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Constitutional Petition No. D-303 of 1981, decided on 30th hay, 1985.

---Art. 9--Constitutional jurisdiction--Alternate remedy. availability of- Petitioner himself stating that ire had tiled appeal before competent authority without any avail--No order of such authority produced by

petitioner and such competent authority not impleaded as party in proceedings--Failure of petitioner to implead such competent authority, as party, held, rendered petition as incompetent, alternate remedy having been availed by petitioner.

Messrs International Body Builders v. Commissioner of Income-tax Lahore and another P L D 1971 Lah. 559; 'Muhammad Ishaq and Sons v. Additional District Judge, Karachi and another 1969 S C' M R 864 and Hasan Din Chisti v. Chief Engineer, WAPDA 1970 S C M' R 58 ref.

---Art. 9--Civil Aviation Rules, 1978, r. 307--Constitutional petition- Persons affected by adverse order to be passed in Constitutional petition not made party--Petition, held, 'was not competent--Mere 'declaration without consequential relief, could not be granted.

---Art: 9--Civil Aviation Rules, 1978, rr. 58 & 59--Validity of licence--Of many persons affected by adverse order, only' petitioner filing petition claiming relief on behalf of such affected persons not party to petition- Such persons, by not filing any petition, would imply that they were satisfied with impugned order--Petitioner, in equity, held,, was not entitled to discretionary relief in circumstances.

---Rr. 58 & 59--Date of issue of licence would be when same was prepared even if signed subsequently.

----Art. 9--Constitutional jurisdiction, invoking; of--Where there was jurisdiction to decide a matter, incorrect decision by forum held, did not render same without jurisdiction.--[Jurisdiction].

Qadir H. Sayed for Petitioner.

Liaquat Merchaot, Deputy Attorney-General for, the State

Date of hearing: 15th May, 1985.

The petitioner is employed by respondent No.2 as a pilot. The petitioner alongwith 26 others had been selected as successful cadet pilot candidates and according to the petitioner they reported for duty on completion of employment formalities on 2-5-1979. Subsequently it came to the knowledge of the petitioner that another batch of students from the respondent No. 2's Flying Academy had also joined as cadet pilots with effect from 1-5-1979. The Respondent No.2 had thereby intended to supersede them in so far as seniority in service was concerned. The position pertaining to the seniority inter se the aforesaid direct entrants such as the petitioner and the aforesaid 26 others on the .one hand and the said batch of students from the Respondent No.2's Flying Academy on the other hand was raised with the respondent No.2 and ultimately as a result of the same the position was revised and duly rectified in favour of the petitioner and others (Annexure 'C'). The petitioner is aggrieved by Annexure 'D' whereby the validity of the licence is assumed from 28-4-1979 contrary to the date on which it was signed i.e. 7-5-1979. The petitioner protested against it but with no result. It is contended that the finding of the Respondent No-1 that a document such as a Commercial Pilot's Licence becomes effective even prior to the date of signature thereon by the Competent Authority is illegal as such document has no retrospective effect. The respondent No.1 in his comments has stated that the papers of the Flying Academy Trainees for issue of C.P.Ls were received in the Department during the last week of April and were prepared on 26/28th .April and it was observed during the scrutiny that certain requirements had been left incomplete. When Chief Flying Inspector of P.I.A. Flying Academy completed the relevant documents and certified that the requirements had in fact been completed on the date of conducting the test, the validity of the licences was allowed from the dates of their preparation as indicated on validity certificate, attached to the licences although the licences were actually signed on 7-5-1979. The licences were not refused under Rule 307(i)(a) of the Civil Aviation Rules, 1978 (hereinafter referred to as the Rules).

