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Civil Petition for Special Leave to Appeal No. 74‑P/73, decided on 26th April 1974.
(On appeal from the judgment and order of the Peshawar High Court, dated the 15th of May 1973, in Writ Petition No. 85 of 1973).
(a) Removal from Service (Special Provisions) Regulation [C. M. R. A's. 58 of 1969]--‑
‑‑ Constitution of Pakistan (1972), Art. 281(1) & (2)‑Order removing public servant under provisions of Regulation 58 of 1969‑Not challengeable in writ jurisdiction.
State v. Ziaur Rahman P L D 1973 S C 46; Federation of Pakistan v. Saed Ahmad Khan P L D 1974 S C 151 ref.
(b) Removal from Service (Special Provisions) Regulation [C. M. L. A's. 58 of 1969]‑-
‑‑ Constitution of Pakistan (1972), Art. 201‑Onus to prove mala fides‑Lies on person making such allegation‑Requirements of mala fide action stated.
Allegation of mala fides must not be vague, it must be pleaded with particularity and no enquiry is to be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. The onus lies entirely upon the person alleging mala fides.
Federation of Pakistan v. Saeed Ahmad Khan P L D 11974 S C 151 ref.
‑‑ Art. 201‑Lathes‑Petitioner not diligent in pursuit of his re medies‑Petition for writ filed more than a year after dismissal of his representation‑Petition, held, rightly dismissed on ground of laches.
Sh. Mohammad Shafi Senior Advocate Supreme Court (M. Sardar Khan, Advocate Supreme Court with him) instructed by Amirzada Khan, Advocate -on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 26th April 1974.
.‑The petitioner was a member of Provincial Civil Service, N.‑W. F. P., and he was confirmed with effect from the 11th of November 1952. He was later promoted to the Senior C. S. P. scale, and was posted as Director, Basic Democracies, Dera Ismail Khan Division.
On the 2nd of December, 1969, the then Chief Martial Law Adminis trator promulgated Martial Law Regulation No. 58, called Removal from Service (Special Provisions) Regulation.
On the 4th of December 1969, the petitioner was placed under suspension under the said Martial Law Regulation. On the 9th of January 1970, he was served with a charge‑sheet and asked to submit his reply within seven days of the receipt of the charge‑sheet. The petitioner submitted his reply on the 26th of January 1970. He was given a hearing by a Tribunal consisting of Army Officers on the 20th of March 1970.
Finally by a Notification dated the 6th of April 1970 issued by the Government of West Pakistan, the petitioner was dismissed from service under the orders of the President in exercise of the latter's powers conferred by Paragraph 3(1) of the said Martial Law Regulation.
The petitioner's wife first made a representation on the 22nd of October 1970 against the order of dismissal of the petitioner. This was followed by two other representations of the petitioner on the 24th of December 1971, and the 10th of April 1973. None of the representations produced any response, and the petitioner filed a Constitution Petition under the Interim Constitution in the High Court on the 14th of May 1973,
It is evident that the petitioner has not been diligent in the pursuit of his remedies. Between his second and third representation a period of 1 year and 31 months elapsed.
A Division Bench of the High Court dismissed the Constitution Petition in limine on the 15th of May 1973 on the grounds that it was incompetent under Article 281(1) of the Interim Constitution, and that the petition suffered from laches.
It may be mentioned here that the first ground should actually be referable to Article 281, clauses (1) and (2) both.
Our decisions in the cases of State v. Ziaur Rahman (PLD 1973SC46) and Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974SC151) cover the first ground and no fault, therefore, can be found with the High Court.
The contention of mala fides raised by Sh. Muhammad Shafi, learned counsel on behalf of the petitioner is also not tenable, because it does not fulfil the conditions mentioned in P L D 1974 S C 151, namely, allegation of mala fides must‑not be vague, it must be pleaded with particularity and no enquiry is to be launched merely on the basis of vague and indefinite & allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. The onus lies entirely upon the person alleging mala fides and this the petitioner has failed to discharge.
As regards the second ground, we think the High Court was well within its powers to refuse to exercise its extraordinary jurisdiction on the ground of laches for laches there were on the part of the petitioner.
The petition is accordingly dismissed.
Petition dismissed.
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