2005 PLP (C (PLC(CS))

The petitioner who was employed as Supervisor in BS-11 on ad-hoc basis in the Directorate of Water Management Agriculture Department Government of Punjab was relieved from duties being surplus like many others in the same Department. Due to agitation, unrest and hue and cry of such large number of employees, the matter received attention of the Chief Minister of the Punjab who approved reinstatement of 831 employees including the petitioner. It was a general order passed on a summary initiated by the Department, which was sanctioned by the Chief Minister of the Province on 5-5-2003. Though the order of the Chief Minister was implemented qua others, yet the petitioner despite his representation was not reinstated. He has thus approached this Court through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for a direction to that effect and to be reinstated.

2. The learned counsel contends that the petitioner was similarly situated like others in particular Ijaz Ahmed who succeeded in his petition before this Court and has been reinstated by the Department. It is contended that the petitioner is being treated differently without any justification, in derogation of provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

3. In the comments filed by the Government of Punjab, Secretary Agriculture Department (respondent No.1), the position taken is that the name of the petitioner was erroneously included in the list of regular employees to be reinstated but his name was later on deleted from the said list by the permission of the competent authority being an ad-hoc employee . In view of such position of the Department, the learned Additional Advocate General Punjab contends that the initial order passed by the Chief Minister of Province having been reviewed later on 28-6-2004, the petitioner is not entitled to get benefit of earlier order which cannot be implemented and that the petition is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

4. The undisputed position is that services of 831 employees of different categories had been terminated on completion of projects. On agitations of the matter, the termination orders of number of employees were set aside by the Punjab Service Tribunal which orders of the Tribunal were maintained by the Hon ble Supreme Court of Pakistan. It was then proposed through a summary that all the 831 employees of projects whose services were terminated earlier may be reinstated. Such proposal was contained in paragraphs 6,7 and 14 of the Summary, which was approved by the Chief Minister Punjab on 5-5-2003. A list of such employees was prepared and appended who were ordered to be reinstated. In that list the name of the petitioner figured at serial No.265 immediately after the name of Ijaz Ahmad. In the final list, however, the name of the petitioner and Ijaz Ahmad were not included nor they were issued letters of re-instatement. It is thus that the said Ijaz Ahmad filed petition before this Court (W.P. No.14929 of 2003) which was accepted on 12-11-2003 with the direction to reinstate him as ordered by the Chief Minister of the Province. The said judgment was assailed by the Department before the Supreme Court of Pakistan but the petition C.P. No.43-L of 2004 was dismissed by their Lordships on 23-6-2004. Now the petitioner makes a similar grievance that he is being discriminated in the matter who is entitled to similar treatment as others in particular like Ijaz Ahmad. It is to be seen in this context whether the Department can bank upon the later proposal approved by the Chief Minister on 28-6-2004; and to what extent the petitioner is justified in making a grievance of discriminatory treatment to him. It may be mentioned here that while deciding case of Ejaz Ahmed (W.P. No. 14929 of 2003), it was observed by this Court in paragraph-3 thereof as under:--

3. The initiation of summary for reinstatement of 831 employees of the Department at the initiative of the Chief Executive of the Province is not disputed. In the said list the name of the petitioner appears at serial No.264. The consequential order however issued on 24-5-2003 though relate to 831 employees yet his name was excluded therefrom. No plausible and convincing explanation has been brought forth as to how his name was dropped and the name of someone else was included. Needless to emphasis that what had been approved and ordered by the Chief Minister of the Province, could not be nullified or altered by the Department. A strange explanation is being advanced that the name of the petitioner was mentioned in the list which was approved by the competent authority or the Chief Minister erroneously due to clerical mistake . It may be mentioned that no such change was ordered by the Chief Minister. The Department could not of its own act to the prejudice of the petitioners and delete his name from the list of reinstated employees. Reference in this context may be made to Raja Muhammad Nawaz v. Government of the Punjab (1981 SCMR 523). The petitioner was thus entitled to seek implementation of his reinstatement ordered by the Chief Minister of the Province and the respondent/department had no lawful authority to deprive the petitioner therefrom on such a flimsy ground and hollow ruse. Ijaz Ahmad Chaudhry v. Secretary Agriculture Government of the Punjab, Agriculture Department, Civil Secretariat, Lahore and 3 others (2004 PLC (C.S.) 317). The judgment as mentioned above, was upheld by the Hon ble Supreme Court of Pakistan on 23-6-2004. In paragraph-3 of the said judgment the case pleaded on behalf of the Department was noted by their Lordships and was dealt with in paragraph-4.

