Find a Lawyer

Constitutional Petition No. D-670 of 1982 decided on 9th May, 1984.

---Art. 9--Martial Law Order [Zone C1 No. 55--Constitutional petition challenging continuance in force of Martial Law Order No.55--Contention that Martial Law Order No.55 was a temporary law which remained in force -up to a particular date--Neither notification /Martial Law Order, produced to show that such Martial Law Order was repealed or withdrawn nor Martial Law Order No. 55 itself showing that it was a temporary law or was in force up to a particular date--Petition dismissed in circumstances.

Raja Qureshi for Petitioner.

Abdul Sattar Shaikh Addl. A.-G. for Respondents.

Dates of hearing: 2nd and 8th May, 1984.

.--On 7-4-1971, the petitioner was appointed as ad hoc Civil Judge on the terms and conditions that the appointment will last till the candidate selected on regular basis by the Sind Baluchistan Public Service Commission, Hyderabad became available and that the ad hoc appointment will neither confer any right for regular appointment nor the service will count towards seniority, if subsequently selected for regular appointment. However, by Notification No.S.Genl:17-1/1973, dated 4-12-1974, the Governor of Sind was pleased to appoint the Petitioner as Civil Judge on regular basis with immediate effect.

Therefore, on promulgation of Martial Law Order 55 by the Martial Law Administrator Zone 'C' the Secretary, Public Service Commission by the letter dated 8-3-1978, required the petitioner to produce evidence to ascertain the eligibility of the petitioner before calling him for interview and as per directions of the Registrar of this Court he appeared for interview before the Public Service Commission on 23-4-1978. But before the result of the interview could be announced the petitioner and others filed a petition in this Court for quashing the proceedings initiated by the Public Service Commission for reviewing their appointment on the grounds (i) that the appointment of the' petitioners having been validly regularised under the statutory powers, they had ceased to be "ad hoc appointees" and their cases did not fall within the purview of irregular appointments and otherwise in their case it was a past and closed trans actions, (2) that M.L.O. 55 is bad law in that it was ultra vires the Martial Law Administrator, Zone-C and (3) that the Sind Public Service Commission, respondent No.2, was not properly constituted within the meaning of the Sind Public Service Commission Ordinance, 1978 and, as such, the proceedings initiated by the Commission were void and without lawful authority. None of these grounds found favour with the learned Judges of the Division Bench of this Court who heard the petition and consequently the petition was dismissed on 7-8-1979.

2. The petitioner being aggrieved by the order dated 7-8-1979, filed a petition for Special Leave to Appeal in the Supreme Court of Pakistan, which was also dismissed by the Supreme Court by the order dated 7-1-1981.

3. Thereafter, by a letter, dated 15-7-1982, received from the Registrar of this Court, the Petitioner was informed that the public Service Commission would be interviewing him on 18-7-1982. He accordingly appeared before the Commission. But again on 10-8-1982, he filed the present petition praying for directions for withdrawal or quashment of the letter dated 15-7-1982, whereby the petitioner had been directed to appear for an interview before the Public Service Commission on 18-7-1982, and for a declaration that the petitioner was a regular appointee as a Civil Judge in view of the notification mentioned hereinbefore and further praying for restraining the Public Service Commission from sending any report against the Petitioner and restraining respondent No.1 from taking any action on such report, if already sent.

3-A. The respondents have filed counter affidavit wherein they have averred that on the recommendations of the Public Service Commission to the Martial Law Administrator Zone 'C' Governor of Sind has approved the removal of the petitioner from service by accepting the recommenda tions of the Public Service Commission on 1-9-1982. We may reproduce the same in extenso.

Services and General Administration

Department.

Summary for Martial Law Administrator.

In pursuance of the Orders of M.L.A. on the Summary (Annexure 'A') the Sind Public Service Commission was requested to re-determine the suitability of the undermentioned Civil Judges for retention in service:

(1) Mr.Ahteshamuddin Kazmi.

(2) Mr.Saghir Ahmed Naqvi.

(3) Mr.Abdul Rashid Shaikh.

The Commission assisted by a Judge of the High Court after perusing their CRs. and interviewing them have found Messrs Ahteshamuddin Kazmi and Abdul Rashid Shaikh fit for continuation in their posts. However, Mr. Saghir Ahmad Naqvi has been adjudged unfit by the Commission for continuance as Civil Judge.

Recommendation of the Commission may be accepted and services of Messrs Ahteshamuddin Kazmi and Abdul Rashid Shaikh may be regularised. Since both these officers have been in continuance service of about 11 years, question of their seniority will have to be examined and if need be, separately submitted for Orders of M . L . A .

Mr.Saghir Ahmed Naqvi, will be discharged from service after necessary notice in terms of his ad hoc appointment order.

5. M.L.A. is requested to accord necessary approval.

MLA ZONE 'C'.

(M.Masud Zaman).

Chief Secretary Sind"

4. It appears that the action against the petitioner has been taken pursuant to the Martial Law Order 55 on the basis of recommendations of the Public Service Commission. But this decision has not been questioned before us by amending the petition or otherwise. Indeed the learned counsel for the petitioner frankly conceded that the order being under the Martial Law Order 55 could not be questioned before us in constitutional jurisdiction.

5. In view of the final order passed by the Martial Law Administrator Zone 'C' the prayer questioning the validity of the letter dated 15-7-1982, and the prayer for restraining respondent No.2 from sending any report against the petitioner and further restraining respondent No.1 from taking any action on or notice of such report has become infructuous and cannot be granted. We max, however, record that the only ground urged by Mr.Raja Qureshi in support of his contention was that the Martial Law Order 55 was a temporary law and the same remained in force till 30-6-1980, and thereafter ceased to exist and therefore, no action could be taken against the petitioner thereunder. But we do not find anything in the Martial Law Order 55 itself showing that it was a temporary law of that it had to remain in force up to any particular date. No Martial Law Order or Notification was produced before us or brought to our notice to show that the Martial Law Order 55 was repealed or withdrawn.

6. We, therefore, dismiss this petition.

M.I. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.