1997 P L C (C. S.

) 965
[Lahore High Court]
Before Raja Muhammad Sabir, J
MANZOOR HUSSAIN, NAIB-TEHSILDAR and 13 others
versus
THE DEPUTY COMMISSIONER/DISTRICT COLLECTOR, LAYYAH and 3 others
Writ Petition No. 5912 of 1996, decided on 29th April, 1997.
Punjab Revenue Department (Revenue Administration and Posts) Rules, 1990- -
----Sched.---Constitution of Pakistan (1973), Art. 199Constitutional petition---Reversion of
civil servant to lower posts without notice--Validity---Violation of principles of natural
justice---Effect---One Naib-Tehsildar and some confirmed Kanugos were reverted as Patwaris
without affording them opportunity of hearing or giving show-cause notice--Reversion without
show-cause notice or opportunity of being heard was not warranted---Even ad hoc Kanugo
Girdawars were entitled to right of hearing--Impugned order demoting petitioners was violative
of the principles of natural justice 'viz. "none to be condemned unheard "---Impugned order on
such ground alone was without jurisdiction and High Court could entertain Constitutional
petition---Respondent, also had no authority to revert petitioner (Naib-Tehsildar) by two steps
from Naib-Tehsildar to Patwari, for his appointing authority was Commissioner and not
respondent---Respondent had levelled a stigma of using of political influence against petitioners
without issuing any show-cause notice or asking any explanation from them--Such order without
hearing could not be passed under law---Promotion of some of petitioners was made under old
Rules and by -applying new Rules of 1990, they had beers illegally reverted---Rights accrued to
petitioners under old Rules could not be taken away arbitrarily without affording them
opportunity of hearing--- Impugned order of reversion tested on the touchstone of principle of
natural justice was clearly without jurisdiction--Impugned order was declared to be without
lawful authority and of no legal effect.
Muhammad Aslam and others v. Government of the Punjab and others 1995 PLC (C.S.) 419; Pir
Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Malik Hayat v. Supreme
Appellate Court of Sindh-11 at Karachi and 2 others PLD 1995 SC 505; Islamic Republic of
Pakistan v. S.A. Rizvi 1992 SCMR 1309; Imam Bakhsh and 4 others v. Deputy Commissioner,
Layyah and 16 others 1992 SCMR 365 and Mrs. Anisa Rehman v. P.I.A.C. and another 1994
SCMR 2232 ref.
Sardar Muhammad Latif Khan Khosa and Sardar Riaz Karim for Petitioner.
Muhammad Younas Bhatti for Respondents Nos. 1 to 4.
Tahir Haider Wasti, A.A.-G.
Date of hearing: 21st March, 1997.
JUDGMENT
Through this Constitutional petition under Article 199 .of the Constitution of the Islamic
Republic of Pakistan, 1973 petitioners prayed for the declaration of the impugned order of the
Deputy Commissioner/District Collector, Layyah respondent No. 1 dated 4-9-1996 withdrawing
the enlistment and promotion as Naib Tehsildar and Kanungos of petitioners to be without lawful
authority and of no legal effect.
2 The facts leading to the filing of instant petition are that the petitioners after qualifying the
Patwari Course joined the Revenue Department as Patwaris. Petitioners Nos. 1 to 11 were
enlisted as Girdawar Kanungos on or before 1990. After promulgation of the Punjab Revenue
Department (Revenue Administration and Posts) Rules, 1990 petitioners Nos. 2 to 11 were
appointed as Girdawar Kanungos by the competent authority. Petitioner No. l was further
promoted as Naib-Tehsildar in the year 1993 where he was working in that capacity till the
passing of the impugned order.
3. All the petitioners are serving in District Layyah. All of a sudden vide impugned order without
any notice or affording opportunity of hearing to them they have been demoted as Patwart by the
Departmental Promotion Committee Petitioner No. 1 is demoted from the rank of Naib Tehsildar
and petitioners Nos. 2 to 14 froth Kanungos to Patwaris alongwith four others vide Annexure ' B'
tiled with this petition. On the same day, 24 Patwaris who are cited as respondents Nos, 8-to-31
in the amended petition were promoted as Kanungos.
