PLJ 2009
Present: Hafiz Tariq Nasim, J.
AOSAF ALI SST TEACHER,
versus
GOVT. OF PUNJAB through Chief Secretary Punjab,
W.P. No. 1409 of 2009, heard on 16.3.2009.
Constitution of
----Arts. 187 & 199--Fundamental Rule, 29--Constitutional petition--Question of--Whether High Court can issue writ or not--Major penalty of reduction to lower pay scale--Appeal was dismissed by service tribunal--After dismissal of appeal, the civil servant filed departmental appeal which was also declined--Challenge to--Held: For implementation of Supreme Court's judgment, High Court has jurisdiction to issue writ. [P. 614] A & B
1999 SCMR 2868, PLD 2008 Kar. 499, rel.
1996 SCMR 1188 & 2009 SCMR 1, foll.
Mr. Taki Ahmad Khan, Advocate for Petitioner.
Mr. Rizwan Mushtaq, Assistant Advocate-General for Respondents.
Date of hearing: 16.3.2009.
Judgment
The petitioner while serving in the Education Department was proceeded against and a major penalty of reduction to lower pay scale i.e. from BS-17 to BS-16 was imposed vide order dated 18.4.2005. The penalty order was challenged in service appeal before the Punjab Service Tribunal, which was dismissed vide order dated 08.05.2006. After dismissal of the appeal by the Punjab Service Tribunal the petitioner filed departmental appeal contending that he be granted the benefit of Fundamental Rule 29 but through letter dated 08.01.2009 his request was declined, hence this writ petition with different prayers. However, the learned counsel while arguing the case, submits that he shall confine to only one point i.e. judgments of the Hon'ble Supreme Court of Pakistan in respect of specifying the penalty as per provisions of F.R. 29 be implemented in the petitioner's case.
2. On the other hand, learned Assistant Advocate-General submits that the matter has already been adjudicated upon by the Punjab Service Tribunal and the petitioner's representation thereafter is also rejected by the competent appellate authority, hence writ be not issued.
3. Arguments heard. Available record perused.
4. First of all, I have to advert to the provisions of Article 189 of the Constitution of Pakistan, which is reproduced as follows:--
"189. Any decision of the Supreme Court shall, to
the extent that it decides a question of law or is based upon or enunciates a
principle of law, be binding on all other Courts in
5. So far the provisions of F.R. 29 is concerned, it shall also be advantageous to reproduce hereunder:--
"F.R.29. If a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent."
6. Now it is to be seen that whether matter is resolved by the Hon'ble Supreme Court by deciding a question of law or not and if it is found that a question of law is decided, then the provisions of Article 189 of the Constitution can be attracted.
7. I have gone through different judgments passed by the Hon'ble Supreme Court and to resolve the controversy I may refer to the case of Tanvir Ahmad vs. Chief Secretary (2004 SCMR 647), wherein it is held,
"Major penalty of reduction in pay to initial of B-17 was inflicted on the petitioner, this order was upheld by the Service Tribunal. The imposition of punishment of reduction to a lower grade without specifying the period of punishment was in violation of FR 29, therefore, it could not have been sustained. The punishment inflicted on the appellant is hereby restricted for a period of four years only".
8. In case reported as Government of Pakistan through Secretary, Establishment Division, Islamabad and others vs. Muhammad Umer Morio (2005 SCMR 436), the Hon'ble Supreme Court of Pakistan held,
"While passing an order imposing a penalty of reduction to a lower post or time scale or to a lower stage in a time scale by the authority, the requirements of FR 29 should be strictly observed".
9. In case
reported as Secretary Kashmir Affairs and Northern Areas Division,
"Proceedings carried out in the case suffered from gross legal infirmities such as violation of Rule 29 of the Fundamental Rules as period for punishment was not specified--Acceptance of appeal by the Service Tribunal in case of penalty imposed by the respondent of reduction to a lower pay scale was upheld".
10. In case reported as Member, Federal Board of Revenue, Islamabad and others vs. Muhammad Ashraf and 3 others (2008 SCMR 1165), the Hon'ble Supreme Court held,
"Penalty imposed by departmental authority upon civil servant did not specify length of time, thus, same was violative of Fundamental Rule 29--Penalty for indefinite period was not provided in law".
11. In another case reported as Muhammad Sadiq vs. Superintendent of Police and others (2008 SCMR 1296), the Hon'ble Supreme Court of Pakistan decided a number of cases holding that while passing the order imposing the penalty of reduction to a lower grade or post or a lower stage in his time scale, the requirement prescribed in FR 29 should have been strictly observed.
12. After going through these judgments of Hon'ble Supreme Court, I have to examine that whether in the circumstances of the present case, this Court can issue writ or not and for that Article 187 of the Constitution of Pakistan read with the law laid down in Hameed Akhtar Niazi vs. Secretary Establishment Division (1996 SCMR 1186) and Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others vs. Sameena Parveen and others (2009 SCMR 1) is to be followed strictly.
13. So far Article 187 of the Constitution of Pakistan is concerned, that is as follows:--
"187.(1) [Subject to clause (2) of Article 175, the] • Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document.
(2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province.
(3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final."
14. There is no cavil from the proposition that for implementation of Supreme Court's judgment High Court has the jurisdiction to issue writ and in that respect, reliance can be placed on Khushi Muhammad vs. Inspector-General of Police, Punjab, Lahore and 4 others (1999 SCMR 2868) and Saad Amanullah Khan vs. IVTH-Senior Civil Judge, (South), Karachi and 3 others (PLD 2008 Karachi 499).
15. So far the precise prayer of the petitioner is concerned, if it is to be examined putting in juxtaposition to the provisions of F.R. 29 read with series of judgments passed by the Hon'ble Supreme Court as discussed above, I am of the considered view that the penalty imposed must be restricted to some specific period, thus following the law laid down in Hameed Akhtar Niazi vs. Secretary Establishment Division (1996 SCMR 1186) and Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others vs. Sameena Parveen and others (2009 SCMR 1), the respondent-department is directed to specify the effect of penalty's period (for how many months/years the penalty should remain in the field) as per provisions of F.R.29 within a period of one month.
Writ petition is allowed in the above terms.
(R.A.) Petition allowed.