IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
Present: 
Mr. Justice Ijaz Ahmed Chaudhry 
Mr. Justice Mushir Alam 
 
 
Civil Petition No. 2515 of 2015. 
(Against judgment dated 11.06.2015 of  
Federal Service Tribunal, Lahore, passed in  
Appeal No.238(L)/CS of 2013.) 
 
Senate through its Chairman  
 
 
 
…Petitioner (s) 
 
 
 
VERSUS 
 
Shahiq Ahmed Khan  
 
 
 
 
 
…Respondent(s) 
 
For the Petitioner(s)  
: 
 
Mr. Sajid Ilyas Bhatti, DAG 
 
 
 
 
 
 
Rana Mazharul Haq, Dy. Secy. 
 
For Respondent No.1 : 
 
Mr. Aftab Alam Rana, ASC. 
 
Date of Hearing 
 
: 
 
17.11.2015. 
 
 
 
 
 
 
 
 
ORDER 
 
 
 
Ijaz Ahmed Chaudhry, J-. Through this petition, the petitioner-Senate of 
Pakistan has sought leave to appeal against judgment dated 11.06.2015 whereby the 
Federal Service Tribunal, Lahore, while allowing the Appeal No.238(L)/CS of 2013, filed 
by the respondent Shahiq Ahmad Khan, set at naught the Notification and order of 
Appellate Authority dated 10.03.2011 and 26.07.2013, respectively and also directed 
the petitioner to grant pensionary benefits to the respondent, in accordance with the 
notification dated 20.10.2004. 
2. 
 
The terse details of the facts obtaining between the parties, are that the 
respondent was working as Director in National Construction Limited (Public Limited 
Company and hereinafter to be referred as NCL) under the administrative control of 
Ministry of Housing and Works, Government of Pakistan, Islamabad. His services were 
requisitioned by the petitioner for appointment, on deputation, as Director General, 
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Public Relations (BS-20) in the Senate Secretariat, Islamabad. The respondent 
accordingly joined the aforesaid position and subsequently vide notification dated 
18.10.2003, he was permanently absorbed in BS-20 in the Senate Secretariat w.e.f. 
29.09.2003. Thereafter, another notification was issued on 20.10.2004, whereby the 
competent authority directed that “services of the respondent in his parent department 
will count towards his seniority in the Senate”. On 18.11.2005, the respondent was 
appointed as Additional Secretary Senate (BS-21) and superannuated on 21.10.2010. 
3. 
 
The respondent deposited Rs.2,80,897/- on account of over payment of 
salaries to him and then he was directed to deposit Rs.3,97,814/- in the office of AGPR 
on account of G.P. Fund and Rs.4,50,555/- in the State Bank on account of pension 
contribution. The respondent filed a writ petition before Learned Islamabad High Court, 
Islamabad, which was dismissed on 25.11.2008. In order to assail the said order, the 
respondent filed CPLA No.173/2009 before this court, which was disposed of, vide order 
dated 27.10.2009, diverting the respondent to approach Federal Services Tribunal for 
remedy. The respondent filed Appeal No.13(R)CS of 2010 in Federal Service Tribunal, 
Islamabad. It was decided on 24.11.2010 and the matter was remanded to 
petitioner/Chairman Senate for deciding the status of the respondent and his claim to 
seniority in presence of the notification of 20.10.2004. The petitioner issued another 
notification dated 10.03.2011 whereby the earlier notification of 20.10.2004 was 
withdrawn. The departmental appeal, filed by the respondent, was also rejected vide 
order dated 26.10.2013. 
4. 
 
The respondent filed appeal before Federal Service Tribunal, Camp 
Office, Lahore, which was allowed vide judgment dated 11.06.2015 and the notification 
of 10.03.2011 and order of the Appellate Authority dated 26.07.2013 were set aside and 
the petitioner/Chairman Senate of Pakistan was directed to grant the pensionery 
benefits to the respondent in accordance with notification of 20.10.2004.  The 
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petitioner felt aggrieved therefrom and has brought this petition, seeking leave to 
appeal.  
5. 
 
Mr. Sajid Ilyas Bhatti, learned DAG contends that the respondent was not 
a civil servant at the time, when his services were requisitioned from NCL.  He could not 
have been inducted as such n the Senate Secretariat, Islamabad. He was not working on 
a pensionable post. After absorption, his previous service would not have been counted 
under the law and he was also not entitled to claim seniority on account of his previous 
service in NCL.  It is further submitted that the respondent was working as Acting 
Secretary in the Senate Secretariat, when he got prepared a summary for his absorption 
in the Senate Secretariat, per paras Nos.32, 33 and 65, but the then Chairman Senate 
did not approve the summary and para No.67 shows that he posted a query “why this, 
pl. discuss”. Learned DAG maintained that despite the development, the respondent 
managed to get issued direction for issuance of revised notification as per para 68 of the 
summary, without any approval of the Chairman Senate/Competent Authority.  It is 
submitted that the previous service of the appellant n NCL could not be reckoned for 
the purpose of seniority and pensionery benefits. The notification and order of the 
Appellate Authority issued on 10.03.2011 and 06.07.2013 were passed after observing 
lawful procedure. No illegality has been committed by the petitioner.  
6. 
 