4. In the report submitted by the Department it is admitted that petitioners Nos. 1 and 2 posted as
Kanungos on 1-7-1987 and 22-10-1990 respectively. Petitioners Nos. 3 to 11 were also enlisted
as Kanungos later on. Regarding petitioners Nos. 12 to 14 it is stated that they were promoted on
purely ad .hoc basis. It is further submitted in the report that the enlistment was against the rules
and not on merits, hence, the then Deputy Commissioner Layyah referred the matter to the Board
of Revenue for advice and further order while observing the enlistment to be against law. The
reference made to the Board of Revenue is Annexure ' A' with the comments. The said reference
was replied on 19-11-1991 vide Annexure ' B' that the Revenue Minister Punjab was pleased to
direct that Deputy Commissioner should act in' accordance with law. One Esa Khan Patwari
procured stay order from this Court so the matter could not be finalized and remained in
abeyance regarding the enlistment or approving the same by Departmental Promotion
Committee. Ultimately on 16-7-1996 the writ petition was withdrawn and the Departmental
Promotion Committee in its meeting held on 4-9-1996 while considering the cases of promotion
of the Patwaris to the posts of Kanungos on regular basis reviewed the whole situation and
keeping the principle of seniority-cum-fitness as also the letter of' the Punjab Government dated
4-8-1992 Annexure ' D' all the petitioners and four others were reverted to Patwaris including
petitioner No. I who was working as Naib Tehsildar vide Annexure 'E'. It is also stated in the
report that the petitioners were junior to respondents Nos. 8 to 31.
5. Learned counsel for the petitioners contends that the impugned order is without jurisdiction,
coram non judice and mala fide and as such is liable to be quashed under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973. He has relied on Muhammad Aslam and
others v. Government of the Punjab and others (1995 PLC (C.S.) 419), Pir Sabir Shah v.
Federation of Pakistan and others (PLD 1994 Supreme Court 738), Malik Hayat v. Supreme
Appellate Court of Sindh-II at Karachi and 2 others (PLD 1995 Supreme Court 505) and Islamic
Republic of Pakistan v. S.A. Rizvi (1992 SCMR 1309) in support of his contentions. Learned
counsel for the petitioners further submits that the Deputy Commissioner is not appointing
authority of petitioner No. 1, who is Naib-Tehsildar and the competent authority to pass any
order regarding his demotion was Commissioner. The order of the Deputy Commissioner against
petitioner No. 1 is wholly without jurisdiction and void ab initio. He also contends that against
the promotion of petitioner No. 1 appeal was dismissed by Commissioner vide order dated
16-2-1988. The said judicial order has been nullified by respondent No. 1 in haste although he
has no jurisdiction to pass any order regarding his demotion at all. He also adds that the
petitioners are borne on the list of Girdawar Kanungos Layyah in the District and were entitled
for appointment on regular basis in terms of their seniority inter se and respondents Nos.8 to 31
being on, the list of Patwaris could not be considered for appointment against the post of
Girdawar Kanungos under the directive of the Board of Revenue.
6. Learned counsel for the respondents Nos. 8 to 31 conversely submits that this Court has no
jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to
examine the validity of impugned order, in view of bar provided under Article 212 of the
Constitution and has among others mainly relied upon Imam Bakhsh and 4 others v. Deputy
Commissioner, Layyah and 16 others (1992 SCMR 365). He further submits that the petitioners
are junior to respondents Nos. 8 to 31 and their enlistment as Girdawar Kanungos was procured
through political manoeuvering and were not entitled to promotion in the year 1987 and 1990.
According to him their promotion was void ab initio and has been rightly struck down through
impugned order.
7. Learned Assistant Advocate-General has also adopted the argument of Mr. Muhammad
Younus Bhatti, Advocate for respondents Nos. 8 to 31.
8. In Imam Bakhsh's case referred above Supreme Court laid down as under:
"The facts pleaded before the High Court and the decision given do not relate either to
fitness or suitability of the writ petitioners. The question directly in issue was the specific
rule making them eligible/ineligible for being considered for promotion or for excluding
them from consideration for promotion. This question squarely falls within the exclusive
jurisdiction of the Service Tribunal. "
9. The above said judgment is not directly applicable to the facts of the present case. Petitioners
Nos. 2 to 11 had already been promoted under old rules of 1954 and their names existed on the
confirmed Girdawar Kanungos list. Petitioner No. 1, who is F.Sc. has further been promoted to
the regular post of the Naib-Tehsildar. Appeal against his promotion was dismissed by
Commissioner on 16-2-1988. Petitioners Nos. 12, 13 and 14 were promoted as ad hoc Girdawar
Kanungos. The instant case does not relate to the consideration of eligibility/ineligibility for
promotion. It is in fact a case of reversion of petitioner promoted under old rules of 1954 by
applying the fresh rules of 1990. Whether same could be done or not is another question not
under adjudication for the time being. The case of Imam Bakhsh related to the consideration of
eligibility/ineligibility of the candidates under old rules of 1954 and not under new rules of 1990
and the appellants before the Supreme Court: were affected under the order of the High Court
who were neither party before the High Court nor before the Commissioner, whose order was set
aside by the High Court in exercise of Constitutional jurisdiction whereas in the present case the
petitioners have been reverted to the post of Patwaris after a long time under new rules of 1990.