2. A preliminary objection has been 'taken by the learned Deputy Attorney-General that the present petition is not comet-tent as the alternate remedy is available under the statute but the petitioner has not availed of the same. Under rule 384 of the Rules any person aggrieved by any order or action taken by the Director-General under these rules may appeal to the Federal Government and the Federal Government shall have the power to modify or annul the order appealed against or issue. direction to the Director-General as to the manner in which such action is to, be taken by him. The petitioner in para. 19 of his petition has stated that he had appealed to the respondent No.l and thereafter appealed to the Federal Government on 23-2-1981 in accordance with rule 384 of the Civil Aviation Rules, but to no avail. The Federal Government has not been made a party to the present petition and, therefore, we have no material before us whether such appeal was filed before the Federal Government and any order has been passed thereon. As the petitioner has himself filed the appeal before the competent forum, therefore, it was incumbent upon him to produce the same 'and in case' ho order has been passed he should have impleaded the Federal Government as a party. As this has not been done; therefore, we are constrained to hold that as the petitioner has himself approached the Federal Government by filing an appeal and thus the alternate remedy is availed of by him, the present petition is not competent on that ground.

3. Learned Deputy Attorney-General has cited the following rulings ort- the point that when an alternate remedy is available a Constitution Petition is not maintainable.

Messrs International Body Builders v. Commissioner of Income-tax. Lahore and another P L D 1971 Lah. 559; Muhammad Ishaq and Sons v: Additional District Judge, Karachi acid nnother 1969 S C M R 864 and Hasan Din Chisti v. Chief Engineer, WAPDA 1970 S C M R 58.

4. The petition is to be dismissed on another ground as the persons who are to be affected by the adverse order passed in this petition have not been made respondents. No relief' to the petitioner can be granted ex parte against those persons who are not before us and we leave no opportunity to hear them. Learned counsel for the petitioner has submitted that he does not claim any relief against these persons who are to be affected by an order of this Court and his only prayer is that the impugned Annexure 'F' dated 18-2-1981 passed by the respondent No.1 be declared as without lawful authority and in excess of jurisdiction. By this letter the respondent No.l has stated that the date of issue of a licence shall be the same is specified on the licence itself and shall not be a date prior to the date of signature on which the competent authority has finally signed the said licence after having satisfied that all the requirements have beer fulfilled. In the petition, the petitioner has specifically stated that as a consequence of the issuance of Annexure 'h'' the rights .of the petitioner and 26 other persons so far as their seniority is concerned It have been adversely affected and much to their detriment they have been illegally deprived of their seniority whereas the aforesaid pilots from the respondent No.2's Flying Academy have been allowed to supersede them. In substance the prayer of the petitioner is that by setting aside the notification dated 18-2-1981 (Annexure 'F') the petitioner be declared senior to those persons who have not been joined as a piny in the present petition. The petition has, therefore, suffered on that account A mere, declaration without consequential relief cannot be granted to the petitioner.

Another infirmity in the present case is that the other 25 persons have not filed any petition challenging the order of the respondent No.l which has been impugned in the present petition. They are also affected by the said order and the petitioner has also claimed relief on their behalf in this petition but they have riot come forward to file any petition. It means they are satisfied with the order passed by the respondent No. 1. In equity also the petitioner is not entitled to the discretionary relief.

5. Under rule 58 of the Rules a licence issued shall remain in force for such period after the date of issue as specified in the licence. It is the case of the respondent that the (late of issue is when the licence was prepared and simply because it was signed on 7-5-1979 by the Issuing Officer it does not mean that the licence was not issued on 28-4-1979. It is the consistent stand of the respondent and he has given interpretation to it which is in consonance with rule 59 of the) Rules. The learned Deputy Attorney-General has referred to P L D 1974 S C 139 wherein it has been held that where there is jurisdiction) to decide a particular matter, then there is jurisdiction to decide it rightly or wrongly anti the fact that the decision is incorrect does not render the decision without jurisdiction, but as we are disposing of the petition on technical ground, we do not renter into factual controversy.

6. For all the aforesaid reasons, we do nut see any merit in this petition. The same stands dismissed with no order as to costs.

A.A.

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