The learned DAG has raised serious objections on the judgment of the 
Federal Service Tribunal, passed on 11.06.2015 and stated that the observations, 
recorded by FST that proper opportunity of hearing was not afforded to the respondent 
before issuance of the notification and order of the Appellate Authority and that such 
stance is not supported from the record, as the respondent was heard in person by the 
Acting Chairman Senate on 22.07.2013, before passing the order on 26.07.2013.  It was 
in compliance with the order dated 18.12.2012, passed by the learned Lahore High 
Court, in Writ Petition No. 31121/2012. It is submitted that Federal Services Tribunal, 
4 
 
while setting aside the order and notification mentioned above, did not take into 
consideration the facts available on the record and erroneously recorded its finding to 
blame the petitioner for not providing the opportunity of hearing to the respondent and 
that even if it is presumed that the respondent was not heard prior to the disposal of his 
departmental appeal, Federal Service Tribunal was not justified in passing an order for 
grant of pensionery benefit to the respondent and to restore the notification dated 
20.10.2014. At the worst, it could remand the matter to the petitioner for a fresh 
decision on merits.  That, Federal Service Tribunal showed colourful exercise of power. 
That the notification dated 20.10.2004 was void and had been manipulated by the 
respondent, therefore, had to be withdrawn and the judgment of the Federal Service 
Tribunal is meriting to be set aside. 
7. 
 
The learned counsel for the respondent contended that the petitioner 
has twisted the facts. In fact, no opportunity of hearing was provided to the respondent 
before passing the order dated 10.03.2011. Similarly, the notification of 20.10.2004 was 
defended, as the same had been issued to reflect the order of the Competent Authority.  
The petitioner did not initiate any measures during the past so many years and the 
respondent has been targeted in the backdrop of some personal grudges, but only after 
his superannuation.  The learned counsel added that no proceedings could have been 
initiated against the respondent, in view of the bar, contained in section 54-A of the 
Fundamental Rules. Reliance has been placed on the judgment of this Court reported as 
2000 SCMR 1864 whereby it was pronounced that the services rendered in statutory 
body can be taken into consideration for the grant of pensionery benefits.  That the 
whole proceedings, prior to the notification and order dated 10.03.2011 and 
26.07.2013, respectively had been solemnized in a lawful manner and the petitioner 
was divested of any legal justification to pass an order on 26.07.2013 for withdrawal of 
the notification dated 20.10.2004. It was prayed that the leave may not be granted as 
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the judgment of the learned Federal Service Tribunal is impregnable on any legal 
ground. 
8. 
 
We have heard the learned counsel for the parties and also had the 
opportunity of appraising the record. The respondent was inducted in the Senate 
Secretariat in BS-20, vide notification dated 18.10.2003. A few months later, a summary 
was got prepared and also put up, ordaining that “his services in his parent department 
will count towards his seniority in the Senate from the date of promotion to Director 
Grade equivalent to BS-20 of Government scales”. Needless to state that in the said 
notification of 20.10.2004, there is absolutely no mentioning of the pensionery benefits. 
The version of the petitioner is that the said notification of 20.10.2004 was without any 
lawful basis. The summary was moved to this effect, but it did not fancy the Chairman 
Senate and he had posted a query “why this, pl. discuss”, meaning thereby that the 
summary had not been approved by the Competent Authority which was none other 
than the Chairman Senate.  It is also significant that the respondent was working as 
Acting Secretary Senate, during those days and without formal approval of the Chairman 
Senate/Competent Authority, the notification for permanent absorption of the 
respondent in Senate Secretariat n BS-20 and for counting of his service in the Parent 
Department was issued. The crux of the controversy lies in the legal status of this 
notification. The cardinal question, cropping up in this case, was that whether 
notification dated 20.10.2004 had been issued lawfully. Incidentally the answer is in the 
negative. Without approval of the Competent Authority, the respondent could neither 
be permanently absorbed in Senate Secretariat nor his previous service, counted for the 
purpose of seniority. It is manifest in the circumstances that the notification dated 
20.10.2004 was void ab-initio as the same had been issued without any legal authority 
and the beneficiary was none other than the respondent who was working as Acting 
Secretary Senate during those days. 
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9. 
 
