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Constitutional Petition No. 1208 of 1986, decided on 24th November, 1986.

---S. 4--Constitution of Pakistan (1973), Art. 199--Constitutional jurisdiction--Petitioner seeking writ of mandamus against respondent directing him to allow petitioner to join and perform his duty with respondent during service appeal--Service appeal of petitioner pending before Service Tribunal ,in which ad interim order was passed on his stay application to the effect that no adverse order would be passed in respect of petitioner's service conditions qua his retirement and that he would continue in service till decision of stay application--Statement of respondent's counsel that interim order was passed after petitioner was retired from service not controverted by petitioner-Interim order not saying that employee would be allowed to perform his duties- Employee would be entitled at best to the benefits of the employment but employer could not be forced to take work from petitioner-Writ of mandamus refused.

Zafar Hadi Shah for Petitioner.

S. M. Muslim Naqvi and A.A. Muhammad Ally, Addl. A.-G. for Respondent.

--Learned Additional Advocate-General states that the petitioner has filed a service appeal which is pending and in which he has obtained interim order. This statement is supported by Mr. Naqvi and this statement is not contested by the learned counsel for the petitioner. He however, states that he has filed this petition on the basis of interim order passed in that case which is not being given effect to by the respondent. The interim order passed according to the learned counsel for the petitioner is to the effect that no adverse order will be passed against the petitioner, which reads as follows:-

"Since the copies of the departmental documents filed by the appellant show that his date of appointment is 25-10-1961 which means that the appellant had not completed 25 years' service on the date of the impugned order, I grant ad interim injunction to the appellant directing the respondents not to pass any further orders in respect of the service conditions of appellant who shall continue to be in service till the decision of stay application, that is, till 4-11-1986."

The prayer in the petition reads as follows:-

"The petitioner, therefore, humbly prays that this Hon'ble Court may be pleased to issue a writ of Mandamus against the respondent directing it to allow the petitioner to joint and perform his duties during the pendency of petitioner's Appeal No. ATLC /47/86 before the Appellate Tribunal, Local Councils, Sind, Karachi, and/or may pass any other appropriate order against the respondent as deemed just and expedient under the circumstances of the case and award cost of the petition to the petitioner."

It is stated at the Bar by Mr. Muslim Naqvi that the interim order was passed after the petitioner was retired from the service. This statement is again not controverted by Mr. Zafar Hadi Shah. He however, adds that the matter is sub judice before the Tribunal. The grievance of the learned counsel for the petitioner is that in spite of interim order that the petitioner continues to be in the service, he is not allowed to perform his duties. However, we are of the opinion that the interim orders does not say that he will be allowed to perform his duties as such and if he continues to be in the service as per order he will be entitled at best to the benefits of the employment, but we cannot force the respondent to take work from him. Therefore, in view of the above we dismiss this petition in limine. We may state that the learned counsel for the petitioner has informed us that the argument of the appellant has been heard and the judgment is reserved. If the petitioner is aggrieved by the order that may be passed, he may seek his remedy according to law.

M. Y. H./S.4/Lb/S

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