4. We have heard the learned counsel for the petitioners at length. We find that the name of the respondent was included in the list of employees who had been directed by the Chief Minister, Punjab to be reinstated in service. Thereafter, it was not open to the petitioners to take a somersault to make invidious distinction and to treat the respondent in a discriminatory manner in the presence of the order of the Chief Minister, Punjab. It is thus evident that not only interference with the judgment of this Court was declined, it was added also that the Department could not take a somersault to make invidious distinction to treat the respondent (therein) in a discriminatory manner. The judgment of this Court indeed merged into that of the Hon ble Supreme Court, to which sanctity as envisaged by Article 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 is attached. The Department is bound by the same, and obliged to faithfully act accordingly. It cannot deviate therefore nor demean the same.

5. It needs nor reiteration, as the legal position is free of any obscurity, that effect of the judgment of Supreme Court cannot be eroded or nullified through any executive or administrative instrumentality. In Works Co-operative Housing Society and another v. The Karachi Development Authority (PLD 1969 SC 430), after the judgment of the Supreme Court of Pakistan, the notification subject-matter of controversy was amended by the Government which had the effect of bypassing and impairing the legal efficacy of the judgment. It was held that it is now well-settled that a Notification cannot be made to operate retrospectively and I think that there can be no manner of doubt that a judgment of a Court declaring a right cannot be nullified by executive action. In that case in the earlier judgment there was an observation about notification dated 9th of June 1964 that the Karachi Development Authority could not depart from the commitment contained in the notification so long as it stands intact . Notwithstanding the said observation it was held that In my view the words so long as it stands occurring in the last paragraph of the judgment in the appeal mean no more than this that since relevant provisions of the notification dated 9-6-1964 had not been altered till then the commitment subsisted and the appellant-Society was entitled to the allotment. It could never have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify its own judgment. Similar was the view taken in Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180) that a notification by the Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed. The same principle was reiterated in Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others (PLD 1992 SC 184) observing that a judgment of the Supreme Court, a right declared thereunder, cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will. . It may be observed that in the present case the amendment made in the earlier order of the Chief Minister/Government through a later summary cannot stand on a higher pedestal than a duly issued notification which was subject-matter of adjudication in Works Cooperative Housing Society and another v. The Karachi Development Authority (PLD 1969 SC 430).

6. Another aspect that has engaged my attention and needs to be kept in view is that the petitioner has alleged discriminatory treatment in the matter of implementation of the original order of the Government declining his reinstatement. The order of Chief Minister dated 5-5-2003 whereby 831 employees were to be reinstated inclusive of the present petitioner, was approved and upheld by the Hon ble Supreme Court, he cannot be denied the right to be reinstated which had accrued to him like others. Though he was not party with Ejaz Ahmed, yet he was entitled to be treated alike in view of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) wherein it was observed that We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum. The petitioner was entitled to be extended the benefit of judgment in the case of Ejaz Ahmed.

7. While dealing with the case of this type where the petitioner alleges discrimination, the Court cannot overlook the implications thereof. Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If evenhanded justice is not administered it can have many adverse and negative effect on the society. It can cause discontentment and frustration in the social setup. There can be no denial that social justice in an objective, embodied and enshrined in our Constitution. The preamble and Article 2-A i.e. the Objectives Resolution, ordain that principles of equality and social justice as enunciated by Islam shall be fully observed. Article 4 (to be dealt with the accordance with law), Article 25 (Equality before law and equal protection of law), Article 26 (No discrimination in respect of access of to public places), Article 27 (Safeguards against discrimination in service) read with Principles of policy i.e. Article 37 (Principle of social justice and eradication of social evils) all go to show, the great stress laid and envisaged by the Constitution makers. Non-observance of such provisions and principles may amount to negation of constitutional mandates, dictates of justice and rule of good governance, which should be avoided as far as possible.

8. The petitioner thus is justified to ask for similar treatment of Ijaz Ahmad. His case cannot be dealt with differently inasmuch as in the list of 831 employees, which was approved by the Chief Minister of the Province, the name of Ijaz Ahmad figured at serial No.264, whereas that of the petitioner was at serial No.265. No real and material distinction can, therefore, be made in the case of the petitioner who is identically placed. The plea of the respondents that the name of the petitioner and Ijaz Ahmad was mentioned in the list of 831 employees erroneously has already been repelled while deciding case of Ijaz Ahmad. Since Ijaz Ahmad has been reinstated into service, no justifiable basis can be made to deny the petitioner a similar treatment. The reliance of the respondents upon the revised order of the Chief Minister dated 28-6-2004 is also inapt, being nugatory to the judgment of this Court and of Hon ble Supreme Court. Such a plea, therefore, cannot be countenanced.

9. In so far as the objection as to the jurisdiction of this Court due to the implications of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, since the matter pertain to merely the implementation of an order of the Government having been merged into judicial determination and pronouncement, the objection cannot be upheld or sustained. In view of the above, accepting the petition, it is directed that the petitioner will be reinstated into service. The petition is accepted accordingly with no orders as to costs. M.B.A./M-929/L Petition accepted.