitutional petition, Muhammad Ashraf petitioner wants this Court to declare the order dated 8‑11‑1977 passed by Government of Punjab, Home Department, Lahore, whereby his service was terminated with immediate effect to be without lawful authority and of no legal effect.

2. The facts leading to this petition, briefly, are that on 17-9-1976 the petitioner and 14 others, were appointed as Deputy Superintendent of Police Oil ad hoc basis till further orders in relaxation of rules vide Government of Punjab, Home Department, order No. 5‑22/HP‑11‑

75. Martial Law was promulgated in Pakistan on 5‑7‑1977. Pursuant to the Martial Law Instruction No. 21 issued by the then Martial Law Administrator, Punjab Zone, Lahore, sub‑para. (c) of para. 2 whereof is as under:‑ "Cases of all other persons appointed directly or promoted on ad hoc basis at present in service will be reviewed immediately by the appropriate selection Authority competent to make recommendation for regular appointments according to the rules. On such reviews those who are found ineligible and unsuitable, their services will be terminated. Those found eligible and suitable will he converted to regular basis." The cases of the 15 D.S.Ps. including the petitioner who were appointed directly on ad hoc basis vide aforesaid order dated 17‑9‑1976, of the Government of Punjab were referred to the Public Service Commission. The petitioner and 21 others, (D.S.Ps and P.D.S.Ps) were interviewed by the Public Service Commission in September, 1977. Out of them the petitioner and 14 others were found to be suitable for the post of D.S.P./P.D.S.P. against which they had been working on ad hoc basis. Thereafter, the Governor of Punjab vide impugned order declaring the petitioner ineligible for the post of D.S.P., terminated his service vide impugned order dated 28‑11‑1977. Hence this petition

3. Learned counsel for the petitioner submitted that in Civil Appeal No. 211 of 1987 titled "Muhammad Mukhtar Tikka v. The Government of Punjab," the impugned order terminating the services of Muhammad Mukhtar Tikka, a colleague of the petitioner, who was appointed on ad hoc basis vide same order No. 5‑22‑HP‑11‑75 of the Government of Punjab, has already been set aside by the Supreme Court; that the case of the petitioner being identical with that of Muhammad Mukhtar Tikka, the present petition merits acceptance on the principle of consistency and propriety as well; that since on a reference by the Government of Punjab, the petitioner was found suitable for post of D.S.P. by the Public Service Commission, therefore, under sub‑para. (c) of para. 2 of Martial Law Instruction No. 21, the Punjab Government was obliged to convert his ad hoc appointment to regular basis and as such his services could not have been terminated; that the grounds of the ineligibility of the petitioner have not been stated in the impugned order; that the petitioner does not know as to why he was held ineligible for the post of D.S.P. and that the grounds on which the impugned order has been set aside by the Supreme Court in case of Muhammad Mukhtar Tikka, a colleague of the petitioner, are equally available to hire. The learned counsel for the petitioner also claimed seniority and lack benefits of the petitioner.

4. The learned A.A.‑G. stated that since on facts and law, the case of the petitioner is similar to the case of Muhammad Mukhtar Tikka D.S.P., so in view of the judgment of Supreme Court passed in Civil Appeal No. 223 of 1987 titled "Muhammad Mukhtar Tikka v. Government of Punjab," he is not in a position to defend the impugned order on merits. He frankly stated that despite best efforts, he does not know as to why the petitioner was held ineligible by the Punjab Government when he had fulfilled the condition imposed in Martial Law Instruction No.

21. He was, however, of the view that since the petitioner was not alert and has taken recourse to these proceedings in writ, after about 11 years and is guilty of laches, therefore, the petition must be dismissed. On this, the learned council for the petitioner replied that the petitioner had been making representations against a the impugned order before competent authorities and had been continuously pursuing his remedies.

5. Having devotedly considered the arguments of learned counsel for the parties, I feel pursuaded to agree with the learned counsel for the petitioner. I find that on merits the case of the petitioner is at par with that of Muhammad Mukhtar Tikka, his colleague D.S.P., whose services were also terminated vide impugned order The petitioner and Muhammad Mukhtar Tikka, both were directly appointed as D.S.P. on ad hoc basis on the same day vide same notification, that pursuant to Martial Law Instruction No. 21 their cases were referred to Public Service Commission and they were interviewed on 29‑9‑1977; that the Public Service Commission found them suitable for the post of D.S.P. that the Public Service Commission was the appropriate authority to make recommendations for regular appointments; that since Public Service Commission had found them to be suitable, therefore, Government of Punjab was obliged to accept the recommendations and convert them to regular basis. Instead their services were terminated on 28‑11‑1977 vide impugned order on the ground that they acre, not eligible for the post; that in petition for special leave to appeal filed by Muhammad Mukhtar Tikka which was converted to appeal, the impugned order terminating his service was set aside by the Supreme Court on 19-6‑1988: that the reasons given by the Supreme Court for setting aside order dated 28‑11-1977 of Government of Punjab i.e. order impugned in this petition, are equally, available to the petitioner inasmuch as the learned AA.‑G. has frankly stated before this Court that he does not know as to why the petitioner was held in, ineligible by the Provincial Government and that he was unable to defend the impugned order on merits; that the petitioner has qualified M.A. examination. No reason for declaring him ineligible, though he had been found suitable for the post by Public Service Commission, was given in the impugned order and that the rule of consistency and propriety demands that the petitioner should be treated at par with Muhammad Mukhtar Tikka.

6. It is true that the impugned order was passed on 28‑11‑1977 and present petition was filed on 8‑9‑1988 i.e. after about 11 years. However, under the law there is no limitation for filing writ petition and no provision for dismissal thereof, on the ground of limitation. Since the facts of different cases seldom coincide, therefore, no specific rule with regard to laches can be laid down. Each case has, to be decided on its own facts. On the facts of the present case, I find that the petitioner has been making applications/representations after; applications/representations against the impugned order before Chief Martial Law Administrator and the Governor of Punjab. His representation was finally rejected by the Governor of Punjab on 20‑8‑1986. So it cannot be said that he allowed the matter to rest or that he did not pursue his remedies diligently. In view of the peculiar circumstances that the impugned order has already been set aside in case of a colleague of the petitioner, on the grounds which are equally available to the petitioner and that the petitioner had been pursuing his remedies diligently, I feel that justice should not be declined to him on laches and he should not be deprived of the benefit of rule of consistency, propriety and of the judgment of Supreme Court passed in a similar case merely because of delay in filing the present petition. For these reasons the plea of laches raised by the learned A.A.‑G. is over‑ruled as being devoid of force and substance.

7. For what has been said above, I declare the impugned order to be unjust, illegal, arbitrary, without lawful authority and of no legal effect. As for the claim of seniority and back benefits, the petitioner may move the Provincial Government, if so advised. A.A./M‑1080/L Petition accepted.