2003 SCMR 819 (PLP)

NAZIM HUSSAIN SIDDIQUI, J.-The petitioners, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, have impugned the judgment dated 6-5-1999 of a learned Division Bench, High Court of Sindh, whereby the Constitutional petition of the respondents was allowed.

2. The petitioners on 26th April, 1994 and on end June, 1994 had issued following two notifications:-- "GOVERNMENT OF SINDH" LOCAL GOVERNMENT, PUBLIC HEALTH ENGINEERING RURAL DEVELOPMENT AND KATCHI ABADIES DEPARTMENT SINDH LOCAL GOVERNMENT BOARD No. SLGH/SCUG/AO(ADMN.)/4(1239)/1994 Karachi dated the 26th April, 1994 ORDER In partial modification of this office order No. SLGH/SCUG/AO.II/4 (1076)/91 / 1718, dated 30-5-1991, the promotion of following officers of Sindh Councils Unified Grades Service (Adorn. Branch) from BS-18 to BS-19 is hereby made effect from "29-1-1989" instead of 30-5-1991:--

1. Mr. Abdul Sattar Sheikh.

2. Mr. Abdul Hakeem Sheikh

3. Mr. Habibullah Memon

4. Mr. Shah Mehmood Hussain Syed SECRETARY TO GOVERNMENT OF SINDH GOVERNMENT OF SINDH LOCAL GOVERNMENT, PUBLIC HEALTH ENGINEERING RURAL DEVELOPMENT AND KATCHI ABADIES DEPARTMENT SINDH LOCAL GOVERNMENT BOARD No. SLGB/SCUG/AO(ADMN.)/4(1239)/1994 Karachi dated the 2nd June, 1994. ORDER In partial modification of this office order No.SLGB/AO(Admn.) (1239)/1994/1924, dated 26-4-1994, regarding promotion of the following officers, from BS-18 to BS-19 of Sindh Councils Unified Grades Service (Admn. Branch) w.e.f. 29-1-1989 instead of 30-5-1991 is hereby cancelled and withdrawn with immediate effect:--

5. Mr. Abdul Sattai Sheikh

6. Mr. Abdul,Hakeem Sheikh

7. Mr. Habibullah Memon.

8. Mr. Shah Mehmood Hussain Syed Their promotion to BS-19 is allowed to stand w.e.f. 30-5-1991 i.e. the date of issue of the order. SECRETARY TO GOVERNMENT OF SINDH"

3. Before the High. Court, the pleas were raised by learned Additional A.-G. that it had no jurisdiction in view of section 2-A of the Service Tribunals Act, 1973, that the respondents having the status of civil servants were governed by -service laws and they could challenge the notification before the Service Tribunal and not before the High Court. As against above, it was submitted by the respondents that, the matter did not pertain to any term and condition of service, as such, no appeal could be preferred before the Tribunal under the service laws. The High Court held that since no appeal could be preferred against the impugned notification before the Tribunal, as such, it had jurisdiction in the matter.

4. On merits, the High Court observed that by virtue of impugned notification the promotion of the respondents was ordered to take effect after a period of more than 2 years while they had already enjoyed the facilities, emanating from the notification dated 26-4-1994 and, on the principle of locus poenitentiae, those facilities/privileges could not be A withdrawn. Also, it was observed .by the High Court that before issuance of notification dated 2-6-1994 neither any notice was given to the respondents nor an opportunity of being heard was afforded to them.

5. We have heard learned counsel for the petitioners and respondents Nos. l and 3, who appeared iii person.

6. We have drawn the attention of learned Additional Advocate General towards the notification dated 2nd June, 1994 and asked him on which ground the notification dated 26th April; 1994 was withdrawn/cancelled. He conceded that no reason has been shown in the notification dated 2nd June, 1994. He argued that the mistake was rectified when it was detected. He, however, was not able to point out said mistake. The respondents stated that issue of seniority was not at all involved in this matter nor the seniority of any employee was disturbed. This assertion of the respondents was not disputed by learned counsel fort the petitioners.

7. Under the circumstances, leave to appeal is refused and the petition is dismissed. Q.M.H./G-125/S Petition dismissed.