2007 C L C 184

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

DEPUTY ACCOUNTANT-GENERAL OF PAKISTAN REVENUES NORTHERN

Versus

Dr. SHAHBUDDIN, RADIOLOGIST, D.H.Q. HOSPITAL GILGIT----Respondent

C.A. No.7 of 2006, decided on 5th September, 2006.

Civil Procedure Code (V of 1908)---

----O. XXVII, R. 8(2), O.I, R.3 read with S.79---Constitution of Pakistan (1973), Art.199---
Constitutional petition---Suit against public officer---Joining of party---Employee of Health
Department---Sanction of four advance increments by competent Authority---Department
refused to include increments in pay slip of petitioner---Constitutional petition against
department, without impleading Government as party, was granted---Validity---Undisputedly
the department was a functionary to the Federal Government and refusal on the part of
department to include four advance increments in pay slip of petitioner was an action done in. its
official capacity---Petition was filed against Deputy Accountant General Pakistan Revenue, no
application was made by Government pleader vide O.XXVII, R.8(2), C.P.C. it was therefore
seemingly clear that petition proceeded as if it was a petition between private parties---Federal
Government was a necessary party in circumstances but it was condemned unheard---While
taking an action against Federal Government or Provincial Government due regard was to be
given to provisions of section 79, C.P.C. but this was not done---Court below exercised
jurisdiction illegally in granting constitutional petition against department in its official capacity
and wherein Pakistan was not impleaded as party---Court always enjoyed vast power to add or
strike a party at any stage of proceedings on application by a party or otherwise---Case therefore
was remanded for decision afresh after impleading necessary parties under law.

Ehsan Ali for Petitioner.

Malik Shafqat Wali for Respondent.

JUDGMENT

SYED TAHIR ALI SHAH, J.--- Through this petition the orders passed by the Chief Court in
Writ Petition No.79 of 2004, decided on 5-8-2005 has been called into question.

2. Dr. Shahabuddin, a Medical Officer of the Northern Areas Health Department filed a writ
petition in the Chief Court against Deputy Accountant General, Pakistan Revenue, Gilgit
(hereinafter called the department) challenging the action for non-inclusion of four increments in
his pay slip by the department, which according to the petitioner was sanctioned in his favour by
the competent authority vide his two different letters No.Sec.-H-5(83)/2000, dated 11
September, 2000 and Sec-H-5(83)/2000 dated 1 June, 2004, respectively, on the strength of
O.M. No.1/7/IMP.11/1987 and O.M. No.F-1(12)IMP.11/91. The petitioner has further
complained that instead the inclusion of four increments in his pay slip the department made
certain recoveries from his pay. As relief, he prayed to issue direction to department to include
four advance increments in his pay slip.

3. Controverting the pleas taken the department contended that department is obliged to honour
and act as per directives/O.Ms. issued by the superior department's i.e. the Finance Division and
the Accountant-General Pakistan Revenue Islamabad. The petitioner further contended that
O.M. issued by the Finance Division referred above for sanction to advance increments has been
discontinued vide letter No.1/54/IMP/95, dated 27-7-2002, hence the department is bound to
give due respect to the order/O.Ms.

4. The learned Chief Court after hearing the parties as before it, granted the writ petition and
directed the department to honour the sanction of competent authority (Chief Secretary Northern
Areas).

5. Aggrieved with the findings so returned the department filed a review petition, which as per
record met the fate of dismissal hence this petition.

6. We have exhaustively heard the learned counsel for the parties on 5-7-2006, 16-8-2006 and 5-
9-2006. Learned counsel appearing for the department, at the very outset agitated the point that
the department being an subordinate Government Department under the direct control of Federal
Government cannot be sued in an official capacity without impleading the Government as party
to the writ petition. He further contended that the learned Chief Court did not attend to these
points and granted the writ petition in the present form which is unwarranted and against all the
norms of justice and law. According to him the writ petition was granted without hearing the
necessary party.

7. On the other hand controverting the points raised by the learned counsel for the department
counsel for petitioner contends that in the matter in hand the Government is neither a necessary
nor a proper party. According to him the parties before the Court meet the procedure to grant the
relief sought. He supports the findings returned by the Chief Court.

8. Since a vital point, going into the root of the case has been agitated we, without touching the
merit of the case deem it proper to resolve the same. It is not and should not be a dispute that the
department is a functionary to the Federal Government and the refusal on the part of department
to include four advance increments in the pay slip of the respondent is not an independent act of
the department. Whatever he did, is on the basis of the instructions/Directives of the Finances
Division or the Accountant-General Pakistan Revenue, Islamabad. The act of department
whether is legal or otherwise will be determined later on. It being settled that action taken by the
department was in its official capacity the question then arises whether the department can be
prosecuted for an act done in his official capacity without impleading the Government as a
party? We shall try to find the answer of the question in the framework of law and procedure
related thereby. The reproduction of the following provision of C.P.C. will be helpful to
understand the point:

"section 79. of C.P.C. Suits by or against the Government.--- In a suit by or against the
[Government] the authority to be named as plaintiff or defendant, as the case may be, shall be---

(a) in the case of a suit by or against the Central Government, Pakistan;

(b) in the case of a suit by or against a Provincial Government, the Province; and
Order I, Rule, 3, C.P.C. "Who may be joined as defendants.--- All persons may be joined as
defendants against whom any right to relief in respect of or arising out of the same act or
transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the
alternative, where, if separate suits were brought against such persons any common question of
law or fact would arise."

Order XXVII, Rule 8, C.P.C. Procedure in suits against Public Officer.--- When the Government
undertakes the defence of a suit against a Public Officer the Government pleader, upon being
furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such
application the Court shall cause a note of his authority to be entered in the register of civil suits.

(2) When no application under sub-rule (1) is made by the Government pleader on or before the
day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit
between private parties.

9. It is evident from the title of the writ petition that the same was filed against the Deputy
Accountant-General Pakistan Revenue, Gilgit. It will further be seen that no application is made
by the Government pleader vide sub-rule (2) of Order XXVII, rule 8, C.P.C. It is, therefore,
seemingly clear that the writ petition proceeds as if it was a petition between private parties. In
the circumstances of the case it A cannot be denied that the Federal Government was a necessary
party to the writ petition but was not made to it. Needless to say that when action is sought
against Federal Government or Provincial Government due regard is to be paid to the provisions
of section 79, C.P..C. which in the instant case has not been adhered to. Besides, the Court at any
stage of the proceedings on the application by a party or otherwise always enjoys vast power to
add or strike a party to settle matter effectually and finally. Decrees granted and orders made in
the absence of a necessary party become, a question mark later on, to maintain the mandate of
the Court. In the case in hand Federal Government being necessary party has been condemned
unheard. The Court below has not, taken pain to go through the relevant provisions of law before
granting the writ petition.

10. In the light of observation made above we are constrained to hold that the Court below was
not justified to grant the writ petition without impleading the necessary party as respondent. The
learned Court below exercised the jurisdiction illegally in granting writ petition against the
department in its official capacity which could not be done without impleading Pakistan as party
to the writ.

11. In the result, the petition for leave to appeal is converted into
appeal and the same is allowed. However, in the interest of justice and peculiar circumstances of
the area the case is remanded to the Chief Court with the direction to receive amended writ
petition from the c respondent and to proceed afresh after impleading the necessary parties under
law. Since we have decided the matter on the point of law, therefore, it will not effect on the
decision to be given by the Chief Court after hearing the necessary parties before it. No order as
to costs.

F.B./5/Glt.???????????????????????????????????????????????????????????????????????????????
??????????? Case remanded.
;