We have also noticed that the Office Memorandum was issued by the 
Finance Division, Government of Pakistan on 22.10.1985, wherein the guidelines have 
been provided to meet such eventualities, as had arisen in this case. The contents of the 
same are available in para No.1(iii) of said O.M. It is to be read in juxtaposition with 
U.O.No.F.4(1)R-2/2006-527, dated 03.11.2006, whereby it was observed that NCL is a 
company registered in the Security and Exchange Commission of Pakistan under the 
Companies Law, having its own pay scale and services rules and its employees were not 
civil servants and their pay on appointment to a civil post under the Government is not 
protectable under the prescribed policy of Government, circulated vide Finance 
Division’s O.M. dated 12.08.2002 and also that NCL is not a pensionable organization 
having Contributory Provident Fund Scheme for its retiring employees. Therefore, the 
service rendered in NCL could not be counted towards pension in terms of Article 361 of 
Civil Service Regulations (CSR) and that the respondent was of the view that he should 
not sustain a loss on account of his basic pay and in this backdrop, the Finance Division 
recommended that the respondent be compensated through grant of six advance 
increments in the light of F/R 27. The Chairman Senate approved six premature 
increments to the respondent w.e.f. 29.09.2003. The question arises that when the 
respondent had been compensated by means of six premature increments, how the 
pensionery benefits could be awarded? It is evident from the above reference that the 
advance increments were sanctioned in favour of the respondent w.e.f. 29.09.2003, 
keeping in view the facts that he was disentitled for pensionary benefits. Furthermore, 
the grant of pensionery benefits could not be envisioned from the notification of 
20.10.2004. 
10. 
 
We have perused the impugned judgment dated 11.06.2015, passed by 
Federal Service Tribunal, Lahore, carefully. In para 8, the Members of Federal Service 
Tribunal conceded that there was factual and legal controversy about the notification of 
20.10.2004. Though there is some confusion of the date apparently in the minds of the 
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members, who cited the date as 10.03.2011, whereas it was to be 20.10.2004 and 
observed that no regular inquiry had been conducted, which, in fact, was needed. The 
question falls for determination that when the very basis of the notification is in 
controversy, how the same could be sustained on legal premises. It was ineluctable 
course, in the circumstances, for the Federal Service Tribunal to precisely determine the 
sanctity of the notification of 20.10.2004 before taking pa8ns to crucify the notification 
of 10.03.2011 which was meant for the withdrawal of the notification of 20.10.2004. A 
void notification cannot be enforced. From the facts and circumstances of this case, the 
allegation of forgery is also made out, to which the petitioner did not advert, for 
unknown reasons. The respondent appears to be beneficiary of notification of 
20.10.2004 and could have been dealt with accordingly. 
11. 
 
This Court has held repeatedly that no limitation is prescribed to 
competently and successfully challenged a void order/notification. We are also 
astonished to note that the Federal Service Tribunal passed a direction to the petitioner 
to grant pensionery benefits to the respondent in accordance with the notification 
dated 20.10.2004. In fact, there was no reference of any pensionery benefits in the 
notification of 20.10.2004. Such observations by Federal Service Tribunal are perverse 
and based on misreading of the record. Wrong mentioning of the dates in paras Nos. 8 
and 11 apart, there was absolutely no justification for such decision, which was passed 
in an arbitrary and capricious manner. It demonstrates colourful exercise of power and 
is shorn of any judicial acumen. 
12. 
 
In the impugned judgment, there was import of the principle of locus 
poenitentiae to rescue the respondent. We are constrained to observe that the principle 
is meant to condone a bona-fide mistake and not to be pressed into service for reaping 
the benefit of any fraud or to camouflage the same. The members of the Federal Service 
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Tribunal were not justified in the circumstances to invoke the principle of locus 
poenitentiae, in the fact and circumstances of this case. 
13. 
 
Besides the legal status of the notification of 20.10.2004, some other 
controversies like the status of the respondent as civil servant while serving in NCL, right 
of pensionery benefits as such and the reckoning of his service in NCL for the purpose of 
seniority in the Senate Secretariat are also involved, which have not been 
comprehensively adverted to in the impugned judgment, passed by the Members of 
Federal Service Tribunal on 11.06.2015 in a perfunctory manner and their judicial 
approach is leaving much to be desired. Keeping in view the observations recorded 
hereinabove; the listed petition is converted into appeal and allowed. Consequently, the 
impugned judgment passed on 11.06.2015 by Members of Federal Service Tribunal is 
set aside. The Appeal No.238(L)/CS/2013 is remanded with the direction that the 
learned Chairman Federal Service Tribunal will entrust this Appeal to a Bench at 
Islamabad for decision within a period of three months, in accordance with law and 
keeping in view the above observations. 
14. 
 
However, it is directed that the observations made hereinabove 
regarding the conduct of the Members of the Service Tribunal, who have passed the 
impugned judgment, dated 11.06.2015, will be transmitted to the concerned quarters 
for necessary action, in accordance with law. The same will also be placed before the 
Hon’ble Chief Justice of Pakistan for perusal and necessary action. 
Judge 
Judge 
Islamabad, the 
17th of November, 2015 
ZR/* 
APPROVED FOR REPORTNG 
 