Admittedly petitioner No. 1 was Naib-Tehsildar, who could not be reverted to the post of Patwari
by respondent No. l Commissioner being the competent authority and the remaining petitioners
Nos. 2 to 11 being confirmed Kanungos without affording opportunity of hearing or giving
show-cause notice could not be demoted. Similarly, petitioners Nos. 12, 13 and 14 though ad-hoc
Kanungo Girdawars were still entitled to the right of hearing. The impugned order demoting the
petitioners is violative of the principle of natural justice "none to be condemned unheard". On
this ground alone the impugned order is without jurisdiction and this Court can entertain the
instant petition.
10. The bar of jurisdiction of superior Courts was examined by the Supreme Court in Pir Sabir
Shah's case referred above:-
"Even if the impugned act or action has been protected by Constitutional provision by
ouster clause, the superior Courts still have the jurisdiction to interfere within the three
categories of cases, namely, without jurisdiction, coram non judice and mala fides."
11. Similarly, the Hon'ble Supreme court in the case of Malik Hayat while dealing with the
provision of Article 212-B (Special Courts for Speedy Trials Act (IX of 1992) observed:-
"-----As a rule, no interference is to be' made with judgment and proceedings of the Supreme
Appellate Court but as an exception to the rule interference can be made only in extraordinary
cases involving question of jurisdictional defect when proceedings in that forum become coram
non judice."
Yet in another case of Islamic Republic of Pakistan (1992 SCMR 1309) while dismissing the
petition against the order of the High Court it was observed:
"... order of respondent's dismissal from service was mala fide, coram non judice and without
jurisdiction being correct on basis of record, leave to appeal was refused. "
12. High Court has also held in the case of Muhammad Aslam and others referred above:
"Services of civil servant were terminated forthwith without issuing them any show-cause
notice, despite it was admitted on part of Department that they were doing their duties to
the entire satisfaction of Authorities concerned--Civil servants having been condemned
unheard, order of termination of their services could not sustain in view of the fact that no
adverse order could be passed against a person unless he was heard by Competent
Authority."
The order of termination being violative of principle of natural justice was declared void.
13. Admittedly, petitioners were neither heard nor any notices were issued to them prior to the
passing, of impugned order. The above judgments relied upon by the learned counsel for the
petitioners sufficiently show that under Article 199 of the Constitution this Court is competent to
quash the orders which are without jurisdiction, coram jun judice and mala fide. Respondent No.
1 has no authority to revert petitioner No. l by two steps from Naib-Tehsildar to Patwari as his
appointing authority is Commissioner and not respondent No. 1. Respondent No. 1, levelled a
stigma of use of political influence against petitioners without issuing any show cause notice or
asking any explanation from them. Such an order without hearing could not be passed under the
law.
14. Yet another reversion matter of P.I.A. Employee reported in-Mrs. Anisa Rehman v. P.I.A.C.
and another 1994 SCMR 2232 went to the Supreme Court and their Lordship alter discussing all
relevant law remanded the case to the authority for affording of opportunity of hearing to the
appellant therein. The relevant-observation of the Supreme Court is as under:-
---there is judicial consensus that the Maxim audi alteram partem is applicable to
judicial as well as to non ,judicial proceedings. The above Maxim will be read into as a
part of every, statute if the right of hearing has not been expressly provided therein. In the
present case respondent No. 1 in its comments to the writ petition (at page 41 of the paper
book) admitted the fact that no show-cause notice was issued to the appellant nor she was
heard before the impugned order, dated 6th August. 1991 reverting her to Grade-VI from
Grade-VII was passed. In this view of the matter there has been violation of the principles
of natural justice. The above violation can be equated with the violation of a provision of
law warranting pressing into service Constitutional jurisdiction under Article 199 of the
Constitution, which the High Court failed to exercise. The fact that there are no statutory
service rules in respondent No.l Corporation and its relationship with its employees is of
that Master and Servant will not negate the application of the above Maxim audi alteram
partem. The above view, which we are inclined to take is in consonance with the Islamic
Injunctions as highlighted in the case of Pakistan and others v. Public at Large (PLD
1987 SC 304), wherein, it has been held that before an order of retirement in respect of a
civil servant or an employee of a statutory Corporation can be passed, he is entitled to be
heard."
15. In view of the facts that the petitioners were not afforded any opportunity of hearing at the
time of passing of impugned order adversely affecting them the said order is clearly in violation
of principle of natural justice. The promotion of some of the petitioners was made under old
Rules of 1954 and now by applying new Rules of 1990 they have been illegally reverted. Rights
accrued to them under old rules could not be taken away arbitrarily without affording them
opportunity of hearing. The law laid down by the Supreme Court and the High Court in the
judgments referred above entitle the petitioners to show-cause notice against impugned order.
The impugned order tested on the touch stone of principle of natural justice is clearly without
jurisdiction. The petition is accordingly allowed. The impugned order is declared wholly without
jurisdiction and consequently of no legal effect. There shall be no order as to costs.
A.A./M-321/L Petition accepted.