1989 PLP (C (PLC(CS))

AJMAL MIAN, J.--This petition is directed against the orders dated 18-8-1976 and 19-7-1978 passed by respondents Nos. 3 and 2 respectively.

2. The brief facts leading to the filing of the above petition are that .the petitioner at the relevant time was acting as A.S.I. posted at New Karachi Police Station. It seems that he was charged with certain misconduct. An inquiry was held and thereafter, on the basis of the finding of the Inquiry Officer, he was compulsorily retired with immediate effect as per rule 4(b)(ii) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 by the aforesaid impugned order dated 18-8-1976 by respondent No.

3. The petitioner being aggrieved by the above order filed an appeal before the Service Tribunal. However, the above appeal was withdrawn by the petitioner upon the issuance of M.L.O. 23 (hereinafter referred to as the M.L.O.) by the Chief Martial Law. Administrator providing review petition. After the withdrawal of the above appeal, the petitioner filed a review petition, which was declined by an order dated 19-7-1978. The petitioner being aggrieved by the above two orders, has filed the present petition.

3. We have pointed out to Mr. Usman Ghani Rashid, learned counsel for the petitioner that the above petition is not competent, in view of Article 212 of the Constitution. However, his submission was that the above petition is competent for the following reasons:- (i) That the original order dated 18-8-1976 was without jurisdiction and, therefore, this Court has jurisdiction. (ii) That in any case after the issuance of M.L.O. 23 the remedy of appeal was not available to the petitioner. (iii) That since this petition was admitted for regular hearing by a Division Bench of this Court in 1980 and as no counter-affidavit has been filed by the respondent, this Court has jurisdiction in the matter and will not dismiss the petition on the above ground.

4. Adverting to the above submissions of Mr. Usman Ghani Rashid, it may be pertinent to point out that the grievance of the petitioner was that the impugned order dated 18-8-1976 ordering compulsorily retirement of the petitioner was in breach of the terms of service and, therefore, admittedly the matter was amenable to the Service Tribunal. It is obvious that the petitioner had availed of the remedy by way of appeal before the Service Tribunal as he was aware of the above legal position. The only question for consideration before us is as to whether the factum that the M.L.O. 23 providing review petition would make any difference as to the above legal position obtaining at the time of the passing of the impugned order. In this regard Mr. Usman Ghani Rashid has referred to para. 3 of the M.L.O., which reads as follows:- 3.(1) Any person who was in Government service or in Corporation service and was compulsorily removed from such service between the first day of January, 1972 and the fifth day of July, 1977, may submit a review petition to the competent authority. (2) A person referred to in sub-paragraph (1) whose appeal or petition against compulsory removal from service is, on the date of coming into force of this Martial Law Order, pending in a Court or with a Service Tribunal, may submit a review petition under that sub-paragraph only after he has withdrawn his appeal or petition from the Court or Service Tribunal, as the case may be. (3) A petition under sub-paragraph (1) shall, be accompanied by a copy of the order of compulsory removal from service passed against the petitioner and the grounds on which he seeks review of that order. (4) All petitions under this Order shall reach the Secretary Establishment Division Pakistan Secretariat No. 1, Rawalpindi, or the Chief Secretary of a Province in case the Martial Law Administrator in that Province has been authorised by the Chief Martial Law Administrator to exercise the powers of competent authority, on or before the date to be notified in this behalf. (5) A petition submitted by any person referred to in sub-paragraph (1) at any time after the fourteenth day of August, 1977, but before the commencement of this Order shall be deemed to be a review petition submitted under this Order."

5. It may be noticed that sub-para. 1) of the above-quoted para. 3 provides that any person who was in Government service or in Corporation service and was compulsorily removed from such service between the first day of January, 1972 and the fifth day of July, 1977, may submit a review petition to the competent authority, which was defined in clause (a) of para. 2 as means the Chief Martial Law Administrator and where, in relation to any person or class of persons the Chief Martial Law Administrator authorises a Martial Law Administrator of a Zone to exercise the powers of competent authority under the M.L.O., it will include such Martial Law Administrator. 1t may further be noticed that under sub-para. (2) of para. 3, it was provided that a person which was covered by sub-para. (1) of para. 3 and whose appeal or petition was pending before the Service Tribunal, upon withdrawal of such an appeal, could file a review petition. We may point out here that the option was given to the person covered by the above sub-para. (1) of para. 3 of the M.L.O. to withdraw the appeal and to file a review petition but there was no provision in the M.L.O. obliging the person concerned to withdraw the appeal, which was competently I filed and to file review petition in place of such an appeal.

6. However, it was contended by Mr. Usman Ghani Rashid that factually the M.L.O. substituted the remedy of an appeal provided under the Service Tribunal. We are unable to agree with the above submission. No such inference can be drawn from the language used in the M.L.O. This lead us to the second question, namely, if a writ petition was not competent originally against the original impugned order, whether it would become competent merely because of the fact that the petitioner had withdrawn his appeal which was provided under the appropriate law and filed a review petition under the M.L.O. unsuccessfully. We are inclined to hold that if this Court had no jurisdiction originally in view of Article 212 of the Constitution against the service matters, which was covered by the Service Tribunal Act, it would not acquire jurisdiction merely because of the fact that the petitioner had the option either to withdraw the appeal and to file a review petition or to prosecute his appeal before the Service Tribunal; acid that he opted for the former unsuccessfully. Nor the fact that this petition was admitted in 1980 for regular hearing and the respondent had not filed any counter-affidavit would confer jurisdiction on this Court which does not exist. The question of jurisdiction is to be decided by the Court itself even if no such plea is raised by any party.

7. The petition has no merits and it is dismissed accordingly but there will be no order as to costs. A.A./B-100/K Petition dismissed